Media briefing on Khampepe Report (transcript)

Moderator: Ladies and gentlemen, the Reverend Frank Chikane who is the DG in the Presidency will brief us now on the Khampepe Commission report.

Reverend Frank Chikane: Good morning. I thought that Thabang was going to give me a bit of time but I can see that he was just waiting for me to come in.

This is about the Khampepe Report. I just want to make it very clear so that we don’t stray into other areas which are not on my assignment at this stage.

As you would remember Khampepe [was appointed] to inquire into the mandate and location of the Directorate of Special Operation, which is known as DSO. And the judge produced detailed work at inquiries, received submissions (most of the sessions were open while some of them were closed, depending on the type of material), and then submitted the report to the President. That then, was the report that was presented to the President.

After that, we had a press briefing and I noticed that many people forgot about that. Some time in 2006, I did a press briefing in some lodge some where else in Randburg; we had a workshop there. And that was the only place where we could do the press briefing. In that press briefing, we made public all the recommendations of the Khampepe report. We briefed the media and the public about the findings, the recommendations and said that cabinet - the President, firstly - had accepted all the recommendations except one. I will come back to the details of the recommendations. One had an issue to do with the vetting committee and involvement of civil society in a vetting committee on cases - and that was thought not to be appropriate in terms of the functioning of the government. It may be good but it may [not be] preferred. The rest of the recommendations were accepted and cabinet endorsed that decision.

You would recall that the President, at the State of the Nation address in February this year, said that he is going to release the recommendations at the time the issues related to the Bills on the DSO would be presented to parliament.

So I did say in the beginning that I am going to deal only with the Khampepe Report and not with the Bills, because the Security Cluster [and] Justice Cluster are dealing with that matter. I am told that they are going to have a special briefing on that matter and I think we will leave it up to them to deal with that particular matter.

You will remember what the President said at that particular time. He said ‘necessarily, a review process including an investigation of overhaul capacity of the state to fight organised crime with reference to intelligence investigations in other matters, must be taken seriously’ and he said: ‘when we do a review we must make sure that we give the state more capacity [for] law enforcement agencies to intensify their war on organised crime, and under no circumstances weaken that’.

And I think that was very clear in terms of what the President wanted to say at that particular moment. So I think when you look at the Bills at the time, they dealt with that matter.

For now I want to speak to the recommendations of the commission. There were a number of things the commission was supposed to do. Firstly, it was the constitutionality of its establishment. You remember there were lots of articles and debates about whether or not the DSO could stand the test of the Constitutional Court in terms of its constitutionality-just establishment.

The second was its location - the constitutionality of its location, and that led the judge to deal with the issue about oversight of the DSO.

Then there were issues of co-ordination, the manner in which they carried out their functions, issues of vetting, issues of intelligence - both mandate and foreign intelligence issues.

In the recommendations we made public in 2006, we made it very clear - and it’s still the same. When you get the copy of the report you will find that the judge made a number of findings.

One was that there was nothing unconstitutional about the establishment of the DSO - so its constitutional.

The second was ‘is the location constitutional?’ And the finding was that there was nothing unconstitutional about that, and you can get the exact wording of the judge - I am summarising it.

The issues that the judge raised were related to the oversight because the DSO is [placed] within the National Directorate of Public Prosecutions, and it reports to the Minister of Justice. However, the Minister of Justice has no mandate to have oversight on the policing and investigation of the DSO.

And the judge made the recommendations that the policing functions and the investigative functions which are police functions, should be put under the oversight of the Minister of Safety and Security. It was just a logical conclusion that you cannot have investigators who are not supervised in a particular form by a political principal.

This also went in terms of the Complaints Directorate. You will remember that the police are subject to the Independent Complaints Directorate. The DSO was not subject to that because it was responsible to the Minister of Justice, and the Complaints Directorate could not deal with complaints that arise out of the investigative processes of the DSO.

So the recommendations were that they [the DSO], must be subject to the same standards as with any other investigative entity within government.

And there was a question about their straying into areas of intelligence, that in terms of their mandate 'when you investigate, you also collect information'; but there is a difference between intelligence work and collecting information for particular investigative purposes for a trial or whatever.

