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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.