Would the disbanding of the Scorpions be unconstitutional?

Could the planned disbanding of the Scorpions successfully be challenged in the Constitutional Court? I was gently taken to task this morning by Paul Hoffman of the Centre for Constitutional Rights because I told the Mail & Guardian that I do not think there is a constitutional impediment to disbanding the Scorpions.

It is clear that the ANC national executive committee (NEC) has decided that the Scorpions must be destroyed to prevent them from further investigating the nefarious activities of various ANC big-wigs. But this clear political motive alone cannot take away the power of Parliament to pass legislation that would abolish this successful elite unit. Something more will be required to make a plausible case before the Constitutional Court.

Advocate Hoffman argues that section 179(2) of the Constitution provides that “something more”, as it states that the prosecuting authority has the power, among others, to “carry out any necessary functions incidental to instituting criminal proceedings”. As it would be impossible for the NPA to prosecute high-powered people like ANC big-wigs or the police commissioner successfully without a unit like the Scorpions with its own investigators and prosecutors, this means that by abolishing the Scorpions, Parliament would be infringing on section 179(2).

Unfortunately I cannot agree with this argument. On a technical level, this argument would require the court to interpret “incidental” in a very imaginative and substantive manner — something it has never done before. The court would also have to assume that only the Scorpions can assist the NPA to prosecute important and influential people and that no other arrangement would allow the NPA to “institute criminal proceedings”.

This, I believe, the court would never do because it would require legal gymnastics of the highest order to make such an argument and even then would not be very convincing.

But there is a far more important and obvious reason why the court will not find the disbanding of the Scorpions unconstitutional. This move by the ANC NEC is highly political and if legislation to give effect to this Polokwane decision is declared invalid, it would thrust the court in the middle of a broedertwis among members of the ruling party. If the court got involved in this, it could potentially affect its legitimacy. It would definitely invite further attacks from the newly buoyed ANC NEC and would imperil the continued existence of the testing power of the court.

Thus, for broader political reasons I imagine the Constitutional Court would not want to get involved in this fight and would do almost anything to avoid a decision on this matter in the hope that it would appease the ascending clique in the ANC and preserve the court’s power and legitimacy in the eyes of the ruling elite so that it can fight another day. Whether this would be a wise thing to do is, of course, another matter altogether, but given the track record of the court, I cannot see it doing anything else.

The court would argue that this is a political issue (falling back on the rather problematic and imaginary distinction between law and politics) and that Parliament should surely be able to decide how best to fight crime and organise the prosecuting authority. It would argue that it is not for a court to intervene in such political questions and to tell the ANC how to rule the country.

If there is any chance of saving the Scorpions via the legal route, it lies, I suspect, in section 23 of the Constitution, which guarantees for everyone the right to fair labour practice. This means no matter how Parliament decides to get rid of the Scorpions, they will have to do so in a way that respects the labour rights of those working for the Scorpions. Merely abolishing these rights for “bad apple” Scorpions via legislation would not be successful.

If the Scorpions are going to be incorporated into the SAPS, this will almost certainly result in a downgrading of their posts as they would not have the same status and working conditions as they had in the Scorpions. Let’s face it, the SAPS has rather a low status in our society and its working conditions are appalling. Would legislation be able to create a bubble of excellence and status in the sea of mediocrity and contempt that is the SAPS? I doubt it.

The only way to manage this downgrading will be through delicate negotiations with the affected Scorpions, but will Parliament be able to afford “wasting” time on such negotiations given the fact that it has a deadline to abolish the Scorpions by June 2008?

I have been told that the Scorpions themselves (and not their acting boss, Mokotedi Mpshe) are investigating this labour-law avenue of defence. But much will depend on the legislation that is passed by Parliament and how the process is managed. If it is driven by the lethargic Justice Minister, Brigitte Mabandla, it is almost a foregone conclusion that it will be a monumental stuff-up and this might give the Scorpions an opening to challenge the legislation. After all, rumours abound about the minister’s fondness for drink and, to put it politely, her less-than-Calvinistic work ethic.

But if the process is managed well and if legislation is not rushed through Parliament as the ANC NEC seems to want to do, it will be difficult for a court to intervene and it would mean the end of the Scorpions and, almost inevitably, a further rise in corruption among government officials. It would demonstrate, also, the limits of what a constitution can do to prevent unwise or even blatantly opportunistic policy decisions by a majority party hell-bent on stealing our money.

The only way, really, that the Scorpions can be saved is if we all rise up, protest in the streets, toyi-toyi before Parliament and chain ourselves to the gates of Luthuli House and organise and fight for its retention politically. But because we are used to the Constitutional Court winning our battles for us, we are not prepared to do that, which means we will lose the Scorpions and we will lose the only institution that stands between us and the rise of a kleptocracy.