And that normally, investigators or detectives work with intelligence services to assist them [and] to back them up in the process, and the judge found that the DSO did engage in intelligence activities which were not its mandate, and that the DSO investigators were not trained or geared to dealing with intelligence.

And you would see when we have dealt with the Browse Report, that if you gave intelligence to an institution that was not designed for that purpose, the handling of intelligence work becomes problematic. Some of you would remember in our last briefing on this particular matter, that the same documentation and information the DSO received which was put together in a form of a Browse Report. That information was with the other intelligence services in the country, and the other intelligence services knew exactly what to do with that information because they are able to sort out what’s false and what is not false, et cetera. They have a way in which they test information. They just don’t get information from one source and make it the ultimate truth. That is what the judge said that they [the DSO] have no mandate to deal with it.

In any way, if they had to deal with intelligence they would have to sit as part of NICOC [National Intelligence Coordinating Committee], which is the intelligence coordination entity, and undertake that exercise within that area.

There was also the issue of oversight - that if they engage in intelligence work, in terms of the Intelligence Act, there must be oversight and a parliamentary committee that deals with it. The DSO was not subjected to that process of oversight.

There was the third element of the intelligence function - that they also interacted / liaised with foreign intelligence services. Now, intelligence services liaise with other foreign intelligence services, but there are protocols that govern how you handle that particular matter without risking the security of the state. And the judge made the finding that it is risking the security of the state for an entity that is not supposed to deal with intelligence, to actually liaise with other intelligence services internationally. When they have to do that, it should be through the normal intelligence services of the country.

And there was also the issue about vetting - and in terms of vetting, the law provides that the investigators in the DSO should be vetted by the National Intelligence Services, as all of us should be vetted by the National Intelligence Services as public servants, et cetera. And they [the DSO] had employed people without vetting, and I think that is a critical issue. Some of them would have come from the police, the intelligence services, the military intelligence - Loyiso [Jafta] should have been here to give that whole list of people.

The key thing though, is that vetting also lapsed. There are different levels of vetting: top-secret, secret, confidential and all that stuff. So in a sense, you could have been vetted to be a policeman, but you are not vetted to be the Secretary of Cabinet, and so the different levels of vetting applies. So they [the DSO], were supposed to have been subject to vetting, and the majority of them, at the time when we dealt with it, were not vetted.

I am sorry to say ‘when we dealt with it’. Its only that I forgot (Loyiso), that we were mandated following the Hefer Commission to look at the problem of disclosure of information from investigations. As you remember, the Hefer Commission made that finding, and when we had to do investigations we did find that most of the people were not vetted, and the Khampepe Commission reached the same conclusion.

So the National Intelligence was mandated to do the vetting, but in terms of the vetting according to the law, it was vetting up to particular seniority - Deputies rather than the Heads, of the investigative units. And the judge recommended that everybody should be subjected to vetting, and that had to be dealt with.

And there was the issue of coordination between the investigative entities - the police, and the DSO, and others - [the] NIA. And it's quite clear that there was no co-ordination in many areas like, for instance, you couldn’t employ people to be investigators, and have the NIA vet them. And so there was no co-ordination between the police and the DSO.

The judge said there must be co-ordination, which is necessary, and recommended a multi-departmental vetting committee. That vetting committee would then look at the cases before the state, and say: ‘these are high-level organised crime cases which need the DSO to deal with them, or these are ordinary organised crime which would be dealt with by the organised crime unit within the police, or this is an ordinary criminal case which doesn’t need the DSO.

That vetting did not happen, and it created tension between the police and the DSO, and the recommendation was that vetting should happen.

There are two sets of things, and I will end here. There are two sets of things the government has to deal with.

One set would require legislative changes. The other would require administrative action.

And on all of those issues that were administrative, the President and Cabinet dealt with them. The [administrative] issues, for instance, of vetting. The NIA was given the mandate to do the vetting, and they have been doing it since then.

And the issue of mandate for intelligence within the DSO - [the DSO] was told you cannot do it because it's not within your mandate.

The issue of foreign liaison as well, they [the DSO] were told that should not be done.

And on vetting, there was the language used by the judge: “admonish or reprimand” (you know), the relevant officers, for failing to do what the law says they should do.

