If Judge Joop Labuschagne rules this month that South Africa’s so-called ‘nuclear bazaar†trial should be held in secret, he will be making history.
Even the trial of one of the kingpins in the nuclear bazaar case, German engineer Gotthard Lerch, was open to the public and press in the south-west German town of Mannheim. Only certain parts of that trial, which contained extremely sensitive information, were held in camera.
Lerch’s trial was the first legal attempt to bring to book members of the nuclear smuggling network run by disgraced Pakistani metallurgist Abdul Qadeer Khan. Khan was exposed in 2003 as the supplier of nuclear technology, bomb blueprints and scientific expertise to Libya, Iran and North Korea.
The South African trial of Swiss national Daniel Geiges and German national Gerhard Wisser is part of the international crackdown. Geiges and Wisser are to stand trial in July on charges of violating the Non-Proliferation of Weapons of Mass Destruction Act and the Nuclear Energy Act. They were arrested in 2004.
Arguing that holding the entire trial in camera is tantamount to a secret trial, Gilbert Marcus, the lawyer representing the three entities challenging the state’s action, said that closed proceedings should be kept to a minimum. Marcus told the court that in the modern recorded history of the judiciary, no trial had ever been held completely in secret.
The state applied last week for the trial to be held behind closed doors. The Freedom of Expression Institute (FXI), the Mail & Guardian, the South African chapter of the Media Institute of Southern Africa and the South African National Editors’ Forum opposed the state’s attempt.
‘The state’s application is contrary to international practice in comparable jurisdictions. Courts in the United Kingdom, Canada, Australia, Germany and the United States have been faced with similar requests to close trial proceedings, and have crafted more nuanced solutions that account for the competing interests of the state and the public,†Marcus argued.
In the first trial of the international nuclear bazaar ring, Lerch stood trial in Germany last year on charges of helping Libya clandestinely build a nuclear bomb. But in July, four months into his trial, the judge threw out the prosecution’s case against Lerch, ruling that because the prosecution had withheld evidence, there was a danger that he would not receive a fair trial.
‘No blanket secrecy, such as that sought by the state in these proceedings, was sought or granted,†Marcus said of the Lerch trial.
The advocate also argued that Geiges and Wissel’s bail hearings took place in an open court and that this showed that the state was able to isolate sensitive information.
In 1980, in Virginia in the United States, a trial judge also closed a trial to the press and the public at the request of the accused. But a local newspaper group appealed the decision and the ruling was overturned. The appeal judges said the original ruling infringed on freedom of the press and due process in the judiciary.
Arguing for the state, advocate Wim Trengove said that expert nuclear witnesses would expose themselves to security risks if their identities were released, and that terrorists could get the opportunity to gain valuable information from the trial about how to enrich uranium.