As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP