/ 30 September 2008

Arms: How Mbeki meddled

In his application to the Constitutional Court last week, former president Thabo Mbeki denied under oath that he had meddled in the prosecution of ANC president Jacob Zuma.

But there is a wider question — whether Mbeki had a history of imposing his will on nominally independent state institutions.

Commenting on Mbeki’s televised resignation address, his biographer Mark Gevisser concluded that even if Judge Chris Nicholson’s inferences are successfully challenged, ”the odour of two incidents in particular will remain part of Mbeki’s legacy: Bulelani Ngcuka’s ‘prima facie’ statement and Mbeki’s part in it; and the evidence of Vusi Pikoli before the Ginwala commission. The arms deal looms, too —”

The arms deal scandal presented Mbeki’s administration with its biggest reputational challenge. Did he interfere? Here is the evidence:

Dumping Heath: a case study in distortion
January 19 2001: Mbeki goes on television explaining his decision to exclude then-judge Willem Heath and his Special Investigating Unit (SIU) from the multi-agency probe of the arms deal.

Heath’s inclusion was supported by Parliament’s ANC-dominated public accounts committee, Scopa, and opposition parties. Mbeki and the ANC leadership felt, however, that Heath was politically insolent and feared he could use his powers to apply to cancel the arms contracts.

In his broadcast Mbeki cited a November 2000 Constitutional Court judgement which found that Heath, as a judge heading the SIU, violated the constitutional principle of a separation of powers.

He claimed the court had ”directed that we act ‘without undue delay’ to replace Judge Heath with somebody else who is not a judge”. Mbeki failed to mention that the court had given a year’s indulgence — and that Heath had offered to resign as a judge.

Mbeki also cited an opinion given to then-justice minister Penuell Maduna by advocates Frank Kahn, then Western Cape director of public prosecutions, and Jan Lubbe, a consultant to the SIU.

He emphasised their saying that ”at this stage there is no prima facie evidence in law” of criminality in the arms deal. Glaringly, he omitted to say that Kahn and Lubbe had, in fact, recommended an investigation as ”warranted” and had found ”sufficient grounds” to involve the SIU (or, to comply with the Constitutional Court judgement, a reconstituted SIU).

That letter (or how to emasculate Parliament)
January 19 2001: On the same day that Mbeki excludes Heath’s SIU from the arms deal probe, then-deputy president Jacob Zuma signs a lengthy letter to Gavin Woods, then chair of Scopa.

Copied to foreign governments and the principal arms contracting companies, the missive badgered Woods over Scopa’s findings about irregularities in the arms deal and its demand for a multi-agency investigation which would include the SIU.

The letter– which turned out be written by Mbeki — and a series of interventions by the ANC leadership soon brought the ANC majority in Scopa, and thus Scopa itself, to heel.

The pressure started shortly after Scopa’s November 2 2000 resolution recommending the probe, when Scopa’s ANC members were summoned by the ANC’s governance committee. According to Andrew Feinstein, then Scopa’s ranking ANC member, Zuma and former chief whip Tony Yengeni were present, as was Mbeki’s close confidant Essop Pahad. In a ”ferocious diatribe” Pahad demanded that Scopa withdraw the resolution. Pahad has denied the ­allegation.

After the ANC sacked Feinstein and reconstituted its Scopa contingent, Scopa dropped its insistence on a full investigation of the arms deal.

Despite the controversy around ”Zuma’s” letter to Woods — and the fact that Shaik trial Judge Hilary Squires accepted it as evidence that Zuma tried to derail the arms deal probe — Mbeki did not publicly own up to writing it.

Critics have long seen Mbeki and the ANC’s crackdown on Scopa as a first instance of the emasculation of Parliament and a violation of the separation of powers.

Editing the JIT report, shielding the executive
October 2001: Then-auditor general Shauket Fakie meets Mbeki and mini­sters Alec Erwin, Trevor Manuel and Mosiuoa Lekota, presenting them with a draft of the joint investigation team’s (JIT) report on the arms deal.