And on co-ordination in terms of tension between the police and the DSO, again the judge recommended that the leaders of those entities be reprimanded.

And there was also the issue about the Ministerial Committee - when you read the NPA Act. There is the Ministerial Co-ordinating Committee that had not met as frequently as it was required to, and it was expected that they meet the requirements of the law.

So the President convened a meeting in Cape Town, I remember in August of 2006, that dealt with those issues related to admonishing and reprimanding, and you know, there were various of those types of issues. You will see in the report that the President was expected to deal with those matters, and the issue around the way they had carried out their investigation. It was quite clear - you cannot deal with cases like that in the glare of the media, condemn people before they are actually found guilty about these matters, and they [the DSD] had to be circumspect about the arrest of people, and the way in which they handled that matter. It's in the report, you will find it there.

Then what remained were the things that needed legislation to effect, for instance, we didn’t need them to do anything. If it’s established that the establishment is constitutional then that is fine, there is no debate. But the location is not unconstitutiona - it’s a matter of management and institutional design, as to where and how you would want to deal with crime in this way. The oversight issues had to be legislated. So you needed a bill to legislate on oversight, including the police’s Complaints Directorate issues, and responsibility that needed to be done in that particular way.

The issue of vetting for senior investigating people also needed to be legislated - you need to amend the Act. That process was undertaken and then at the time that it was supposed to be processed in cabinet and submitted to parliament, there was this review on the justice system and the view was that these matters must be deal with together and not separately.

So this Justice System Review was completed by last year - the end of the year - and that is why at the beginning of the year we were able to work on the Bills. The relevant people were able to work on the bills that related to the work of the Scorpions.

You will find that when you work with the Bills, you need amendments to the Police Act and the National Directorate of Public Prosecutions. So it will be two bills that will be amended accordingly, when they come to Parliament. So [one will be] championed by [the department of] Justice, and the other by the police and by [the department of] Safety and Security. That is why I would not want to talk about that because it’s a responsibility of Safety and Security and Justice, and they will brief you accordingly at an appropriate time. I think I have dealt with all the issues that relates to this report. Some of you might have accessed it by now, some of you might not have it. You have already told them where to find it. So it’s a thick report, so we didn’t think of making copies.

Moderator: We already have some few hands, as we usually do. Just mention who you are, and where you come from.

Journalist: Peter Viles from BBC. We have read your report two years ago in manuscript. It still doesn’t say why it’s taking two years to get to this stage, when you made the recommendations public at that time but only now the report is being released.

Moderator: We will take [more] before he answers.

Journalist: The President…the report public..[inaudible question] [laughs]

Moderator: We will have the lady over there?

Journalist: Hi - Mandy Wiener from Talk Radio 702. What impact is this report likely to have on the legislation? And the point I am trying to make is: Is there a purpose for releasing it now? Are these recommendations going to be taken into account when legislation is being discussed before parliament - the fact the location is not unconstitutional because this is definitely the argument that opposition parties are going to be using? They are saying because Judge Khampepe found that the location was not unconstitutional, it shouldn’t be moved. What is your reaction to that?

Journalist: [first few sentences of question not uttered in microphone] … that the Presidency failed to move. The reason I am asking this question is because after Khampepe and now - the period between Khampepe and now, some of the things that Judge Khampepe recommended such as the problem with liaising with foreign intelligence, co-ordination and the vetting information, they continued to happen during that period. Will it be unfair to say that the President has failed to move as fast as the Commission wanted this issue to be solved?

Moderator: And the last one for the round and the we will have the answers and then we will take another round.

Journalist: Yeah, this is Eric Maake from the Sowetan. Can you be specific about the areas of tension between the police and the DSO that has caused it to be reprimanded?

Reverend Frank Chikane: On the delay…let me just [say] that there was no intention to really release this full report to the public at the time when we dealt with it, because the issue that was more relevant was [that] of the recommendations, [hence] we catalogued the findings rather than the details. So in terms of the recommendations and the findings, it was sufficient to deal with those matters at that particular time.

The President decided when he addressed parliament in February, to release the recommendations and later stated that we can release the whole report so that it can be available to the public, because if you deal with the bills dealing with the DSO, people would want to see what is in the report rather than rely on the summarised recommendations.

