Constitutional Hill

arms deal

A secret arms deal whitewash?

Feb 22nd, 2012
by Pierre De Vos.
22 comments

President Jacob Zuma’s announcement that he would institute a Commission of Inquiry into possible arms deal corruption, was widely lauded. Finally, most commentators said, there was a real chance that a full Judicial Commission of Inquiry would get to the bottom of the arms deal scandal. The Commission would finally allow South Africans to get to know the extent of the corruption in the arms deal as well as the names of those who profited illegally from this deal.

However, the recent promulgation (in terms of the apartheid-era Commissions Act of 1947) of the regulations that will regulate this Inquiry suggests that the Presidency is anxious to control the information submitted to the Commission and to prevent the process from leading to the revelation of any embarrassing or shocking details that might turn out to be damaging to him personally or to those he might wish to protect (whether they have “donated” money to his cause in the past or not).

In fact, a quick perusal of the Commission’s regulations leaves one with the uneasy feeling that the aim of instituting the Commission of Inquiry might well all along have been to  help with the suppression of any possible further damaging revelations about the arms deal. By drawing critics of the arms deal into the Commission process, these critics might well be forced to stop revealing any damaging information about arms deal corruption to the wider public.

Thus Regulation 10 states that “whenever the Commission is satisfied … that the Commission’s inquiry may adversely affect any existing, instituted or pending legal proceedings or any inquiry instituted in terms of any law, evidence which is relevant to such legal proceedings or inquiry shall be dealt with by the Commission in such a manner as not to adversely affect such legal proceedings or inquiry”.

If this regulation is strictly interpreted by the chairperson of the Commission (and not in accordance with the principles of openness, accountability and transparency contained in the founding provisions of the Constitution), the Commission may well order that all evidence about arms deal corruption which may relate to any existing or even pending criminal investigation be kept secret. This would mean that any documents before the Commission that may or may not be used in future arms deal corruption cases may suddenly become secret documents which may not be revealed by anyone.

Moreover, section 12 of the regulations declares it to be a criminal offence for any person to reveal any ”information which may have come to his or her knowledge in connection with the inquiry” (including any records in possession of the Commission, including notes, record or transcription of the proceedings) and also prohibits a person from leaking any such documents to anyone. This means that leaks would possible lead to criminal conviction for anyone found guilty of leaking documents or other information relating to the Commission’s work.

Section 14 and 15 drives home the message that the Commission would have broad powers to keep almost any aspect of the Commission’s work secret. It criminalises the following acts by both whistle blowers and by members of the media:

14. No person shall without the written permission of the Chairperson: (a) disseminate any document submitted to the Commission by any person in connection with the inquiry or publish the contents or any portion of the contents of such document; or (b) peruse any document, including any statement, which is destined to be submitted to the Chairperson or intercept such document while it is being taken or forwarded to the Chairperson.

15. No person shall, except in so far as shall be necessary in the execution of the terms of reference of the Commission, publish or furnish any other person with the report or any interim report of the Commission or a copy or a part thereof or information regarding the consideration of evidence by the Commission, unless the President has authorised the publication.

These provisions are clearly over-broad and are almost certainly unconstitutional. It would potentially prohibit anyone who submits documents to the Commission from sharing these documents with the media. If, say, Terry Crawford-Brown or Andrew Feinstein prepares a document and submits it to the Commission it would become a criminal offence for them to show this document to anyone — including to members of the media — unless given permission to do so. And if the media receives any information about the “consideration of evidence” by the Commission and publishes a report about this, the reporter and editor will be committing a criminal offence.

Interestingly, these provisions were cut and pasted almost word for word from the regulations which were promulgated to regulate the work of the Donen Commission of Inquiry into the food for oil scandal. That report was completed in September 2006 but was never released until last year, after the Cape Argus and Independent Newspapers challenged President Jacob Zuma in court to do so. Presumably the President released that report because his lawyers informed him that in terms of the Protection of Access to Information Act (PAIA) he would sooner or later be required to do so.

It is not clear to what extent the Commission would legally be able to refuse anyone access to the documents before it in terms of these regulations. After all, in as far as these regulations clash with the provisions of the Promotion of Access of Information Act (PAIA), the regulations quoted above will be of no force and effect. PAIA would clearly apply to the arms deal Commission as the Commission is a public body exercising a public function in terms of the Commissions Act. Section 5 of PAIA states that “this Act applies to the exclusion of any provision of other legislation that… prohibits or restricts the disclosure of a record of a public body or private body”.

However, in the chairperson of the Commission has a special love for secrecy and wishes to do his or her work in the dark, far away from the prying eyes of the public who might be shocked by the allegations of fraud and corruption involving high placed ANC leaders and other politically connected businessmen and women, he might well rely on several provisions in Chapter 4 of PAIA, read with the Commission’s regulations, to do so.

Most pertinently, section 41 of PAIA states that documents could be kept secret if it could reasonably be expected to cause prejudice to:(i) the defence of the Republic: (ii) the security of the Republic; or (iii) the international relations of the Republic. It may also be opt secret if it would reveal information: (i) supplied in confidence by or on behalf of another state or an international organisation; (ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement or international agreement.

Such documents would include any documents relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention, suppression or curtailment of subversive or hostile activities; relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of: (i) weapons or any other equipment used for the detection, prevention, suppression or curtailment of subversive or hostile activities; or (ii) anything being designed, developed, produced or considered for use as weapons or such other equipment. Records may also be refused on grounds of so called national security concerns.

Whether the arms deal will be a whitewash or whether it will become a credible, legitimate, open and transparent process in which a serious effort will be made to come to grips with the arms deal scandal without trying to hide anything from the public, will depend largely on the Chairperson of the Commission. However, if the Chairperson of the Commission fails to fulfil his task in conformity with the constitutional values or in a slavish executive-minded manner, one would be well advised not to call him out on this.

You see, section 13 of the arms deal Commission of Inquiry Regulations deems it a criminal offence for anyone to “insult, disparage or belittle the Chairperson or any member of the Commission or prejudice the inquiry or proceedings or findings of the Commission”. Dear readers, it might well be that the Chairperson of this Commission will fulfil this serious and important task diligently and in an open and transparent manner — as required by the Constitution and the law. If that is the case, I will cheer him on. If not, well, maybe some readers will volunteer to contribute to my legal fees if I am then criminally charged for disparaging or belittling the Chairperson of this Inquiry.

Terms of reference of arms deal inquiry shows good political “management”

Oct 28th, 2011
by Pierre De Vos.
49 comments

In an open and democratic society like South Africa with a free press and an engaged and active citizenry, a vibrant civil society, and political parties who hold regular internal elections, it is very difficult to cover up maladministration and corruption. There are almost always people who “know too much” and have the required conscience (or an axe to grind) who will be willing to spill the beans. In such a society — even one electorally dominated by one party — public opinion also matters greatly.

When a politician, an official or a businessman is caught up in a scandal, the most astute way for that person to deal with such a scandal is to try and influence public opinion to minimise the effects of the scandal or to turn it to his or her advantage. Lying about the scandal usually makes things worse — just ask Sicelo Shiceka or anyone involved in the Brett Kebble saga. If one is a low-level official one might try to ignore the whole thing with a “no comment” because members of our media usually have a very short attention span (and limited resources) and often do not follow up on allegations of bribery or corruption except in the most serious cases.

But this strategy usually does not work if one is a high profile individual like a Police Commissioner, a captain of industry or a prominent leader of a political party. In the long run the painful drip-drip of revelations about the scandal will damage the reputation of that person (and the political party he or she belongs to) and soon enough members of the public (also members of one’s own political party) will be keen to hold one accountable. And if one is lucky or very clever one can even use a scandal to get rid of political enemies — although this can backfire, as former President Thabo Mbeki may attest.

President Jacob Zuma – like Helen Zille – understand all of this. That, in my opinion, is why he appointed a commission of inquiry into the arms deal. It was announced yesterday that the commission will have wide-ranging powers, including the power to subpoena witnesses; to compel witnesses to answer questions; and the power of search and seizure. Non cooperation with the Commission will amount to a crime similar to contempt of court and will constitute an offence punishable by a fine or imprisonment for a period between 6 to 12 months.

