Forgetfullness Breaks Out
Committee to protect taxpayers weakened by political split
The ANC national leadership has cracked the whip over the controversial R43,8bn arms deal, and its representatives in the standing committee on public accounts (Scopa) - perhaps the most important of parliament's watchdog committees - have come to heel.
They have lined up behind President Thabo Mbeki's decision, announced late last week, to exclude the special investigating unit headed by Judge Willem Heath, apparently suffering from collective amnesia over their unanimous support for the inclusion of the unit in a multi-agency investigation mooted by Scopa in its draft report of October 30 1999.
That, at any rate, is the interpretation favoured by opposition parties. As Raenette Taljaard, of the Democratic Alliance (DA), states: "We all know what was intended and SA knows that the ANC is trying to run away from it." Louis Green, of the minuscule African Christian Democratic Party, puts it more bluntly. He attributes the political reversal by ANC parliamentarians to "executive blackmailing".
ANC parliamentarians now insist, to quote from a statement distributed in the name of the "ANC in parliament" and dated January 22, that the Scopa report "did not in any way single out any of the investigative bodies" named in the report for inclusion in a comprehensive investigation .
The report - unanimously adopted by the National Assembly on November 3 - makes two central points in the important penultimate section headed "special forensic investigation":
The need for an investigation that combines "a number of areas of investigative expertise and a number of differing areas of legal competence and authority"; and
The convening by Scopa, within two weeks of the tabling of the report, of an "exploratory meeting" with the Auditor-General, the Heath Special Investigating Unit, the Public Protector and the Investigating Directorate of Serious Economic Offences (which falls under the aegis of the Directorate of National Public Prosecutions headed by Bulelani Ngcuka).
The Scopa report is specific on the reason for the exploratory meeting, which was duly held in Pretoria on November 13: it was to ensure that the "best combination of skills, legal mandates and resources" could be found for the impending investigation.
That implies that Scopa wanted the Heath unit to participate in the investigation.
Scopa chairman Gavin Woods, a member of the Inkatha Freedom Party, recalls that the November 13 meeting was attended by nine members of Scopa (most of whom were ANC MPs), and representatives of all four agencies (three of whom were represented by their heads) and that the four agencies expressed the "desire and intention" of working together.
"Everyone was very bullish," Woods says, adding that at the end of the meeting he was mandated to convey to the media that the four agencies intended to work together, and that he did so in the presence of the Scopa members.
Seen in that context, it is difficult to comprehend how the ANC members can now say that the report, and the meeting in Pretoria, did not identify the Heath unit for inclusion in the proposed probe.
Andrew Feinstein, chairman of the ANC study group on public accounts who was present at the Pretoria meeting, offers an explanation. He describes the Pretoria meeting as "merely exploratory". He says he and some of his colleagues were concerned about how the four agencies would co-operate on practical issues such as funding and media statements. Feinstein states that they were still waiting for a response, and that in that sense the process was still incomplete.
A more compelling explanation, however, is that the "ANC in parliament" was subject to overwhelming pressure from the ANC national leadership to reverse its position and that it succumbed. Another conclusion follows: instead of admitting that it had been pressured into changing its view, it sought refuge in pedantry and amnesia. Having started with an ANC parliamentary caucus meeting in November, the pressure culminated in Mbeki's nationwide address of January 19.
National Assembly Speaker Frene Ginwala has been accused - in the politest language - by the DA's Douglas Gibson of assisting the process.
He charges that Ginwala did so by adopting a narrow, legal view of the Scopa report which contradicted parliament's view that Heath should be part of the pending investigation, and provided Justice Minister Penuell Maduna with a "convenient excuse" to advise Mbeki not to heed parliament's wish for the Heath unit's inclusion.
Gibson is referring primarily to a statement issued by Ginwala on December 27, in the midst of the festive season. It makes three central points:
The Speaker is not aware of any resolution "instructing parliament or the National Assembly to issue any proclamation regarding the work of the Heath Commission";
There is only one reference to the Heath unit "in the entire report"; and
"A committee of the National Assembly has no authority to subcontract its work to any (of the agencies named in the Scopa report)".