So that is the decision of the President in February. The decision was not made at any other time except in February.

Then there was a question about… the President said will be released at [that] time when the bills are submitted to parliament. So you will remember it was expected that it will be done at the end of March. That was the intention, to do that. But there was an exercise because the DA and the UDM decided they would use the Access to Information Act to ask for the report. We were a bit surprised because the President said he was going to make it public by March.

We didn’t understand why they wanted to use that process. Now I can see why because when I read the statements they say: “we forced the President to release the report”. It's quite interesting politics, because I am sure if I was a politician I would do the same, but it was just a political game to say ‘we have forced the President’. You can’t force the President when he has already decided to do so.

The delay about the release - we needed enough time, and I think I must state this very clearly: Part of this report was based on information that was presented in closed sessions with classified documents, and so once a report of that nature is produced, we have a responsibility in terms of the Intelligence Act 662 and 663 - you can check the section, don’t quote me - that requires, for instance, the Parliamentary Committee when they deal with a matter, before they release it to the public they have to ask the President in terms of Act 662, to authorise the release of the reports.

Secondly, Act 663 - to check the information [to ensure] that there is no information that would risk the security of the state because it has to do with intelligence matters. And so, we had to subject this report to that because it was necessary. Fortunately we didn’t have to remove any word from it and so you are having it as the judge reproduced it, because it is clear that the judge wrote it while understanding at the back of her mind that a report of this nature could be released to the public. Therefore it passed the test, and that is why I am confident to release it. I have a responsibility to make sure that the documents that are released meet the [standards]. So there is no delay about releasing it.

Why we chose today, Madam? I don’t know why, because the President’s program was planned long ago. We plan according to processes of Cabinet and then we went to cabinet to finalise this matter last week Wednesday. If we did [it] on Thursday, he would have been on holiday. So I am sure you would have complained bitterly, and so we have decided to release it today and also we wanted to get it gazetted. So we couldn’t have gazetted it immediately after Wednesday. Today is the earliest time we could get it gazetted. It has nothing to do with the movements of the President. I mean what would the release of the Khampepe report have to do with the movements of the President of the country? No, that wouldn’t really be relevant in this case. In any way I take full responsibility because I have been managing this matter (the President).

You know, the President doesn’t sit and decide when they go to a press briefing. The only decision that he makes which is signing a minute, it’s the decision to release. When you do it, et cetera, it’s a different matter.

What impact on the debate? I think you will look at the statement of the President in Parliament. He says we will release this, and he says that at the time that we approach parliament to seek its view and agreement with the proposals we will make, we will also release the findings of the Khampepe Judicial Commission to enable the honorable members, the country, to better understand the overall context within which we must express the specific challenges of intensifying the fight against organised crime.

So there are two things that he will inform ultimately once he goes to parliament. It’s the review of the National Crime Prevention System and institutions, plus the Khampepe Report, put together to become the basis on which people make decisions about what to do.

I think we need to make a difference between legal requirements - prescription for an institution to be in a particular area, and administrative institutional design - that has nothing to do with the law. There is nothing unconstitutional for the DSO to be in the NDPP’s office except that it raises other complications. Because of that you have to sort out those complications, but it could be anywhere else. There is no law that says, you know, I mean the Constitution, the law - it’s the legislation, but the Constitution does not prohibit where it should be placed.

So I think people have got the freedom. Fortunately we have a parliament in this country, and that is the fortunate thing as Cabinet doesn’t make the laws. Parliament makes the laws, and parties would participate in the process of dealing with the issues.

The President failed to move? I don’t think so, sir. The President has done all the issues we have had to do. You remember I have said [that in] June 2006 we made all the recommendations public, and by August we got all the Ministers andGs that deal with security-related matters (all those who were affected, including the National Director of Public Prosecutions), and that is where [the President] did reprimand and the admonish, and got commitment that people would work in a particular way. For instance I was interested in checking when the Browse Report was produced, because it was done after that fact. I would be really concerned and then I realized that the Browse Report process was started earlier in 2006, isn’t it so, Loyiso? 2006, and you know by 2007 it became public.

