Johannesburg - When President Jacob Zuma’s Arms Procurement Commission finally gets down to business in Pretoria on Monday – 21 months after it was established and only three months before it was scheduled to wrap up operations – it will be the commission itself that is on trial in the court of public opinion along with the controversial R70 billion arms deals of the late 1990s.
As time has dragged on and the scandals around the commission’s processes have multiplied, the initial optimism that greeted Zuma’s decision, in October 2011, to establish the commission has in many quarters hardened into mistrust.
Back then, Justice Minister Jeff Radebe presented the commission as a kind of belated national therapy – the lancing of a boil on the body politic of the South African democracy – but commentators pointed out that this had been made on the back foot as Zuma failed to meet a Constitutional Court deadline to explain why such a public commission should not be appointed.
The deadline in question – arising from an application brought by arms deal activist Terry Crawford-Browne – was set for October 25, the day after Zuma seized the initiative, and positioned himself to control the commission’s processes and terms of reference.
It meant the commission would be reporting, not to the public as Crawford-Browne would have had it, but to Zuma himself as head of state, and it was Zuma who would decide what to do with the commission’s reporting and recommendations, and, ultimately, what would enter the public domain.
Given that Zuma was one of the key corruption suspects in Crawford-Brown’s application, and faced legal action aimed at reinstituting corruption charges against him, the manoeuvre was – and it needs to be said – structurally amnesiac, and almost proverbial in its appointing of the jackal as custodian of the chickens of national memory.
Then the commission went into what appeared from the outside – and everybody who was not in the inner circles of government was on the outside – slow-mo.
By May 2012, when he died, apparently a suicide, secretary designate Mvuseni Ngubane had not even relocated to Pretoria to take up the position. In the next months, two senior evidence leaders were dismissed on the basis of seemingly belated probity checks.
While the commission said it had worked through and analysed 4.5 million pages of documentation by November last year, observers noted they had not met with investigators – still in state employ – from the now defunct Directorate of Special Operations or prosecutors who had led the National Prosecuting Authority’s investigations, though these had amassed even more impressive volumes of material in pursuing prosecutions over a decade of probing the scandal. Their engagements with potentially co-operative authorities abroad did also not appear to result in mutual assistance agreements.
It was more than a year after the commission entered its mandated two years of existence before it announced a programme of public hearings – identifying a list of “whistle-blowers” as witnesses for proceedings that would have started in March.
Then it postponed. And it postponed again… but not before it sought to enforce a rule of silence lurking in the founding legislation’s small print. In one of several stand-offs with Crawford-Browne, Judge Willie Seriti refused permission for the campaigner to publish his submission, on the basis of Regulation 10 which says that if the commission judges evidence relevant to its work, such evidence may not be made public or be used in legal proceedings.
Though Crawford-Browne proceeded to defy Judge Seriti, the impulse to control the flow of information has apparently surfaced again in the rules of engagement published for the hearings which are starting next week – witnesses appearing before the commission may not be interviewed by the media until their testimony is complete. Witnesses in the current phase of the hearings may be recalled at a later date, meaning that the extent to which the media may question key players in the saga could be limited for some time.
In January, senior evidence leader and one-time acting judge Norman Moabi resigned his post, saying he could no longer reconcile his participation in the commission with his conscience. He drew attention to a “second agenda” enforced by “unknown” persons and forces directing the strategy and operations of the commission. He was followed weeks later by law researcher Kate Painting, who has not explained why she quit. Then this week, came the shock resignation (according to the Presidency for “personal reasons”, and regretfully accepted by Zuma) of Judge Francis Legodi, one of the three commissioners.
While Judge Legodi has not commented, Moabi reportedly darkly cautioned that people should be “very wary and watch what unfolds”, going on to hint that the interests of national security could be invoked to whisk evidence out of the public arena, to be addressed behind closed doors, in camera.
Meanwhile, eyebrows have been raised by changes to the structure of the commission’s programme for hearings. After earlier indications that the implied logic would be to first air the charges of malfeasance, corruption and assorted irregularities as presented by a collection of so-called whistle-blowers, the commission, without explanation, changed tack. The first phase of the hearings will focus on two of the five terms of the commission’s terms of reference, canvassing two sets of witnesses.
