Arms deal - Terms of reference crucial

President Jacob Zuma’s decision to institute a commission of inquiry into the strategic defence procurement package, commonly referred to as the arms deal, brings to the fore a lack of consensus on what the proposed commission’s primary objective should be.

President Jacob Zuma’s decision to institute a commission of inquiry into the strategic defence procurement package, commonly referred to as the arms deal, though widely welcomed, has brought to the fore a lack of consensus on what the proposed commission’s primary objective should be.

Those who have been calling for an inquiry for years are not united on this. They include director at the Institute for Accountability in Southern Africa Paul Hoffman; Cape Town mayor Patricia de Lille; defence contractor Richard Young; and former chairman for the Standing Committee on Public Accounts (Scopa) Gavin Woods.

It seems that at the heart of the dispute is the commission’s objective ­ the terms of reference and its composition are expected to be made public this week.

Should it be about seeking accountability through the criminal justice system by charging those who may be found to have acted in a corrupt manner?

Or is it to grant immunity from prosecution to those who come forward on the condition that they make full disclosure? This would be similar to the model followed by the Truth & Reconciliation Commission (TRC).

Those advocating the TRC model see the primary goal as proving that bribes were paid. They hope that if this is done it will trigger an escape clause in the supply agreement, which will allow government to cancel certain contracts, claim damages and return all of the equipment procured.

Hoffman, a long-time campaigner for an inquiry, is tasked with arguing the case in the constitutional court. The case was brought by Terry Crawford-Browne, a retired banker who has asked the court to order the president to launch an inquiry.

“There is an anti bribery clause in some of the contracts, which states that in the event of corruption the arms can be returned to the manufacturer. The manufacturer is obliged to accept them, as well as excuse us from paying the remainder of the outstanding debt,” says Hoffman.

If the prosecutors were a rmed with the powers to grant immunity from prosecution, says Hoffman, the country would stand a better chance of getting to the truth .

De Lille, however, disagrees . “[ The commission] should not be about amnesty, it should be about justice and accountability ,” says De Lille.

She has built up a dossier into the arms deal over more than a decade and says the allegations contained in the dossier led to the convictions of Schabir Shaik and Tony Yengeni. “There are other allegations with many more names, and the terms of reference should also include investigating all the allegations ,” says De Lille.

She also calls for the commission to investigate the manner in which the charges against Zuma linked to the arms deal were dropped. “President Zuma still has a dark cloud hanging over him,” she says .

Research fellow at the Helen Suzman Foundation Aubrey Matshiqi says the inquiry creates an opportunity for Zuma to clean up his image, but that this depends on how he manages the process.

Matshiqi says it could also be an attempt to neutralise those who question Zuma’s commitment to fighting corruption. Further, it may create an opportunity for him to offer up scapegoats, which could enable him to distance himself from the whole affair.

At the opposite end of the spectrum, Young, the defence contractor who lost out on a contract to supply combat suites for the corvettes (aircraft), agrees with De Lille’s call for broad terms of reference. He doubts that Hoffman and Crawford-Browne would succeed in their bid to send the armaments back.

On whether individuals should be granted amnesty in exchange for full disclosure as proposed by Hoffman, Young says there is a better option.

“I would prefer that, as opposed to holding individuals criminally liable , we should rather grant them immunity and go after the companies that made money from this deal ,” he says .

Asked if he supported De Lille’s call for the allegations against Zuma to also be tested during the commission, Young says this would be inappropriate. This is because Young and the Democratic Alliance intend to appeal a ruling by the North Gauteng high court, handed down earlier this year, where it ruled not to compel the National Prosecuting Authority to hand over all the information that led to the charges against Zuma being dropped.

In 2001, former president Thabo Mbeki set up a j oint investigating team (JIT) to examine the allegations of corruption surrounding the arms deal.

Despite Scopa’s recommendations that the investigating team include the s pecial investigating unit headed by former judge Willem Heath, this was simply ignored. “That investigation was a complete whitewash ... the final version of the JIT’s report was substantially edited, when compared with the draft report. The report had concluded that there were serious issues in the procurement process ,” says Young.

Woods, who now heads the anticorruption unit at Stellenbosch University was, at the height of the arms deal controversy, the chairman of Scopa. For him, he says, it is important that the commission look into the integrity of the primary contracts . In addition, it should find out just how politicians allowed themselves to arrive at the flawed assumption that the offsets of the deal would somehow be three times the value of the deal itself.

“As chairman of Scopa I saw no business plans for these so-called offsets ,” says Woods.

He has also echoed the call made by Young to find out “just who sanctioned all the interventions into parliament and the auditor-general’s office with the express purpose of covering up the truth”.

There seems to be consensus from all the arms deal activists that the terms of reference should be broad and that a retired judge should be at the helm. But they can’t seem to agree on whether it should follow a model similar to the truth commission’s or, as De Lille suggests, take a more punitive stance .

Matshiqi has, however, cautioned against assuming that the incentive of immunity from prosecution will necessarily lead to a rush of people clamouring to spill the beans.

“If there were demonstrable evidence that people were guilty and that they faced the real possibility of going to jail, it would indeed be in their interests to come forward.

“But that presupposes that those making the allegations have the requisite proof of corruption. There is a difference between having information about corruption and having proof that corruption took place,” says Matshiqi.