The Donen Commission investigating abuse of the Iraqi oil-for-food programme is on the comeback trail. It is demanding testimony including how African National Congress secretary general Kgalema Motlanthe intervened with Saddam Hussein’s regime on behalf of the central figure in the Oilgate saga, Sandi Majali.
President Thabo Mbeki appointed the commission, led by advocate Michael Donen, in February. It was to have reported in May, but got stuck in a legal quagmire when it called oil trader Rodney Hemphill as a witness. Hemphill then applied to the Pretoria High Court to nullify subpoenas and review the commission’s powers.
Hemphill, once Majali’s business partner, claimed a regulation issued by Mbeki unjustly empowered the commission to demand answers in contravention of the constitutional right against self-incrimination.
While Mbeki reconsidered the commission’s powers and Donen attempted to find a compromise, public hearings were postponed indefinitely — letting prominent witnesses including Motlanthe, Majali, former politician Tokyo Sexwale and Department of Minerals and Energy Director General Sandile Nogxina off the hook.
Donen has gone on the counter-offensive after Mbeki refused to water down the commission’s powers and Donen’s negotiations with Hemphill deadlocked. An affidavit filed by Donen last Friday in response to Hemphill’s original application shows that Hemphill refused to answer written questions even after Donen said he would not have to incriminate himself.
Now Donen wants the court to give urgent clarity on the commission’s powers so that he can get on with the job of summonsing witnesses. His affidavit says that while the dispute is primarily between Hemphill and Mbeki, “I am led to understand that this regulation contains a principle on which the proper functioning of many commissions may rely”.
The regulation removes the right against self-incrimination, but attempts to satisfy the constitutional precept by saying that information obtained under such circumstances may not be used if the witness is later tried.
Donen’s mandate is to determine whether South Africans had breached United Nations-mandated sanctions by paying kickbacks and illicit surcharges to the Iraqi regime while doing business under the oil-for-food programme; whether that constituted an offence in South Africa; and how to prevent recurrences.
Donen’s affidavit gives a glimpse into the commission’s thinking so far — and some of the targets of its investigation.
In correspondence appended to Donen’s affidavit, the commission says that “payments of surcharges and kickbacks contrary to [UN] Security Council resolutions do not appear to constitute offences in South African domestic law” — meaning Donen may well already have dispensed with one of his main terms of reference. Legislation passed in 1993 to make UN sanctions locally enforceable never became law.
The list of questions the commission wanted Hemphill to answer shows he is not shying away from the role played by Motlanthe, among others. The M&G was first to report that Hemphill, Iraqi-American Shakir Alkhafaji and Majali had travelled to Baghdad in December 2000 to request an allocation for their then company Montega Trading — and that they were accompanied by Motlanthe, ANC treasurer general Mendi Msimang and ANC presidency head Smuts Ngonyama.
Although Motlanthe and Msimang have conceded no more than that they “travelled to Iraq in the same transport as Majali”, Majali has acknowledged that “the ANC promoted the business activities of [Majali’s later company] Imvume with the authorities of the former Iraqi government”. Majali claimed, however, that this was “ordinary, standard, everyday, commercial international business practice”.
The commission’s questions to Hemphill include who “facilitated the introductions” during the December 2000 meetings in Baghdad, and “what was discussed in relation to the payment of surcharges”. Donen’s affidavit refers to the Iraqi oil ministry’s subsequent written approval of Montega’s request for two million barrels of crude. The approval specifies the levying of a surcharge on Montega.
As potentially damaging is a sequence of events in early 2002. On March 6, Imvume contracted with South Africa’s Strategic Fuel Fund Association (SFF), the state agency that managed the country’s strategic oil inventory, to supply it with Iraqi crude.
But Majali had no Iraqi crude oil allocation from which to supply the SFF — the Iraqis were balking as Montega had failed to pay them the surcharge earlier levied.
The same day, Majali met the Iraqi state oil company in Bagdad asking for allocations — and promising, according to a letter he later wrote to Iraq, to pay the outstanding surcharge, which amounted to $646 000.
A day later, the Iraqi ambassador to South Africa forwarded a letter from Motlanthe to Tariq Aziz, Iraq’s then deputy prime minister. Investigators, including the UN’s Independent Inquiry Committee, have failed to locate this letter — but it seems clear it had to do with Majali’s request for oil: Iraqi authorities annotated on the ambassador’s covering letter that Aziz approved Majali’s request.
Donen is interested in the contents of Motlanthe’s letter, which may prove damaging to the ANC secretary general. The fact of the letter alone tends to confirm the level of support he gave Majali. The contents may be more damaging if it places Motlanthe in proximity to Majali’s promises to pay surcharges that broke UN sanctions.
Although the UN inquiry traced a payment of $60 000 as an “advance” on Majali’s surcharge obligation, it could not determine who had made the payment. Majali has denied all knowledge. Motlanthe has consistently refused to answer the M&G’s questions relating to Majali’s Iraqi oil ventures.