Arms deal inquiry: What’s the point?

Louise Flanagan covers the arms deal inquiry for the The Star - and is now really angry.

At the arms deal deal inquiry, transparency may be the motto but secrecy is the game. The Arms Procurement Commission’s ongoing hearings may be public but much of the information is still hidden.

Since the start of the hearings in August, The Star has struggled to get documents relating to the hearings from the commission. Last week, again, the commission sidestepped our requests.

For those readers who may be yawning, wondering why anyone still cares about an arms deal signed in 1999 and long since delivered, remember you are still paying for it. In October the state paid off another R1.338 billion on the international loan agreements for the arms deal (no, we didn’t hear that at the commission, we got it from government records).

The commission has heard 16 witnesses, from the Department of Defence and from Armscor, which runs defence materiel procurement. Delays have been frequent, with a recent week’s sittings totalling less than an hour and the commission is way behind schedule.

Witnesses provide the commission with a written statement and sometimes a presentation as the basis of their evidence. The statements are not read out in full in the hearings, although sections may be. The witnesses and the commission’s lawyers who lead their evidence frequently refer to documents on the arms deal; these are compiled into bundles for each witness.

Statements and presentations are usually – but not always – available to the media, but only after witnesses have finished giving evidence. The bundles are almost never available. This means much of the evidence is incomprehensible.

This is a typical discussion in the hearings:

Armscor witness: “If you turn over to the next page, page 42, there you can see the results, the results for operational value is said that the AT-2000 exceeded all our requirements, the Gripen exceeded our requirements, you had the SU54, the MIG80 the AMXT, the Jak130, L159, the Hawk and the 339. The next one we looked at was logistic value system.”

Judge Willie Seriti: “Can we just hold on sir, we are trying to find out exactly where you are.”

Armscor witness: “I’m referring to the graph there.”

Try following that without the paperwork. Yes, they’re talking about aircraft.

This witness statement was finally provided to The Star two days later, but the document referred to is still withheld by the commission. There’s an indication the Gripen fighter jet was a good contender, but it would be nice to get the full picture.

The alphabet soup doesn’t help.

One Armscor witness used a 103-page presentation to explain acquisition, littered with acronyms (one slide alone had 23 acronyms). Some translation was in the statement, but that wasn’t available to the media until much later. It’s not clear what the point is of the secrecy, and the commission has been unable or unwilling to explain. Hearings have twice been postponed to declassify documents, but they have still not been released. Legal teams representing witnesses get documents days in advance so they can follow the evidence and plan cross-examination.

The Star has repeatedly asked for document access. In August, the commission’s legal adviser Fanyana Mdumbe refused The Star’s written request for documents on the grounds that commission chairman Judge Seriti’s guidelines on categories of people or entities entitled to access to witness documents did not include the media.

The commission has confirmed informally that those guidelines are in addition to the previously published guidelines, but ignored The Star’s requests for a copy. The commission finally put the Practice Guidelines, signed by Judge Seriti on August 16, on its website on Friday November 15.

On November 1, The Star’s lawyers wrote to Judge Seriti to ask for the documents relating to evidence at the public hearings.

Attorney Dan Rosengarten, on behalf of The Star, told the commission that the request was in terms of the constitution, which grants freedom of expression, and that the denial of documents impeded The Star’s ability to report on the hearings.

The Star pointed out that the commission’s motto was “Transparency, Accountability and the Rule of Law”, and that commission evidence leader advocate Tayob Aboobaker SC in his opening address referred to the commission’s “resolve to ensure that there is total transparency and accountability in its workings and that the public has confidence in the final report” and that “the public nature and transparency of this process is absolutely critical to its success”.

Rosengarten told the commission that the denial of documents was “clearly contrary to the aims of the commission” and to The Star’s right to freedom of expression.

The request was ignored for days until a reminder was sent. The reply was confusing, claiming the documents were available.

“It is unnecessary for us to deal with your client’s contentions about its right to have access to the documents used during the commission’s public hearings, for the simple reason that access to such documents is not in dispute,” wrote Mdumbe to Rosengarten.

Mdumbe said the daily transcriptions of evidence were being posted on the commission’s website and that this now included the bundles of documents. “This was done in order to address the concern that it was difficult to fully comprehend the evidence led without access to the supporting documents,” said Mdumbe.

But these document bundles are still not on the website. The Star has pointed this out to the commission and asked for the bundles and missing witness statements, but we are still waiting. The Star also asked for access to upcoming witnesses’ statements and documents in time to follow their evidence. The commission refused.

By the time of going to print, the issue was not resolved. After about 40 days of public hearings, we are left wondering what the point is of all this expense.

It’s a nice show, but that’s effectively what it is – a show. We can sort of guess what’s happening some of the time, but where’s the sense in that? What exactly is the commission trying to hide by refusing us the basic documents under discussion? Why does the commission pretend that these documents are available?

The commission was set up after vociferous campaigning – including a Constitutional Court action – by arms deal critic Terry Crawford-Browne. Its existence is a direct result of ongoing public belief that there was something dodgy in the arms deal. If the commission is to be successful, it needs public support. And that is not likely without proper public access to the “public” hearings part of the process.

* Louise Flanagan is a senior reporter at The Star. She has been covering the Arms Procurement Commission hearings.

* The view expressed here are not necessarily those of Independent Newpapers.

The Star