There are fears that the Donen commission investigating South African abuse of the Iraq oil-for-food programme (OFF) may not regain momentum after public hearings were abandoned as they were about to start.
The commission backed down in the face of a Pretoria High Court challenge by a witness it had subpoenaed to testify first. Bad drafting of its powers left it little choice.
President Thabo Mbeki, who appointed it in February, must now reconsider its powers. It may be that political, legal and time pressures will mean that commission chair Michael Donen and members Khehla Chauke and Lucy Moleko will have their teeth pulled.
The very creation of the commission was an uphill battle, because of potential embarrassment to senior politicians and officials who had been implicated in the Oilgate scandal.
The Mail & Guardian’s Oilgate reports included exposing how Imvume Management, effectively an African National Congress front company, obtained lucrative OFF oil allocations from Saddam Hussein’s regime with the help of the South African government and party officials.
Documents published by the M&G showed that the ANC was to be funded from these oil trades, while the regime was assured of South African government and ANC support. Imvume and the ANC have denied their relationship went beyond ordinary support of an empowerment company.
Last October, the Independent Inquiry Committee (IIC), appointed by the United Nations to probe the abuse of OFF internationally, devoted a chapter of its final report to Imvume boss Sandi Majali, saying he and his companies had “profited from Iraq’s efforts to deliver business opportunities to South Africa in return for political support”. Among other things, the report says Majali had presented himself to the Iraqis as Mbeki’s adviser.
The IIC implicated about 2 000 companies internationally — including a handful locally — for having paid “surcharges” and “kickbacks” on OFF transactions. This contravened UN-mandated sanctions, as it put cash in the hands of the Iraqi regime.
Mbeki, walking a tightrope, appointed the Donen Commission on February 17. He limited its terms of reference to the investigation of specific IIC allegations that South African companies had offered or paid surcharges and kickbacks to Iraq. Not included were the M&G and IIC’s allegations of oil traded for political influence.
Even so, Donen’s subpoenas included a who’s who of Oilgate. Those subpoenaed to testify included Majali and two former business partners: Ivor Ichikowitz, who is close to Mbeki’s brother, Moeletsi, and Rodney Hemphill, Joe Modise’s former business partner.
Also subpoenaed were ANC Secretary General Kgalema Motlanthe, Department of Minerals and Energy Director General Sandile Nogxina and former Strategic Fuel Fund (SFF) director Riaz Jawoodeen, who all accompanied Majali to Iraq. Tokyo Sexwale, whose Mocoh Services South Africa traded separately under OFF, was also subpoenaed.
A fortnight ago, a comment by Donen suggested that the government’s knowledge of kickbacks paid by South African nationals could become an issue at the hearings.
The M&G has published a 2001 document, signed by Nogxina and Deputy President Phumzile Mlambo-Ngcuka, in which the Iraqi imposition of surcharges is raised. The M&G has also reported that an SFF decision to source Iraqi crude privately, rather than government-to-government, was internally justified for saving the SFF from having to dirty its hands by paying surcharges.
Hemphill, who was to have testified on Monday, brought an urgent application to the Pretoria High Court demanding that the subpoenas issued to himself and three companies he represents be suspended pending a review of the legality of the commission’s powers. He objected to the commission’s powers to demand answers even where witnesses might incriminate themselves.
The application exposed a glaring flaw in the Department of Justice and Constitutional Development’s drafting — the proclamation says the Commissions Act, which protects witnesses against self-incrimination, applies. However, the regulations attached to the proclamation remove this right.
The two sides settled on the basis that Donen withdraws Hemphill’s subpoenas, and Hemphill withdraws his court action pending Mbeki’s review of the commission’s powers.
Donen postponed the hearings, saying that his questioning powers were now uncertain.
He also indicated that witnesses “connected to state departments and political parties” might be allowed to present evidence in camera.
Donen’s mandate, set at three months in February, expires on Tuesday, the day the last witness was to have testified.
Unless Mbeki fixes the commission’s powers and extends its life, the best that can be expected from Donen is an anodyne report based on the documentary evidence he has gleaned.
The Donen Commission’s travails are in stark contrast to progress made in other countries. In Australia, the Cole Commission has wrapped up dramatic and oft-extended hearings at which, among others, the prime minister and two ministers had to testify. In France and the United Kingdom, officials and politicians are under formal investigation. In the United States, a number of well-connected businessmen have been charged.
In India, money has been traced to relatives of the former foreign minister, who resigned over the scandal.