The state has launched an extraordinary bid for a secret trial of two South African residents accused of being part of an international network of nuclear technology smugglers.
The move is portrayed as vital to prevent the dissemination of information that would allow rogue states to develop nuclear weapons, but the blackout seems as much designed to protect the dirty secrets of South Africa’s nuclear past as to stop future proliferation.
Last week prosecutors in the matter of the state versus Daniel Geiges and Gerhard Wisser lodged an application in the Pretoria High Court for the bulk of the trial of the two men to be held behind closed doors, with neither the media nor the public being given access to the court proceedings.
The main charges — under the Non-Proliferation of Weapons of Mass Destruction Act and the Nuclear Energy Act — relate to the alleged activities of the accused as part of the so-called AQ Khan network.
Khan, the father of the Pakistani nuclear bomb, has admitted to supplying a number of other countries with nuclear weapons technology. He has never been charged.
The Khan network was a group of rogue engineers — allegedly including Wisser and Geiges — that secretly supplied Khan and other Âclients with equipment and expertise needed for the creation of a covert nuclear weapons programme.
The state seeks an order prohibiting the publication of any information about or derived from the closed proceedings.
The Mail & Guardian, together with other interested parties, is taking legal advice on opposing the blackout.
Trials behind closed doors are generally regarded as inimical to justice, though certain evidence may be heard in camera or otherwise embargoed.
‘The case is clearly a matter of considerable public interest, given that it involves the prosecution of individuals for allegedly smuggling nuclear material, in contravention of South Africa’s non-proliferation undertakings,†says Jane Duncan of the Freedom of Expression Institution. ‘The case also demonstrates an unbroken thread of nuclear activity from apartheid to democracy, on the part of certain individuals. As a result, this case has the potential of embarrassing the government, but embarrassment is not reason enough to censor the media’s reporting on the trial. This attempt cannot be seen out of context of other recent attempts by the NPA to chill media reporting on matters of public interest, and represents yet another chapter in the NPA’s increasingly hostile approach towards the media.â€
The state application covers all the counts related to the alleged proliferation of nuclear technology, but it is notable that one additional area is specifically singled out for the blackout: the nuclear-related activities of the accused in South Africa prior to April 1994.
According to the state, both accused played an important role in securing and developing technology for the apartheid nuclear bomb.
Their company, Krisch Engineering, ‘was a major supplier of systems, components and technology to [South Africa’s] nuclear programme, including its uranium enrichment activitiesâ€.
Highly enriched uranium, necessary for nuclear warheads, is isolated through a separation process that requires sophisticated engineering.
South Africa renounced its nuclear weapons capability in the early 1990s, but the full story of its development and those who participated in it has never been told.
It is notable, too, that the alleged kingpin behind the South African operations of the Khan network, German citizen Gotthard Lerch, went on trial in Mannheim last year, without any ban on media access.
The case traversed substantially the same ground as the South African case — Lerch features prominently in the state’s summary of facts attached to the charge sheet — but was thrown out by the German court. Judge Peter Seidling said there was a danger of Lerch not receiving a fair trial as the prosecution had withheld evidence.
Lerch’s lawyers made much of the involvement of various intelligence agencies in the investigation and exposure of the Khan network, arguing that their client was set up.
The network was blown open in 2003 when a ship transporting components for uranium enrichment to Libya was intercepted.
The Libyan government then chose to renounce its secret nuclear weapons programme and spill the beans on individuals and states that had provided covert assistance.
At that time Wisser and Geiges were allegedly on the point of shipping major portions of an enrichment plant that had been secretly constructed in South Africa to Libya.
In an affidavit lodged in support of the state application, police director Martin Naude reveals that the South African authorities were alerted to the alleged South African role in the Libyan nuclear programme in a special briefing by a top United States official for South African Deputy Foreign Affairs Minister Aziz Pahad.
Further investigation led to the September 2004 seizure of equipment and documentation at Tradefin Engineering, one of Krisch’s subcontractors, and the arrest of Wisser and Geiges, together with other individuals who have since emerged as state witnesses.
In his affidavit Naude said the police had sought technical assistance from both the Nuclear Energy Corporation of South Africa (Necsa) and from the US department of energy.
He said both the US energy department and Necsa required that their experts not be identified because of the risk of their being targeted for recruitment or terrorist attack.
They had also asked that their assessment reports, identifying the equipment and documents produced by Wisser and Geiges as nuclear related, not be publicly disclosed so as not to encourage or assist further nuclear proliferation. He said the technical evidence related to the production of highly enriched uranium and the conversion of that to uranium metal for the production of nuclear weapons.
Naude cited a case where a reporter from the German magazine Der Spiegel gained access to the Pelindaba nuclear facility, where the equipment and documentation seized by police were being stored under maximum security conditions.
Although the journalist’s presence was detected and he was evicted, Naude said this incident, together with another approach from a journalist who appeared to have inside information, ‘lead[s] me to believe that were the media to have access to the case material and identities of the witnesses — that this could result in the publication of such particularsâ€.
He said Necsa also gave the police certain sensitive documentation about South Africa’s own clandestine nuclear programme, on which Wisser and Geiges worked.
The bid for a blackout was also supported in a statement from Abdul Minty, chairperson of South Africa’s nuclear watchdog body, the Non-proliferation Council.
Minty said he was ‘satisfied that the technology [referred to in the charge sheet] is in fact technology which could promote the proliferation and development of nuclear weaponsâ€. ‘This technology should not be disclosed to either the media or the public. The public disclosure would not be in the interest of international security, the security of the Republic or good order.â€