What has the State got to Hide?
|Publication||Mail & Guardian|
Three initiatives over access to information are set to place the government on the rack - in the courts and politically.
All have to do with an issue that has driven a wedge between the government and the governed: the procurement and sale of arms.
This week the tussle over the monitoring and disclosure of arms exports will continue when amendments to the National Conventional Arms Control Bill are debated by the parliamentary committee on defence.
Changes to the Bill have been delayed for two years as the committee, under chairperson Thandi Modise, has repeatedly challenged government attempts to limit transparency and parliamentary oversight.
Sources said that at one stage the relationship was so bad between Modise and Kader Asmal, chairperson of the National Conventional Arms Control Committee and responsible for piloting the Bill through Parliament, that each threatened to resign. Asmal has denied this and claimed disputes over the amendments have been sorted out. Modise was unavailable for comment.
Two core disputes have been over a demand by the committee for oversight of pending arms exports, and the extent of the detail to be contained in annual reports of completed exports.
However, the greater challenge may come from two court applications that could reignite controversy around the multibillion-rand arms package.
The issue of spending priorities forms the basis of the legal bid to cancel the arms deal launched in the Cape High Court last year by Terry Crawford-Browne, chairperson of the local chapter of the international arms reduction lobby group, ECAAR.
Crawford-Browne has called on the court to declare the arms contracts null and void. He argues that the decision to go ahead with the deal was "financially, economically, and strategically irrational and thus unlawful and invalid" and that the effect of the decision "is to unjustifiably limit the advancement of socioeconomic rights in the manner contemplated in the Bill of Rights. This is unlawful, being in violation of the Bill of Rights, and furthermore confirms the irrationality of the decision."
The government refused to provide the documentation demanded by Crawford-Browne's lawyers. These include copies of the purchase contracts, the loan agreements signed by Minister of Finance Trevor Manuel to pay for the deal, and the so-called "Affordability Report" that raised concerns about the financial risks inherent in the deal.
The government's refusal to make such disclosures came despite an undertaking from ECAAR's lawyers to meet whatever confidentiality restrictions the government might impose.
ECAAR has now launched a further application to compel the state to provide the documentation so that the main case may proceed.
In this latest affidavit Crawford-Browne argues: "If ... the decision to enter into the arms deal was properly and lawfully taken they (the government) have nothing to fear from a hearing before the court on the full facts. Their duty certainly includes a need to be transparent and to ensure that the public and civil society are enabled to challenge decisions such as that to enter into the arms deal, particularly where those decisions have not been placed before Parliament and will have the long-term financial consequences of the arms deal."
The state has until the end of the month to respond.
Perhaps the most interesting challenge on disclosure comes from defence contractor Richard Young, who claims his company CCII was unfairly denied contracts as part of the arms deal and has launched the first major challenge relating to lack of disclosure in terms of the Public Access to Information Act.
Young has launched a court application to compel the auditor general to release documents relating to the purchase of German corvettes.
Among potentially embarrassing documents requested by Young are three draft reports drawn up by the auditor general, the public protector and the director of public prosecutions and submitted to the government of comment prior to the publication of the final report. The auditor general has denied political interference and stated that nothing of substance was excluded from the final report. However, he has refused to release copies of earlier drafts.
With acknowledgements to Sam Sole and Mail & Guardian.