Peter Daniels 10 September 2008 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

Introduction

1 April 2005 Judge Sisi Khampepe appointed as the Chairperson of the Commission of Inquiry to:

“inquire into, make findings, report on and makerecommendations 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.

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

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

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);

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).

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

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

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.

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

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.

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

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

4.2 Systems for management and control of the DSO

RecommendationsDSO in contact with sensitive

intelligenceCompetence needed to be exercised

within parameters of lawRecommend immediate steps to

comply with Sec 19B of NPA ActUnacceptable some not properly

screened

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

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

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

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

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

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

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

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.

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.

9.2 Effectiveness and efficiency of coordination of intelligence

Recommendations

Various structures appear to be effectiveIn past - intelligence structures did not

include DSO Now addressed with limited status

within NICOCRecommendation that DSO be included

formally within NICOC

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

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

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.

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

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

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

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

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

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

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

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

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

THE END

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.