The terms of reference of the commission as well as the powers given to it are indeed wide-ranging and if the presiding judges do their job properly, the commission might well once and for all lay the arms deal scandal (if not allegations of a possible cover up) to rest. Of course, the commission might well damage or destroy the reputations of several politicians, officials and arms traders (assuming that the latter has any reputation to start with), but given the terms of reference President Zuma is unlikely to be one of them.

The commission is empowered to investigate the rationale for the arms deal; whether the arms and equipment acquired in terms of it are under-utilised or not utilised at all; whether job opportunities anticipated to flow from the deal; whether off-sets anticipated to flow from the deal have materialised at all; and — most importantly —  whether any person/s, within and/or outside the Government of South Africa, improperly influenced the award or conclusion of any of the contracts awarded and concluded in the procurement process and, if so whether legal proceedings should be instituted against such persons, and the nature of such legal proceedings. The commission may also investigate whether any contract concluded in terms of the deal is tainted by any fraud or corruption capable of proof, such as to justify its cancellation, and the ramifications of such cancellation.

President Jacob Zuma himself was embroiled in the arms deal scandal, but it is important to note that Schabir Shaik was not convicted for soliciting a bribe on behalf of President Zuma on the condition that Zuma would try and influence the awarding of arms contracts. He was convicted for soliciting  bribe (for the relatively small sum of R500 000) for Zuma on the condition that Zuma would try and influence the investigation into corruption into the arms deal.

Zuma skilfully exploited his involvement in the scandal to turn himself into a victim and thus to gain public sympathy. He knew that public opinion (not the opinion of the chattering classes, but that of the ANC rank and file) would be pivotal for his survival as a politician and he thus exploited widespread unhappiness with then President Thabo Mbeki inside the ANC, without ever admitting to any wrongdoing.

Implicit to his argument in the run-up to Polokwane was that he was being singled out and made a scape goat to put a stop to his political ambitions. Because the public had mostly already concluded that there had indeed been widespread corruption in the arms deal and because no one else was ever pursued or prosecuted (except for Tony Yengeni who was, once again, convicted of the relatively minor crime) this strategy seemed to work and (at least the majority of delegates at Polokwane) forgave Zuma for any possible transgressions.

The terms of reference of the arms deal inquiry suggests that if President Zuma was indeed embroiled in the arms deal, his involvement was limited to the soliciting of a bribe on his behalf by Schabir Shaik with the understanding that he would try and prevent the arms deal investigation from uncovering corruption. That is why the terms of reference are wide-ranging but does not include any mention about the events which followed the conclusion of the arms deal. The Commission will not be empowered to investigate whether bribes were paid to some politicians to try and cover up the arms deal scandal after the fact, leaving Zuma relatively safe.

Many allegations about the arms deal have been made, some implicating politicians and some implicating the ruling party itself. At first blush, there might therefore appear to be a danger for President Zuma in appointing the commission as it might damage the ANC. But on reflection, President Zuma might perhaps be calculating that he could once again turn a scandal to his personal advantage and to the advantage of the ANC. If the Commission uncover corruption of members of the administration of former President Mbeki, Zuma can claim that he was the one who rid the ANC of the corruption and might be able to convince many voters that under his leadership the ANC is actually serious about rooting out corruption, thus gaining (instead of losing) support for the ANC.

I suspect that the appointment of this commission was a brilliant move on the part of President Zuma. It might well be that civil society pressure and pressure from ANC members played a role in the decision (as Steven Friedman cogently argued in Business Day) and that this demonstrates that the constitutional democracy works much better than some in the chattering classes think. But this does not mean that the appointment of the arms deal commission of inquiry, carefully steered away from investigating those aspects of the arms deal that might implicate the President, was not a good move.

Instead of ignoring public opinion and attacking the messenger by complaining about how the media was painting the ANC and its leaders as corrupt, the President acted like a good politician would have done in any well-functioning democracy by managing the effects of the scandal in order to influence public opinion to his advantage. It is not surprising that he did so carefully, seemingly to ensure that his own limited involvement in the scandal will not be probed.

Obviously this move will not be popular with former and/or present ANC leaders and arms dealers who run the risk of being exposed by the work of the commission. But if I was an ordinary ANC member I would be very happy and impressed by this move by our President.

Why Zuma’s moves may be unlawful

Oct 25th, 2011
by Pierre De Vos.
43 comments

The news that President Jacob Zuma had fired two cabinet Ministers (found by the Public Protector to have acted in the most disgraceful manner) reminded me of the words of Winston Churchill (that warmongering, jingoist, raconteur and drunk), who once remarked that “America will always do the right thing, but only after exhausting all the other options.”

President Zuma also eventually did the right thing (although he might have done so in an unlawful manner, as I will explain below), after running out of other options. We do not seem to hold our politicians to a very high standard (perhaps because we do not believe that we deserve better), and President Zuma has therefore been widely applauded for his “brave” and “decisive” move. (I myself experienced a rush of goodwill towards our President when I heard yesterday that he had finally done the right thing after exhausting all the other options.)

Apart from the firing of the two cabinet ministers, President Zuma also announced the names of three judges who will conduct an inquiry into the arms deal and the name of the judge who will chair the Inquiry into allegations of misconduct against the National Police Commissioner, Bheki Cele. Supreme Court of Appeal judge Willi Seriti will chair the arms deal inquiry and retired Constitutional Court judge Yvonne Mokgoro will chair the inquiry to be conducted in terms of section 9(1), read with section 8(1), to (8) of the South African Police Service Act 68 of 1995. (At least I assume it is this Act as the statement by the President sloppily failed to identity the relevant Act under which action is to be taken.)

Section 9(1) of the Police Service Act (read with section 8(1)) empowers a panel headed by a Supreme Court judge to enquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her fitness for office or capacity for executing his or her official duties efficiently. Section 8(6) of the Act requires this panel to submit a report to the President, the Commissioner concerned; and the Parliamentary Committees.  The report may recommend that no action be taken in the matter; the Commissioner concerned be transferred to another post or be employed additional to the fixed establishment; his or her salary or rank or both his or her salary and rank be reduced; he or she be removed from office; or any other appropriate steps be taken.

The problem is, of course, that justice Mokgoro is, as far as I am aware, not a judge of the Supreme Court as required by section 8 of the South African Police Service Act. She is a retired judge of the Constitutional Court. The Act does not provide for a retired judge to head the panel in question and it is therefore not clear why our President had purported to appoint her to head this panel.

It is also far from clear that she has ever been a Supreme Court judge as intended by the Act. As the court system has changed since this Act was adopted and as the names of some courts have changed, this Act must be read in conformity with the constitutional environment in which it was adopted. One therefore needs to look at the 1993 Constitution to establish what is meant in the Act when it states a Supreme Court judge must head the inquiry against the Police Commissioner. That document makes pretty clear that a distinction is drawn in law between what was at the time a judge of the Constitutional Court (retired or not) and what was a judge of the Supreme Court.

Section 99(3) of the 1993 Constitution, which dealt with the appointment of judges to the first Constitutional Court, stated that “four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice”, making it clear that in terms of the interim Constitution a Constitutional Court judge and a Supreme Court judge were two very different kinds of judges. Section 101 further dealt separately with the Supreme Court (after having dealt with the Constitutional Court in  previous sections) and stated that “there shall… be a Supreme Court of South Africa, which shall consist of an Appellate Division [now the SCA] and such provincial and local divisions [now High Courts], and with such areas of jurisdiction, as may be prescribed”.

Unless one does a huge amount of legal interpretative gymnastics, one would not be able to conclude that judge Mokgoro is legally entitled to act as the chairperson of the inquiry into whether Bheki Cele is guilty of misconduct or whether he is fit for office or has the capacity to execute his or her official duties. Of course, one could try and re-interpret the Act by reading words into it which are not there, but as this is not required to make sense of the Act as it stands, it would be very surprising if a court did indeed add words to the Act to justify the appointment of justice Mokgoro. The “appointment” of Justice Mokgoro by the President may therefore be null and void, which would mean any work done by the inquiry would have no legal standing.

It may appear as if the same lawyer or lawyers who had previously (wrongly) advised our President that section 8 of the Judges’ Remuneration and Conditions of Employment Act was constitutionally valid, may have been responsible for advising him that a retired Constitutional Court judge was actually a sitting Supreme Court judge.

The Commission of Inquiry into the arms deal may also run into some legal trouble if those affected by it decide to challenge the decision by the President to appoint three sitting judges to head this inquiry – although in this case the legal issue is far less clear-cut. In the Constitutional Court judgment in which that Court declared that it was unconstitutional for a sitting judge – Judge Willem Heath - to sit as the head of the Special Investigative Unit, that court warned that a judge should not normally perform a function that creates the risk of judicial entanglement in matters of political controversy. In dealing specifically with the question of whether judges should chair Commissions of Inquiry the Court stated that:

In dealing with the question of judges presiding over commissions of inquiry.. much may depend on the subject matter of the commission… In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information.

Of course, famously the Western Cape High Court inexplicably went much further in the case in which Helen Zille challenged the legality of the appointment of Judge Nathan Erasmus by then Premier Ebrahim Rasool to head a Commission of Inquiry into the alleged corruption in Zille’s administration, stating that:

With great respect to the views of the Constitutional Court, that judges may in “appropriate circumstances” preside over commissions of inquiry without infringing the separation of powers, the problem lies in deciding in any particular case whether it is “appropriate” for a judge to involve him or her self, in the particular commission. The facts of the present case starkly illustrate the problem….. With great respect to the views of the Constitutional Court, it seems to me that at this early stage of our fledgling democracy, and with the vital object of preserving public confidence in the independence of the judiciary, active judges should as a matter of principle, not chair commissions of inquiry. This would eliminate the risk of judges becoming embroiled in disputes such as the present and the need to define in what circumstances a judge could “appropriately” chair a commission of inquiry.

I would think that appointing sitting judges to conduct a Commission of Inquiry into the arms deal would at the very least be a borderline case. Even if one rejects – as one should – the bizarre statements of the Western Cape High Court in the Zille matter, it is not clear that the appointment of Judge Seriti and his two colleagues as members of an Inquiry into the arms deal would pass the Constitutional Court test for the separation of powers and judicial independence.

The arms deal scandal is one of the most controversial and divisive political issues in South Africa, pitting members of the ruling party against each other and running the risk of exposing the ruling party or at least some of its leaders to serious political risks. Whether sitting judges should conduct such an Inquiry is at least an open question.

While our President should therefore be lauded for finally acting on several issues regarding corruption, it is far from clear that the announcements he made yesterday would be considered legally and constitutionally valid. Those whose rights may potentially be adversely affected by the two inquiries may well run to the courts to challenge the lawfulness of these two Commissions of Inqiury. In the Bheki Cele case, such an application will almost certainly be successful while there is at least some chance that in the case of the arms deal inquiry there will be a decision to declare the appointment of the three judges invalid (although I would not put my money on it).

Once again, one wonders who is advising the President on legal and constitutional matters. It sure can’t be anyone who has the necessary skills and legal knowledge, or is sufficiently diligent and careful to earn the trust of the President of our country.

Concourt arms deal case was always a long shot

Sep 26th, 2011
by Pierre De Vos.
29 comments

This weekend it was reported that President Jacob Zuma told the ANC’s NEC that he had decided to appoint a commission of inquiry into the arms deal to prevent the Constitutional Court from taking charge of the matter and prescribing the terms of reference for him. The Mail & Guardian claimed that the President had told the ANC NEC that the Constitutional Court was set to rule in November on activist Terry Crawford-Browne’s application to force President Zuma to reopen the arms deal investigation and that he therefore had to act in anticipation of a ruling against him.

The Mail & Guardian reported that according to three NEC members, Zuma was aware that the majority of the court’s judges would rule in favour of Crawford-Browne. According to the report, Zuma’s decision has upset some senior members of the ANC, who privately accuse him of taking major decisions without engaging the NEC. Others in the party see the decision as a strategy to embarrass more ANC leaders ahead of the party’s elective conference next year.

This report sounds strange and deeply troubling, to say the least. There are at least three reasons why the report, if true, is cause for serious concern. (Whether the NEC members falsely leaked information to the newspaper is just as likely true as that the President actually said what he was reported to have said.)

First, the Constitutional Court is NOT set to rule against President Zuma in this case by November this year, as the full oral arguments are only set to be heard on 17 November this year. A ruling would therefore only be handed down sometime in 2012 (quite a few months before the ANC’s next elective conference takes place at Mangaung at the end of 2012). Either the journalist got this wrong or President Zuma said something to the NEC that was factually clearly wrong.

Second, the case has not been argued fully before the Constitutional Court yet and has only been set down for argument for 17 November. The judges could therefore not possibly have made up their minds on how to rule, as they are required to keep an open mind until such time as they have heard the oral arguments presented to them. If they had indeed made up their minds and if they had intimated to anyone how they would rule in a case not yet argued before them, they would be acting in a highly improper manner. If there was proof for the statement by the President, it could easily form the basis of a successful recusal application of all those judges who had already made up their minds.

Besides, even if they had made up their minds before oral argument, how on earth would President Zuma have known how the judges viewed the case without having allowed the intelligence services to spy on the judges of the top court or without having somebody – maybe one of the judges on the Constitutional Court – acting as a spy for the President?

This could mean that the statement by President Zuma to the NEC was wrongly reported by the media because the newspaper faked the report or because NEC members leaked false information to it. Or – alternatively – it could mean that the President was either lying to the NEC or that he was admitting to highly improper behaviour on the part of one or more Constitutional Court judges (for making up their minds before a hearing or for leaking confidential information to the President) and/or he was revealing unlawful conduct on the part of the intelligence service.

Either way, this would rightly constitute an enormous scandal. Either the newspaper’s journalist who wrote this story is a deeply unethical and dishonest person in which case that journalist should be fired forthwith (something that seems very unlikely, in my opinion, given the lack of a strong response from the ANC to this report), or the journalist was fed lies by the three NEC members. Alternatively, something really, really scary is happening within our Presidency and lies, deception or at best shocking incompetence and stupidity is the order of the day in that office.

Thirdly, the statement by the President is almost certainly not factually correct. I for one would be quite surprised if a majority of judges of the Constitutional Court were set to rule against the President in terms of the application to force him to institute an arms deal inquiry. In my opinion, the constitutional law arguments (as opposed to ethical arguments or political arguments) in favour of an order by the court to force the President to appoint a commission of inquiry are at best weak and at worst a little absurd.

In papers filed in support of this application, the applicants argue that the refusal by the President to appoint an arms deal inquiry is unconstitutional because the failure is irrational in that it does not serve any legitimate government purpose and is not rationally connected or related to any such purpose. In other words, the applicant relies on a rule of law argument to contend that the Constitution places a positive duty on the President to take a very specific action (namely, to appoint a commission of inquiry into the arms deal).

Usually the rationality test set out above is applied in cases where the President or some other organ of state has done something and it is found that this action was irrational. Here the applicant wants a court to find that a failure to take a specific action was irrational – which is a very difficult argument to make.  In effect, the applicant is arguing that the Constitutional Court should order the President to make a policy decision to give effect to his duties that arise in terms of section 83 and 84 of the Constitution.

Relying upon the founding provisions of section 1 of the Constitution, which states, inter alia, that the Republic of South Africa is founded on the values of the supremacy of the constitution and the rule of law and a multi-party system of democratic government, to ensure accountability, responsiveness and openness and relying further on section 2 which affirms the supremacy of the Constitution, the applicant is contending that if this is read with section 84(2)(f) there is a positive obligation on the President to appoint commissions of inquiry when serious questions arise about large scale corruption and bribery in government. To quote from the papers:

His contention is that under the rule of law foundational to South Africa’s multi-party system of government, the President is obliged to ensure accountability, responsiveness and openness. Conduct inconsistent with these foundational values is invalid. Obligations imposed by the [Constitution], which include the responsibility of the President to appoint a commission of inquiry in the circumstances upon which the applicant relies, must be fulfilled. The refusal to appoint a commission of inquiry is accordingly constitutionally invalid.

