WHAT DO YOU EXPECT FROM THE NATIVES? – THE SUBLIMINAL THESIS BEHIND THE NOISE ON THE ARMS PROCUREMENT COMMISSION.

Thabo Mbeki.

April 25, 2016

A few days ago, on April 21, President Zuma released the Report of the Judicial “Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Packages (SDPP).”

The Commission was composed of Judge Willie Seriti, of the Supreme Court of Appeal as the Chairperson and Judge Thekiso Musi, former Judge President of the Free State High Court.

The Commission has stated that no evidence was presented to it proving that any fraud, corruption or impropriety had taken place during the Defence Procurement (SDPP) process and neither had it found any such misdemeanour through its own investigations.

However some in our country have spoken out against the findings of the Commission, charging that the Commission was nothing more than a “whitewash”, a “cover-up” for those who allegedly carried out corrupt practices.

Almost fifteen years ago, in 2001, another investigation of the very same SDPP had come to exactly the same conclusion that there had been no fraud, corruption or impropriety in the Defence Procurement.

That investigation was carried out by a Joint Investigation Team (JIT) composed of the Auditor General, the National Prosecuting Authority and the Public Protector.

Even then some in our country denounced the finding of the JIT as a “cover-up” in exactly the same way as has now happened with regard to the Judicial Commission.

This confirms that there are some in our country who are determined to ensure that at all costs, the perception is sustained among our people and the peoples of the world that the Government President Nelson Mandela led was corrupt.

In this regard, these people seem to have made the firm commitment that they will never allow the truth or anything else to defeat their strategic objective of successfully painting our then Government as corrupt, basing themselves on the practice of repeating this allegation a million times, while producing not even a single fact to substantiate their allegation.

Surely there must be some explanation for such determination and commitment to perpetuate outright lies and fabrications concerning our conduct with regard to the SDPP!

In 2001 and 2003, the Bulletin, ANC Today, published Letters I had written to explain this unashamed commitment to engage in unethical practice.

These Letters were respectively entitled “The truth stands in the way of the arms accusers” and “Our country needs facts, not groundless allegations”.

We will post these articles on this Facebook page and the TMF website because of their continuing relevance to what appears to be new but is in fact the old practice of denouncing the truth without presenting any facts to substantiate such denunciation, as is now happening with regard to the findings of the Judicial Commission.

This continuing practice illustrates in a concrete manner the pernicious and persistent habit of the resort to lies and fabrications in the conduct of public affairs in our country, which the articles we have previously posted on this page have sought to demonstrate and discourage.

Let me now present some truths relating to the Seriti/Musi Judicial Commission. I will number these to facilitate their understanding, given the unavoidable length of this article.

1. The Judicial Commission was appointed to investigate various matters relating to the Strategic Defence Procurement Packages (SDPP) and nothing else.

2. Through the SDPP our Government signed contracts with a number of European companies to procure corvettes, submarines and helicopters for the SA Navy, and fighter planes, fighter trainers and helicopters for SA Air Force.

3. These have been identified as the Primary Contracts, being the only contracts our Government signed with the SDPP supplier companies. These are the contracts which the Judicial Commission had to examine.

4. There were also Secondary Contracts. These were contracts entered into by the Primary Contracting companies with those companies they sub-contracted to provide elements of the weapons systems they, the Primary Contractors, were obliged to supply to our Government. Our Government was not involved in any way with these sub-contracts, these being exclusively a matter for the companies concerned. Accordingly the Judicial Commission, as well, had neither the task, the need and reason nor the legal possibility to investigate these sub-contracts, and therefore did not investigate these.

5. The body which approved the weapons purchases, and therefore the Primary Contracts, was the National Cabinet on the basis of recommendations it received from a Cabinet Sub-Committee it had constituted, known as the Inter Ministerial Committee (IMC). I chaired the IMC from when I was Deputy President. It also included the then Ministers of Defence, Trade and Industry, Finance and Public Enterprises.

6. The IMC itself received and examined recommendations from the Sub-Committees of Officials which processes the detailed matters relating to the SDPP. These Sub-Committees reported only to the IMC and therefore never presented any report or proposal directly to the National Cabinet.

