Scorpions

Strengthening the fight against crime

The resolution of the ANC 52nd National Conference in Polokwane last month that the members of the Directorate of Special Operations (DSO) performing policing functions be incorporated into the South African Police Service (SAPS) has generated much debate.

Such debate is welcome, particularly if it focuses attention on the critical challenge of improving the crime-fighting capacity of state institutions. Unfortunately, there are many within the country - commentators and opposition parties in particular - who have sought to politicise this issue. They have claimed, incorrectly, that this resolution is designed to protect ANC leaders from prosecution or is a response to the charges brought against the ANC President by the National Prosecuting Authority (NPA). They accuse the ANC of acting hastily and, in the case of one opposition leader, unconstitutionally.

Their claims are wrong. The incorporation of the Scorpions investigative unit into the SA Police Service (SAPS) will in fact strengthen the fight against crime by ensuring the integration of all policing functions under a single command structure.

This is the basis for the resolution by the ANC's 52nd National Conference in Polokwane in December that Conference similarly resolved that all municipal, metro and traffic police be placed under the command and control of the National Police Commissioner.

This is consistent with Chapter 11 of the constitution, which says: "The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the constitution."

The Polokwane resolution aims not only to respond to that constitutional directive, but to improve coordination and effectiveness in the investigation of crime.

The Directorate of Special Operations is a unit within the NPA, which was established in 1999 to investigate and prosecute priority crimes.

There has been a debate for some time about the appropriateness of locating an investigative function, which is a police responsibility, within the national prosecuting authority. Some argued that locating investigators and prosecutors in the same organisation would contribute to a higher chance of conviction. Others maintained that having an investigative unit outside of the police service would undermine effective coordination and may even result in competing mandates.

This was among the issues considered by the Khampepe Commission, established by President Thabo Mbeki in 2005 to investigate and make recommendations on the mandate, functioning and location of the DSO.

The commission found that there was a legal basis for the location of the DSO within the NPA, and that this did not conflict with the constitution. However, the commission identified the weakness of coordinating systems between the relevant institutions as a major challenge. This situation, the commission said, undermined the optimal functioning of the DSO.

According to a statement issued by government in June 2006 after the commission report had been discussed by cabinet: "The commission found that the Minister of Justice and Constitutional Development did not have practical and effective oversight responsibility in respect of the law enforcement functions of the DSO."

The commission expressed concern about the way the DSO publicised the subject matter of some of its investigations. According to the commission, it said, conduct of this nature could result in the violation of the rights and freedoms protected under the bill of rights.

The Khampepe Commission recommended that the DSO be retained within the NPA, but the political oversight and responsibility for the law enforcement component of the DSO be transferred to the Minister of Safety and Security. It further recommended that the capacity of the relevant entities within SAPS should be enhanced, for example, by investing them with the same legal powers of the DSO and co-locating prosecutors with its investigators and analysts.

The commission also recommended that the DSO should desist from making public announcements on the subject matter of its investigations, "where such communication could undermine the fundamental rights of affected entities and individuals".

Cabinet accepted in principle these and other recommendations of the commission, and tasked the relevant Directors-General to develop proposals to enable the implementation of these recommendations.

While recommending the DSO remain in the NPA, the Khampepe Commission found serious problems with the coordination between this investigating unit and SAPS, to the extent that it recommended that oversight of this component be transferred to the Minister of Safety and Security.

It is precisely this problem that the Polokwane resolution seeks to address by incorporating the DSO investigators into SAPS, and clearly delineating the organisational separation between investigation and prosecution as intended in the Constitution.

Many of those who have criticised this resolution are failing to acknowledge the very real problems that have existed over a number of years, particularly relating to the conduct of the DSO and the lack of effective coordination between it and the SAPS. These commentators fail to acknowledge the findings of the Khampepe Commission, and the fact that this matter has long been a matter of discussion within the ANC and other organisations.

While the ANC National Executive Committee (NEC) lekgotla called for this process to be completed without delay, the organisation is determined that the process be conducted in a systematic and thorough manner.

Among other things, government will need to engage in a range of negotiations and consultations with all relevant stakeholders. It will need to do a detailed audit of assets, personnel and investigations; identification and compilation of a report dealing with the legal dimensions, especially in relation to employment issues; and the drafting of the relevant legislation to integrate the investigators into SAPS and any other legislative amendments which may be required.

There is much work that will need to be done, not simply to give effect to this decision, but also to ensure that the process both improves the capacity of the SAPS to investigate crime and that of the NPA to prosecute criminals.

Polokwane Resolutions III

Government for the people, by the people

South Africa's political terrain has changed to the extent that the floor-crossing legislation is no longer necessary and should be abolished, according to delegates to the ANC's 52nd National Conference held in Polokwane in December last year.

This was one of a number of resolutions on the transformation of governance, all aimed at making the institutions of state more accountable, more accessible and more effective in addressing the needs of the people of South Africa.