It is clear that under section 84 of the Constitution the President has the power to appoint a commission of inquiry. It is also true – as the applicant contends – that this must be read in conjunction with section 83 of the Constitution, which places a duty on the President to uphold, defend and respect the Constitution as our supreme law and requires the President, further, to promote the unity of the nation and that which will advance the Republic.

But it is at best a stretch to then argue that the President cannot accountably and responsively ignore or refuse well founded requests for the appointment of a commission of inquiry in the present circumstances. It is an even greater stretch to imagine that a court will order the President to institute such an inquiry and that it will dictate the terms of reference of the commission of inquiry.

Even though the lack of a credible criminal investigation may lead one to question whether the executive has been serious in the past about uncovering corruption in the arms deal, and even if one can assume that the President has a positive duty in terms of the Constitution to take steps to ensure responsive, accountable and open government, the separation of powers doctrine has so far been relied upon by our courts to limit its interference with policy decisions of this nature which are usually taken by the Executive alone.

A court might well find that there is a positive duty on the President to do something about the allegations of arms deal corruption, but for a court to order the President to appoint a commission of inquiry and then to delineate the terms of reference of that Commission (reportedly the fear that has “forced” the President to make an announcement about the arms deal inquiry) would constitute an extraordinary invasion of the terrain usually occupied not by the courts but by one of the democratically elected branches of government.

It might well be – as the applicants suggests in its papers – that a reasonable apprehension has arisen that the arms deals may be tainted by misfeasance and/or malfeasance, in the forms of irregularities, fraud and corruption. It might also be that (as the applicants argue) this apprehension has arisen because of the criminal convictions of one Tony Yengeni, a former African National Congress (ANC) Chief Whip in parliament, and Schabir Shaik, a businessman and financial adviser to Jacob Zuma, the president of both the country and the ANC.

Interestingly, the applicant also relies upon the call for a commission of inquiry made, albeit obiter by Nicholson J in the case of Zuma and Another. v The National Directory of Public Prosecutions and Others. Recall that this was the case in which Nicholson basically found – based on newspaper articles – that there was some kind of conspiracy or at least a good possibility of a conspiracy – against Jacob Zuma, so maybe this played a role in the President’s thinking. Who knows? 

What I do know is that the case asking the Constitutional Court to order the President to institute an arms deal inquiry was always going to be a long shot. Personally, I would be quite surprised if any judges of the Constitutional Court (let alone a majority of its judges) decided that it was appropriate to order the President to institute such an inquiry. Unlike in the Glennister case where the majority of the Constitutional Court could rely on the fact that a failure to create an independent anti-corruption fighting body infringed on ordinary citizen’s social and economic rights and was also required by our international law obligations, in this case the request by the applicants is so specific that it would be seen as an interference with the powers of the executive. A separation of powers concern would therefore inevitably arise.

Maybe President Zuma “merely” has very bad lawyers advising him about his prospects in the Constitutional Court, or maybe he was duped into appointing this commission of inquiry by people who wrongly told him that the Constitutional Court was likely to order him to institute such an inquiry in any case. Either that, or the President is more wily than we give him credit for and he is playing an incredibly clever but highly risky game in which he is aiming to destroy all his enemies and detractors within the ANC through a carefully constituted arms deal inquiry.

One thing I do know, and that is that the Constitutional Court was highly unlikely to have ruled in favour of Crawford Brown in this case – especially in the terms requested by Crawford Brown in his papers. If the President thought that the Constitutional Court would rule against him, this may say more about the paranoia and incompetence of the President and those who advise him, than about the likely outcome of a case not even yet argued before the Constitutional Court.

Will the arms deal inquiry be “sound” or will it get to the truth?

Sep 15th, 2011
by Pierre De Vos.
44 comments

In one of the episodes of the classic BBC television series Yes Prime Minister, Jim Hackett (the Prime Minister of the UK) decides to appoint a commission of inquiry to come to the bottom of some scandal or another. The senior civil servant, Sir Humphrey Appleby, is appalled by this decision as this runs the risk of exposing the shenanigans inside the government. In a hilarious exchange Sir Humphrey explains to the Prime Minister that all is not lost as he can still save the day by appointing a “sound” person to head the commission. A “sound” person — one that can be “trusted” — would ensure that wrongdoing is never exposed while giving the appearance of openness and accountability.

Only time will tell whether the announcement today that President Jacob Zuma has decided to appoint a commission of inquiry to investigate allegations of wrongdoing in the Strategic Defence Procurement Packages (generally known as the “arms deal”), will be a political disaster or a masterstroke and whether the President will appoint a fearless and respected person to head the Commission or whether he will choose a “sound” person to investigate the arms deal.

The President is empowered in terms of section 84 (2) (f) of the Constitution to appoint commissions of inquiry. This is a broad discretion and as I read this section the President has the power to appoint any kind of body to investigate a matter of public concern — even if the commission appointed has very little legal powers and no legal standing.

However, for the inquiry to have any legal standing and for it to have the powers to do its job properly and diligently, the President will have to appoint an official commission of inquiry in terms of the Commissions Act 8 of 1947. If the President does not appoint a formal commission of inquiry, the commission will have little power and no official legal standing, so one assumes that the President will appoint an official commission of inquiry in terms of the Act. Anything else will be a pure waste of time and money.

The Act empowers the President to appoint a formal commission of inquiry “for the purpose of investigating a matter of public concern” by issuing a proclamation in the Government Gazette. The President can then also make regulations with reference to such commission to confer additional powers on the commission; to provide for the manner of holding or the procedure to be followed at the investigation or for the preservation of secrecy; and any other regulations which he may deem necessary or expedient to prevent the commission or a member of the commission from being insulted, disparaged or belittled or to prevent the proceedings or findings of the commission from being prejudiced, influenced or anticipated.

Section 3 of the Commissions Act states that such an official commission shall have the same powers which a High Court would normally have. These powers include the power to summon witnesses, to take evidence from witnesses under oath, to examine such witnesses, and to call for the production of books, documents and objects. Such a commission is also protected by the same kind of rules that apply to a judge regarding contempt of court.

Of course, it would be important to ensure that a credible person be appointed to head this commission. In the past such commissions were often headed by a judge or a retired judge.

Appointing a judge is not an absolute safeguard against political expediency, of course. The National Party government sometimes appointed judges to head Commissions of Inquiry because it happened to “trust” the judge. PW Botha appointed the Erasmus commission, headed by judge Erasmus, a man famous for his friendship with the Prime Minister and for his mangling of the English language. (Erasmus is famous for reportedly making statements such as: “It runs off me like ducks water off my back” and “he is a very influential man — he’s got a finger in every tart in town.”)

Recent – far more credible and successful — examples of the practice of appointing judges to head commissions of inquiry include the appointment of judge Sisi Khampepe to investigate problems relating to the Scorpions and the Jali commission of inquiry which was tasked with investigating corruption and maladministration in our prisons.

The DA and others might object to the appointment of a judge to head such a commission. After all, the DA led city council of Cape Town challenged the appointment of Judge Nathan Erasmus to head a commission of inquiry into alleged maladministration in the DA led Cape Town City council by then Premier Ebrahim Rasool. The City argued, inter alia, that the appointment of a serving judge to chair the Second Erasmus Commission was incompatible with the separation of powers ordained in the Constitution and therefore unlawful and invalid. In that judgment the Cape High Court agreed with the DA argument and stated that:

With great respect to the views of the Constitutional Court, it seems to me that at this early stage of our fledgling democracy, and with the vital object of preserving public confidence in the independence of the judiciary, active judges should as a matter of principle, not chair commissions of inquiry. This would eliminate the risk of judges becoming embroiled in disputes such as the present and the need to define in what circumstances a judge could “appropriately” chair a commission of inquiry.

