report
Paul Kirk
Apartheid-era legislation, designed to allow a pariah state to conduct secret arms deals, gave the presidency the power to scrutinise and even censor the report of the joint investigation team into the multibillion-rand arms deal before it reached Parliament.
The apparent use of this legislation is the latest in a series of incidents that have led to tension between the executive, represented by President Thabo Mbeki and his Cabinet, and Parliament, represented by the standing committee on public accounts (Scopa).
The executive rode roughshod over earlier requests by Scopa to involve the Heath special investigative unit in the arms investigation and has denied Scopa chairperson Gavin Woods access to vital documents relating to the deal.
The executive’s apparent role in stacking Scopa with “obedient” African National Congress members has also raised eyebrows.
Now a row over the legislation, enacted 27 years ago, may see a key member of Scopa, Democratic Alliance MP Raenette Taljaard, take the matter to the Constitutional Court on review.
The legislation at the centre of the controversy is contained in the 1995 Auditor Generals Act and reads: “The auditor general shall report on accounts established by the Defence Special Account Act, 1974 (Act No. 6 of 1974), with due regard to the special nature of the accounts, and shall limit such report to the extent which he or she, after consultation with the president, the minister of finance and the responsible minister, may determine.”
The Act continues that such report shall not be limited “except in respect of the disclosure of facts which will be to the detriment of the national interest”. The legislation means that, providing any of the ministers who were shown the report or Mbeki himself felt it was not in the national interest to release details of arms-deal corruption, the revelations could have been excised from the report.
In his first report to Parliament on the arms deal in September last year, Auditor General Shauket Fakie confirmed that all funds used in the arms deal would flow through the special defence account established in 1974, and not though an account that can freely be examined by Parliament.
The special defence account was used during the apartheid era to secretly finance many arms deals.
Fakie’s office has attempted to explain the handing of the report to the executive on the grounds that they are “affected parties” and that it is normal auditing procedure to solicit the comments and explanations of affected parties during an audit. Observers have pointed out, however, that no other “affected parties” were shown a draft.
Fakie at the time did not make it public that the report was being handed first to the executive and did not inform Scopa that this was the reason the report was nearly a month late in reaching Parliament.
The lapse of time between the draft being shown to Mbeki and it reaching Parliament has raised suspicions that the report was extensively reworked to please the executive.
Taljaard says she believes the legislation empowering the executive to “limit” reports is in clear conflict with the Constitution.
Although the Auditor Generals Act dates to 1995, it incorporates secrecy provisions of the Special Defence Account Act of 1974, as well as the Security Services Special Account Act of 1969 and the Secret Services Act of 1978. These were Acts written long before the 1996 Constitution was accepted as the supreme law of the land.
Section 181 of the Constitution states that the Office of the Auditor General is one of several institutions that strengthens constitutional democracy. It says that the auditor general is “independent, and subject only to the Constitution and the law, and must be impartial and exercise their powers and perform their functions without fear, favour or prejudice”.
The Constitution says: “No person or organ of state may interfere with the functioning of these institutions.”
Nowhere does the Constitution state that the auditor general must report to the executive.
Section 188 of the Constitution makes it clear that reports cannot be veiled in secrecy, as the three apartheid-era Acts require, by saying: “The auditor general must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must be made public.”
Taljaard told the Mail & Guardian that she had studied the legislation for some time and had come to the conclusion that the Auditor Generals Act may need to be taken on review to the Constitutional Court.
On November 5 Taljaard wrote to Fakie, requesting that he supply her with further particulars relating to the report specifically how and why it was shown to the executive. She says she has yet to receive a reply and is “waiting to see what the report says before deciding on exactly what course to take. But I am thinking seriously of taking the legislation on review.”
In her letter to Fakie she mentions that section 4(6) of the Auditor Generals Act and the legislation that it relies on is “constitutionally problematic.” Taljaard then asks numerous questions including when the report was handed to the president and members of his Cabinet, and whether submissions or “explanatory information” from them was included in the final report.