7. Commenting on the procedures that were followed with regard to the SDPP, and acting on behalf of the IMC, I made the submission to the Judicial Commission that if any corruption had occurred which informed the decisions on the SDPP, the blame would lie first and foremost with the IMC and secondly with the National Cabinet, and only these two bodies. This is for the simple reason that it was only at these two levels that the effective decisions concerning the SDPP were taken, with the proposals emanating from the Sub-Committees of Officials serving merely as recommendations to the IMC.

8. Accordingly, the allegation that has been made that the findings of the Judicial Commission constitute a “cover-up” means that it would be the then Members of the IMC and the National Cabinet who are thus being protected, including those who are unfortunately no longer with us, these being the late President Mandela and Ministers Joe Modise and Stella Sigcau.

9. It was in this regard, concerning the IMC, the National Cabinet and the Primary Contracts, that the Judicial Commission has said that absolutely nobody presented any evidence of corruption to it and that its own investigations have not unearthed any such corruption. (Indeed no other evidence of corruption, even outside these parameters, was presented to the Commission.)

10. The Judicial Commission invited many people to make presentations to it consistent with its mandate, including those called “whistle-blowers”, who had made strenuous efforts over many years to sustain the accusation which enjoyed pride of place in our media, that serious and extensive corruption had attended the conclusion of the SDPP.

11. Some of these “whistle-blowers” did indeed make written and oral presentations to the Judicial Commission. They were also subjected to cross examination. These included Ms Patricia de Lille, Mr Richard Young, Ms Raenette Taljaard, Mr Gavin Woods, Mr Terry Crawford-Browne and Mr David Maynier.

12. Similarly the Members of the IMC who are still alive, myself included, with the exception of Minister Jeff Radebe who was not called, also made written and oral presentations to the Commission and were subjected to sustained cross examination.

13. The relevant Government Departments, including Defence, Trade and Industry and Finance, also made written and oral submissions, and were similarly subjected to cross examination.

14. The Police Officers who had investigated the allegations of fraud and corruption concerning the SDPP, as part of both the Scorpions and the Hawks, also made their written and oral presentations and were also subjected to cross examination.

15. One of the consultants of one of the Primary Contracting Companies also made a written and oral submission and was also subjected to cross examination.

16. And so did the Companies which it was alleged were tainted with corruption, except one, make their own written and oral submissions and subjected themselves to cross examination.

17. Unfortunately three of the “whistle-blowers” refused to appear before the Commission to submit whatever information they had which could have assisted the Commission. These were Messrs Andrew Feinstein, Paul Holden and Hennie van Vuuren.

18. Fortunately the Commission honoured its commitment to keep its hearings public, thus to ensure the greatest possible transparency. Accordingly the public was free to attend these hearings.

19. In addition the Commission transcribed the oral submissions and cross examinations and posted these on its website. These can be accessed at the website www.armscomm.org.za

20. I urge our readers to take the trouble to read these transcripts. Among others, they convey the necessary information concerning the corruption accusations of the “whistle-blowers” as well as the detail of how these were discussed at the Commission. In this regard we would like to draw the attention of our readers to the article we posted earlier this year, written by Mukoni Ratshitanga, concerning the remarks that were made about the Judicial Commission Report by one of the “whistle-blowers”, Mr David Maynier of the DA.

21. The transcripts will show that the corruption allegations which the “whistle-blowers” propagated for more than a decade were discussed in detail, exactly to establish the truth or otherwise of these allegations. The readers will establish this for themselves, based on the very words of the “whistle-blowers” themselves, that none of them provided any concrete facts of any kind to substantiate the allegations of corruption they had made!

22. In this context you, our readers, will also learn about the work done by the Scorpions and the Hawks to investigate the alleged corruption concerning the SDPP, and their findings in this regard.

23. The “whistle-blowers” and others who have denounced the Judicial Commission and its findings have made a strident song and dance about the fact that Messrs Tony Yengeni and Shabir Shaik were found guilty by our courts on charges which the “whistle-blowers” and their friends allege concerned the SDPP, or what they call “the arms deal”.