With Heath’s SIU excluded from the multi-agency probe into the arms deal, the JIT consisted of Fakie’s office, the National Prosecuting Authority and the Public Protector. They were due to release their report to Parliament at the end of October 2001. But after the meeting with Mbeki and his ministers the draft (in fact drafts, as up to that point each agency had prepared a separate report) was furiously rewritten. A final, unified report was presented to Parliament only in mid-November.

Fakie repeatedly defended his actions, saying the law gave him no choice but to seek comment from the executive before publication. He also claimed no ”material” changes had resulted.

When arms deal bidder-turned-whistle-blower Richard Young gained access to the draft reports through access to information litigation, a different picture emerged. It seemed that evidence tending to contradict the executive’s version on the probity the main arms deal contracts had been omitted or toned down.

A set of handwritten notes resulting from Fakie’s meeting with Mbeki and his ministers strongly indicated that Fakie succumbed to the politicians’ demands. These included an instruction for the substitution of a finding by Fakie’s team that former defence minister Joe Modise had interfered to ensure the selection of BAE System’s Hawk jet trainers with the Public Protector’s finding that the Hawk selection was (justifiably) made for strategic reasons.

A separate note, but in the same handwriting as the notes recording changes to be made as a result of Fakie’s meeting with Mbeki and the ministers, stated the need to insert in the overall conclusion that ”the joint investigation team found no evidence of impropriety, fraud or corruption by Cabinet, government or individual ministers”.

Indeed, the final report concluded that ”no evidence was found of any improper or unlawful conduct by government” and that the irregularities exposed in the report ”cannot be ascribed to the president or Cabinet ministers”.

Mbeki and his ministers got what they wanted.
Bouncing Hefer: if at first you don’t succeed —

November 11 2003: Mbeki amends the Hefer Commission’s terms of reference, changing its mandate from determining whether then-prosecutions boss Bulelani Ngcuka had been an apartheid spy, to whether Mo Shaik and Mac Maharaj’s claims to that effect were true.

The change may appear negligible, but the effect was significant: it turned the commission, initially tasked with establishing the objective truth about Ngcuka, into a forum in which two men closely associated with Zuma had to prove their own allegations — or face humiliation, which they did.

Mbeki appointed Judge Joos Hefer in September 2003 after City Press claimed Ngcuka might have spied for the apartheid police. Shaik and Maharaj backed the allegations, based on a 1989 probe by their ANC intelligence unit.

Hefer took his mandate seriously enough to demand intelligence files in state hands. But he noted in his report: ”Although the obvious and most reliable source of [Ngcuka’s alleged registration as a source] was the records in possession of the state intelligence and security services, I was consistently … refused access to the records.”

Mbeki then stepped in. Rather than order the release of the records, he changed Hefer’s mandate. On the same day, Mbeki’s director general, Frank Chikane, wrote to Hefer saying ”the President has unfettered access to all information in the possession of the state intelligence and security structures. These structures have made no allegations that bear on the matters being considered by the commission.”

Chikane’s assurance was ambiguous. Hefer noted in his report that he ”remained firmly convinced that these agencies were in possession of information that was still relevant”, but he backed down, bound as he was by Mbeki’s new mandate putting the onus on Shaik and Maharaj to prove their claims. Under rigorous cross-examination and without recourse to intelligence files, the duo failed dismally. Hefer concluded that Ngcuka ”probably never acted as an agent”.

Slagging the SFO — a case of selective enthusiasm
January 15 2007: The SABC interviews Mbeki following a Mail & Guardian exposé that Britain’s Serious Fraud Office (SFO) wanted South African help in investigating R1-billion in ”commissions” paid by BAE Systems during the arms deal. Mbeki sticks to the official line that there was no corruption affecting government and the main contracts, and adds: ”That conclusion will stand whatever investigation the British are doing.”

At the time, and subsequently, a wealth of new information dislodged by foreign investigations cast doubt on the exonerations issued by South Africa’s joint investigation team. Investigators in Britain and Germany both requested legal assistance from South Africa to pursue leads.

Government has denied claims that it obstructed these requests. It is a fact, however, that the SFO has received very little concrete assistance since it first requested it in 2006, and that German investigators had received none when they closed their probe earlier this year.

Mbeki and key members of the executive, it seemed, found it hard to muster the same enthusiasm for the fight against corruption that they showed when Zuma was in the dock.