MORE PREVARICATION, NO JUSTICE

MORE PREVARICATION, NO JUSTICE

The Arms Deal saga isn’t over yet, say Paul Holden, Andrew Feinstein and Hennie van Vuuren 

The Arms Procurement Commission’s findings were made despite mounds of evidence in the public domain and two individuals (Shabir Shaik and Tony Yengeni) being found guilty of criminal acts in relation to the deal. In addition, Jacob Zuma, as we all know, faces the possibility that criminal charges flowing from his role in the Arms Deal will be reinstated. 

The report’s findings are beyond disappointing: they are an outrage. The commission was a unique opportunity to fully investigate the Arms Deal, tell the trust to the South African public and see justice done. The result of the commission’s work is the exact opposite: more prevarication, less truth, no justices. 

But while the commission’s findings are very disappointing, they are hardly surprising. Indeed, in 2014, we decided to withdraw from the commission and refused to testify before it. 

We did so with the support of over 40 civil society organisations, because there were manifest and serious flaws with how the commission was undertaking its work; flaws that showed the commission had no intention to conduct a full, meaningful and unbiased investigation of the Arms Deal. 

One of the problems we pointed to was that multiple employees had resigned from the commission in protest to the way it was doing its work. Two of these employees claimed in public the commission had no intention of investigating the Arms Deal fully. 

Instead, the commission’s real goal was the pursuance of a “second agenda” to discredit witnesses who claimed corruption in the deal. Another problem was that the commission failed to admit key pieces of evidence. 

One example of this was the Debevoise and Plimpton Report, an internal audit of the arms company Ferrostaal. That report indicated Ferrostaal had paid tens of millions of rands to individuals with connections to Arms Deal officials and politicians. 

This was compounded by the fact that commission chairman Judge Willie Seriti had ruled that witnesses critical of the Arms Deal could not refer to documents they had not written or events to which they did not personally witness. 

In effect, this meant the only people who could testify about corruption in the Arms Deal were those who paid or received bribes – hardly like to produce any meaningful results. 

The impact of all of this was magnified by the commissions frequent failure to test the evidence of witnesses appearing before it through cross-examination, leaving many bald and misleading statements uncontested. 

One of the best examples of this was when BAE Systems testified before the commission. BAE Systems (previously British Aerospace) was the company that received the largest slice of the Arms Deal in providing Hawk and Gripen jets to the South African Air Force. 

It was investigated for years by the UK Serious Fraud Office and by US authorities. SFO discovered in its investigation the company had paid hundreds of millions of rands in “commissions” to politically connected individuals in South Africa to secure the deal.
In 2011, the company settled with the US departments of justice and state, admitting it had run an opaque and secretive system in which advisers around the world were paid to help secure contracts in multiple countries, including South Africa. 

One would expect a company accused of such wrongdoing would be thoroughly questioned by the commission. Far from it. On the final day of the commission’s public hearings, the company was allowed to simply read a statement into the record. 

The commissioners and the evidence leaders asked not a single question to test the evidence on the record. 

We believe the conduct of the commission was such that its findings cannot be accepted as fact. 

Moreover, its conduct was such that it may not withstand a rigorous legal challenge. 

As such, we are seeking legal advice as to our options in reviewing the report in order to have it set aside and will, after careful considering of the report, announce our intentions shortly. 

The commission was a massive and costly disappointment. But it is not the end of the road in the search for Arms Deal justice. 

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Weekend Argus