ConCourt judgment a triumph for rule of law

All those who believe in constitutional democracy and the rule of law should rejoice in the decision by a 5 to 4 majority of the Constitutional Court that the 2008 act that abolished the Directorate of Special Operations (the Scorpions) was invalid, according to a statement last week by the FW de Klerk Foundation.

The Court decided that the Constitution imposed an obligation on the State to establish and maintain an independent organisation to combat corruption and organised crime.  It further found that the Directorate of Priority Crimes Investigations (the Hawks), which the government established to replace the Scorpions, does not meet the constitutional requirements of adequate independence. "Consequently, the impugned legislation does not pass constitutional muster.

“The main conclusion is that the DPCI is insufficiently insulated from political influence in its structure and functioning."  The Court gave Parliament 18 months to establish a sufficiently independent unit to fight corruption and organised crime.  (However, it is to be hoped, in the light of the urgent need to combat corruption and organised crime, that Parliament will complete its work in this regard as soon as possible.)

The Court's decision provides enormous reinforcement to the concept of the rule of law - which in its essence means that no-one is above the law.

The decision to dissolve the Scorpions in 2008 was taken by the ANC's National Conference in Polokwane at the end of 2007 - supposedly to reorganise the country's crime-fighting capabilities.  However, it was difficult to see why any such reorganisation was necessary: the Scorpions had a success rate that far exceeded that of the SAPS; its operatives were highly trained, skilled and motivated; and their close co-operation with prosecutors had proved to be a winning formula.  Despite clashes with the SAPS, the Khampepe Commission had found that the unit should be retained and that other steps should be taken to improve co-ordination with the SAPS.

There was every reason to suppose that the real motive for the Scorpions’ abolition was its independence and fearless record of combating corruption in high places.   The Scorpions had seriously embarrassed dozens of MPs who had been involved in the Travelgate scandal; the unit had investigated the Commissioner of the SAPS who was subsequently charged with (and later convicted of) serious offences by the National Prosecuting Authority - despite the express and unconstitutional instructions of the President and the Minister of Justice that he should not be prosecuted.  Most seriously, it had played a leading and independent role in the investigation of the armaments scandal.

The decision to disband the unit and to transfer its functions from the constitutionally independent National Prosecuting Authority to the DPCI meant in practice that the final decision regarding who should, and who should not be investigated, could henceforth be influenced by politicians.

It is this unacceptable situation that the Constitutional Court's decision has now addressed.

The Foundation's Centre for Constitutional Rights acted as amicus curiae in the 2008 court case.  The Centre argued inter alia that the abolition of the Scorpions was

• irrational and arbitrary since it served no legitimate purpose of government;
• unconstitutional in that the National Prosecuting Authority was fully empowered by the Constitution to carry out "any necessary functions incidental to instituting criminal proceedings";  and
• unreasonable in view of the fact that it was by far the country's most  effective crime fighting unit.

The Constitutional Court's decision also vindicates the efforts of individuals - like Mr Hugh Glenister - and of all the civil society organisations involved - including the Helen Suzman Foundation.  It shows that concerned citizens and civil society organisations can succeed in claiming essential constitutional rights; and it reasserts a central principle of our constitutional democracy - that no one is above the law.

(Statement issued by the FW de Klerk Foundation on, March 17 2011)