Woods, who in his capacity as Scopa chairman wrote to Mbeki on December 8 requesting him to issue a proclamation clearing the way for the Heath unit's participation in the investigation, notes that he was not consulted by Ginwala when she issued her statement.
Whether it was Ginwala's intention or not, there is no doubt that the statement helped the ANC national leadership in its campaign to exclude Heath from the arms probe - a campaign that was frankly acknowledged by Smuts Ngonyama, head of the ANC presidency. It serves as a point of departure in several ANC criticisms of Scopa for daring to raise questions about the "Strategic Acquisition Defence Programme".
Ginwala's statement is quoted in Maduna's letter to Mbeki advising him against the inclusion of Heath and in Deputy President Jacob Zuma's hostile letter to Scopa, which accuses Scopa of launching "a fishing expedition to find corruption and dishonesty you assume must have occurred".
Maduna, having quoted from Ginwala's statement, offers an assurance to Mbeki that he is free to reject the request for Heath's inclusion: "It would be incorrect and, in fact, mischievous, for any person to argue . . . that if the President, for any legitimate reason, does not issue a proclamation (to empower the Heath unit to join the investigation), the President would be acting in defiance of Parliament".
Zuma uses Ginwala's statement to chastise Scopa for subcontracting its investigative duties to outside agencies (the four identified in Scopa's report to Parliament and the fifth a "foreign forensic accounting facility") without having the authority to do so.
Zuma adds: "From the statement of the Speaker it is clear that your letter (of December 8) to the President was ultra vires." An admonition to Woods and Scopa to "respect the rule of law" follows.
As Speaker, Ginwala, a member of the ANC national working committee and of its national executive, serves as gatekeeper to Parliament and the defender of its independence. But her statement appears to have been useful to the executive in its attack on Scopa and its successful campaign to close ranks.
The inclusion of the Heath unit has been described by the Institute for Democracy in SA as essential to the perception of government's willingness to subject the arms deal to vigorous and independent examination.
National Director of Prosecutions Ngcuka is seen in opposition circles as a political appointee and therefore vulnerable to ANC pressure. Similarly a change of mind in the midst of ANC pressure about Heath's participation by both the Auditor General and the Public Protector may have diminished their reputations as fearless investigators.
Perhaps in a bid to repair the damage incurred by Mbeki's decision to exclude the Heath unit, the ANC in parliament has stressed its commitment to "exposing and fighting corruption wherever it occurs" and expressed its gratitude to the executive for agreeing to assist the inquiry and for the relevant Cabinet Ministers - Defence, Finance, Trade and Industry and Public Enterprises - to appear before Scopa when invited.
"If any person associated directly or indirectly with the Arms Procurement Process is found to have been involved in corrupt practices, we will unequivocally support appropriate legal action taken against them," the ANC says.
But the executive has, in the eyes of all but ANC loyalists, asserted its will over the legislature in contravention of the separation of powers doctrine, thereby casting doubt over whether the legislature will stand firm in the face of future executive blustering to protect its members from parliamentary scrutiny.
Those who are sceptical of the ANC's assurances that it is committed to rooting out corruption may remember how the Pan Africanist Congress's Patricia de Lille met with derisive jeers from ANC ranks when she first called for a judicial inquiry. With ANC parliamentarians once more brought into line by the party barons the danger of a repetition of that unedifying scene cannot be excluded.
A by-product of that has been the emergence of a sharp divide in Scopa between the ANC and opposition members. It cannot augur well for the exercise of its important oversight function on behalf of taxpayers.
There is, however, an important ameliorating factor: Feinstein's recognition of Woods as "a man of integrity" who has served Scopa faithfully, and his determination to resist any move to unseat him as chairman of Scopa.
With acknowledgement to Patrick Laurence and Financial Mail.