When you go back to the history you will find that they started dealing with this matter. The National Director of Public Prosecutions will say he saw the first elements of it by March 2006 - somewhere there. So in a sense the Browse Report was the product of the old ways of doing things and we have said: ‘No’, you cannot do it in that way. You need to do it differently.

The issue of relationships between the institutions - I mean, the only thing that became a challenge about the relationships has to do with the DSO being given much more powers and because it was given much more powers, it could take cases from the police, you know, using that power - Section 28 of the NPA Act.

So in a way, the police could be investigating something and DSO would come and say: ‘we are interested in that case in terms of this act. Bring it to us’. So that created tensions and that is why the judge recommended that the police should be given the same powers.

There is no reason why the DSO should have those powers, whereas the police do not have those powers, so that you don’t have a power gain between investigating authorities or entities within government. So it was a relationship like that. That relationship was complicated by the fact that the DSO is within the national prosecution system, in the sense that they are under the National Prosecuting Authority. So if the police want a prosecutor, they have to get to them - in a sense. It is complicated because they [the police] don’t go to the DSO, but they go o the Head which is the National Director of Public Prosecutions, who also supervises the DSO, and that creates tension in that regard, and so that has to be resolved completely.

There was also something I didn’t mention in the report here, which deals with the issues about prosecutors and investigators - that at times when you get a prosecutor crossing the line to be an investigator, he could actually end up calling the prosecutor as a witness because if you go and search a house, you could end up being a witness about what happened in that particular house. So there are complications when you have to do the Troika system. It’s a necessary effective way of dealing with crime to bring prosecutors, intelligence and investigators in one room but then you have to handle it with sensitivity in that regard.

The areas…what was the last question? What was it? Who asked the last question? From Sowetan? Yes. I can’t read my own hand writing. So it's about tensions, as you say. I have answered that question actually. I mean there are always tensions among the institutions of stat, but the way in which the system was constructed, made the tensions even more elevated to levels that they shouldn’t be. That is why you had to reconstruct it, in a way that eliminates those issues that cause tension amongst the police and the investigators.

Moderator: I see some more hands.

Journalist: (From e-News) You have said, Reverend, that the review of the national crime prevention and the Khampepe report would be the basis for how we decide to deal with crime fighting, et cetera. But how certain are you that is going to happen? How sure are you that the Khampepe report is going to be adhered to, because if you look at Cabinet's 'u-turn' that happened on Wednesday, where the General Law Amendment Bill and other bills were approved, this is going to give Parliament, if these bills are approved, the ability to disband the Scorpions. And yet here in Paragraph 46.2 of the Khampepe report, Judge Khampepe says: ‘whereas the recent statistics show promising levels indicating some decline of criminal behavior, generally I am not persuaded that the rationale for the establishment of the DSO has since disappeared to justify the trans-location of the DSO to the SAPS’. So I am just a little bit confused about how this is going to be adhered to when evidence on the ground shows the opposite.

Reverend Frank Chikane: Can I just answer that, because it’s a bit involved? I think what the judge was dealing with, you know, if you go through the report you will find that there were those who said ‘no, organised crime has abated and so we don’t need the DSO’. There were people like those who went to make submissions to the judge. There were others who were saying ‘no, there were other reasons why we have the DSO in terms of the way the police were being structured at the time when the new democracy was established’. There were others who said that. You know, there were people who said all sorts of things.

I think what the judge is saying is that the rationale for having the DSO because it had to do with how you deal with high-level organised crime, has not gone away and therefore you need that mechanism dealing with high-level organised crime. I would say the way you measure what goes to Parliament will be whether or not - in terms of the President’s statement - whether or not whatever is done weakens the capacity of the state or strengthens the capacity of the state, for the law enforcement agencies to intensify its war against crime.

So there is nobody at this stage - it will be strange if anybody could [say] the threat of organised crime has abated. Let me say just that it would be interesting to get the statistics. I was told that, I mean the statistics of organised crime are small as compared to the rest of crime in the country. It is [at] 3%. 3% of high-level organised crime, let me put it in that way. Not how they plan to steal my car. You know, high-level organised crime rather than those youngsters in Soweto who came and got my car because they wanted to do something else. But there are organised crimes around stealing cars where there are syndicates who process cars through borders, pay customs officials, police, licence departments, and by the time the car goes through the border, it's perfectly legal. That’s high level organised crime. It is [at] 3%,but it can be a threat to the security of the state. In that sense it is serious because they buy officials, they buy leaders, they pay salaries.

