Andrew Feinstein, Paul Holden and Hennie van Vuuren
This past week marked a significant milestone in the seemingly unending saga that is the arms deal. The fact that a former Minister of Trade and Industry, Alec Erwin, was required to testify at the Arms Procurement Commission represents an important step in the process of deepening the roots of democratic accountability in South Africa.
This is not to suggest that Erwin has recognized the folly of poor judgment in supporting a deal riddled by the type of corruption that typifies the international arms business. His testimony is an example of the arrogance of so many of the key players associated with the deal who still choose to defend the indefensible. They authorised the procurement of weapons we could not afford and simply did not need. This failed our constitutional vision of a society characterized by social justice and greater equality. Instead they chose to emulate the apartheid securocrats who nearly bankrupted the country as a result of massive, secretive, arms procurement in the 1980’s and early 1990’s. In some instances we bought weapons from the same companies that busted sanctions for the apartheid regime. The continuities from apartheid stretch beyond just the practice of procurement to include repeated attempts to cover up allegations of criminality over the past 15 years.
The social impact of the arms deal is readily dismissed by only the most cynical among us. They are to be found in the empty seats at family gatherings and child headed households. The trade off for buying weapons and subsiding bribes and kickbacks was that the State failed, amongst other, to provide adequate medical treatment to the most vulnerable. There can be little doubt that the arms deal significantly contributed to the country’s economic and social problems in the first two decades of freedom.
Seriti Commission – a crucial opportunity
The Seriti Commission, with its broad and important mandate, therefore represents a crucial opportunity to hold top officials, politicians and global arms corporations to account for the greatest scam perpetrated against the South African people in the post-apartheid period.
With the stakes this high, it’s useful to cast an eye into the Sammy Marks building in Tshwane where the Commission hearings, chaired by Judge Willie Seriti, are held. The chair and the documents that form part of the evidence-in-chief arrive and depart every morning surrounded by blue lights, guarded by police in bulletproof vests holding rifles. Once in session, Judge Seriti from his bench, has a view over an arena teaming with lawyers – sometimes numbering up to two dozen who either exclusively work for the commission or the many interested parties who are defending the deal: ARMSCOR, the SANDF, Trade and Industry and others. Collectively they are paid hundreds of thousands of rands in public money on a daily basis.
A handful of journalists and military officials observe the proceedings together with the lawyers and lobbyist for the arms companies. The lobbyist, paid to report to arms companies in various European capitals, can often be seen engaging in whispering campaigns during breaks, including with the media present. The intention appears to be that nothing should stick and that facts don’t gain traction. It is an unseemly exercise to behold.
Probe reduced to a whimper
Given the scale and scope of this epic tussle for the truth it is mind-boggling that the Arms Procurement Commission (APC) too often appears to have been overly cautious and conservative in its approach. The net impact is that its probe of the powerful is often reduced to a whimper. It seems intent on not rattling the status quo and most certainly not using its powers to ensure consistent probity of the deal. This continues even after former senior staff members leveled accusations of a so-called ‘double agenda’ against the commission.
A case in point this week was when our attorneys, Lawyers for Human Rights, were forced to decline the opportunity to cross-examine Alec Erwin at the APC due to lack of access to vital documents central to the witness’s testimony. Judge Seriti interpreted it as us declining our right to cross-examine. This is a disingenuous conclusion. The truth is that independent parties such as ourselves cannot cross- examine witnesses without access to crucial documents. During the past week we asked the commission to assist us with accessing the arms contracts. Had the commission not been overly cautious, it would have instructed that the documents are released, as there appears no legal barrier to do so. This is sadly part of a pattern of denying public access to key documents.
A contested terrain
Despite these obvious failings the commission remains a contested terrain, even while the odds are heavily stacked against a fair outcome. On Monday Judge Seriti, and lawyers for Alec Erwin, repeatedly expressed concern that we had in our possession a copy of the cabinet ‘Affordabality Report’ into the arms deal. We find this approach both disturbing and wrong. The Commission’s job is to investigate all available facts regarding the Arms Deal. It should welcome the submission of information that helps it fulfill its mandate justly and efficiently. Furthermore the document has been reported on extensively in the media and has formed the subject of published material over a number of years.
While it is marked Secret, every South African has the right to know its contents given that it shows up the flawed logic used in justifying that we could ‘afford’ to buy arms. The report indicates that the Arms Deal’s impact on the South African economy would be broadly negative in the best-case scenario, and devastating in the worst-case scenario. On Tuesday we were told that cabinet had declassified the document. This suggests that when the commission wants to put shoulder to the weighty wheel of opening up access, anything is possible. The focus of the Commission should not be on how researchers and activists accessed a document but on the crucially important content of that document. This is especially true of a document that manifestly poses no threat to national security, contains information that is clearly in the public interest, and whose classification served only to protect the powerful from the consequences of their own actions.
The public’s right to know
We believe that that the truth will not be revealed if key information remains hidden from the public. If the Commission is to be successful in its mandate, these documents need to be brought to light and role-players made to answer to them. The continued failure to free such information severely limits the public’s ability to hold our leaders in government and the corporations they do business with to account.
Most worryingly we are aware of almost 4 million pages of evidence that according to reports is locked up in containers at the premises of the Hawks. These documents are the product of investigations of corruption in the arms deal by the disbanded Scorpions unit. We have little reason to believe that the Arms Procurement Commission is actively collating, digitizing and analyzing the content of the documents. This despite promises that the APC would do so in August 2013.
It is imperative that public access is granted to these documents. Our lawyers wrote to the commission this week requesting access to these documents. Failure to do so would certainly only serve to confirm increasing public cynicism of the commission and suspicion of an active cover-up. These documents and others that we have requested would enable independent witnesses such as ourselves to ask the difficult questions of powerful players who have been called to testify. This includes high-profile individuals such as former President Thabo Mbeki and others. Knowledge of the contents of the documents might enable the commission to pursue other allegations of criminal conduct. Some of these could well end at the doorstep of the current administration. Others could show a clear trail of bribery leading to the boardroom of some of the world’s largest arms companies.
We cannot allow the Seriti-led Arms Procurement Commission to fail its mandate and the South African people. At least four other investigations into the arms deal have failed over the past 15 years due to political interference. If the commission is the fifth on that list we will allow the defining scandal of a free South Africa to continue to shape our politics and by extension our future. We must engage with vigour in this and other processes to challenge this bleak prospect.
Feinstein, Holden and van Vuuren are writers and activists represented by Lawyers for Human Rights at the Arms Procurement Commission.
This article was originally published in the Sunday Times on 23 February 2014.
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