Summary of the Khampepe Commission of Inquiry

1. Summary of the Khampepe Commission of Inquiry Summary of the Khampepe Commission of Inquiry a focus on the compendiums of findings and recommendations 10 September 2008 Peter Daniels 10 September 2008

2. Introduction • 1 April 2005 Judge Sisi Khampepe appointed as the Chairperson of the Commission of Inquiry to: “inquire into, make findings, report on and make recommendations regarding various matters constituting the terms of reference”. • 21 July 2005 and 24 January 2006 interim reports submitted • Final Report is dated 3 February 2006.

3. Structure of KC Report • Executive summary • Introduction • Process to derive at the findings • Terms of Reference • Approach adopted • 13 Terms of References • Title • Evidence • Findings • Recommendations • Conclusion • Compendium of Findings • Compendium of Recommendations • Acknowledgements

4. Process followed • 6 May 2005 invitations various entities • Included institutions, government departments and individuals, and academic institutions • To submit affidavits iro each aspect of terms of reference. • +- 30 submissions from individuals, stakeholders, academic institutions, political parties, labour movements and non-governmental organisations received. • On site visits here and abroad

5. 13 terms of reference (1 - 7) 1. Rationale behind the establishment of the Directorate of Special Operations (“DSO”) and its location (p123 & 144); 2. Legislative mandate of the DSO (p125 & 145); 3. Evaluation of the implementation of the legislative mandate (p127 & 145); 4. Systems for management and control of the DSO (p128 & 149); 5. Systems for communication of the DSO (p130 & 150); 6. Oversight and accountability in respect of the intelligence and related operations of the DSO (p132 & 150); 7. Constitutional and legislative mandates of the South African Police Service (p135 & 151);

6. 13 terms of reference (cont 8 -13) 8. Systems for coordination and cooperation between the SAPS and the intelligence agencies and the DSO (p135 & 152); 9. Effectiveness and efficiency of coordination of intelligence (p137 & 152); 10. Efficacy of co-ordinating systems that exist between intelligence agencies (p138 & 153); 11. Training or further training on policing or investigating methods (p139 & 154) ; 12. Impact of locating investigators and prosecutors within the National Prosecution Agency (p139 & 154); and 13. Location of the DSO (p140 & 155).

7. 1.1 Rationale behind the establishment of the Directorate of Special Operations (“DSO”) and its location Findings • 1999 – creation multidisciplinary structure to fight organised crime • Innovative investigative methodology required to fight complex and sophisticated organised crime issues • Decided to locate DSO with NPA – act amended • Utilisation of Troika principle • Judge found: despite drop in crime – still required a comprehensive strategy • Not persuaded rationale for establishment of DSO disappeared – still a place for the DSO

8. 1.2 Rationale behind the establishment of the Directorate of Special Operations (“DSO”) and its location Recommendations • Satisfied all stakeholders convinced new strategy required to fight OC • Agreement at time law enforcement structures inadequate at that time • Satisfied of consensus to launch a new independent structure to fight OC • Recommended that despite indications OC being addressed – rationale for establishment of DSO as valid today as at conception

9. 2.1 Legislative mandate of the DSO Findings • Argument legal mandate of DSO to investigate and prosecute OC is unconstitutional is without merit. • Found the word “single” does not therefore connote “exclusive”. • Argument the DSO is a police force that has the legislative competence to investigate and prosecute matters is also without merit. • Satisfied that there is nothing unconstitutional in the DSO sharing a mandate with the SAPS • Also nothing unconstitutional in having a structure such as the DSO located with NPA.

10. 2.2 Legislative mandate of the DSO Recommendations • Nothing impermissible in law to draft the legal mandate of the DSO as broad as it appears in the NPA Act. • Permissible to have the DSO share the mandate to tackle OC with SAPS. • Mandate tensions – important to establish a committee with relevant individuals at appropriate levels of authority who are able to deal with the day-to-day operational issues - MVS

11. 3.1 Evaluation of the implementation of the legislative mandate Findings • MCC did not properly discharge its responsibility under Act. • Difficulties of law enforcement agencies may have been averted if policies & procedures been in place ito Sec 31 of NPA Act. • Criticisms levelled of DSO cannot be shrugged off easily. • Manner legal mandate of DSO implemented - unfair advantage of case selection for its investigation. • Causes conflict and tensions between the DSO and SAPS. • Legislature in establishing the DSO fully appreciative of potential conflict such mandate would generate – thus created MCC in terms of Sec 31 of the Act. • Judge’s view - structure of MCC inadequate to fully address daily operational difficulties that may arise.

