President Jacob Zuma told the ANC’s national executive committee (NEC) last weekend that he had decided to appoint a commission of inquiry into the controversial multibillion-rand arms deal to prevent the Constitutional Court from taking charge of the matter and prescribing the terms of reference for him, the Mail & Guardian has reliably learned.
The court is expected to rule on November 17 on activist Terry Crawford Browne’s application to force Zuma to reopen the arms deal investigation.
Depending on the government’s terms of reference, the inquiry into alleged irregularities in strategic arms-procurement packages could implicate senior ANC and government leaders, including Zuma himself and possibly former president Thabo Mbeki.
Given that the ANC is alleged to have benefited from the proceeds of the arms deal, senior party leaders, including former treasurer Menzi Msimang and Deputy President Kgalema Motlanthe, who served as the party’s secretary general at the time, could be hauled before the commission to give evidence.
Zuma, according to three NEC members who spoke to the M&G on condition of anonymity, told the NEC he was aware that the majority of the court’s judges would rule in favour of Crawford Browne.
According to the NEC members, Zuma said he took the decision to appoint the commission of inquiry because he didn’t want a situation where the courts would be seen to be running the affairs of the government on his behalf.
“He spent a lot of time complaining about the attitude of the Constitutional Court judges to justify his decision. He said the ANC and his government were under attack from some reactionaries who go to court on everything. He told us that even in the arms deal case we had no way out. He said there was no way we could win it. This [the decision to appoint the commission of inquiry] was not his first choice. He said if there was any other choice, he would not have taken the route of appointing a commission of inquiry.”
Accusations fly
Zuma’s decision has upset some senior members of the ANC, who privately accuse him of taking major decisions without engaging the NEC. Others in the party see the decision as a strategy to embarrass more ANC leaders ahead of the party’s elective conference in Mangaung in the Free State next year.
“They [Zuma and his close allies] think the decision to appoint the commission of inquiry will save him. They are going to fall with it. It would have been better if this [the appointment of a commission] was done by someone else. We avoided a situation where he was supposed to go to court because there was no way he was going to come out alive. He would have been in prison by now,” said the ANC leader.
But another NEC member told the M&G that Zuma took the decision to show that he, not the judiciary, was in control. The member said Zuma did not say this explicitly but “that’s what he meant”.
“He [Zuma] said he had a responsibility to provide leadership to the state. He said that because this matter had been in the public domain for such a long time it was important that it be buried for good. His view is that the only body that is suitable to deal with this issue is government,” said the NEC member.
Some in the NEC believe Zuma called for a commission of inquiry to save the ANC, not necessarily to get to the bottom of the alleged corruption that marred the multibillion-rand transaction. Calling for a commission of inquiry was an attempt to stay ahead of the court, said an NEC member, who pointed out that if the matter was left to the court the type of commission and its terms of reference would be stricter and more binding on many party leaders and the party itself.
“If the Constitutional Court was to make the decision to have a commission of inquiry it would have been messy and would possibly have changed the political landscape of the country.”
Many ANC leaders would be expected to testify if the court created the inquiry. “They might even end up in jail. It would affect the organisation because it might be found that it was a beneficiary of arms-deal bribes. It would kill the confidence of ordinary people in the party.”
Review of judicial powers
Several M&G sources said Zuma reiterated his call for a review of the powers of the judiciary, which could not be superior to the powers resulting from the mandate given by popular democratic elections.
Although Zuma explained his decision to appoint a commission of inquiry into the arms deal, it is understood the matter was not opened for discussion as he left the meeting early for his trip to New York to attend the United Nations General Assembly.
ANC spokesperson Brian Sokutu said he was not in a position to confirm what Zuma had said during the NEC meeting.
“Historically and traditionally, whenever there is a commission of inquiry the president would come up with the terms of reference. He will not interfere in the workings of such an inquiry. The commission will be independent.”
