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The Rule Of Law In SA Weakened Since Selebi Investigation
9 July 2010

Gareth Newham, Head of the Crime and Justice Programme, ISS Pretoria

On Friday 2 July 2010, South Africans heard the shocking judgement that Jackie Selebi, the man who had headed South African Police Service (SAPS) for the eight-year period between 2000 and 2008was guilty of corruption. The immediate response from some political parties was that they interpreted the conviction as a positive indication that the rule of law is still strong in South Africa. The ANC stated that the judgement clearly indicated that the country was governed by laws that were applied without fear or favour to anyone, regardless of their standing. The DA`s shadow police minister Diane Kholer-Barnard was exuberant and said that the successful prosecution “speaks highly of a healthy criminal justice system that is impartial and that our democracy is certainly safe.”

Indeed, this conviction demonstrates that the judiciary is able to apply the law against a politically powerful individual if sufficient evidence is brought before it. However, therein lies the rub. Our judiciary can only act on cases that are brought before it.

The question that we should all be asking now is: “If Jackie Selebi was the National Commissioner of Police today,what are the chances that he would be effectively brought to justice?” If the answer is that he most certainly would be, then we can agree that the rule of law is in good shape. However, if there is doubt that he would be, then there is cause for concern.  It is instructive to explore the primary reason that the High Court was presented with sufficient evidence to reach the conclusion that Selebi was corrupt.

Evidence first emerged that Selebi had links with organised crime, following his confrontation with the then Security Chief of the Airports Company of South Africa (ACSA), Paul O`Sulliven. The confrontation occurred because O` Sullivan was in the process of cancelling a multi-million Rand contract with a Security Company for a breach of contract. O` Sullivan alleges that Selebi personally threatened him if he went ahead with cancelling the contract. O` Sullivan went ahead and alleges that as a result lost his job with ACSA. This caused O` Sullivan to investigate the reasons behind the National Police Commissioner`s interests in what was aprivate commercial matter. It was the investigation by O` Sullivan that unearthed evidence that he compiled into a 1000 page dossier that Selebi had personal links to members of organised crime syndicates.

The evidence was initially presented to the Independent Complaints Directorate (ICD), a civilian led agency that was primarily established to conduct independent investigations into complaints against police officials. The initial investigation was cursory and the ICD cleared Selebi. Unsatisfied with the ICD`s response, O` Sullivan took the matter to the High Court which then instructed the agency to investigate more thoroughly.  Again the ICD found that the allegations against Selebi "cannot be substantiated" and the matter was closed.  Given Selebi`s conviction on the same evidence, it has become clear that the ICD did not have the required resources and political support to investigate someone as powerful of the National Commissioner of Police.

It was only once the evidence was passed on to the Directorate of Special Operations (DSO) popularly known as the‘Scorpions`, that an adequate investigation into Selebi`s corrupt dealings began.  At the time the DSO was independent of the police as it was housed in the National Prosecuting Authority (NPA). It had the capacity and resources to conduct thorough investigations into high-level corruption. Even then the investigation faced various challenges as members ofthe SAPS made various attempts to derail it.  They even went so far as to arrest the lead prosecutor Gerrie Nel, a move which was severely criticised by Judge Meyer Joffe during the Selebi trial.  Moreover, acting SAPS crime intelligence boss Mulangi Mphego interfered with a state witness and later faced charges for defeating the ends of justice as a result.

President Thabo Mbeki also tried to save Selebi by firing the Head of the NPA, Advocate Vusi Pikoli when it became clear that contrary to the President`s wishes, Pikoli was going to execute a warrant of arrest against the Selebi. In a belated attempt to try and justify his actions, Mbeki launched the Ginwala Commission of Inquiry into the suitability of Pikoli`s fitness to head the NPA. However, the commission found that Pikoli was indeed a fit and proper person for the job that supports his claim that he was simply fulfilling his Constitutional duty to prosecute crime without fear or favour wherever the evidence warranted it. In spite of this , Pikoli was not reinstated to his position and the ANC later closed down the DSO for having pursued corruption charges against President Jacob Zuma.

The reason that Selebi could be investigated and prosecuted was because the head of the NPA was a man of integrity who could allow the investigation to go ahead unfettered. Today the head of the NPA is facing a number of formal challenges to his appointment as a result of questions about his integrity and the DSO are no longer in existence.

Some of the capacity of the DSO was absorbed into the SAPS Directorate of Priority Crime Investigations also known as the ‘Hawks`. Although this agency has a mandate to combat corruption,it reports directly to the National Commissioner of the SAPS and will therefore not be able to seriously investigate any allegations against this office. There is no doubt that if Selebi was the current National Commissioner that he would interfer with any police official or component that would try an investigate him.

The unfortunate result of the closure of the Scorpions is that there is no longer an agency independent of the police that could effectively investigate allegations of corruption or criminality against the National Commissioner of the SAPS.  Although there is another independent anti-corruption body called Special Investigation Unit (SIU), as the focus of the unit is on civil litigation, it does not have the power to arrest or prosecute suspects. Once it uncovers evidence of criminal activity it will prepare a court ready docket that it will hand to the SAPS. Therefore, like the Hawks, the outcome of the investigation into the SAPS National Commissioner would need to be handled by people over whom he had direct control.

The conviction of Selebi therefore demonstrates that the country used to have the capacity to ensure that everyone was equal before the law. However,if Selebi was the National Commissioner today, the man leading the police and who would be responsible for tackling crime would be the same man that High Court Judge Joffe described as having "no moral fibre", was unreliable, and had not set a good example for police officers.  Let`s hope that each person appointed to this position from now on has an impeccable integrity because the only agency that could properly investigate a person as powerful as the National Commissioner of Police no longer exists.

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