Back in the bad old days of PW Botha and FW de Klerk, “commission of inquiry” was taken to mean pretty much the same thing as cover-up or whitewash.
Nor was it merely the professional cynicism of journalists that gave rise to the impression. Since the promulgation of the Commissions Act of 1947, a pattern had stamped itself on history in which the instituting of a judicial commission was a stratagem of last resort in managing information: a political manoeuvre that would buy some time, that would turn down the heat in the political kitchen and, crucially, would allow the head of government – as the commissioner of the inquiry and the agency to which the commission was bound to report – to shape and control what was placed in the public domain.
It has been déjà vu for old hacks and those with longer memories in the past 10 days after the resignation of senior investigator Advocate Norman Moabi from the commission headed by Judge Willie Seriti into “allegations of fraud, corruption, impropriety or irregularity in the strategic defence packages”.
In his three-page letter of resignation, Moabi, a former acting judge, said he could no longer reconcile with his conscience his involvement in a process tainted by an alleged double agenda, and overseen by “unknown person(s) dictating the commission’s work”.
Moabi also set alarm bells ringing with a pair of quotes, apparently attributed to Seriti, under the heading “The penny has dropped”. The first of these suggests there are plans to use the commission to muzzle witnesses called to testify so “they will not again make noises in the public media”.
The second appears to prejudge the submissions of one of the noisiest arms deal critics, Terry Crawford-Browne, as “not factual… based on hearsay”.
Responding this week in a press release, Seriti affirmed his bona fides as a sworn judge, and rejected Moabi’s claims of hidden agendas, suggesting without giving detail they could be the wine of sour grapes.
He did, however, concede he “may have uttered words similar to those quoted”, though insisting they were taken out of context.
Seriti’s denial has found little resonance with arms deal critics, and DA defence spokesman and named commission witness David Maynier described it, bluntly, as a “failed attempt at damage control”.
Meanwhile, the old hacks think they might have entered a time warp back to the commissions orchestrated by John Vorster, Botha and De Klerk.
We had the Cillie Commission of Inquiry into the Riots at Soweto and Other Places in the Republic of South Africa during June 1976. This, though it collected no fewer than 69 volumes of evidence, failed to find any culpability on the part of the police.
The same was true of an earlier commission under Judge MA Diemont into the Sharpeville Massacre of 1960. It took the Truth and Reconciliation Commission, decades later, to second-guess the findings at the official level at least.
Then there was a string of commissions headed by Judge Cecil Margo, generally into suspicious incidents in the aviation sector.
Most notorious of the commissions, perhaps – though not necessarily most crooked – was the 1990 inquiry into alleged third force actions by counter-insurgency units in the South African Defence Force and the South African Police headed by Supreme Court Justice Louis Harms.
Through seemingly carefully orchestrated limitations written under authority of De Klerk into its terms of reference, the commission had at least some of its teeth pulled before it even got down to work. Notably it had no authority to look beyond the borders of South Africa, and was therefore not in a position to examine suspected assassinations in the frontline states, like that of Namibian lawyer Anton Lubowski – in respect of which several covert operatives of the apartheid state already had made partial confessions.
Full confessions made in the course of the commision – those of former Vlakplaas commander Dirk Coetzee and his underlings Almond Nofomela and David Tshikalanga – were brusquely dismissed as “unreliable”.
The commission was able to find no evidence to back up allegations of involvement in hit squad activities on the part of either the police hit squads or the SADF’s notorious Civil Co-operation Bureau, and while former defence minister Magnus Malan was fingered as being “politically” responsible for the CCB, he was duly exonerated by De Klerk.
There were, of course, some heroic exceptions to the pattern of whitewash – notably that of Judge Anton Mostert at the end of the 1970s. Mostert bucked his brief to make public his findings of massive corruption and slush-funding in the National Party government’s department of information, including the covert funding of the Citizen newspaper.
But, here again, the history is instructive: recovering from a virtual apoplexy, PW Botha, simply fired Mostert and replaced him with a more biddable alternative, Judge Rudolph Erasmus – who duly said the things Botha wanted to hear.
In short, the mystery around the Seriti commission is not so much that public perceptions or suspicions of possible impropriety should exist, as that they have been so long in hardening.
When the terms of reference were promulgated early last year, constitutional law expert Pierre de Vos was in a small minority ringing alarm bells.
As De Vos put it on his blog, Constitutionally Speaking, “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”.
De Vos pointed to regulation 10, which says that if the commission judges evidence relevant to its work, it can rule that such evidence may not be made public or used in any other legal proceedings.
The effect, according to De Vos, could be that “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”.
Then of course, once the commission had reported, legal precedent would have been set, bedevilling any attempts to overturn conclusions reached.
Alongside this, regulation 12 criminalises the leaking of information relating to the proceedings of the commmision as it goes about its work.
In addition, regulations 14 and 15 prohibit the dissemination or even the perusal of documents submitted to the commission, or the publication of such materials.
By the same token, all reports and interim reports of the commission are specifically ring-fenced unless publication is authorised in writing.
To be sure, the threat posed by the regulations did not pass unnoticed. Two key witnesses in defence, contractor Richard Young and Gavin Woods, former chairman of Parliament’s standing committee on public accounts (Scopa), declined to make submissions to be fed into the commission’s maw, saying they would prefer to respond to subpoenas.
And, for his part, campaigner Terry Crawford-Browne, after duly lodging a written submission, defied Seriti – who failed to give permission despite requests by its author – by placing it in the public domain.
But such gestures are little more than sideshows.
What is more at stake are the estimated 4.5 million pages of forensically relevant documentation in the possession of the commission.
In effect, regulation 10 could guarantee that all these, except those the commission and the president want us to see, are removed from the public domain and, crucially, from the purview of the courts.
It is unlikely to happen of course.
Though enshrined in the Commissions Act, the regulation could be vulnerable to freedom of information clauses in the constitution, and the prospect of keeping the lid on things in the internet age is daunting to say the least.
Even so, if the ANC is successful in ramming the Protection of State Information Bill through Parliament – as all indications are it plans to in the coming session – the challenge to transparency in government and society could be formidable and questions about arms deal corruption could be effectively removed from the purview of the law.
So too would President Jacob Zuma – at one and the same time the recipient and arbiter of what the commission reports, and one of the key suspects identified in the evidentiary documentation.
He would be the one to decide – assuming the commission accepts the judgment of fellow justice Hilary Squires in convicting Zuma’s former financial advisor Schabir Shaik, that the president has a corruption case to answer – whether to recommend sanctions against himself.
At the same time, he could already have benefited by being insulated against ongoing legal action aimed at reinstituting arms deal corruption charges withdrawn in 2009 on the grounds that pursuing them would be to prejudice the work of the Seriti commission.
One doubts that even the Groot Krokodil could have managed it that neatly.