WHEN Parliament's standing committee on public accounts recommended a multi-agency inquiry into the arms procurement deal in October last year, and offered to facilitate such a collaboration, Idasa suggested the case might prove to be a litmus test of democratic accountability in the new SA.

Sadly, it appears that the government is bent on failing the test. Justice Minister Penuell Maduna's letter advising President Thabo Mbeki not to accede to the committee's recommendation to grant a proclomation to the special investigating unit headed by Judge Willem Heath is a tissue of obfuscation, muddled thinking and sophistry.

There are profound constitutional and political issues at stake, quite apart from the murkier concerns around possible corruption or maladministration in the process that led to the decision to spend at least R43bn of public money on a military package.

Maduna tries to neuter the constitutional issue at the start of his letter with an opportunistic and sophistical argument. He claims that until committee chairman Gavin Woods wrote to the president on December 8 requesting the involvement of the Heath unit, there had been "no request from Parliament or the National Assembly that the president should consider issuing a proclamation" to Heath.

This ignores the committee's interim report, adopted unanimously by the National Assembly on November 3, stating: "the committee feels the investigation would be best served by combining a number of areas of investigative expertise and a number of differing areas of legal competence and authority", to include Heath, the Public Protector and the Directorate of Serious Economic Offences.

Intriguingly, National Assembly Speaker Frene Ginwala chose in December to take a narrow legalistic route of questioning the validity of the committee's recommendation. Ginwala often professes her devotion to a strong, independent Parliament.

There can be no doubt that the cross-party view in the committee is and always has been that the Heath unit should be involved. The various agencies met on November 13 and agreed to a collaborative inquiry.

Maduna latches on to Ginwala's opinion to prove he is free to ignore Parliament's recommendation. This is as unnecessary as it is sophistical. Only a constitutional interpretation as simplistic as that expressed by the opposition parties would say parliamentary accountability means that the executive "must do as the legislature bids".

Parliamentary accountability is a more subtle concept. It means that the executive arm of government the presidency, ministries and departments must explain and justify themselves over all acts of executive power and authority, and be mindful of Parliament's view.

Maduna is quite correct in advising the president that "it would be incorrect and, in fact, mischievous, for any person to argue, as has been done in certain circles, that if the president, for any legitimate reason, does not issue a proclamation under the (Special Investigating Unit) Act, the president would be acting in defiance of Parliament".

The president does have a clear discretion; and so the question is whether he is to exercise it in a reasonable way, and whether it is wise to ignore Parliament's view.

Maduna bases his opinion on two considerations. The first is at best tenuous and at worst an insult to Mbeki's intelligence. It claims that to refer the case to the Heath unit would fly in the face of the Constitutional Court's judgment declaring it unconstitutional for a member of the judicial arm of government to head an investigating agency of the executive arm.

The Constitutional Court gave Parliament 12 months to change the law and to permit an "orderly transfer" to a new head. Nowhere in the judgment does it say anything about suspending new proclamations; to the contrary, the judgment says that "in the meantime the important work being done by the (Heath unit) can continue."

Maduna's second consideration is more pertinent to the exercise of the presidential discretion: whether there are legal grounds under the Special Investigating Unit Act to make a proclamation.

Again he seems to have got the law wrong. He argues that because "neither Judge Heath nor any person has provided me with any information whatsoever that suggests that an unlawful appropriation of public funds or assets has occurred, which funds have to be recovered by a special investigating unit" there is no need for the Heath unit's involvement.

This cites only one of the seven grounds, where there is an allegation, for granting a proclamation under the act.

Where does the allegation come from in this case? Maduna and his cabinet colleagues said on Friday that they had received no allegations and seen no evidence. Whether this is true is immaterial: the standing committee has said that there are allegations and there is evidence.

That some of it relates to the subcontracts is also immaterial, because the committee is concerned that the main contracts may have been unlawfully influenced by those subcontracts. The auditor-general has recommended a forensic audit into the subcontracts.

In effect, Maduna is advising the president that the committee's view is not worth trusting. If so, why should any parliamentary committee bother in the future? Why build a strong Parliament, with strong independent committees, if they are not to be trusted?

The committee has tried to play a creative, nonpartisan role, and its efforts are in line with good international practice.

Maduna asks the president to allow him to invite any person with information that warrants a criminal investigation to supply it either to the director of public prosecutions or the national police commissioner, or lay charges at police stations.

The idea of the local sergeant taking down a statement about a R43bn arms deal is absurd.

Judge Heath is not the be-all and end-all of the fight against corruption in SA. However, it is believed in many quarters that he will not bow to political pressure.

That is why Maduna is offering such poor advice to his president. It fails to recognise a public perception that the proposal to exclude Heath is to serve a cover-up.

After all, if there is nothing to hide, why allow what commentator Tom Lodge has called a "blind spot" on Heath to distract from the bigger picture?

If President Mbeki takes his minister's advice it will be a sad, possibly watershed, day for SA's democracy.

He risks underestimating the symbolic nature of this case and the weight that financial markets, the public and international opinion attach to it.

With acknowledgement to Richard Calland and Business Day.
Calland is senior political analyst at Idasa.