This finding strangely seemed to contradict the views expressed by the Constitutional Court, views expressed by that court in the case of South African Association of Personal Injury Lawyers v Heath and Others. In that judgment the Constitutional Court took a somewhat more nuanced view of the question of when a judge should be able to head an official commission of inquiry stating that:

In dealing with the question of judges presiding over commissions of inquiry, or sanctioning the issuing of search warrants, much may depend on the subject matter of the commission and the legislation regulating the issue of warrants. In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions — independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information. The same can be said about the sanctioning of search warrants, where the judge is required to determine whether grounds exist for the invasion of privacy resulting from searches.

An inquiry into the arms deal, one in which the commission would be called upon to hear evidence, to weigh that evidence and then to make findings and recommendations based on the evidence it had heard and/or uncovered, would most probably fall within the exception carved out by the Constitutional Court. If a judge or retired judge headed such a commission it would also lend gravitas and credibility to the process, something that would be of the utmost importance if the commission is finally to put the whole arms deal scandal to bed.

It would therefore be possible for a judge to head such an inquiry, but perhaps — just to be on the safe side — the President might wish to appoint a retired judge to head the commission to ensure that no separation of powers issues arise. Somebody highly regarded and well-respected, such as former Chief Justice Pius Langa or former Chief Justice Sandile Ngcobo, comes to mind as possible candidates for the job.

On the other hand, if the President does not appoint an official commission of inquiry in terms of the Commissions Act, if he appoints somebody seen to be too close to the governing party or a faction within the governing party, or if he restricts the terms of office of the commission to such a degree that it would make it impossible for the commission to draw credible conclusions that will install confidence with various factions within the ANC and with the broader South African public, this exercised will be doomed from the start.

Only time will tell whether this inquiry is going to be credible. If it is going to be seen as credible, it might assist to lay the whole arms deal scandal finally to rest so that we can move on. If not, the arms deal will probably continue to haunt various factions within the ANC and will continue to be used and abused for factional purposes.

On corruption in South Africa

Jul 5th, 2010
by Pierre De Vos.
124 comments

As the Marx Brothers might have put it, ‘this man may look like a corrupt idiot and act like a corrupt idiot, but don’t let that deceive you – he is a corrupt idiot.’ – Slavoj Žižek

On 30 May 2003 then President Thabo Mbeki published one of his politically and analytically most brilliant internet letters. The missive, which became one of his most famous, attempted to challenge the widespread perception that had taken hold (and remains to this day) that the government arms deal had been riddled with corruption.

The letter laid bare some of the deeply problematic ideological assumptions underlying the discourse on corruption in post apartheid South Africa. It then used this insight – which was not only spot on, but also tapped into a widespread resentment amongst members of the newly emerging post-apartheid elite – to defend what seemed to be indefensible.

(This was a tactic often used by Mbeki in his letters: correctly expose and analyze widespread racist or Afro-pessimistic assumptions, then use the insight to deny the existence of obvious problems or to discredit the valid criticism of progressive voices in our society. He used the same tactic against the so-called “ultra left” in Cosatu and the SACP and against those who pointed out the folly of his HIV stance.)

In the letter Mbeki wrote (and I am quoting at length):

In the Biblical Gospel according to St Matthew, it is said that Jesus Christ saw Simon Peter and his brother Andrew fishing in the Sea of Galilee. And He said to them: “Follow Me, and I will make you fishers of men.” Perhaps taking a cue from this, some in our country have appointed themselves as “fishers of corrupt men”. Our governance system is the sea in which they have chosen to exercise their craft. From everything they say, it is clear that they know it as a matter of fact that they are bound to return from their fishing expeditions with huge catches of corrupt men (and women)….

[W]e should not, and will not abandon the offensive to defeat the insulting campaigns further to entrench a stereotype that has, for centuries, sought to portray Africans as a people that is corrupt, given to telling lies, prone to theft and self-enrichment by immoral means, a people that is otherwise contemptible in the eyes of the “civilised”. We must expect that, as usual, our opponents will accuse us of “playing the race card”, to stop us confronting the challenge of racism.

The fishers of corrupt men are determined to prove everything in the anti-African stereotype. They rely on their capacity to produce long shadows and innumerable allegations around the effort of our government to supply the South African National Defence Force with the means to discharge its constitutional and continental obligations. They are confident that these long shadows and allegations without number will engulf and suffocate the forces that fought for and lead our process of democratisation, reconstruction and development. However, what our country needs is substance and not shadows, facts instead of allegations, and the eradication of racism. The struggle continues.

Re-reading this letter, it seems almost inevitable that Mbeki would have attempted at first to protect  former Police Commissioner Jackie Selebi. It also explains (better than anything anyone else may have written) why he refused to believe the evidence of Selebi’s corruption provided to him by the Prosecuting Authority and even continued to claim that nobody had provided him with any information that Selebi did anything wrong – even after Vusi Pikolu had briefed him on ten different occasions on the evidence against Selebi.

For Mbeki, his (often perceptive and accurate) ideological insights often trumped the proven facts. His tragedy (if you are sympathetic to the former President) or his evil genius (if you are not) was that these general ideological insights were often brilliant and perceptive, but blinded him to the specific facts and the valid criticism of individuals and about particular problems facing the government and the country and its people.

Which brings me to the set of questions I want to try and address in this post: why did an obviously brilliant, courageous and seemingly deeply principled struggle hero like Jackie Selebi became corrupt? Why are we confronted almost every day by news of crooked cops, Home Affairs officials and tenderpreneurs? Why does it sometime feel as if we are being engulfed in a tidal wave (or is it a Tsunami) of sleaze and corruption in South Africa?

The easy answer would be to blame everything on the racist stereotypes that Mbeki rightly warned against and to deny the very facts before our eyes. But this approach would not help us to understand the root causes of the problem and neither would it help to eradicate them. Although the Afro-pessimistic master narrative which Mbeki warned us against may well have helped to exaggerate the perception of corruption in our society, it cannot explain away the problem, which is very real and very dangerous for the long term well-being of our country.

For the same reason we should reject with contempt the racist and offensive claim that there is something in the DNA of the ANC and the government it leads that predisposes it and its members to corruption.

I would like to suggest that the problem can at least partly be attributed to the nature of our transition to democracy. South Africa did not experience a true revolution, but a managed transition. The state remained in tact and the private sector was largely left untouched. During the transition period the crony capitalists and the opportunists, who had exploited the conditions created by apartheid to make vast amounts of money, went to work to capture the new elite in order to protect their own financial interests.

Thus some of the big mining houses and other big business institutions who had resolutely supported apartheid, jumped ship and went to work to woo the members of the incoming government in order to protect their profits and their vested interests. They donated money to the ANC, forged close personal ties with some ANC leaders by wining and dining them and by providing them with all kinds of material “assistance”. They claimed they were doing this out of altruism or out of a deep sense of shock about the horrors of apartheid which – so they laughably claimed – they had only belatedly become aware of.

In essence, what large sections of the big business community did, was to offer legal bribes to the ANC as a movement as well as to individual ANC members to ensure that their own financial interests would be secured. They would offer fantastic riches to a few lucky well-connected individuals through BEE deals and directorships with the understanding that there would not be any fundamental transformation of the economic system in South Africa. Workers would still work and die for a pittance, while bosses would be allowed to continue to draw huge salaries and bonuses and subvent profits to London and New York.

Was it then not all too human and understandable that some (but not all) members of the new elite – who had not benefited from these legalized bribes – began to feel hard done by and tried to do something about it? Thus the mutually beneficial relationship between crony capitalism and some members of the new elite became firmly enrenched. In the feeding frenzy that followed, the lines between the legalized bribes paid by the apartheid capitalists and the criminal bribes paid by people like Schabir Shaik and Glen Agliotti became somewhat blurred.