24. What is the truth about these two matters?

25. Mr Yengeni had absolutely nothing to do with the SDPP and played no role of any kind in this matter. He was convicted by our courts in connection with problems which arose between him and the National Assembly concerning the reporting of assets. Mr Yengeni had received a discount for a new vehicle he had purchased. He tried to hide this fact from Parliament and thus violated the Code of Ethics which binds Members of Parliament. None of this had anything to do with the SDPP. The “whistle-blowers” try desperately to bring in the SDPP in this context because they allege that the company which sold Mr Yengeni the vehicle had something to do with one or another of the Primary Contracting Companies. The IMC and the Officials never dealt with this company and had no knowledge of its involvement in any of the Primary Contracts. Indeed, throughout the Yengeni court case, no reference whatsoever was made to the SDPP since his case had no relationship with the SDPP.

26. Mr Shaik was convicted on the basis of evidence presented about actions in which he had been engaged concerning the French company, Thales, which was a sub-contractor to the German Frigate Consortium, the entity with which our Government entered into an agreement as a Primary Contracting Company. Whatever Mr Shaik and Thales did had absolutely no relationship with and had no impact of any kind on the processing, the negotiation and conclusion of the SDPP, the matter which the Judicial Commission had to investigate.

27. Accordingly it is merely to clutch at straws, and an act of great desperation, to suggest that the charges preferred severally against Messrs Yengeni and Shaik and their convictions in this regard had anything whatsoever to do with the processing, negotiation and conclusion of the SDPP and were therefore manifestations of corrupt practice with regard to the SDPP. They were therefore completely outside the scope of the mandate of the Judicial Commission as they had absolutely nothing to do with the alleged corruption of the SDPP process and therefore such corruption as would attach to the IMC and the National Cabinet as indicated under Paragraphs 7 and 8 above.

28. The “whistle-blowers” and their supporters have also made a similar song and dance about a Confidential but leaked ‘Debevoise & Plimpton Report’ (D&P Report) which was commissioned by MAN Ferrostaal, the lead company in the German Submarine Consortium, the Primary Contractor which signed an agreement with our Government to supply the required submarines. This Report suggested that Ferrostaal might have paid bribes to secure the contract to supply the submarines. The Judicial Commission prohibited the submission of this Report arguing that established law in our country prohibited such submission unless the owner of this ‘Confidential’ Report, Ferrostaal, specifically agreed to lift the ‘Confidential’ restriction of access to the Report. The “whistle-blowers” have used the ruling of the Commission in this regard as argument that the Commission took this decision to “cover-up” for the unnamed people who might have been bribed as suggested by the Debevoise & Plimpton Report. Thus, contrary to the established legal principle that all institutions in our country, including Judicial Commissions, have to respect the rule of law, the “whistle-blowers” insisted then, as they continue to do, that the Judicial Commission should have allowed the D&P Report to be presented despite the fact that this would have been illegal. The Commission flatly refused to break the law in this regard, after having failed to persuade Ferrostaal to agree to lift the ‘Confidential’ restriction, as the law prescribed.

29. Contrary to the wrong view of the “whistle-blowers” that all this meant that the Commission would not consider the leaked D&P Report, which the Commission had in its possession, the Commission did indeed study the Report and found no evidence in it pointing to anybody having engaged in corrupt practice relating to the acquisition of the submarines.

30. In addition to this, the Judicial Commission established that the German Prosecuting Authorities had investigated the corruption allegations relating to Ferrostaal, which investigations were started by the Düsseldorf Prosecutor’s Office. This Office then referred further investigations to the Bochum Prosecutor’s Office (Staatsanwaltschaft Bochum). Having carried out these investigations, the Bochum Prosecutor’s Office communicated to the Düsseldorf Prosecutor’s Office and said:

31. “As regards the background assumed by the (Düsseldorf) author of the memo (filed as) folio 7 et seq. of the files (bribery of foreign officials) it is to be noted that no specific or substantial evidence whatsoever exists that would corroborate that assumption.”

32. On February 5, 2008 the Bochum Prosecutor’s Office sent a communication to Dr Alfred Dierlamm, attorney for MAN Ferrostaal, and said: “I have withdrawn the prosecution of your client in accordance with Section 170 paragraph 2 of the StPO, German Code of Criminal Procedure, (Strafprozessordnung).”