This means between August 6 and September 27 a group of officials from the South African Navy and the Air Force (few if any of whom played any known role in the arms deal) will be required to address the issue of “Whether the arms and equipment acquired in terms of the SDPP are under-utilised or not utilised at all”.
Thereafter, starting on September 30 and continuing until the end of February next year, a grouping from the 1999 cabinet – former president Thabo Mbeki, then-Defence Minister Mosiuoa Lekota and his deputy Ronnie Kasrils, former Trade and Industry Minister Alec Erwin and Trevor Manuel, then minister of finance – will appear before the commission.
Along with a collection of senior bureaucrats from the relevant departments, they will be required to address the first of the stated terms of reference, the rationale for the SDPP.
While it is to be noted that only Manuel still serves in the cabinet and several of the former ministers are critics of Zuma, two other points are worthy of note.
One is that the first phase of the hearings has been allocated for “scene setting” and interested parties will not be allowed – unless those testifying are recalled at a later stage – to examine witnesses.
The other is that even the currently scheduled hearings will outlive the commission as currently mandated.
Zuma will have to extend the commission if it is to continue beyond the 24 months that end in late October, and, though he may or may not choose to, he will be in a position to pull the plug at any time thereafter.
Enter the elephant into the room. South Africa is holding general elections next year, and, while secure in his position at the head of an ANC that commands majority support, Zuma continues to be haunted by the corruption charges he never answered in court after the NPA controversially withdrew these in 2008.
The question of whether those charges are to be reinstated remains before the courts.
He would be in a far stronger position to deal with this situation after being re-elected.
And then, elephant number two. While the hearings will – within limits – address issues arising from the material that was acquired, no provision has been made for looking at what was not acquired.
Witnesses might well be called on to explain why a fleet of maritime helicopters has effectively been mothballed – with the only recent use reportedly being to ferry Zuma to and from Nkandla.
They may be questioned why more than half of the 26 Gripens acquired by the SAAF have, according to Defence Web, been grounded. Why none of the submarines bought from German contractors was, as reported in June, in an operational condition. Or why the SA Navy was unable, on several occasions, to deploy corvettes on internationally mandated anti-piracy missions.
Part of the answer here lies in a surreal bureaucratic disconnect between acquisition budgets and operational budgets. But this is not the whole story. At the same time as the R70bn materiel is mouldering, the South African National Defence Force is – with patent justification – looking to procure additional military equipment in order to meet obligations.
The problem is: though infantry requirements did feature as part of the arms deal shopping list, they were deferred to a later date as “priorities” were singled out. In the current frame, as was indicated in the government’s Defence Review, South Africa’s peacekeeping missions are fitted with equipment some of which is 50 years old, and is inadequate for the job, and lacking in key elements like helicopter gunships that would guarantee covering fire and rapid intervention.
Here is the rub. While state-of- the-art Gripens are useful for military fly-pasts and could be unleashed to devastating effect to bomb neighbouring states, they have no place in the essentially diplomatic field of peacekeeping, nor for that matter in the messy context of guerrilla warfare.
So too corvettes and submarines could do a great job of protecting South Africa’s coastline from invasion.
But since the advent of democracy, such conventional warfare scenarios have never seriously been on the table – whereas continental peacekeeping most certainly has.
As the DA’s spokesman on defence, David Maynier comments: “The original sin in my view was a flawed defence review which was rigged to generate a requirement for the kit the defence force wanted rather than the kit the defence force needed. That’s how we ended up in the market for fighter aircraft rather than transport aircraft and frigates rather than patrol vessels.”
The decision to focus on the materiel that was, in the event, prioritised would appear to be worthy of further scrutiny as regards its rationality.
It was this rationality and appropriateness in the context of the constitution that was questioned by Crawford-Browne in the application which gave birth to the commission.
Whether such questions really get answered remains to be seen.
Sunday Independent
The Star's reporter Louise Flanagan will be tweeting from the arms deal inquiry. Follow her on Twitter @louisef100