The postponement of the first hearing of the Seriti Commission into malfeasance, irregularities and corruption in the notorious arms deals and the imaginary off-set deals that accompanied them back in 1999 is not necessarily a bad thing.
The Arms Procurement Commission, to give it its proper name, is clearly not ready to start. The masses of documents which necessarily are its lifeblood are not yet, despite the elapse of a year and a half, in apple pie order. They ought to be electronically marshalled in searchable format. Instead they are in lever arch files, bundled according to some system whose logic is not known even to the evidence leaders whose brief is to prepare witnesses to testify. A faint and sometimes illegible number appears on some of the pages, on others it is absent. The numbering is not consecutive, so relocating a document once found can produce challenges. Manifestly, there is work to be done on marshalling the papers, many of which may prove to be irrelevant.
It is worth recalling how the commission came to be appointed. Indefatigable campaigner Terry Crawford-Browne took up the cudgels after an unsuccessful petition organised by the Social Justice Coalition in 2008 failed to persuade then President Motlanthe that a commission was needed. His successor, when faced with an order of court issued by the full Constitutional Court, rather than setting out his reasons for not appointing a commission, which would have involved traversing a few thousand pages of material placed before the court, chose instead to concede the claim and the Seriti commission was born. Requiring the government to deal with the substance of the claims made by Crawford- Browne on their merits is essentially what the commission is tasked to do. Surprisingly, no attempt appears to have been made to get the official answer to the affidavits that were placed before the court. An exercise in gathering documents, some of which may tend to obfuscate more than elucidate, has been embarked on and a great deal of travel to foreign climes, beyond the reach of a summons, to seek co-operation and information has been embarked on by the commission. Government departments have buried the commission in paper, a tactic often resorted to by those bent on making sure that the truth is obscured rather than revealed.
The net result of this is that the commission is not in a position to proceed with the evidence. It has not yet issued a summons to the African National Congress (ANC). This despite unanswered allegations carried by the Sunday Times and published repeatedly by Andrew Feinstein, a former ANC member of parliament, that the bribes paid by the arms dealers were for the benefit of the ANC. It’s banking records of donations received can profitably be compared to the paper trail of bribes paid and the names of known and identified bribe takers. The records of the ANC internal inquiry into the arms deals, which was embarked on with much fanfare after the changes were rung in Polokwane, would no doubt reveal a lot of inside information regarding the activities of the pre-Polokwane leadership as regards its involvement in skulduggery in connection with the arms deals. The findings of the internal ANC inquiry have not been made public. If they were of an exonerative nature one would have expected them to be trumpeted from the rooftop of Luthuli House. They were not.
When Crawford-Browne started litigating the matter, by way of action in the Cape High Court, he pointed out in his pleadings that his allegations could be supplemented usefully by the issuing of subpoenas on documentation held by the ANC and by the state. Nothing has been done to follow up on this with the ANC, as far as can be ascertained from the commission, but it is clearly an avenue open to a transparent and accountable inquiry. It is one which the commission should now consider and implement in accordance with a request made by Crawford-Browne in his formal response to being told that the hearing in which he was to have given his evidence is to be postponed to August this year.
The commission could also give consideration to the separating of the many issues it has to consider in order to enhance its efficiency. The “low hanging fruit” of the commission does not lie in the heady reaches of bribery and corruption. It is in the mundane area of procurement management that the commission can easily and relatively rapidly come to the aid of the taxpaying public. All procurement has to be constitutionally compliant. The Constitution requires that a system that is fair, equitable, transparent, competitive and cost-effective must be in place. This applies to arms acquisitions as much as it applies to paper clips. There is overwhelming evidence easily available to show that the arms acquisition process was not constitutionally compliant. The “visionary approach” of Joe Modise, then Minister of Defence, to the abandonment of cost as a consideration in the acquisition of jet fighters is an egregious example of this. The very notion that a country at peace with the world and its neighbours should spend R70 billion on arms at a time when social reconstruction and poverty alleviation are the real priorities of any sane government show a lack of fairness and equity. Buying arms not suitable for a peace-keeping role in Africa is downright irrational. Shame should be heaped on the heads of those who have brought about a situation in which joblessness abounds and over 12 million citizens suffer hunger daily.
The irrationality, and therefore unconstitutionality, of the off-set deals, a scam if ever there was one, is also manifestly obvious. Quite apart from the fact that the benefit of hindsight reveals that the offsets have not materialised, at the outset it ought to have been obvious that it is not economically feasible to generate a return of R110 billion on an initial expenditure of R30 billion on overpriced and unusable armaments that were not fit for the purpose of peace keeping in Africa in the first place.
If the Seriti commission concentrates its focus on the issue of whether or not the arms deals were compliant with the procurement and rationality requirements of the Constitution it may be in a position in a relatively short time and at no great expense to report to the President that the cabinet of the day in 1999 was in dereliction of its duties, did not get parliamentary approval of its proposed expenditure on arms, did not comply with legal requirements in regard to raising the loans needed for the acquisitions and did not even comply with procurement precepts, to such an extent that the arms deals do not pass constitutional muster and fall to be cancelled because they are invalid.
The effect of cancelling the deals is felicitous in these times of financial hardship – the arms go back to the European sellers, the money paid is refunded including that portion that was or might have been used to pay bribes, and the financial albatross is cut from the neck of the country.
Paul Hoffman SC
Lead counsel in the case brought by Terry Crawford-Browne
28 February, 2013