33. Consistent with their determination to hide the truth and therefore give themselves the possibility to continue propagating fabrications, the “whistle-blowers” and their supporters make no reference whatsoever to these defining positions taken by the German Prosecuting Authorities!

34. The “whistle-blowers” also argue that it was wrong for the Commission to insist that all witnesses who allege corruption should speak only about matters of which they had personal knowledge, insisting that this amounted to a determined attempt to suppress the truth, and thus protect those who had engaged in corrupt practice.

35. This is a very strange argument. I say this because, quite correctly, the Commission insisted that all witnesses should speak about matters of which they had personal knowledge concerning corruption. This was because the Commission did not want anybody to appear before it merely to communicate rumours, gossip and unsubstantiated allegations – thus saying, no to the rumour-mongers!

36. It is very instructive that the “whistle-blowers”, especially the ‘no-show’ trio of Messrs Feinstein, Holden and van Vuuren, continue to insist that, among others, they would have considered the Commission as legitimate if it had given them the space to appear before it to communicate rumours, gossip and unsubstantiated allegations. Obviously no serious Judicial Commission could ever derive its legitimacy from serving as a repository of rumours, gossip and unsubstantiated allegations!

37. In this regard I have taken note of the fact that the ‘no-show trio’ has publicly stated that it is seeking legal advice as to the legality of the Commission’s conduct and the viability of a legal review to have the Commission Report set aside.

38. This ‘trio’ will do a great service to the Nation if it does indeed approach our courts to apply for the legal review it has threatened. Thus would the Nation and all of us have the possibility to hear the supposedly explosive information the ‘trio’ has, which, for whatever reason, it declined to present to the Judicial Commission. Thus it may very well be that the information the ‘trio’ would present in court would result in the prosecution of those who were involved in the SDPP process who have for more than a decade escaped criminal prosecution for their alleged involvement in corrupt practice.

39. When the controversy about the Defence Procurement erupted in our country, a decade-and-a-half ago, with a cacophony of very loud voices alleging that extensive corruption had attended the SDPP process, it was natural that the countries of domicile of the Primary Contracting Companies would carry out their own investigations to establish the truth about the serious allegations which emanated from our country. In this context, many in our country claimed that the foreign jurisdictions concerned had indeed established that the alleged corruption had occurred. It was therefore absolutely necessary that the Judicial Commission should contact these foreign jurisdictions to access the information the Commission sought to enable it properly to discharge its mandate.

40. In this regard the Commission Report states that accordingly the Commission paid the required visits to the US, the UK, Sweden, Germany, France, Switzerland and Lichtenstein. The “whistle-blowers” had argued that it was exactly the authorities in these jurisdictions which would tell us the truth about the corruption which allegedly attended the SDPP.

41. The end result of the extensive work of the Commission at the international level was that not even one of these foreign jurisdictions provided the Commission with any information which confirmed that any of the Primary Contracting Companies and the South Africans involved in the SDPP, including the IMC and the National Cabinet, had been involved in any corrupt practice.

42. In this context, I must also mention that not even one of the losing bidders with regard to the Primary Contracts, which, as we have said, are the contracts in which our Government was involved, approached any court, both here at home and anywhere else in the world, to challenge the decisions our Government took when it chose the Preferred Bidders who were awarded the contracts contained in the SDPP.

43. For many years while I served as President of the Republic, some in our country made the call with great insistence that I should appoint a Judicial Commission of Inquiry to investigate what was and has been called, using insulting and pejorative language, “the arms deal”.

44. Consistently I refused to accede to this demand. At all times I argued that there had been no “deal” concerning the SDPP. Further, I insisted that I would appoint such a Commission even if one single new fact about corrupt practice was provided by anybody, beyond the facts which had been considered by the JIT made up of the Auditor General, the NPA and the Public Protector as mentioned above. No such facts were presented to me, even as these might have been only prima facie evidence of what might have gone wrong. Accordingly I refused to appoint a Judicial Commission, given that I knew of no objective basis to justify the appointment of such a costly Commission, taking into account the thoroughgoing investigation which had been conducted by the JIT.

