Publication: Sunday Independent Issued: Date: 2005-01-23 Reporter: Christelle Terreblanche

Parliament Must Unravel Arms-Deal Mess



Sunday Independent

Date 2005-01-23


Gavin Woods

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The debacle continues to haunt SA by placing a question mark over efficacy of our constitutional checks and balances

Was our highly publicised multi-billion rand arms deal corrupt? Well, notwithstanding many allegations and reasons for suspicion, we do not really know the answer to this uncomfortable question.

Largely, the reason why the question remains unanswered is due to a strangely vague and inconclusive final report produced by the three-part investigating team at the end of its work in November 2001.

As I pointed out in my unchallenged critique of the report at the time, the investigation did not produce findings on most of the concerns that the standing committee on public accounts (Scopa) had asked it to investigate.

And it is because of this failed investigation and its unanswered questions that the saga of the arms deal and its problematic possibilities continue to resurface in the general forum of public interest.

While we remain in the dark about the level of dishonesty (or otherwise) in the deal, there seems to be much to learn about its investigation, and why this failed to produce the answers sought by the public.

The early history of the arms-deal investigation began with the Scopa-initiated four-agency investigation, as well as Scopa's own independent investigation into particular issues of the deal.

Regarding the four-agency investigation, it will be remembered that the Heath Special Investigation Unit (HSIU) was withdrawn because of the decision by President Thabo Mbeki. As was later proven, the president's contention that this decision was influenced by the opinions of two senior advocates was untrue.

As only the HSIU had civil-law powers, the investigation was significantly weakened when a number of evidence-providers withdrew their participation as a result of its omission.

Regarding Scopa's own investigation, this was blocked from ever taking place by the majority party in Scopa - ostensibly on the instruction of its leadership. This same majority component also imposed a decision that Scopa would have no communication with the multi-agency investigation.

This meant that Scopa denied itself any insight into the goings-on of the investigation, notwithstanding the disturbing news that the remaining three agencies (known as the Joint Investigating Team [JIT]) had met the president at the very start of the investigation; and that at another meeting, with the Auditor General (AG) as the most prominent agency involved, the president is said to have displayed anger towards the investigation.

This was especially distressing because it was the president who had headed the special cabinet sub-committee (Mincom) responsible for putting the arms deal together - meaning that Mincom was inappropriately collaborating with the very investigators who were about to determine how competently they had looked after the billions of taxpayer rands being spent on the armaments in question.

Then, some nine months later in mid-September 2001, the AG, Shauket Fakie, advised Scopa that the actual forensic investigation had been completed and that Scopa could expect the JIT's final report at the end of that month.

However, when asked where the report was in early October, the AG told Scopa that his staff were "working night and day" to have the report ready before parliament broke for its year-end recess.

This sudden extension of two months was puzzling but then, a week later, the Mail & Guardian newspaper revealed that the AG had not told Scopa that the draft report of the JIT investigation been given to the president as well as to certain cabinet ministers.

The misgiving that this naturally aroused later turned into intense scepticism when a weak and inconclusive final report was tabled in parliament in mid-November.

Requests were immediately put to the AG for copies of the draft report given to the president in order to make comparisons. The AG refused to issue these, and kept repeating that there were no material differences between the original and final drafts.

The CEO of a local supplier to the arms industry, Richard Young, then attempted to gain access to the original drafts through application of the Promotion of Access to Information Act.

Again the AG resisted, causing Young to pursue these through legal means. The AG then spent significant sums of taxpayers' money in a protracted legal battle trying to avoid making the original drafts public.

The matter landed up in the high court, which then ordered the AG to release the original documents to Young. In response, the AG released a small portion of the relevant documents, certain of which had strategic paragraphs blocked out.

These particular documents showed that an alarming number of the original recommendations had been edited or omitted in the final report. The matter of these and other changes were brought before Scopa, where the "complicit majority" defended the AG's actions and where I, as probably the most informed member present, was limited to a single question - which was inadequately responded to by the AG.

Young, for his part, once again engaged the legal system in objection to the AG having held back the bulk of the original documents. This led to the AG being found to be in contempt of court and being given a jail sentence should he not hand over the rest of the documents in question.

In recent weeks, Young has received a further tranche of several thousand pages of what the AG claims to be the outstanding documents. On initial examination of this latest consignment of copies of the original documentation it has become clear that hugely significant and material changes were made to the final report.

Most of these changes just happen to be the removal, or watering down, of findings or recommendations which would otherwise have brought the competency of the Mincom into question.

Then there are changes removing findings which suggest there were highly improper or corrupt interventions into the selection processes of the armaments. Not only do these documents go a long way in showing significant changes to the final draft report that was handed to the president, they also go some way towards showing how these changes were initiated.

Handwritten notes in the margins of certain pages allude to the meetings between the investigators and members of Mincom, and appear to note "instructions" for changes to be made to the original draft report.

Indeed, it is clear that these changes found their way into the final report. Of special interest are those changes that pertain to the watering down of potentially damaging findings in the original draft and to particular "additions" which sought to absolve the cabinet of any wrong-doing or blame. These also appeared in the final report.

Where this will all go, if anywhere, might be established in parliament during the next few weeks. My view is that the AG should be called before two committees of parliament, both of which should desist from the questioning procedures contrived to ensure the AG was not cornered in his two previous arms-deal-related appearances.

The first committee should be Scopa, which should pursue the controversial content issues which have now arisen in order to establish the veracity of the findings as per the final report.

The second is the ad hoc committee which oversees the general function of the AG and his office, which should look into the ethical and constitutional questions around the AG's behaviour - as concerns the investigation, the production of the final report and in particular his collaborations with the president and members of Mincom.

Regarding the ad hoc committee, a vital part of its work would be to establish whether the AG should, or should not, have had such contact with Mincom at the beginning of the investigation, and even more importantly, if he should have discussed the draft JIT report with them at the end of the investigation.

Considering the patently clear conflict of interest this presented, it would seem that, had the JIT kept its distance from Mincom, it would have produced a report that would have earned greater public confidence.

The AG initially tried to justify his actions by saying that he had sent the draft report to the president in terms of a provision in the Auditor General Act. A closer look, however, shows this to be a poor interpretation of the law, and is probably what later caused the AG to change his reason to that of its being "due process" in an audit to consult the "management".

This, too, must be disputed. First, because the president is not "management"; in parliamentary/ government relations, the relevant accounting officers represent accountability.

Second, this was not an "audit" - it was a unique forensic investigation requested by parliament. Third, because Mincom's competence was a central issue, there was a patently clear conflict of interest.

Fourth, even if the AG had mistaken this investigation for a financial audit, and the cabinet for management, he should have applied the South African Audit Standard (SAAP) 730. This, because of the sensitivity of the "audit", advises that the interaction between the auditor and "management" should be in writing.

In this instance, the discussions were ad hoc, secret and unrecorded and as such have left no trail of how changes to the report were arrived at. Fifth, if the AG claims he was following "due process" by submitting his work, on what basis did he also submit the investigative work of the public protector, who is not subject to auditing rules?

And finally, it is noted that, on the occasion of his initial report on the arms deal a year earlier, the AG considered such due process to be irrelevant, and as such did not submit his report to the president and Mincom.

The arms deal and its subsequent investigation continues to raise difficult questions about propriety and wisdom, as well as raising serious issues in relation to the checks and balances in our constitutional system. Parliament can answer the latter concerns by vigorously re-engaging the former.

Gavin Woods is the former chairperson of Scopa

With acknowledgements to Gavin Woods and the Sunday Independent.