South Africa Needs a Hutton
Mail and Guardian
The south of the Thames Waterloo Bridge provides the most apt route to the Royal Courts of Justice in the Strand. In both directions it offers the most congenial view of London. Looking west, the view of the Houses of Parliament is now partially obscured by ultra-modern architecture that cloaks the singularly unattractive Hungerford Bridge.
It is an architectural cacophony - the old and the new in less than gentle disharmony, just like the inside of the courtroom where British politics is on trial. Amazing technology competes with the unfeasibly inappropriate design of the Victorian courtroom. Each lawyer has a computer and there are a lot of lawyers. The smart wafer-thin, flat-screen models jostle for space with their less elegantly proportioned owners.
On one side of each screen a simultaneous transcript of the evidence crawls relentlessly across and down, replicated on a large pub-size screen to the left of where Lord James Hutton sits.
Another screen, to his right, contains a still photo of a middle-aged woman with a slightly quizzical smile. She is Janice Kelly, the widow of the British government scientist David Kelly. Her disembodied voice soon fills the room; she is giving evidence from another room to spare her the further trauma of having to face the cluttered court directly.
Emotions are carefully suppressed in the archetypal manner of the British middle class. It is as if she is describing the latest outing of her local history society and not the tortured last days of her husband.
Only at the very end of her evidence, when she is asked about whether newspaper reports of rows between her and her late husband are true, does her voice depart from the measured, dispassionate tone.
The Hutton inquiry is undoubtedly a seminal moment in British political history. However much the moderately dispositioned judge may plan to confine himself strictly to the terms of reference agreed with Prime Minister Tony Blair, the implications of his report are likely to stray far beyond the question of why Kelly committed suicide. Otherwise it is nothing more than a glorified inquest.
The reason Blair appointed a judicial inquiry is because he had no choice. There is no law or rule that says that once you reach point X the need for a judicial inquiry is triggered. It is a purely political matter. Insofar as a test can be articulated it is this: where something of intense public controversy occurs and public credibility in an internal governmental inquiry would not be sustainable, then the need for independence that comes with a judicial inquiry prompts such an appointment.
Once the terms of reference are agreed and published, the judge is free to determine his or her own procedures. The second limb of the test is that the political price of failing to establish such an inquiry would be too great to bear.
There have been calls from a variety of sources for a judicial inquiry into the arms deal here in South Africa and/or the rather-too-public spat between the national director of public prosecutions (NDPP) and the deputy president.
Is the test for triggering a judicial inquiry passed in South Africa? On one level, yes.
The self-evident failure of the Mbeki government to clear up public controversy and continuing, unresolved allegations surrounding the arms deal demonstrate that it is incapable of resolving the matter through internal inquiry.
The November 2001 report of the joint investigation team comprising the national director of public prosecutions, the public protector and the auditor general - all constitutionally independent - could have been enough. At the time I thought it might have been. But the problem is that it left some stones unturned.
It deliberately chose to report at a point where some allegations, and their related criminal investigations, remained at large. The credibility of the institutions have suffered. The auditor general because of the legal challenge from Richard Young, which exposed that, rightly or wrongly, the final report was self-censored after pre-publication consultation with the executive. And the national director of public prosecutions because of the perception, recently entrenched in the media, that his decision to investigate but not prosecute Deputy President Jacob Zuma was politically motivated.
Thus, there is a prima facie case for a judicial inquiry into the arms deal. But there will not be one because President Mbeki can continue his career without one. If Blair had not appointed Hutton, it is unlikely he could have survived politically. Blair had no choice because, at its heart, this inquiry revolves around his integrity. No internal inquiry would have been trusted nor would it have had sufficient openness to satiate the enormous public and media interest.
In this sense, the judicial inquiry route is Blair's saviour - especially if the good judge keeps scrupulously to his terms of reference. Though once the second phase of his inquiry begins and the cross-examination of recalled witnesses starts in earnest, it may be harder for him to control the direction of his inquiry. Hutton hopes to pause after the initial fact-finding phase to reflect and to isolate the core issues. Given the testimony of the widow, that her husband was heartbroken by what he considered a betrayal by his employer, it will be difficult not to examine the political reasons that led to the decision to release the identity of Kelly as the media source.
Hence the Hutton inquiry is shining a light into the darkest recesses of the centre of government in Britain - one of the most innately secret in the developed world.
When asked to head the inquiry, it is believed that Hutton advised Blair to accept the need for full publication of all records relevant to the inquiry. On this occasion, the government had to cooperate fully and has published thousands of pages of internal memorandums between officials.
This is not automatic. If the prime minister had been under less intense political pressure he could have gotten away with a lower level of openness - agreeing, for example, to the publication of the records to the judge, but not to the public.
What will the effect of this unprecedented level of public scrutiny be? It may drive a new culture of openness or it may drive the government underground. As they pore over their latest e-mails to their minister or colleague, all civil servants in Britain are probably straining their imagination to consider how the wording would stand up to a Hutton-like examination. This might serve to provoke more careful decision-making or it might fuel a new mode of unaccountability whereby decision-making processes go unrecorded for fear of later publication. How Hutton deals with this part of the evidence could be important. Governments around the world will watch with more than just passing curiosity. If the judge is wise he will congratulate those officials who were able to provide comprehensive records and criticise those who were not.
Regrettably, for many, Hutton's inquiry is into the messenger and not the message. Sadly, this is typical of the history of whistle-blowers - which is what Kelly was. His message was a concern about the veracity of the factual case that was being presented to the public to convince them of the need for an invasion of Iraq. But he got caught up in a different war - that between Number 10 and the media. So the messenger got shot, so to speak, because of an inability to deal internally with the message. Like the Cape Town city council whistle-blower, Victoria Johnson, in the Peter Marais street-naming scandal, Kelly became a pawn in a political battle.
There is a crucial lesson here for employers: have appropriate policies and procedures to protect whistle-blowers or risk everything, not just the loss of the message.
In Britain people from both ends of the political spectrum now want a full judicial inquiry into the decision to go to war in Iraq, from former Conservative minister Michael Heseltine to Clare Short, who resigned from Blair's Cabinet after the invasion began.
Both maintain that the public was misled by the "infamous dossier" (as Kelly described it to his family). In South Africa, National Director of Public Prosecutions Bulelani Ngcuka's extraordinary charge sheet against Schabir Shaik and the Nkobi family of companies is now a pivotal document, along with the original Ministry of Finance feasibility study that advised the government that it could not afford the arms deal.
It is extraordinary because it reads like a court pleading not against Shaik but Zuma. It is as if Zuma was initially listed as an accused, but typexed out at the last minute (indeed, there is at least one typographical error that suggests that that might be the case).
The battle between two mighty institutions - the National Prosecutions Authority and the deputy presidency - may have spawned victims whose identity we do not yet know; messengers who serve mainly to distract from the message that should otherwise be loud and clear. South Africa must find a way to address the unanswered questions about the arms deal. As one option, a judicial inquiry deserves serious consideration.
With acknowledgements to Richard Calland and the Mail and Guardian.