PRESS RELEASE: THE ARMS DEAL: SERITI COMMISSION MUST CLEAR THE OBSTACLES TO TRUTH
The Arms Deal is the most significant scandal - both politically and economically - of the post-apartheid era. Not only has it dominated news cycles and formed the subject of numerous books, it has been directly responsible for the emasculation of Parliament, the inappropriate politicisation of the prosecuting authority and the outright destruction of the Directorate of Special Operations (the ‘Scorpions').
Despite considerable evidence of wrongdoing being published over the previous decade, all investigations into the Arms Deal to date have been undermined by a lack of political will and documented interference by powerful individuals within and close to government. This has made a mockery of notions of accountability on which any functional democracy rests.
The Seriti Commission of Inquiry thus presents a unique opportunity for the full story of the Arms Deal to be made public and for wrong-doers to be held accountable for their actions. However, we believe that unless significant changes are made to the manner in which the Seriti Commission operates (especially in regard to on-going public hearings), this unique opportunity will be squandered, despite the considerable expense to the taxpayer. The Commission has an obligation to clear obstacles which prevent full truth telling and limit the public's right to know.
Concerns
We note two particular concerns. First, we are extremely concerned by the ongoing obstacles to full participation in the inquiry that the Seriti Commission is creating through its failure to give adequate notice to the public of witness lists and testimony of government officials.
Secrecy regarding Armscor witnesses
Despite repeated and detailed requests, as per the Commission's stated procedures, our legal representatives - Lawyers for Human Rights - were only informed by way of the Commission's website on Friday 27 September, as to those witnesses that would be testifying from Armscor starting on Monday 30 September. The testimony of Armscor officials - the state Arms Procurement Corporation - is key to understanding who and how the procurement decisions were made. It is also a unique opportunity to understand how Armscor - which covertly armed the apartheid regime - functions in a democratic society.
Limited Access to Witness Statements
Witness statements have not been made available to us or our legal representatives. Notably, we were informed that the subject and content of witnesses' testimony would only be revealed during the hearings themselves. During previous hearings, only limited witness statements were made available for the Navy's witnesses. This is obstructive to any meaningful preparation and prevents us and our legal representatives from engaging with evidence brought to the Commission's attention by witnesses.
Limited Cross-examination leads to a one-sided process
Interested parties were invited to apply to cross-examine witnesses. But this is impossible under the prescribed procedures: parties who wish to cross-examine must seek leave from the Commission to do so, and they may only do so at the end of a witness's testimony. The practical effect is that a legal team must be present to monitor the witness testimony in order to know whether cross-examination is necessary.
This is extremely challenging and prohibitive to all interested parties apart from those with large sums of public and/or private money to pay legal fees. Even in the best possible circumstances, it is impossible to properly prepare for cross-examination without access to witness statements and the documents upon which the witnesses intend to, and do rely during testimony. As things presently stand, the testimony of the Navy and of upcoming Armscor witnesses risks going unchallenged, despite real concerns with the ‘official' perspective on the deal.
In addition, while evidence-leaders lead the witnesses, their evidence is neither tested by the evidence-leaders, nor tested by any of the parties who are before the Commission. As a result this has the makings of a one-sided process.
These obstacles undermine the ability of interested parties to ensure that the Commission fulfils its mandate to seek the truth, and severely endangers the credibility of the Commission. We are concerned that, unless these matters are dealt with immediately, the Commission may fail in its task of ensuring transparency, accountability and the rule of law.
Access to Information denied
Our second concern relates to the failure of the Commission to make documents at its disposal available to us. This has happened despite the fact that both Andrew Feinstein and Paul Holden have made a substantial joint submission - at the Commission's request - that included thousands of pages of supporting documents.
We have also offered to provide any assistance the Commission may require, indicating that we are willing to fully cooperate with the Commission to ensure its mandate is fulfilled. To this end Andrew Feinstein has assisted the Commission in setting up meetings with international prosecutors and investigators.
As has been well documented in the media, we were subpoenaed - in January 2013 - to give evidence before the Commission. The subpoenas we have received give us the legal right to view any document the Commission holds that is relevant to the issues on which we will be giving evidence. Paragraph C(4) of the Annexure to our Summons states: ‘Take notice that you may inspect any documents that the Commission has which may be relevant to your testimony.'
However, despite repeated requests, the Commission has not made a single document available for us to view.
This has had two notable impacts. First, we have been denied access to information and evidence that may be vital if we are to cross-examine witnesses during public hearings. Second, we may be placed in the invidious position of having to process substantial numbers of documents in an incredibly short period of time ahead of our appearance before the Commission. These problems could have been avoided if the Commission had responded timeously to our requests.
Taking these two matters under consideration, we accordingly call on the Commission to enact the following with immediate effect:
1. Issue an updated list of all witnesses and the approximate dates of their testimony. The previous schedule issued in July has not taken into consideration the numerous postponements and delays experienced so far;
2. Immediately make available to all interested parties and on the Commission's website full witness statements and the documents on which each witness will rely during testimony;
3. Give adequate notice of any changes to those statements or additional documents included in witness statements.
4. Make immediate arrangements for us to view documents in the Commission's possession that we have requested, and which we are legally entitled to view.
Statement issued by Andrew Feinstein, Paul Holden and Hennie van Vuuren via Lawyers for Human Rights, October 14 2013
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