And as more and more people seem to get fabulously rich (perhaps not as rich as those who exploited the apartheid system) and the culture of accumulation and consumption firmly took hold, it was perhaps inevitable that somebody like poor Jackie Selebi would begin to think that there was not really anything wrong with a gangster buying your very own child a nice pair of shoes. Ironically, it is exactly against this new kind of colonization that Mbeki himself warned in his Nelson Mandela Lecture when he said:

Thus, everyday, and during every hour of our time beyond sleep, the demons embedded in our society, that stalk us at every minute, seem always to beckon each one of us towards a realizable dream and nightmare. With every passing second, they advise, with rhythmic and hypnotic regularity – get rich! get rich! get rich! And thus has it come about that many of us accept that our common natural instinct to escape from poverty is but the other side of the same coin on whose reverse side are written the words – at all costs, get rich!

Is it too late to turn around this ship? Well, extraordinary political and moral leadership is required to address the capturing of our hearts and minds by the crony capitalists. We have the perfect Constitution and the perfect laws to fight the good fight and to stop the rot, but without the political leadership there will be no success. That is why the fight raging currently inside the ANC between the tenderpreneurs and those who believe in the creation of a more fair and just society is pivotal for the long-term well-being of our society.

Sadly, because he is himself compromised and implicated in the culture of greed through his association with the fraudster Schabir Shaik, President Jacob Zuma is probably not the best leader to lead the fight. Time for a change in ANC leadership perhaps?

The end of democracy?

Apr 8th, 2010
by Pierre De Vos.
32 comments

“Hard-core pornography.” wrote Justice Potter Stewart in a celebrated US Supreme Court case of Jacobellis v. Ohio, was hard to define, “but I know it when I see it”. Corruption is much the same. Regardless of our race, political affiliations or cultural background, we can identify corruption when we see it.

When we hear about a friend who paid a traffic cop R200 to avoid getting a speeding ticket, we know he was party to a corrupt activity. When a colleague uses funds from the company to buy household appliances for her sister, we know that she is corrupt. When we see evidence that successful arms deal bidders have paid millions of Rands in “commissions” to well connected and powerful people, we know that corruption was involved. Decent people know what corruption is. They avoid getting involved in it and they expose it when they are made aware of it.

Sadly, many South Africans – of all races and political persuasions – are not as decent as one would have hoped. They either engage in corruption or condone it when it happens. This permissive attitude towards corruption eats away at the fabric of our society and subverts our system of government and our democracy.

We therefore do not need the Public Protector to tell us that the ANC has become infested with corruption. Through its investment company, Chancellor House, it will profit handsomely from the building of power stations by Eskom. News reports suggest that the ANC stands to make between R1 billion and R5 billion from the deal because the ANC owns a 25% share in Hitachi through its investment arm, Chancellor House, and Hitachi had been awarded the tender to build boilers for the Medupi power station.

The Public Protector found that former Eskom chairperson Valli Moosa acted improperly when the utility awarded a contract for the Medupi power station to the Hitachi consortium. Former Public Protector Lawrence Mushwana found that Moosa failed to manage a conflict of interest arising from the 25% stake of African National Congress (ANC) investment company Chancellor House in Hitachi Power Africa. And now the World Bank is poised to grant Eskom a loan that will help it to build the power station from which the ANC will profit.

The ANC, deploying the kind of twisted logic used by crooks all over the world, said it would drop its stake in Hitachi Power Africa only if funding rules were changed for all political parties in the country. This statement suggests that someone else is responsible for the funding rules applicable to political parties. But this is utter nonsense. The ANC dominated Legislature can change the funding rules for political parties at any time. All the ANC has to do is to pass legislation imposing strict rules about the funding of political parties and about transparency of political party funding. This it promised to do a few years ago when it was taken to court by Idasa to reveal its sources of funding. Sadly that promise turned out to have been false and nothing has been done.

There are good reasons for the reluctance of the ANC to change the funding rules. As big business and the ANC has learnt to dance the dance of corruption, and as it has become apparent that this legalised corruption will entrench the power of the ANC, the party has realised that it would be mad to act in a manner that would be in the best interest of the voters. Who cares about saving democracy or serving the interest of the poor if one can entrench one’s power and make money?

What no one with two brain cells can ever dispute is that the ANC – like any other political party – has absolutely NO business in doing business in South Africa. Although it is presently not illegal for political parties to engage in business – at least not when that business was not based on the awarding of contracts by the state in a seemingly corrupt manner – it should be illegal.

Unless the involvement of political parties in business is made illegal the political process will be completely corrupted by big business and money. In the long term the fat cat capitalists and tenderpreneurs will benefit while the ordinary working poor and the jobless will suffer. As the interests of big business and the big business interests of the governing party takes precedence, those who vote for the ANC will suffer while the average DA voter (who will benefit from the cosy relationship between big business and the ANC) will not really be affected.

There are at least four reasons why political parties should never be in business. First, if a political party – especially a governing party – is involved in business it WILL use its power and influence at some point to try and profit from government contracts. The end result is corruption, the inevitable increase in the cost of delivery of services and a decline in the quality of those services. The Hitachi deal demonstrates this very clearly.

Second, a governing party will be tempted to make policy decisions based not on what is good for the people whom they have to serve, but rather on the basis of what is good for their business. For example, they might actively or tacitly support huge hikes in electricity prices to help pay for the building of power stations from which they will make billions of Rands. Ordinary South Africans will then suffer from sky-high electricity prices in order to subsidise the party in power. Ordinary people will be helping to pay for the elections campaign of the governing party and will help to keep the very corrupt party in power who has failed to arrest the price hikes that made us poorer. 

Thirdly, the power of incumbency will provide a political party involved in business with ample opportunities to become corrupted by private business who will try to cosy up to it and might offer the party’s investment company lucrative business opportunities in order to prevent the governing party from adopting any policies that would not be in the interest of big business. Thus, our democracy will become corrupted as the needs of ordinary voters are superseded by the needs of big business. 

Pharmaceutical companies or other companies involved in health care may entice the governing party with business opportunities, say, to ensure that the governing party never introduces a National Health Insurance scheme which might hit at the profits of those companies. The result is that more poor and destitute people will needlessly die because of a lack of proper health care. This corruption that will follow from political party involvment in business could therefore literally be deadly.

Lastly, a governing party who makes billions from business will be able to buy elections. Once one party has billions of Rands at its disposal to buy votes, we might as well scrap elections altogether. As we know from the US example, money plays a decisive part in who wins and who loses elections. If the system is rigged to benefit the incumbent party, we would have reached the end of any semblance of competitive elections and thus we would have witnessed the death of democracy.

In his State of the Nation address President Obama directly condemned the U.S. Supreme Court over a decision allowing corporations to contribute to political advertisements. Where the political party in power has itself became a big corporation that rakes in millions from government contracts and other deals with big business (whose interests it will be bound to protect), democracy dies. No other political party will be able to compete at election time and the election would become no more than a vote buying exercise.

Troubling in all this is that Cosatu and the SACP has not made more noise about the involvement of the ANC in business. In the end, the involvment of the ANC in business will bring it closer to big business and will force it to abandon Cosatu and the SACP. This WILL lead to the marginalisation of Cosatu and the SACP and will ensure that the tenderpreneurs and nationalists take full control of the ANC. Can the end of the Alliance and of any influence for the left on our politics then be far off?

Will it be too late before we notice that the inevitable corruption that accpompanies political party involvement in business has killed our democracy? I suppose we will only know it when we see it.

Simelane comes through for the ANC

Mar 23rd, 2010
by Pierre De Vos.
23 comments

News that the purported National Director for Public Prosecutions (NDPP), Menzi Simelane, has decided to intervene and to stop attempts by the Asset Forfeiture Unit (AFU) to attach some of the assets of Mr Fana Hlongwane because of suspicions that Hlongwane received his money through corrupt arms deal practices, comes as no surprise. Providing reasons for the decision, Simelane argues that there is not sufficient evidence that Hlongwane indeed broke the law.

Simelane’s view differs from that of his own staff intimately involved in the case. Staff at the AFU maintain that there is good reason to suspect that the R200 million received from successful arms deal bidders was paid as bribes and they have pressed for the case against Hlongwane to go ahead.

