It is now clear, if ever there was any doubt, that President Jacob Zuma announced his planned commission of inquiry into the arms deal not out of a sudden commitment to transparency but to ensure that an independent-minded Constitutional Court did not saddle him with terms of reference that could lead to a politically (and legally) unmanageable outcome.
His decision came just as he was due to file part of his response in Terry Crawford-Browne’s court bid to force the appointment of a commission. What is more, as we report this week, the president effectively told the national executive committee of the ANC that he had been forced to make his move to pre-empt the untrustworthy judges of Braamfontein.
The ad-hoc character of the decision is reflected in the fact that, a week later, we still don’t know who will serve on the commission or what its mandate will be.
Whether Zuma’s gambit will work remains to be seen but, now that he has opened the door, pressure for a genuine inquiry is only growing.
How then, might a credible investigation into the original sin of our democratic politics look? For starters, the terms must be very wide ranging and aim at maximum disclosure. The web of bribes and sleaze stretching from the big arms companies through subcontractors and offset beneficiaries to middlemen, state officials and politicians must be thoroughly untangled.
At a minimum, the terms of reference should allow for the investigation of:
- All “commission” payments made by the bidders for main contracts and subcontracts, as well the reasons for those commissions;
- The role of the middlemen who received such commissions. What did they do in return for the money and to whom did they make onward payments in cash or kind? Were decision-makers, or perceived decision-makers, including politicians and political parties, or their front companies, the recipients of any benefits ultimately flowing from the bidders, or the middlemen?
- The integrity of the procurement processes for the main and subcontracts;
- The civilian and defence offsets — was their stated purpose of job creation achieved and if not why not? Did the decision-makers and the politicians, or indeed their friends and families, benefit from the offsets?
- The failure of previous investigations of the affair and the locus of responsibility for those failures.
If the commission is to achieve any of this, it will have to have the power to indemnify individual witnesses against criminal prosecution should they incriminate themselves by their testimony.
Critics of this “truth and reconciliation” approach say it will deprive South Africa of justice, and they are right, but perfect justice in this case has long since slipped through our hands. If, on the other hand, the commission is able to get to the truth, even at the cost of individual accountability under criminal law, we may get a measure of justice in other ways.
These could include damages claims against the companies concerned and civil actions to recover cash from individual beneficiaries. The guilty could also be debarred from ever contracting with the state again.
The truth might not set us free but, without it, there is no justice at all.