The issue of allowing public representatives to join another political party while keeping their seats has been under discussion since the start of constitutional negotiations. Because of the political dynamics at the time, the ANC agreed in 2001 that floor crossing should be provided to accommodate instances of significant political realignment between elections.

A number of political parties requested that floor crossing be provided for. This was finally legislated in 2002 and was supported by the overwhelming number of parties in Parliament. However, since the floor crossing legislation came into effect a number of difficulties and unforeseen consequences emerged. These included the proliferation and fragmentation of small parties, often having little more than one or two public representatives and no support base.

After considering a number of options, Conference decided that floor-crossing should be abolished and that public representatives of other political parties should be encouraged to join the ANC regardless of whether or not they retain their seats.

Reflecting on the electoral system, conference said that the factors that led the country to opt for a proportional representation (PR) system for national and provincial elections remain relevant: "We are still a nation in transition and must ensure that we facilitate representivity across the various sectors of our communities through a credible, generally accepted and understood electoral system. Our current system can best help us reach the true objectives of the NDR within the framework of our founding Constitutional principles."

Conference therefore resolved that the current electoral system should be maintained and strengthened, "further to enhance the links between the people and their public representatives".

It also decided that the formula used to calculate the allocation of seats in local government elections should be reviewed to ensure that it does not disadvantage parties that get more ward votes.

This decision follows a year-long process of discussion within ANC structures that weighed up the relative advantages and disadvantages of the current PR system, a constituency-based system, and a system containing elements of both.

Conference threw its weight behind the effort to forge a single public service, unifying administration in the three spheres of government. It said: "One of the most pervasive challenges facing our country as a developmental state is the need for government to redress poverty, underdevelopment, marginalisation of people and communities and other legacies of apartheid and discrimination. This challenge is best addressed through a concerted effort by government in all spheres to work together and to integrate as far as possible their actions in the provision of services, the alleviation of poverty and the development of the people and the country."

Conference delegates agreed that the creation of a single public service initiative will:

• enable administration in all three spheres of government to be organised and to operate in ways that ensure efficient, quality, collaborative and accountable service delivery to promote social and economic development for the people of the Republic;
• enhance service delivery through flexible structures that enable and promote operational and front-line integration, innovation by means of amongst others electronic government, human capital and talent management, managerial accountability, performance and people-orientated service culture; and
• further enhance service delivery through systematic information and knowledge management and collaboration between institutions within and across spheres of government as well as between those spheres and private and development sectors.

It tasked the ANC National Executive Committee (NEC) Legislature and Governance Committee to support and monitor the implementation of this process.

Transforming the judiciary

Delegates drew attention to previous resolutions on the transformation of the judiciary that have yet to implemented, and noted that both government and parliament had undertaken processes over a lengthy period to consult all relevant role players, including the judiciary, on these policy issues.

Conference therefore resolved that a single, integrated, accessible and affordable court system be established. This would include the integration of the Judicial Service Commission (JSC) and the Magistrates Commission (MC) into a single structure to appoint judges and magistrates. There should also be a single grievance procedure for judicial officers.

The Constitutional Court should be the highest court for both constitutional and non-constitutional matters, with the Supreme Court of Appeal (SCA) as an intermediate court of appeal. Decisions of the SCA will be final if the Constitutional Court does not grant leave to appeal in a matter.

In a decisive move away from the apartheid-era structures, conference resolved there should be a single High Court, with each province having, at least, a division of the high court. Each division of the High Court should have a single Judge President and a single territorial area of jurisdiction.

In addition, courts should be urgently re-demarcated to enhance access to justice, especially in rural areas: "Magisterial districts must be re-demarcated by taking into account the boundaries of the other levels of government, especially municipal boundaries and the distribution of courts in accordance with population demographics, especially in previously disadvantaged and marginalised communities."

It also said 'community', municipal and small claims courts should be promoted and expanded where practical. There should be an alignment of traditional courts with then new constitutional dispensation and particular attention must be paid to the incorporation and development of indigenous law.

Conference accepted the proposal that the Chief Justice, as head of the judiciary, should be responsible for the "the development and implementation of norms and standards for the exercise of all judicial functions, such as the allocation of judges, cases and court rooms within all courts in the court system", while the administration of courts is the ultimate responsibility of the relevant minister.

It said the principle of separation of powers and the independence of the judiciary must be respected by all spheres of government: "We reaffirm the need for everyone to respect the rule of law and the independence of the judiciary, especially in so far as the adjudicative function of the courts is concerned. The judiciary must adjudicate without fear, favour or prejudice, but should also respect the areas of responsibility of other arms of the state and not unduly encroach in those areas."

Conference noted that government had completed the first phase of the provincial and local government policy review, which included public submissions. These submissions provided practical insights and lessons about thirteen years of provincial and local governance and contain proposals to make the system more efficient, equitable and accountable, and able to provide a better quality of service and governance to South Africa.

