Arms deal secrets could be kept under wraps
Regulations signed by Zuma allow for restrictions
PRESIDENT Jacob Zuma could keep the arms deal inquiry’s final report secret, and the inquiry chairman could restrict information access.
The inquiry regulations which Zuma signed into law this month do not close the inquiry to the public but do make restrictions possible.
The inquiry hasn’t started, although the two-year clock started ticking when the terms of reference were gazetted in November.
The regulations are in terms of the Commissions Act of 1947, which orders that evidence be heard in public unless the chairman decides otherwise. The regulations state: No copy of the report or interim report or part of these may be released without the president’s authorisation.
Witnesses may not refuse to answer questions, but that evidence may not be used against them in criminal proceedings.
Cross-examination of witnesses happens only if the chairman deems it necessary.
Documents may be seized with a warrant, but only if this is based on information revealed under oath.
Nobody may provide information or access to records of the inquiry “except insofar as it is necessary in the performance of his or her duties in connection with the functions of the commission or by order of a competent court”.
No dissemination or publication of documents submitted to the inquiry without the chairman’s written permission.
No transcription of short- hand notes or recordings without the chairman’s permission.
The possible penalty is a fine of up to R200 or imprisonment of up to six months.
Terry Crawford-browne, who has been active in campaigning against corruption in the arms deal, said the regulations appeared to disregard presidential expressions of commitment to deal with graft.
“The government and ANC obviously still think they can brush the arms deal scandal under the carpet and, if necessary, then pass the Protection of Corrupt Politicians Bill to bury a political hot potato. Heavens, even the Americans cannot protect themselves these days from Wikileaks – it’s time our guys woke up to the 21st century instead of trying to reinvent the apartheid-era sledgehammer,” said Crawford-browne.
Commission chairman Judge Willie Seriti said that giving the president the author- ity to release the report was standard. “You don’t want him to see the findings of the commission in the newspaper without even seeing it.”
Releasing the report would thus be solely at his discretion, said Judge Seriti, who referred to precedents when courts ordered the president to release other inquiry reports.
Zuma escaped facing corruption charges arising from the arms deal when prosecutors decided to drop the case in 2009, a decision being challenged in the Supreme Court of Appeal by the DA.
“The president will refuse to put the final report and interim reports into the public domain at his peril,” said advocate Paul Hoffman SC, also referring to court orders to release other inquiry reports.
Media lawyer Dario Milo also referred to court action to release other reports.
“A similar regulation to this was struck down by Judge Meyer Joffe in a 1995 case, where he held that the prohibition against publication without the president’s consent of the report in that case was ‘cast in such a manner that the report may never see the light of day. If the president does not release the publication… a matter of public interest could well be kept from the public forever’. The same could be said here,” said Milo.
“Some of the regulations are at odds with the principles of open justice and the right to freedom of expression,” added Milo, raising concern about the apparent prohibition on access to records “unless there is a court order determining otherwise” and on disseminating documents without the chair- man’s permission.
Hoffman said the powers to limit publication of evidence or documents or closing of hearings “seems to be limited to circumstances in which the witness giving evidence of a whistle-blowing nature will want protection for fear of reprisal”.
Judge Seriti said the inquiry would be open to the public to a “great extent” unless there were reasons to close specific parts.
The release of documents would depend on their contents and the intention was to avoid people issuing press statements without the chairman knowing.
Judge Seriti could not say whether the restrictions on transcribing notes would affect media reporting.
Hoffman and Milo said the restriction on notes and record- ings was probably aimed at the official transcript rather than journalists’ notes.
“A refusal to allow press coverage will have to be reasonable and justifiable, and a ruling unwarrantedly prohibiting coverage could be challenged in court,” said Hoffman.