Simelane points out correctly that:

if forfeiture process were to be instituted by the NPA, it would require a good basis for doing so as opposed to a simple suspicion. The test though remains lesser than the criminal test of proof beyond a reasonable doubt. It is a civil test of balance of probabilities.

But curiously, he then applies this test in a rather eccentric manner, arguing that because the test is one of probabilities Hlongwane needed:

to show on a balance of probabilities that the money was not obtained from criminal activities. Put another way, they needed to rebut the suspicion of criminal activity. They did not have to prove beyond a reasonable doubt that the money was obtained legally. For this purpose they were advised to submit a formal memorandum supported by annexures, if any.

Simelane seems to argue that the submissions made by Hlongwane’s lawyers cast doubt on the suspicion of criminality and hence necessitated the dropping of the case. Because the source of the money was known, it was for the AFU to provide other evidence to prove that the money was not received as part of an attempt to corrupt the arms deal. This seems strange as the test is one of probabilities and one must ask, what is more probable: the version presented by Hlonwagne’s lawyers or the version presented by the AFU.

Just because Hlongwane provided a story that casts doubt on the version presented by the AFU does not mean that on a balance of probabilities Hlongwane was not involved in corruption. On balance, one has to decide which version is more plausible, not whether the AFU has a watertight case.

AFU lawyers are adamant that on the balance of probabilities there was criminal conduct and thus maintain their version is more plausible and one would have thought that a conscientious and honest NDPP would place sufficient trust in his lawyers to go with their version.

Nevertheless Simelane chose rather to believe Hlongwane. This is strange as BAE who paid the money has entered into a plea bargain on some of the bribery allegations against it while other charges against them were dropped, partly because anti-corruption legislation in the UK is deficient – unlike South Africa who has much stronger anti-corruption legislation.

The crux of the matter is this: there is strong suspicions, based on the available evidence, that BAE paid bribes via Hlongwane to secure arms deal contracts from South Africa. Hlongwane’s lawyers provided a different story. One had to choose either to believe this story of Hlongwane or to believe the mountains of circumstantial evidence pointing the other way. Simelane chose to believe the former and not the latter.

That was a choice his own investigators with intimate knowledge of the details of the case would not have made. The question then arises: why did Simelane believe Hlongwane rather than the lawyers in the AFU? To answer this question one has to remember that the AFU lawyers are not well-connected ANC funders and supporters while Hlongwane is. One also has to remember that Hlongwane is alleged to have paid bribes of millions of Rand to various ANC connected people and recall that Simelane was deployed to the NDPP by the ANC.

If one has strong political loyalties and one is presented with two versions of events, one is likely to believe the version that will be most beneficial to one’s political masters.

Maybe all those lawyers at the AFU are wrong and Simelane – with his limited knowledge of the facts – is right. But given Simelane’s track record as a loyal servant of the rich and politically powerful, reasonable people will suspect that Simelane chose to believe one rather than the other side because he was politically required to do so. Was his choice thus a political rather than a legal choice?

A choice for the other version presented by the AFU may have had adverse consequences for many people in the ANC who is alleged to have taken bribes. I for one suspects that this may well have tilted the scales against the AFU in favor of Hlongwane. If Simelane was an honest man and if he had not been exposed at the Ginwala Inquiry as someone who was prepared to act in ways that are both dishonest and perhaps even criminal, I would have given Simelane the benefit of the doubt.

However, given the grave doubts about Simelane’s honesty and integrity, it is impossible to give him the benefit of the doubt. To this observer a reasonable suspicion thus exist that Simelane made a political decision to save the ANC further embarrassment from the arms deal bribery. The AFU lawyers who actually worked on the case agree with me and not with Simelane.

Would Vusi Pikoli have made the same decision as Simelane? I suspect not. No wonder he was fired.

Mbeki, “objective reality” and the truth

Oct 26th, 2009
by Pierre De Vos.
109 comments

Former President Thabo Mbeki used to be fond of lambasting his critics for their failure to grasp the “objective reality” about any number of important issues. He would perceptively highlight and analyse the ways in which objectionable master narratives influence the way we perceive reality before claiming to be free from the grip of such narratives and thus (unlike us mere mortals) to have full access to the “objective reality” the rest of us just could not see – usually in an attempt to defend the indefensible actions of his government or himself.

Thus he would write a brilliant analysis of the ways in which a kind of Afro-pessimism and racism influenced the discourse in South Africa on crime and corruption, and how such discourses reflected the fears and prejudices of “some among us”, before abusing this insight to make completely laughable claims to defend himself and his government from the valid criticism leveled against it.

He would point out, correctly in my view, that fears about crime was entwined with some people’s fears about a black run government and that perceptions about crime could not be divorced from perceptions about the so called criminality of black men. When many white people spoke about crime this was a way for them to express their racism and fears about black people in a more “acceptable” manner. But then he would go on a tangent and claim that crime was not really a problem at all in our country and that complaints about crime itself was just a matter of perception not linked to any “objective reality”: who would ever be robbed walking to the SABC studios he once mocked, just a few days before a journalist from CNN and his wife were robbed at gunpoint outside the SABC studios in Auckland Park!

He would point out, once again correctly in my view, that negative, deeply embedded, but often unspoken assumptions about Africa and how Africans are “naturally” corrupt clouded the vision of “some among us” about the prevalence of corruption in South Africa. But then he would rail against the “fishers of corrupt men” in the media and deny that there was a corruption problem in South Africa at all. After all, the “objective reality” according to Thabo Mbeki was that there was no arms deal corruption, that municipal officials (all disciplined cadres of the ANC) almost never stole public funds, that officials of the Department of Home Affairs were almost all imbued with the spirit of Batho Pele.

He also pointed out, correctly in my view, that Pharmaceutical companies are often unethical and exploitative and care more about profits than about the health of people in poor nations. But then he would madly veer off into cloud kookoo land and question the link between HIV and AIDS (“A virus cannot cause a syndrome”, “HIV is a CIA plot”) to try and justify the decisions of the government not to provide HIV positive mothers with the medicine required to save their babies from HIV (in other words, a decision to let those babies die).

Now our former President is back to his old ways. In an interview with the Sunday Independent he rails against the Nicholson judgment and points out (correctly in my view) that Nicholson did not base his judgment on proven facts according to appropriate the rules of evidence:

Mbeki explained his understanding of the meaning of Nicholson’s judgment. He felt that Nicholson “really sought to impugn our integrity”, and presented Mbeki and his cabinet as “dishonest people” who “for whatever reason want to intervene in ways that are illegal and unconstitutional”.

He said he, like his cabinet colleagues, took the oath of office seriously and the oath was, for him, not just a formality. “For somebody to pop up from somewhere with absolutely no basis … to come to a conclusion that these are bad people, dishonest people, acted in violation of their oath, this and that and the other; that was bad,” he said.

Well, although Nicholson clearly got it wrong by basing his decision on very flimsy evidence, this does not demonstrate that Mbeki and members of his cabinet did not act dishonestly. We all know that Mbeki and his Minister of Justice had a rather peculiar idea about the independence of the National Prosecuting Authority (NPA) and that they tried to interfere with his work in order to stop the arrest of Jackie Selebi, that an unlawful order was given by his Minister to Vusi Pikoli not to arrest Selebi, that Pikoli was suspended because he refused to be intimidated by the President.

We all know that the Minister in the Presidency (old Essops Fables) shamelessly intimidated members of Parliament to try and stop them from launching a proper investigation into the arms deal because we have read Andrew Feinstein’s first hand account of this intimidation. (If there was nothing to hide, why go to such extraordinary lengths to hide that nothing?) We all know that former President Mandela was humiliated and ridiculed by Mbeki cabinet members because he dared to speak up about Mbeki’s HIV and AIDS folly. We all know that there was arms deal corruption (some of it even leading to prosecution). We all know that Shaik and Zuma were investigated while others in the ANC and in government, who were not threatening Mbeki’s political position (like Zuma was), and who clearly had much to explain, were left alone.