Justice Minister Jeff Radebe’s spokesperson, Tlali Tlali, said the government would announce the terms of reference only once Zuma and Radebe were back in the country.
Activists call for independence, gravitas and integrity
In September 2007 then deputy president Jacob Zuma told the Constitutional Court that he had decided to appoint a commission of inquiry into the arms deal and, specifically, “the allegations of wrongdoings into the strategic defence procurement packages”.
“I will determine the terms of reference and composition of such a commission in due course and announce this publicly,” he said.
Now, four years later, it appears the commission is finally coming to fruition, with Zuma expected to announce its composition in the next week or two.
The M&G asked five experts on the arms deal who would be on their wish list for the commission and what they would like to come out of it.
Andrew Feinstein
Former ANC MP and arms deal campaigner
Most important to Feinstein is the fact that the person appointed to head the commission is seen as someone who does not take instructions from the ruling party. “It would be particularly brave of Zuma to appoint someone like Archbishop Emeritus Desmond Tutu to head the commission,” said Feinstein, a move that’s not likely to happen.
He said that one of the former chief justices would also give the commission “the appropriate integrity and gravitas it needs”.
Feinstein said that it was crucial that the “terms of reference include the investigation of all allegations of corruption, including those against President Zuma and former president Thabo Mbeki. If any of these are excluded, the commission would, correctly, be seen as a whitewash.” He said that people like himself and Cape Town mayor Patricia de Lille should be given the opportunity to give evidence in public.
Hennie van Vuuren
Director of the Institute for Security Studies, Cape Town
Van Vuuren thinks it’s important that the commission include members of the former Scorpions, without painting them as tainted. He said that the appointment of several retired judges, who would not expect any favour in return for serving, was also imperative.
It was crucial that the president did not appoint a commission, receive a report and then “sit on it for however long it is in the interests of the ruling party and individuals. A report of anyone involved in criminal misconduct must be sent simultaneously to the National Prosecuting Authority.”
He pointed out that if the secrecy Bill was passed, it would have major implications for the commission, as whistle-blowers could go to jail.
Terry Crawford-Browne
Arms-deal activist
Crawford-Browne would like to see a “Truth and Reconciliation-type” commission of inquiry. He suggested a panel of five retired judges who could provide amnesty from prosecution for full disclosure. “Appointing retired judges like Albie Sachs would signify that Zuma is serious about this and would give the commission stature,” Crawford-Browne said.
He said that aside from the names detailed in affidavits from Britain’s Serious Fraud Office (SFO) and the Scorpions, the Cabinet committee members who led the arms deal should be called to testify.
“[Thabo] Mbeki, [former finance minister] Trevor Manuel and [former minister of public enterprises] Alec Erwin should testify as to why South Africa succumbed to massive pressure from the European arms industry. Manuel was warned by the affordability study that this thing would come unglued and we’d lose jobs, yet he went ahead and gave in to foreign pressure.”
Gavin Woods
Former chairperson of the Standing Committee on Public Accounts
Woods says it is more about appointing people who could add value rather than just “big names”. “People like Raenette Taljaard should be on the commission, and someone like Wally van Heerden, who was the third-highest person in the auditor general’s office and was very involved in the initial investigation,” he said.
“We also need a strong forensic component like people from auditing firms Deloitte and PricewaterhouseCoopers. Also, there should be people with insight into the way that the international arms industry works.”
Patricia de Lille
Cape Town mayor and arms deal whistle-blower
De Lille would like to see two or three retired judges on the commission, suggesting Yvonne Mokgoro or Kate O’ Regan. She also favours Arthur Chaskalson or George Bizos.
She said the terms of reference were key. “They must give the commission the power to secure prosecutions of people found guilty of criminal activities. They must be broad and include the procurement process, because that’s where everything started.”
De Lille said full cooperation would be needed from the Swedes, Germans, British and the United Kingdom’s SFO for the commission to fully consider their evidence. — Ilham Rawoot
For more news on the arms deal visit our special report.