There was one syndicate which was employing 700 [civil servants]. I would never forget that story. 700 people in the country - customs, police and everybody, and so they pay them second salaries. So they are working here in my office and they are paying them a second salary to do the job they are doing, and process that. And I would just make an example with my office. I am not saying they were in my office. But the point is that [when] you pay somebody for a job, you pay that person to negate the very job that you pay the person for. In that sense, even if it [organised crime] is at 3%, it has got the capacity to corrupt the state in a big way. When you look at the movers and shakers in that area, when you change the government they are already there with the leadership. They make friends, they are high-level people with lots of money, and if you have an election tomorrow, they will be friends of the elected people quickly. They know how to move, they are in high business, they are swift and dangerous.

And they are not the majority of the people in the country, and so that is really the issue. And the President also said government has also reaffirmed its commitment to meet its international obligations, and so we don’t have a choice on organised crime because it affects other countries - it's cross-border. And so there should not be anybody in the country who should do anything that would weaken the capacity of this country to do a deal with organised crime. And the President has made it very clear about that and so whatever happens in Parliament - by the way bills from cabinet are not final - it is Parliament that legislates. So they go there and they become debated. Parliament can make a different decision about whatever. Some of the bills change radically in Parliament. So it’s a matter of democracy and democratic processes.

Journalist: Reverend, I am sure you argue that the view that the Scorpions be integrated into the SAPS is because of the review process and not the ANC’s proposal. But nevertheless, the ANC in arguing for the Scorpions to be disbanded in December, citing the vetting of personnel, citing the fact that they conducted intelligence work and the number of recommendations and findings were cited by the ANC. In that way implying that the recommendations of the Khampepe Commission were not carried out, because they cited these were the reasons why the Scorpions should be disbanded in December 2007. Do you think the ANC’s assessments were wrong? Do you think the recommendations were carried out again?

Reverend Frank Chikane: Well, I am sure you don’t want me to answer that question because you want headline news: ‘Frank Chikane differs with the ANC about what’. You are not going to get it. I think we must agree on that you are not going to get that. But if the ANC made decisions in Polokwane, I think you should ask the ANC. They must answer the question. I cannot answer the question about decisions of the ANC and I shall not make headlines about that.

The point is that, I can only say, the government has dealt with the issues it needed to deal with, especially the administrative matters. [On] the vetting issues, for instance, I was even given the statistics about what progress has been made and et cetera and so forth. And that is not a problem. Those issues have been dealt with. Remember that the thing that dramatises this issue becomes the Browse Report. You see that is the thing that dramatises this issue, but the Browse Report was written before the report of the Commission. So you know in a sense its just a matter of…you know, history…that is why I don’t believe in history, because history is so wrong.

Now, you were asking if this has been released because the President is leaving the country. It means it would be a distortion of history because it has nothing to do with the leaving of the country by the President. I think that you have to accept that the Parliamentary Committee on Intelligence only dealt with that report now, and it has been having interviews and people have been making submissions throughout the year - last year, Loyiso? And only released their report now.

So you could say 'why did they delay in releasing the report?'. So it has nothing do to with whether or not government acted on certain things.

What I said to you is that those things that needed changes in the legislation, are the ones that have been delayed because they have to go through Parliament. And because of the review last year, [these] were delayed further so that the package of the Bills taken to Parliament would take into account all those issues. There are two Bills - I keep on saying Bills. I said there are two Bills but if you make changes in the justice system, it will affect the acts which prescribe what the Justice Department should do, and those that the police need to do and the Intelligence need to do. So that is why you end up with two Bills. And one amends the NPA Act and the other amends the Police Act. That’s why you get two departments bringing Bills to Parliament.

Moderator: Moshoeshoe?

