Deon De Lange
4 September 2008
The state's legal experts have given the thumbs-up to the two controversial bills aimed at shutting down the Directorate of Special Operations (DSO) - the Scorpions - and establishing a new organised crime unit within the police service.
Yesterday Chief State Law Advisor Enver Daniels appeared before MPs to defend the National Prosecuting Authority Amendment Bill and the SAPS Amendment Bill, saying he had found it necessary to clarify his office's view on the matter in light of the "constant refrain" that the bills are unconstitutional.
Daniels was referring to concerns raised during the public participation process by non-governmental organisations and opposition parties.
"In our view, the bills do not offend the relevant provisions of the constitution which are applicable and we were able to certify both bills in accordance with the rules of Parliament," he told MPs during a joint sitting of the National Assembly's safety and justice committees.
All bills are scrutinised for their constitutionality and require certification to this effect by the State Law Advisor before they can be processed in parliament.
But opposition parties and civil society groups maintain that the bills will not pass constitutional muster and concerned businessman Hugh Glenister has lodged a Constitutional Court challenge to the ANC's decision to scrap the beleaguered unit.
Raenette Taljaard from the Helen Suzman Foundation argues that the bills fail to meet the constitutional requirement of "rationality" since they are not linked to a legitimate government purpose.
Instead, she says, the bills are simply the result of a party political resolution of the ANC. She has also raised concerns about the effect these bills may have on the rule of law and the state's constitutional obligation to protect its citizens.
Daniels batted away this claim, saying that while it was true that resolutions to disband the DSO "were indeed adopted at Polokwane, it is incorrect to construe those decisions as simply being binding on the State".
"It goes without saying that in terms of our constitution, the state does not consist of the ruling party, from which it is separated," he said, adding that the Cabinet's executive decision to introduce the bills in parliament was "constitutionally sound".
The Centre for the Study of Violence and Reconciliation (CSVR) raised further concerns, including questions about separation of power, the accountability of the proposed new unit and the degree to which this unit will be free from political interference.
"The closure of the DSO sends the message to all law enforcement agencies that those who subject high-level political and government officials to investigative scrutiny will be punished," the CSVR submission concludes.
Glenister suggested the government's failure to offer an ex-planation for making an about-turn on the recommendations of the Khampepe Commission created the impression that Cabinet was implementing an ANC decision without due regard to the impact this would have on organised crime.
Last year the Cabinet officially accepted the Khampepe Commission Report, which, among others, recommended the continued existence of the DSO and its separation from the police service.
Deliberation on the bills is set to continue.
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