Seriti Commission: separating fact from fantasy

This piece first appeared in the Business Day on 16 October 2014. It was authored by Hennie van Vuuren, Andrew Feinstein and Paul Holden.

The R60-R70billion Arms Deal has wrought havoc on the lives of ordinary South Africans and corrupted our politics over the past 15 years. It has profited international arms corporations while weakening our democratic state institutions. The cover-up that followed the arms deal has put in place a system of patronage with the purpose of keeping alleged corrupt elites out of prison. It allows them to continue benefitting from the spoils of an unequal society.

The success of those who defend the deal and its beneficiaries was made possible not through rational argument but by state and corporate power. Access to such power means the ability to stop official investigations and shut down the agencies that lead these such as the Scorpions. The arguments used by some of those implicated in corruption to avoid prosecution are irrational and offensive. An example is media reports over the weekend quoting correspondence between lawyers for President Zuma and the National Prosecuting Authority in which Mr Zuma is reported to argue that corruption is a ‘victimless crime’. It is a desperate defence and devoid of any fact. Corruption quickens the illegitimate accrual of power by a criminal business and political elite at the cost of lost opportunities to the poor.

Those critical of the deal and who have blown the whistle face the possibility of being cut out of job opportunities or risk physical intimidation. It also means that it has been possible to use state resources to drag these processes out for so long that the public loses track of the arguments – and may eventually conclude that we should give up and move on.

A free, democratic constitutional South Africa is fortunate that the vast majority of our people are committed to tackling graft. Despite the barriers placed in the way of uncovering malfeasance in the Arms Deal there are very many brave individuals who have questioned the corruption in the deal. They are state investigators and prosecutors whose efforts have been largely sidelined, the investigative journalists without whom we would know few of the Arms Deal secrets, and the whistleblowers who have made massive sacrifices to expose corruption in our society. Civil Society also leads this struggle as witnessed by the recent call by almost 40 civil society organisations that the Seriti Commission into the arms deal must be disbanded.

Researchers such as ourselves are the smallest part of the country’s anti-corruption activists. We believe that it is our job to act with humility in protecting the Constitution by relying on facts when challenging the corrupt. We recognise that we are part of a far larger movement calling for truth and accountability.

This past week saw the Seriti Commission of Inquiry, long the source of controversy due to its own conduct, being invited to stray from the relevant facts. The testimony of peace activist Terry Crawford-Browne was eagerly awaited. Not least because his Constitutional Court challenge led to the President establishing the Arms Procurement Commission. Sadly, what we witnessed was Crawford-Browne unwisely repeating the unsubstantiated opinions of others. The impact was not only that he undermined his own argument but also that he has made the extremely difficult task of challenging the conduct of the Commission much harder. There is no doubt that the events of the past week were watched by the arms companies and other defenders of the deal with glee.

The murder of Chris Hani, a great South African, resulted in bloodshed amongst the civilian population as the apartheid beast was in its death throes. The memory of this nightmare means we have a responsibility to discuss these events with careful consideration armed with ample evidence. There was no need to reach into these darkest corners of our history to prove corruption in the arms deal.  We respect Crawford-Browne’s past contribution to truth seeking in the arms deal cover-up, but we distance ourselves from his evidence and conclusions.  He has made it easy for those who do not want the truth to be found, to say that the critics of the arms deal rely on unsubstantiated rumour and can produce no evidence to substantiate their claims.

In the uproar resulting from these fantastical claims the crucial point must not be lost: We have demonstrated through our books, writing and the information we have provided to the Commission that there is substantial and substantive documentary evidence suggesting corruption in the arms deal. The Seriti Commission either has this information at its disposal or can access it with ease should it wish to do so.

By far the most significant event of the past week was the decision by the Commission to treat the ‘Debevoise and Plimpton Report’ commissioned by German arms company Ferrostaal (into its own massive alleged bribery) as a privileged document having “…the same footing as a stolen document”, and therefore being inadmissible in evidence. This means that the document cannot be relied on by any witness at any stage- yet another ruling which will block the public’s right to know.  To best understand the implications of this, imagine what would have happened if mining company Lonmin’s attorneys had prepared a report finding that Lonmin had engaged in misconduct during the Marikana massacre, and that report had been widely published in the media – and the Marikana Commission had then refused to admit the report into evidence.  There would have been public outrage, claiming a cover-up.

This is of course not the first, nor we fear the last, ruling of this nature by the Commission. There is a vast volume of evidence that the Commission has not sufficiently considered.

Our decision to withdraw from the Commission was not only as a result of our own experience of not being able to rely on pertinent evidence, not being able to access relevant documents in the Commission’s possession, and being limited to evidence within our personal knowledge, rendering our participation meaningless. It is also informed by resignations from within the Commission which reached a tipping point earlier this year with the departure of Advocates Sibiya and Skinner. Senior advocates who resigned from the Commission claimed that decisions are made arbitrarily including blocking evidence leaders’ access to their witnesses and documentary evidence. The Commission which some whistleblowers have charged with having a ‘second agenda’ has, in a manner uncharacteristic of a body of this kind, also launched attacks on its critics through the media. This includes statements suggesting that we are without evidence, despite the volume of information we have provided to the Commission. Most recently, the Commission’s spokesperson William Baloyi launched a vicious attack on the Right2Know Campaign in response to their expression of their right to call for the Commission to be disbanded. This unbecoming conduct further confirms our decision to withdraw from the Commission.

We re-iterate our call for an independent investigation, and, prosecution of those implicated in corruption. We make this call in the knowledge that almost 40 civil society organisations have released a statement in support of these demands. We are mindful of the fact that we do not stand alone in this struggle. We have a responsibility not to give up this fight, nor to muddy the waters with unproven conspiracy theories.