Journalist: Reverend, on some of the issues, some of the recommendations by the Khampepe commission, such as the concern about the DSO liaising with foreign intelligence, that were raised or contained in the submission by the NIA to the Khampepe Commission - especially with the liaising with foreign intelligence - the NIA even mentioned the name of the agent whose name also popped out in the Browse Mol report - the vetting, the oversight issue and the intelligence gathering issue - but if I remember very well, Cabinet, subsequent to that submission by the NIA, released a statement distancing itself from the NIA and kind-of restoring its confidence in the DSO. If my history serves me well, that is true. Do you regret the fact that Cabinet didn’t make a strong consideration about what the NIA was saying?

Reverend Frank Chikane: I don’t remember Cabinet making that statement.

Loyiso Jafta: No, it's not true

Reverend Frank Chikane: Loyiso - no it wasn’t Cabinet…

Loyiso Jafta: Cabinet then approved an illegality

Journalist: But it was cabinet.

Reverend Frank Chikane: This is Loyiso Jafta who is responsible for policy in the areas of justice and security cluster of government.

Loyiso Jafta: I seem to think that my history serves me better than yours. Cabinet would have not done that. Doing it would have meant Cabinet…

Journalist: It was a cabinet Minister, if I am right

Loyiso Jafta: No, cabinet Minister I doubt, because it would have meant endorsing an illegality. I cannot reconcile myself with that suggestion…

Reverend Frank Chikane: If I remember well, I think what we are dealing with is issues of differences of opinion. I think, Loyiso, it would have had to do with whether or not the document submitted to the commission was approved by a minister. You know at the time it was a technical issue, I think, I am sure that is what he is referring to.

Loyiso Jafta: I am not sure he is referring to that DG. What I can say categorically, is that any agency of the state investigating high-impact organised crime, of necessity has to gather tactical intelligence consistent with the subject matter of its investigation. That’s quite different from the gathering of intelligence of the nature that led to Browse Report. So if you are investigating Loyiso, you have to gather intelligence which is tactical. Who is meeting [me]sic, what are they discussing behind that [closed…that sort of thing]sic. But we [here] have the whole budget the and whole entity responsible for gathering of information - that is what is illegal. So maybe Mr Kasrils was talking about the imperatives to gather tactical intelligence which is necessary for investigations, but not for intelligence mandate per se for the DSO.

Journalist: Okay, let me just go back to the statement and comment…

Reverend Frank Chikane: No, let me just say there is no way that I deal with those issue, because I am the DG in the Presidency and I advise the President. There is no way in which…you see you could differ about technical things and this document goes through this process and the other.

The content of the document that talks about whether there was a violation of the legislative framework. Nobody, not even Cabinet could say that was wrong. And indeed when we dealt with the Browse Report, I am the particular person who dealt with those issues myself, and said that there are indications that some elements within the DSO, and I don’t want to say the rest of the DSO, who interact with foreign intelligence services, and we are outside the DSO and therefore commits acts of illegality in the process. That is why you heard them having the capacity to have the Browse Report, because any intelligence services that deals with those matters will not be misled by that type of document.

And even in our initial investigations about leaks in the DSO, our conclusion was that for as long as you have elements within the DSO liaising with foreign intelligence agencies outside the legal framework, you are about to compromise the state and leak information, and in some of those analyses you will find them connected with journalists as well, (who) give information to journalists which is classified, and it is illegal in that regard, because it is about an investigation which can be compromised. So that is the real issue. We have dealt with those issues. If anybody continued to be involved in acts of illegality, [they] should be arrested and prosecuted.

Moderator: We will take the last round now.

Journalist: Adrian Basson from the Mail & Guardian. Reverend Chikane, could you please give us some more information on what you called the decision to conduct a review into the criminal justice system. Who made that decision? If I take a look at my note it says: ‘At the time when these recommendations were supposed to be implemented into legislation and presented to cabinet, there was a decision taken to not do that - to rather take the Khampepe and make it part of the whole review process. Who took that decision? Was it the Cabinet level? Was it the President? Or maybe some dates, if you have them available.

Reverend Frank Chikane: I didn’t hear you. Did you say take the decision not to use the Khampepe report?

Journalist: Not to use it, not to implement that legislation and the recommendations, for example, that it says under the NPA?