Conference agreed that the provincial and local government policy review will be completed in early 2009, with a draft policy and review released in mid-2008. The NEC was tasked to ensure that an ANC summit is held to formulate an input into processes to develop a White Paper on Provincial Government and to review the Local Government White Paper.

Delegates to Polokwane agreed that these resolutions provided strategic direction to the work of all ANC structures and deployees: "By building a broad consensus on the governing strategy we can confront the challenges we face over the next decade with confidence, as a united movement with a clear vision of the road ahead."

** This is the third in a series of articles on the outcomes of the ANC's Polokwane Conference.

More Information:

• Polokwane Conference Resolutions

What the media says

Fiction sells better than fact

Not inclined to allow the facts to get in the way of a good story, much of the media lined up this week to present a view of the ANC National Executive Committee (NEC) lekgotla that is far removed from the reality.

The Sunday Times led the charge with the headline: "Do as we say - or else, ANC warns Mbeki". Many other publications dutifully followed, peddling the story that the NEC administered a stern warning to the country's President, Thabo Mbeki.

"The ANC has laid down the law to President Thabo Mbeki following two days of discussions between its National Executive Committee (NEC) and the Cabinet," the Sunday Times reported.

Then on Monday, under a headline, "ANC lays down law to Mbeki's government", Business Day said: "The African National Congress (ANC) flexed its muscles at the weekend, setting an agenda it said the government must deliberate on at its cabinet lekgotla."

"Yesterday's call was the first concrete sign that the party wanted to reassert its authority over government - a process most political analysts say could result in bad blood between it and President Thabo Mbeki's administration."

On the same day, The Star reported: "President Thabo Mbeki has conceded that his government should account to the African National Congress following fierce criticism from within the party."

This theme has dominated media coverage of the two-day lekgotla. The lekgotla - which was attended by NEC members, deployees in government and parliament, representatives of the leagues and alliance partners, and ANC staff - developed a programme of action for the movement to implement the decisions of the Polokwane conference.

The lekgotla undertook exactly the same exercise as the previous NEC did at its first lekgotla after the 2002 Stellenbosch conference. And now, just as then, the programme of action guides all ANC structures and deployees, wherever they may be found. That's not "laying down the law". That's simply how the ANC understands mandate and accountability.

The reports seem to ignore the fact that at the beginning of every year the NEC holds its lekgotla, attended by some of its key deployees at a national level. The lekgotla is specifically intended to inform discussions at the cabinet lekgotla, which has always been held soon after the NEC lekgotla, which in term informs government's programme for the year. This programme is outline in the President's State of the Nation address.

This year is no different. Yet, many in the media (and even some within our own organisation) would have the South African public believe otherwise. They choose to ignore patently obvious facts in pursuit of a particular narrative, one of a hopelessly divided ANC. It is a narrative that was promoted and nurtured before the Polokwane conference, and which has since taken on a new form.

We are told to expect the ANC in government to be in constant conflict with the constitutional structures of the ANC; to expect the President of the ANC to be at loggerheads with the President of country; and to expect the interests of the South African people to suffer.

Fortunately, the ANC doesn't feel that it needs to follow a narrative determined by others. The lekgotla was by no means hostile, it wasn't heated, no threats were issued, and no muscles needed flexing. The lekgotla did its work as it has always done, paying particular attention to the coordination of implementation between the ANC's constitutional structures and deployees in government, the legislatures and other centres.

In the statement released at its conclusion, the lekgotla "confirmed the long-established principle that the ANC is the strategic political centre that directs and guides its deployees in various centres."

It reiterated that there should not be any apprehension about relations between the ANC and its government: "The Lekgotla was unanimous that all leaders of the movement, whether in the NEC or not, would continue to act in a manner that reinforces the confidence of the masses of our people in pursuing the goals the organisation has set itself."

In his opening remarks to the lekgotla, ANC President Jacob Zuma said the organisation should dispel any wrong beliefs that anyone may have about the relationship between ANC constitutional structures and government, including rumours that deployees in government are about to be removed from their positions.

"No comrades working in the ANC should undermine those working in government. Equally, comrades in government cannot undermine those working in the ANC. If anything is done to undermine the other, we will take serious action," he said.

In his remarks to the Lekgotla, President Mbeki said: "Everybody in this room is ANC and all deployed in government by us are ANC. The mandate is not government's mandate but that of the ANC. We have a common responsibility to ensure that the ANC continues to enjoy the support and respect that it has enjoyed in the past. None of us should undermine the confidence enjoyed by the ANC as a united movement."

The ANC is determined that all structures and deployees of the organisation should work together, in a coordinated and coherent manner, to implement the resolutions of Polokwane and build a better life for all South Africans. That's the way the ANC has worked since it came into government in 1994, and that is how it will continue to work.

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