12. 3.2 Evaluation of the implementation of the legislative mandate Recommendations • Mindful of problems of shared mandate – tinkering mandate of DSO will not eliminate these problems • Besides MCC need another structure MVS – to deal with day to day issues • MVS to deal with abuse of power - public announcements, conduct in line with Constitution • ICD – no jurisdiction over DSO – recommend mandate should cover DSO

13. 4.1 Systems for management and control of the DSO Findings • NDPP not complied Sec 19B of NPA Act • Lack of Security screening - security risks • Unacceptable practice – can undermine security of state • Special investigators need further screening from time to time – not done • Screening of Investigating Director, Heads of DSO and Senior investigators – also pose risks • Evidence liaison with foreign law enforcement and intelligence agencies – illustrates dangers

14. 4.2 Systems for management and control of the DSO Recommendations • DSO in contact with sensitive intelligence • Competence needed to be exercised within parameters of law • Recommend immediate steps to comply with Sec 19B of NPA Act • Unacceptable some not properly screened

15. 5.1 Systems for communication of the DSO Findings • Public complaints leak of information – cause embarrassment/prejudice • Practice is inconsistent with Con rights Sec 35 (fair trial) • Public criticism FBI style – need to work within law • Found conduct reprehensible, unprofessional and corroding public confidence

16. 5.2 Systems for communication of the DSO Recommendations • DSO as law agency and organ of state – need to work within legal parameters • Bill of rights - every person’s rights to be respected • NDPP should pay close attention to it • If MVS is created – should assist with this

17. 6.1 Oversight and accountability in respect of the intelligence and related operations of the DSO Findings • DSO information gathering mandate - Sec 7(1) NPA Act • Evidence it established intelligence gathering capabilities • Disjuncture in political accountability explains discord re effective political oversight for DSO • Intelligence gathering ito Constitution – reside with intelligence agencies • If DSO did intelligence gathering unlawful • Need to cooperate with other organs of state such as NIA, SASS etc

18. 6.2 Oversight and accountability in respect of the intelligence and related operations of the DSO Recommendations • Compelling reason to harmonise political oversight over DSO • Political disjuncture need to be addressed • Legislature gave information gathering mandate to DSO – not intelligence gathering • If does so – goes outside its legislative competence • DSO to act within legal parameters

19. 7.1 Constitutional and legislative mandates of the South African Police Service Findings • Constitutional responsibility crime rest with SAPS • Legal controversy that SAPS has exclusive jurisdiction - disagree • Number of agencies that legislature also confer this mandate on • Nothing legally unsound in conferring this mandate on DSO as well

20. 7.2 Constitutional and legislative mandates of the South African Police Service Recommendations • Nothing impermissible in law to draft the legal mandate of DSO as broad as in NPA Act. • Also permissible to have DSO share mandate to tackle OC with SAPS. • Challenge - to manage tensions & conflicts that may arise from a shared mandate. • Nature of tensions re mandates can be managed by MVS with individuals at appropriate levels of authority to deal with day-to-day operational issues

21. 8.1 Systems for coordination and cooperation between the SAPS and the intelligence agencies and the DSO Findings • No system to coordinate cooperation between DSO & SAPS • MoJCD stated relationship broke down - evidence • Much cooperation at operational level and some training exercises – and on an ad hoc basis • At provincial level KZN – good relationships • Problem national level – non-existent • Prior to DSO invited to NICOC – no co-operation between DSO and SAPS and intelligence agencies

22. 8.2 Systems for coordination and cooperation between the SAPS and the intelligence agencies and the DSO Recommendations • DSO placed in permanent status within NICOC • DSO to form part of family of law enforcement structures • Need to have functional c & c structures to ensure efficient discharge of mandates • Urgency cannot be overemphasised • Creation of MVS would offer a useful platform for c & c between various structures.

23. 9.1 Effectiveness and efficiency of coordination of intelligence Findings • Coordination crime intelligence rests with Crime Intelligence Div of SAPS • Need for close cooperation SAPS & other members of intelligence community • This to ensure sharing of information & prevention of duplication • Such coordination did not exist at that stage • Ito Nat Strategic Intelligence Act provisions – DSO not empowered to gather crime intelligence • Was suppose to use existing intelligence structures.

24. 9.2 Effectiveness and efficiency of coordination of intelligence Recommendations • Various structures appear to be effective • In past - intelligence structures did not include DSO • Now addressed with limited status within NICOC • Recommendation that DSO be included formally within NICOC

25. 10.1 Efficacy of co-ordinating systems that exist between intelligence agencies Findings • Looked at rationalisation of resources and minimising undue duplication • Nature of resources and efficacy of equipment – require expert knowledge and understanding • Could not discharge task without such assistance • Address these issues under recommendations

26. 10.2 Efficacy of co-ordinating systems that exist between intelligence agencies Recommendations • Deal with rationalisation of resources, minimising duplication, training standards, coordination of operations, liaison with foreign law and intelligence structures etc. • Creation of MVS will be an added tool for coordination • On site inspections revealed resource and duplication issue require extensive technical knowledge • Evidence of duplication of resources • Recommend that a suitably qualified person in intelligence be engaged to address these two issues in a focused erudite manner

27. 11.1 Training or further training on policing or investigating methods Findings • Collective responsibility on all law enforcement agencies to make SA safe • View DSO’s responsibilities congruent with Commercial OC Unit of SAPS • Such units should be respected & furnished with same equipment & legal powers • No system of c & c between SAPS and DSO re shared training methods in investigating and combating OC • This should be facilitated and encouraged, if need be, through legislation.

