The ANC's conduct in passing the Polokwane resolution to disband the Scorpions (Directorate of Special Operations) is "invalid" and so is the proposed legislation now before Parliament, the Centre for Constitutional Rights (CFCR) said on Wednesday.

CFCR director Paul Hoffman was among those making presentations to Parliament's justice and safety and security committees on two draft bills dealing with the Scorpions' disbandment.

Fundamentally flawed

Hoffman said both bills were "fundamentally and in principle bad in law, flawed as policy, and are inconsistent with the Constitution".

"They are accordingly invalid and must be rejected by all the members of the committees who consider themselves bound to uphold the Constitution," he said.

The Constitution was the supreme law and law or conduct inconsistent with it was invalid.

"The conduct of the ANC in passing the resolutions is invalid and the proposed laws contemplated in the bills are equally invalid," Hoffman said.

This was essentially because of the structural unconstitutionality of the scheme of the bills.

The main thrust of the bills and the resolutions was that the DSO would be disbanded and the investigative personnel now under the control of the National Prosecuting Authority (NPA) would be housed in a new unit of the SA Police Service (Saps), over which the NPA would have no control.

But, the DSO could not simply be liquidated without regard to the Constitutional requirements that saw it called into existence.

The NPA and Saps were "creatures of the Constitution".

Without fear or favour

"The short point is that the NPA was given independence to act without fear, favour or prejudice and the Saps was put firmly under the control of the Minister of Safety and Security with no institutional independence of any kind."

Thus, both bills were legally fatally flawed; the one for taking over the investigative personnel of the DSO in a structure in which it did not constitutionally belong, and the other for allowing the elimination of the investigative functions currently carried out within the NPA through the DSO, Hoffman said.

Sapa