45. However, as was his right, President Jacob Zuma decided to accede to this public demand, and the attendant judicial process in this regard, and therefore appointed the Judicial Commission whose Report is now in the public domain. Happily, the Judicial Commission has now provided the Nation with valuable information which might otherwise not have been available. Its detailed three-volume Report and the transcripts posted on its website provide a firm basis for everybody concerned properly to understand the many matters relating to the SDPP, and to engage in an informed discussion by any of those who want to pursue the objective to bring to book whoever they believe was involved in corrupt practice relating to the SDPP.

As I have said, and is generally known, I served as Chairperson of the Inter Ministerial Committee (IMC) which oversaw the process leading to the conclusion of the SDPP.

In this context, given my personal knowledge about how this process worked, I was very confident that the decisions the IMC conveyed to the National Cabinet were not taken on the basis of any corrupt intervention. For this to have happened would have required the establishment of a conspiratorial network involving very many people, including many Officials and all the Members of the National Cabinet who served on the IMC.

Indeed as soon as various companies responded to the initial Request for Offers which started the bidding process, I took the decision that I should not meet and did not meet any of these companies, even if they sought to engage our Government on matters about their possible investment in our economy, not related to the Defence Procurement.

As the IMC we were therefore truly surprised to learn of the very first indication that the recommendations we had forwarded to the National Cabinet, which Cabinet adopted as its own decisions, were being questioned by some in our country on the basis of allegations about corruption.

That first indication was the information that a document making this allegation of corruption had been placed overnight in the mail boxes of Members of Parliament by unknown persons.

With the authorisation of Cabinet, we readily agreed that an investigation team should be established to investigate the allegations that had been made. We therefore met the Auditor General, the NDPP and the Public Protector at the Union Buildings in Pretoria to inform them accordingly, which included our assurance that all the Government Ministries and Departments concerned had been instructed fully to cooperate with them, with them working as the Joint Investigation Team (JIT).

We were indeed very concerned when some in our country challenged the correctness of the subsequent JIT Report without presenting any contrary facts. Rather, this repudiation of the JIT Report focused on questioning the personal integrity of the Auditor General, which upset us.

In this regard our Cabinet firmly communicated its conviction about the integrity, honesty and competence of the State Institutions which constituted the JIT, rejecting the insinuation which was made at that time that it was only foreign institutions which could produce an honest report about the whole process relating to the SDPP.

We were very concerned that despite the fact that nobody whatsoever presented any material evidence which challenged the facts and conclusions of the JIT, nevertheless the public campaign seemed to grow in strength that extensive corruption had attended the SDPP process, with its outcome being freely characterised pejoratively as “the arms deal”.

In this regard we were particularly disturbed at the enthusiastic willingness of many in our media to propagate and confirm the notion that there had been an “arms deal” characterised by corrupt practice on the part of those of us who had been intimately involved in all the processes which resulted in the SDPP.

This media response clearly demonstrated a determination to persuade our people as a whole, and incidentally the international community, that our Government’s repudiation of the allegations of corruption was self-serving and had no substance or legitimacy.

Most unfortunately, again many in our media seem to have maintained their stance in this regard and have joined the babel of tongues which now seek to discredit and delegitimise both the Judicial Commission of Inquiry and its Findings and Conclusions, thus to confirm the resort to lies and deliberate fabrications as a legitimate instrument in our public discourse.

One of the non-governmental organisations in our country which wants the Nation to accept it as a principled fighter against corruption has said, responding to the Report of the Judicial Commission that:

“There has hardly ever been an arms deal of this scale that is free of corruption – to have found no evidence of corruption in this instance is therefore highly unlikely.”

This constitutes a simple statement that whatever the concrete facts about the SDPP anybody might produce, including the JIT and the Judicial Commission, our Nation must accept the rumours, the gossip and the unsubstantiated allegations that the SDPP contracts were corruptly awarded as being correct!

What remained unsaid, but is an essential component part of the argument about the allegedly ineluctable corruption in “arms deals”, is – what else would you expect of an African Government?

This article first appeared on the Thabo Mbeki Foundation’s Facebook page.