28. 11.2 Training or further training on policing or investigating methods Recommendations • Law enforcement component of DSO and SAPS re OC require same skills for its personnel • Evidence that DSO has extensive training facilities to achieve a greater impact • SAPS equally impressive training strategies to address OC • Maybe duplication in resources channelled towards training by DSO and SAPS • Recommend that DSO and SAPS streamline training of personnel to achieve greater efficiencies

29. 12.1 Impact of locating investigators and prosecutors within the National Prosecution Agency Findings • Structure of DSO not unique in world (Strike Forces) • Use of multidisciplinary structures is common • No legal impediment for such a structure within a prosecuting authority provided its independence is safeguarded • ‘Embeddedness’ of prosecutor brings challenge of neutrality & making info available to an accused person • Integrity of a prosecutor is vital factor in independence of his/her office • Crucial that integrity of individual prosecutors be one of cardinal issues to be closely determined & scrutinised in these appointments

30. 12.2 Impact of locating investigators and prosecutors within the National Prosecution Agency Recommendations • Concerns Troika risk compromising independence of prosecutor • Prosecutors - duty to a court of law to place all info before court, including info that may exculpate/acquit accused • Judge told DSO alive to this risk • Prosecutors an ethical obligation which goes beyond achieving a conviction • Recommended - various disciplines within DSO must remain under a single command structure • Judge satisfied that practice of housing multiple disciplines under one command is a sound practice • It enhances closer cooperation and disciplines benefit from one another

31. 13.1 Location of the DSO Findings • Always a need for a coherent effective strategy to fight OC • Decline in crime do not justify translocation of DSO to SAPS • Argument DSO temporary structure – no evidence • Further reading of NPA Act points to contrary • DSO established till SAPS transformed – no merit • Evidence government was concerned about capacity of SAPS to deal with OC • This because of corrupt elements in SAPS & transformation challenges • Drop in crime levels not enough to justify translocation of DSO • Breakdown relationship DSO and SAPS, thus DSO to be de-established argument • Despite evidence of unhappy relationship – these institutions should pursue their constitutional imperatives – they must cooperate

32. 13.2 Location of the DSO Recommendations • Found it inconceivable that legislature will see it fit to repeal NPA Act as it relate to activities & location of DSO • Satisfied rationale for locating DSO in NPA still pertains • Because DSO was prosecution-led, its concomitant location could only be with the prosecuting authority • SAPS and DSO still do not appreciate legal imperative for cooperation • Considered view that DSO should continue to be located with NPA

33. Other considerations - Circular 1 • Circular 1 – unilateral interpretation of mandate and methods – ops manual • Unilaterally drafted by DSO – law unto their own • One of main reasons for tension with SAPS • Select cases with media value and high rate of possible conviction • Deciding which matters to investigate

34. Other considerations – Co-operative governance • Constitution enjoins structures to cooperate in mutual trust and good faith • Evidence – constitutional injunction not heeded to • Lack cooperation SAPS and DSO – partly due to MCC not functioning effectively – turf • Express dismay that officials allow personal issues to cloud their statutory responsibilities • Primary function of executive to implement legislation and see that Sec 31 (KC) is adhered to

35. Other considerations – DSO methodology • Useful to compare traditional methods of investigation and prosecution with Troika methodology • Conviction rate of over 90% testimony to effectiveness (p.121) • No reason skill base of DSO not extended to OCU of SAPS • No reason why not possible to co-locate prosecutors with investigators and analysts • Efficacy of Troika principle lies more in continuous collaboration of these 3 disciplines working in concert • Firm view NPA duty bound to provide adequate prosecutorial services to SAPS

36. Conclusion • Quest for effective and efficient strategy to tackle OC runs like golden thread • Importance of c& c activities emphasised • Imperfections in relationships gave rise to establishment of KC • Necessary to create an ongoing review to manage constant challenges • Threat of OC presents a formidable challenge that will continually require creative and determined strategies to address

37. THE END

38. POLITICAL DISJUNCTURE (p.132) • The Minister who exercises final responsibility over the work of the NPA is the Minister for Justice and Constitutional Development. • She performs this function as a responsible political head under which the administration of the NPA Act falls. She does not however have practical, effective political oversight responsibility in respect of the law enforcement elements of the work of the DSO. • The Minister who exercises final responsibility for law enforcement is the Minister of Safety and Security. He does not have political oversight responsibility in respect of the investigative elements of the work of the DSO. • The disjuncture in political accountability for the entire work of the DSO, in part, explains the discord regarding the effective political oversight and accountability for the DSO.