Publication	Business Day
Date	2011-11-02
Web Link	www.bday.co.za

The truth will not only be about the corrupt arms deal, it will coincidentally also be about the truth of the previous corrupted investigation in 2001

It was Buddha who said: "There are three things that cannot be long hidden: the sun, the moon and the truth." And so it seems that all the efforts to hide the truth about SA’s "arms deal" could soon come to naught and that we will find out how deeply we as a country were cheated and lied to.

Almost 11 years to the month after Andrew Feinstein and I crafted the first arms-deal investigation’s terms of reference, we now have the terms of reference for a new probe. Exposés by investigative journalists, revelations by four different overseas investigations into the supply of arms to SA, the initiative by Terry Crawford-Browne to have the Constitutional Court establish another investigation into the arms deal, and the persistent allegations of arms deal-related corruption, are what seem to have led President Jacob Zuma to establish the new commission of inquiry. It is suggested that political considerations ­ pre-empting any Constitutional Court decision in this regard and positioning himself for the African National Congress’s elective conference next year ­ also influenced his decision. And it is observed that he has laid down terms of reference that appear to exclude investigation of his alleged arms deal bribe-taking in that this falls outside of "influencing the contracts".

So what should our anticipation of the commission’s work be? A reasonable expectation would be that substantial truth will emerge and that the resultant political fallout will be significant. This is because this inquiry is different to the first investigation into the arms deal undertaken by the auditor-general, the public protector and the Directorate of Public Prosecutions ­ known as the Joint Investigating Team (JIT). The original inquiry met with great hostility and denial from the executive, which hostility bullied Parliament into submission and pressured the JIT into complicity in avoiding the truth. The judicial independence of the new commission, and Zuma’s apparent reasons for wanting the commission to put the arms deal behind us, are what should allow the commission to conduct an investigation free of interference this time.

The new terms of reference, while in some ways not as wide of those of 2000, are sufficiently comprehensive. In one respect, they go further than the previous terms by asking the commission to establish if the arms should have been bought in the first place. Considering the moral and socioeconomic questions at the time, findings here could seriously challenge the Mbeki government’s sense of priorities. The commission will hopefully test the veracity of the cabinet’s justifications at the same time.

Then there are two terms that seek inquiry into the offsets. After the weak and evasive way the JIT dealt with similar terms in the previous investigation, we are now likely to learn just how silly it was to believe that the arms deal suppliers would give us back more than R3bn in trade, investment and jobs for every R1bn we spent on their arms. Then minister of trade and industry Alec Erwin was never able to understand the impossibility of this as a business and economic proposition. When the commission evaluates each of these deals and what they promised (bearing in mind that there were no business plans to indicate the viability of these offset deals), it will discover their disingenuous and insincere character. And this will be further proven when the commission evaluates what these promised deals have actually realised, even while taking into account that many of them have been cancelled and replaced by other dubious offset deals. This will no doubt reveal the truth about just how much of the promised R110bn has not materialised.

Then there is the vital term of reference that asks if anyone improperly influenced the arms contracts. While the "D e Lille dossier" mentions a number of such people, there are other credible sources the commission should explore. These include the four overseas investigations that have taken place, the individuals and companies fingered by investigative journalists, and the recipients of the many subcontracts who should be investigated to establish what they did in order to secure the subcontracts. Then the investigation should closely examine the official procurement process and its structures right from the receipt of the competing bids through to the evaluation and decision- making stages. Here it would do well to question the actions of at least four individuals who were involved and should also investigate particular interventions made by Thabo Mbeki and Joe Modise.

The forensic work done by PricewaterhouseCoopers, which was somewhat suppressed in the original investigation report, nonetheless gave clear insights into manipulations of the selection processes in three of the five deals. These insights have found resonance with revelations made by the UK, German, Saab and Ferrostaal investigations and as such provide very strong leads through which the commission can identify the people who improperly influenced the arms contracts. This, together with the other avenues mentioned above, suggest calls to grant indemnity to guilty parties who volunteer evidence are premature.

The final term of reference asks the commission to establish if any of the contracts can or should be cancelled where these are seen to be tainted by fraud and corruption. Here it would seem that such tainted contracts would become known through the identification of people who improperly influenced the contracts, as required by the previous term of reference. Having thus established any such contracts, the commission can react in terms of the anticorruption provision that exists in those contracts and which allows cancellation ­ and can thereby save taxpayers’ money.

What we know is that the commission is made up of three judges who are supported by three senior legal professionals. This places it in a strong position to evaluate and pass judgment on the evidence gathered and produced through its work. What will be needed, of course, is the help of an accomplished team of forensic investigators to gather and produce the evidence. This should all take place within a process in which the commission first conducts its own review of the complex and multifaceted arms deal in order to gain a big-picture understanding of its nature and history. From this understanding, it should establish its investigative scope and then an investigation work plan that outlines the evidence that the forensic work should seek.

In its initial review and the compiling of the work plan, the commission would do well to confer with individuals such as Feinstein, Richard Young, Raenette Taljaard, Crawford- Browne and me *1, who in addition to institutional memory possess considerable insights, knowledge and even evidence that would assist the commission in its work. We could, for example, go some way in explaining the how and the who of the improper influence that took place around each of the prime contracts.

For those who have for more than 10 years been frustrated and angry at the failure of the first investigation and at the executive’s role in this failure, this new opportunity to reveal the truth comes as a huge relief. This truth will not only be about the corrupt arms deal, it will coincidentally also be about the truth of the corrupted investigation in 2001 *2.

• Woods was chairman of Parliament’s standing committee on public accounts at the time of the arms deal. He is currently professor in public finance and director of the Anticorruption Centre at Stellenbosch University.

With acknowledgements to Business Day.

*1       How many gorillas can a MINCOM's back support?

Bheki Jacobs will be sitting there too.

*2      Will we see Shauket Fakie and Selby Baqwa in the pen by the end of all this?