Reverend Frank Chikane: No, I don’t think that is what I said and that is why I thought you said something else. No. What happened is that the Justice Cluster - you can speak to them better - the Justice Cluster started a process that was unrelated to the Khampepe report. That was about how best you deal with crime. I am sure you can deal with them better. And in the meantime, the parallel process was doing the Bill that deals with issues that arise out of the recommendations of the Khampepe report. At the time those bills served in Cabinet, the view was that it must be co-ordinated with the findings of the review, which is much more broader and dealt with other institutions of state that deal with crime. And therefore that you should take those issues plus the Khampepe Report in consideration when you finally come back to Cabinet and therefore Parliament.

And so there was no decision not to act on the Khampepe report, except for that one recommendation that was considered. So the Khampepe report is part of the recommendation to inform the decisions that gets made. Of course Parliament can also make its decisions, also informed by the same sets of documents. That is why they decided they need to have the information, so they are not deprived of the possibility to do so. Can you explain the review process?

Loyiso Jafta: Thank you DG. The decision to review the criminal justice system in particular dates back to around 2004, largely informed by the example that appeared in the United Kingdom where a review was led, I think, by Lord Justice [Old]sic. So it’s a matter that inquires into operational matters but also policy issues.

For instance, how many detectives do we have in the country? Around 22 500. How many crime scene experts do we have? Just under a 1000. What capacity is there in the police? What sort of training is given to detectives? Are there frameworks for co-ordination at the local level between detectives and prosecutors? Do we put cases on the roll that are ready for prosecution? So those are the kind of things that the review into the criminal justice system deals with. There will be other matters related to policy issues, the law of evidence, is there something we need to look into? So there is a whole range of issues that we are looking at, and co-ordination including with Correctional Services.

Journalist: I understand, but what is clear is that in June 2006 Reverend Chikane said government accepts the recommendations which included that the DSO stay in the NPA. That was in 2006. If you say this review already started in 2004, that gives us two years. Nowhere was it said during that time that the Khampepe Report forms part of the bigger review, and in fact Cabinet said in June 2006 that they accept the outcome of the Khampepe report. Legislation was drafted and Reverend Chikane says it was presented to Cabinet, when a decision ... to hold it back. What informed that decision? What caused Cabinet to pause?

Reverend Frank Chikane: No, I mean the process talked about, only matured last year. There was no reports of the justice review when the Khampepe report was presented. So the people who were working on the Bills were working on them purely on the basis of the Khampepe report, but you needed to take into consideration [that] you couldn’t run parallel operations, and that matter was dealt with.

You see there is this issue about the length of time things take. You know the consultative processes within government are quite challenging, including consulting with the people who are affected. So we have laws that prescribe the rights of people, and all sorts of things, and if you woke up in the morning and acted like a dictator and produced a Bill, you will end up be cleaned in court and you will end up in the Constitutional Court.

So the processes of our original plan, if I remember, was to submit the Bill March last year, as I remember - if you went back to our plans. It was March last year , but the processes of negotiations and submissions, representations even including representations by the DSO, the police, et cetera, about what to do takes time. I wouldn’t want to look at the delays as if there was a deliberate delay not to do it. This is a constitutional state and everything that you do gets challenged in court, and then you have to follow on the processes. So there was no decision whatsoever against the recommendations of the Khampepe report. It was accepted by President and Cabinet except for one, as I have said.

And those recommendations are part of the considerations, and you have to remember a report is not law. There is a difference between a report to the President and law. So it is a report and it gets taken into consideration when they deal with it. How many still want to ask questions?

Moderator: I did see some hands

Reverend Frank Chikane: Yes?

Journalist: My name is Xoli from CNBC. Reverend, I would like to bring to your attention a slightly different matter, it’s a matter -

Reverend Frank Chikane: -which is not Khampepe?

Journalist: Yes.

Reverend Frank Chikane: You are taking a chance, I am sure of that one. What is the matter?

Journalist: I wonder if the President has voiced opinions at all, at the vote of' no confidence' by the MDC over Morgan Tsvangirai

Reverend Frank Chikane: No, you are really taking a chance. Thank you very much.

Moderator: DG, I am sorry you were delayed.

(End).

Issued by: Government Communications (GCIS)

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