Seriti probe's cautious style risks hiding dirty secrets

By Andrew Feinstein, Paul Holden and Hennie van Vuuren

This past week marked a significant milestone in the seemingly unending saga that is the arms deal.

That a former minister of trade and industry, Alec Erwin, was required to testify at the Seriti arms procurement commission represents an important step in the process of deepening the roots of democratic accountability in South Africa.

This is not to suggest that Erwin has recognised the folly of poor judgment in supporting a deal riddled with the type of corruption that typifies the international arms business. His testimony is an example of the arrogance of so many of the key players associated with the deal who still choose to defend the indefensible.

They authorised the procurement of weapons we could not afford and did not need. This failed our constitutional vision of a society characterised by social justice and greater equality. Instead, they chose to emulate the apartheid securocrats who nearly bankrupted the country as a result of massive, secretive arms procurement in the 1980s and early 1990s. In some instances, we bought weapons from the same companies that bust sanctions for the apartheid regime. The continuities from apartheid stretch beyond just the practice of procurement to include repeated attempts to cover up allegations of criminality in the past 15 years.

The social impact of the arms deal is readily dismissed by only the most cynical among us. Those affected are to be found in the empty seats at family gatherings and child-headed households. The trade-off for buying weapons and subsiding bribes and kickbacks was that the state failed, among others, to provide adequate medical treatment to the most vulnerable. There can be little doubt that the arms deal significantly contributed to economic and social problems in the first two decades of freedom.

The Seriti commission, with its broad and important mandate, therefore represents a crucial opportunity to hold high-raking officials, politicians and global arms corporations to account for the greatest scam perpetrated against the South African people in the post-apartheid period.

With the stakes this high, it is useful to cast an eye to the Sammy Marks building in Pretoria where the hearings, chaired by Judge Willie Seriti, are held. The chair and the documents that form part of the evidence-in-chief arrive and depart every morning surrounded by blue lights, guarded by police officers in bulletproof vests holding rifles. Once in session, Seriti has a view over an arena teeming with lawyers - sometimes numbering up to two dozen - who work either exclusively for the commission or the many interested parties who are defending the deal: Armscor, the South African National Defence Force, trade and industry and others. Collectively, they are paid hundreds of thousands of rands in public money daily.

A handful of journalists and military officials observe the proceedings with the lawyers and a lobbyist for the arms companies. The lobbyist, paid to report to arms companies in various European capitals, can often be seen engaging in whispering campaigns during breaks, including with the media. The intention appears to be that nothing should stick and facts do not gain traction. It is an unseemly exercise to behold.

Given the scale and scope of this epic tussle for the truth, it is mind-boggling that the commission too often appears to have been overly cautious and conservative in its approach. The result is that its probe of the powerful is often reduced to a whimper. It seems intent on not rattling the status quo and not using its powers to ensure consistent probity of the deal. This continues even after former senior staff members levelled accusations of a so-called double agenda against the commission. A case in point this week was when our attorneys, Lawyers for Human Rights, were forced to decline the opportunity to cross-examine Erwin owing to the lack of access to vital documents central to the witness's testimony. Seriti interpreted it as us declining our right to cross-examine - a disingenuous conclusion. The truth is that independent parties such as ourselves cannot cross-examine witnesses without access to crucial documents.

We asked the commission to assist us in accessing the arms contracts. Had the commission not been overly cautious, it would have instructed that the documents be released because there appears no legal barrier to do so. This is sadly part of a pattern of denying public access to key documents.

Despite these obvious failings, the commission remains a contested terrain, even though the odds are heavily stacked against a fair outcome. On Monday, Seriti and lawyers for Erwin repeatedly expressed concern that we had in our possession a copy of the cabinet "Affordabality Report" into the arms deal. We find this approach both disturbing and wrong. The commission's job is to investigate all available facts . It should welcome the submission of information that helps it to fulfil its mandate justly and efficiently. The document has been reported on extensively in the media and has formed the subject of published material .

Although it is marked "secret", every South African has the right to know its contents, given that it illustrates the flawed logic used in justifying that we could "afford" to buy arms. The report indicates that the arms deal's impact on the South African economy would be broadly negative in the best-case scenario and devastating in the worst-case scenario.

On Tuesday, we were told the cabinet had declassified the document. This suggests that, when the commission wants to put shoulder to the weighty wheel of opening up access, anything is possible. The focus of the commission should not be on how researchers and activists accessed a document, but rather on its crucially important content. This is especially true of a document that manifestly poses no threat to national security, contains information that is clearly in the public interest and whose classification served only to protect the powerful from the consequences of their own actions.

We believe the truth will not be revealed if key information remains hidden from the public. If the commission is to be successful, these documents need to be brought to light and role-players made to answer to them. Most worryingly, we are aware of almost four million pages of evidence that, according to reports, are locked in containers at the Hawks' premises. These documents are the product of investigations of corruption in the arms deal by the disbanded Scorpions. We have little reason to believe that the commission is actively collating, digitising and analysing their contents. This despite promises that it would do so in August 2013.

Our lawyers wrote to the commission this week requesting access to these documents. Failure to get it would serve only to confirm increasing public cynicism of the commission and suspicion of an active cover-up. These documents and others that we have requested would enable independent witnesses such as ourselves to ask the difficult questions of powerful players who have been called to testify, including high-profile individuals such as former president Thabo Mbeki . Knowledge of the contents might enable the commission to pursue other allegations of criminal conduct. Some could end at the doorstep of the current administration. Others could show a trail of bribery leading to some of the world's largest arms companies.

We cannot allow the commission to fail its mandate and the South African people. At least four other investigations into the arms deal have failed in the past 15 years because of political interference. If the commission is the fifth on that list, we will allow the defining scandal of a free South Africa to continue to shape our politics and our future. We must engage with vigour in this and other processes to challenge this bleak prospect.

• Feinstein, Holden and Van Vuuren are writers and activists represented by Lawyers for Human Rights at the commission