Some will say: well we do not know this at all because it was never proven in a court of law. Bring the evidence! Until you have satisfied US that we are indeed crooks, we are not crooks! Prove it! Well, a court has never found that the apartheid state supported hit squads and at the time the government denied involvement in such hits squads and also demanded from those who pointed to all the available evidence to “bring the evidence” while at the same time doing everything in its power to discredit those with inside information and personal experience of such nefarious activities. Sometimes the truth does not wait for a court of law.

Often a body of evidence – both circumstantial evidence and hard evidence – emerges over time. Even where someone is not prosecuted, any reasonably well-informed person will be justified to make conclusions based on that evidence. For example, no one was ever prosecuted in the United States for fabricating evidence of weapons of mass destruction in Iraq and for deceiving the public about the reasons for going into Iraq. But there is such a wealth of evidence supporting the fact of fabrication that only a few die-hard George Bush supporters will now claim that Bush and his cronies were not thoroughly rotten and dishonest about the reasons for going to war with Iraq (and much else besides).

The same is the case surrounding the arms deal, corruption and political interference in decisions to investigate and prosecute (or NOT to investigate and prosecute) some well-connected ANC types for arms deal and other forms of corruption. It might not form part of the “objective reality” in which President Thabo Mbeki lives, but it does not mean that it is not so.

Arms deal chickens coming home to roost?

Oct 22nd, 2009
by Pierre De Vos.
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News that Juliette Radebe-Khumalo, the Mayor of Lekwa Municipality in Mpumalanga, and her executive councilors were fired after meetings with an ANC delegation yesterday must come as a welcome surprise to all of us. The residents of Sakhile sure seem happy. As The Times report:

Following the announcement that Radebe-Khumalo and the entire executive committee has been axed, jubilant crowds gathered outside the city hall. Sakhile residents sang, blew vuvuzelas and popped champagne bottles in celebration. “Bye bye, Juliette Radebe-Khumalo. We have told you it has always been coming,” they sang. Residents had called for Radebe-Khumalo’s head months ago, saying a municipal finance report showed R30-million in municipal funds that could not be accounted for.

The one person who might feel aggrieved is Radebe-Khumalo. How could she have known that the disappearance of a paltry R30-million would prompt the ANC to act against her? It is not as if this is a common occurrence. If she had followed the ten year saga around the arms deal scandal – also fresh in the news (again!) – she might have been forgiven for thinking that the alleged theft of R30 million would not raise an eyebrow.

It seems to me the kind of unhappiness expressed by the Sakhile residents and by residents elsewhere in South Africa about poor service delivery resulting from nepotism and corruption can at least partly be blamed on the arms deal and the cover up of the corruption associated with the arms deal. Few have been left untainted by the arms deal scandal – including the NPA, former President Thabo Mbeki, current President Jacob Zuma, Trevor Manuel, Jeff Radebe, and Mosieu Lekota.  

The arms deal and the way allegations about corruption in the arms deal was dealt with (or not dealt with), established the template later followed by many ANC politicians who thought that if Manuel, Modise, Lekota and Mbeki would not be held accountable, they also would escape any censure for nepotism and corruption. We are, after all, all innocent until proven guilty. There are many good people in the ANC, but only a few of them spoke up when it became clear that the arms deal was riddled with corruption. Many others actively supported the cover up. The question should be asked why they did not follow their conscience but remained sthum.

Back in 2001 then President Mbeki set the ball rolling when he announced that a formal legal opinion by the Attorney-General of the Western Cape, Adv Frank Kahn SC and the SIU’s own senior legal advisor, Adv Jan Lubbe SC, confirmed that no prima facie evidence of unlawful  conducted existed concerning the Arms Deal. The truth was exactly the opposite as the two gentlemen had stated in their report to Mbeki:

[T]here are sufficient grounds in terms of the Special Investigating Units and Special Tribunals Act No 74 of 1996, for a special investigating unit to conduct an investigation, and, in our opinion, such an investigation is warranted.

And yesterday the DA released a damning report in which it provides further convincing evidence that the joint investigation arms deal report was doctored. Comparing a draft report with the final report, researchers demonstrate that:

  • Crucial ‘Overall Conclusions’ reached by the Auditor-General are entirely omitted from the final version of the Report. Notable in this instance is the conclusion that “there were significant flaws in the selection of BAe/SAAB as the preferred bidder for the LIFT & ALFA programme”. This is omitted from the final Report. Following this page, the editor inserts a further note – that certain ‘additions’ need to be made to the overall conclusion. This includes the conclusion that “the joint investigation team found no evidence of impropriety, fraud or corruption by Cabinet [or] Government” and that “government co-operated with the investigation teams and assisted them with their endeavours”.
  • Similar sizeable alterations on the Auditor-General’s findings regarding the ALFA/LIFT contracts are made later on page 57. Here, a passage reads “[t]here is an indication that the former Minister of Defence [Joe Modise] could have influenced the decisions of role players in the process”. Examples are then provided of where this is believed to have happened. This finding is entirely excluded from the final Report. Even the title of this section is earmarked for overhaul. The Auditor-General titles the section “Decisions of the Minister of Defence that could have influenced the process”, which is replaced by “The visionary approach of the former Minister of Defence”:
  • Another crucial section that does not make it: the Auditor-General’s conclusion that “[d]uring the investigation is became apparent that … preference was given to BAe/SAAB”:
  • A section that concludes that apparently preferential treatment given to some ALFA bidders was “not in accordance with good procurement practice” is scrapped. The editor notes that “No evidence of any preference awarded to any of the bidders during these visits were (sic) obtained”. This, of course, is not the point that the Auditor-General’s report was attempting to make. Further down, another passage concluding “fundamental non-compliance with good procurement practices” is also removed. Once more, the editor notes “No evidence” – though again this is not his/her call to make. On the page following this one, another section concluding further “noncompliance with good procurement practice” is also removed.
  • All of the key conclusions drawn by the Auditor-General in one section of the report are removed. The A-G concludes that “deviations from the approval process occurred” and “good procurement practices were lacking”. These failings included “apparent attempts at exertion of influence towards certain subcontractors” and “amendment of the overall formula to determine the preferred bidder”. These crucial findings are not only omitted from the conclusions section of the chapter in the final Report dealing with submarine contracts, but in their place precisely the opposite conclusions are substituted.
  • Throughout the section on submarine contracts, various other changes are made. For instance, the Auditor-General notes that because no minutes of a particular workshop were maintained, there is no evidence that the final NIP value system scores were agreed to by all members present – and that there was the possibility that some individuals may have influenced scores awarded. This is removed, and
    does not appear in the final Report.
  • A section detailing problems experienced dealing with government officials is marked for deletion. The single sentence that appears earmarked to survive the cut is altered such that it reads “[the two attorneys] co-operated with investigating teams and assisted them ably”. Further down, another section on difficulties experienced with state attorneys is cut.
  • At the end of the document the editor of the document makes notes on a copy of the Public Protector Draft Document (Part A of the JIR) under the headings “Trevor Manuel” and “President”. It appears s/he is instructed by Manuel to emphasise the fact that government cooperated with the enquiry (point 8), and that government was not reckless (point 4). The president’s concerns appear to include “country emerging” (point 1); and “Defend integrity of inv. (investigating) agencies” (point 2). This could be problematic if what was implied was that government needed to be protected. A further section headed “Lekota” follows. This is almost certainly, then, ‘feedback’ received from Mbeki, Manuel and Lekota at a meeting in October 2001.

If one reads this report, it is very difficult not to conclude that the final arms deal report was a complete white-wash and that it was fundamentally changed after interference by Mbeki, Manuel and Lekota. Maybe now that many of those involved in the white-wash are out in the political cold winds and the new Zuma administration is trying to show that it is different from the Mbeki lot, the ANC will finally lance this boil and will come clean about the obvious corruption linked to the arms deal and the blatant cover up of that corruption.

If they do that many of us ordinary citizens will see the sacking of mayor Radebe-Khumalo as only the start of a wonderful new beginning. We will praise the ANC for returning to the values it held so dearly before taking power and before some of its members were corrupted by the old business elites – to the detriment of the poor and downtrodden in whose name it fought the struggle.

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