Legal call to pull ‘flawed’ arms deal
Civil bodies say probe report ‘tainted’
CORRUPTION Watch and the Right2Know Campaign have gone to court to set aside the arms deal commission report, saying it is tainted.
The two civil society organisations do not want to reopen the arms deal commission’s investigation, but they say the report should not be allowed to stand because the commission did not do its job properly. The Arms Procurement Commission – chaired by Supreme Court of Appeal justice Willie Seriti – was supposed to finally resolve persistent allegations of corruption and irregularities in the Strategic Defence Package, widely known as the “arms deal”. Instead, almost from its inception, the Seriti commission was itself mired in controversy including a series of high-level resignations, some because of claims of a “second agenda”.
As the commission progressed, more and more criticism was made about the way it was being conducted. After four years and at a cost of R137million, the commission found there was no evidence of irregularities, and called the allegation of fraud and corruption “wild allegations with no factual basis”. The findings of the commission were widely condemned. In a 322-page affidavit, Corruption Watch’s Leanne Govindsamy set out why she believed the commission’s process was fundamentally flawed. Govindsamy said the allegations of misconduct in the Strategic Defence Procurement Package were “very serious”.
Yet the commission failed to do what it was assigned in its terms of reference. The commission’s investigation had to be conducted with “an open and inquiring mind”, she said.
“An investigation that is not conducted with an open and inquiring mind is no investigation at all.”
Govindsamy said the commission did not even look at “roughly two-thirds of the evidence” that the now-dissolved Scorpions had seized during its investigation and that was kept in shipping containers at the headquarters of the Hawks. Instead it adopted an attitude of “willing and wilful ignorance”.
The commission also ignored the records of the criminal proceedings associated with the arms deal including the material prepared by the National Prosecuting Authority for the corruption trial against President Jacob Zuma, which never materialised after charges were dropped.
Crucial reports – from investigations in the US, Germany and the UK – were excluded from evidence on flawed grounds and the commission failed to secure “a single piece of documentary evidence” from foreign jurisdictions.
Crucial witnesses were not called and those witnesses who had been called were not properly cross-examined, she said. As a result, the report found much of the evidence to be “common cause”, or undisputed, which would not have been undisputed if it had been properly interrogated.
“There was no basis on which a person with an open and appropriately enquiring mind could accept that these matters were common cause,” she said. All these failures “tainted both the process it followed and its resultant findings”, Govindsamy said. She said the application was not for the court to find that the commission’s conclusions were wrong. “Rather, we assert that the commission did not undertake the inquiry which was required of it. The fact that some of its findings are inexplicable is symptomatic of its failure to carry out [its] task.” The commission could not be reached for comment. Justice spokesman Mthunzi Mhaga said minister Michael Masutha had not yet received the papers, but would deal with the case when he did. — BDLive