The South African Arms Deal Saga (continued)
After more than a decade of cover-ups and denials, South Africa’s President Jacob Zuma in September 2011 told the national executive council of the ruling African National Congress (ANC) that he would lose the case I had brought against him in the Constitutional Court (CC). Zuma reportedly only agreed to my demand for a commission of inquiry into the arms deal scandal to avoid having the CC dictate to him.
The rationale for the arms deal was that US$5 billion spent on warships and warplanes from Europe would somehow generate US$18 billion in offsets to create over 65 000 jobs and stimulate economic development. The scandal has become the byword for a culture of corruption that has blighted South Africa since the 1994 transition to constitutional democracy.
ANC whistleblowers told me back in 1999 that the arms deal was just the tip of the corruption iceberg. The common denominator, they said, with oil deals, taxi recapitalisation, tollroads, drivers’ licences, Coega harbour development, Cell C, diamond and drugs smuggling, weapons trafficking and money laundering was 10 percent kickbacks to the ANC in return for political protection.
In his definitive book on the arms trade, The Shadow World, my colleague Andrew Feinstein records that corruption in the British and American arms industry is so institutionalised that it is not even recognised as such in Britain or the US.
Nor is South Africa unique in using judicial commissions of inquiry as places to park political hot potatoes until they are cold. Three senior judges were appointed to the Seriti Commission, but one resigned immediately citing “personal reasons.” Then, the Commission’s secretary purportedly committed suicide. Next, a senior investigator resigned in January 2013, alleging that the Commission has a “second agenda to silence the Terry Crawford-Brownes of this world.” Recently another judge resigned.
Three of the Commission’s terms of reference refer to arms deal offsets, and whether promised jobs and technology transfers materialised. I made my first written submission in June 2012 setting out that offsets fail section 217 (1) of South Africa’s Constitution requiring all government procurements to be conducted “in accordance with a system which is fair, equitable, transparent, competitive and cost- effective.”
In August 2012 I requested Judge Seriti to subpoena the former British Prime Minister Tony Blair, whilst he was visiting South Africa, to explain why he and BAE pressured our government to buy fighter aircraft that the Air Force had rejected. Amongst the documents I had submitted to the CC were 160 pages of affidavits detailing how and why BAE paid bribes of £115 million, with the collusion of the British government, to secure its fighter aircraft contracts.
Despite the fact that US authorities in 2010 and 2011 fined BAE US$479 million for what were euphemistically described as “accounting irregularities,” my request was rejected as “premature.” The German Frigate and Submarine Consortia have conceded in Germany that bribes were paid for the frigate contracts and, secondly, that offset contracts for the submarines were simply “vehicles to pay bribes.”
Even our government now reluctantly admits that the offset benefits never materialised. In short, the whole arms deal process was fraudulent.
Together with other commentators and whistleblowers, I was subpoenaed to appear before the Commission as a witness in March 2013. Just two weeks before commencing, the hearings were inexplicably postponed until August. I am now informed that I will only be called next year, if at all.
The Commission’s mandate expires in November 2013, and it has already hugely overrun its allocated budget. Accordingly, I have requested the Public Protector (Ombudsman) to intervene with the President to terminate the Commission when its mandate expires, or preferably sooner. Zuma’s intentions to bury the scandal or silence me have clearly failed.
As a 12 minute Carte Blanche television programme broadcast in September 2013 reveals, the Seriti Commission has degenerated into a farce.
My lawyers are now drafting papers for a new round of litigation. We seek to have the arms deal contracts nullified as unconstitutional, and also fraudulent. The “remedies in case of bribes” clauses in the contracts give South Africa the right summarily to cancel the contracts and to claim compensation. In the words of the British jurist Lord Denning: “fraud unravels everything.”
Our aim is to have the slightly used warships and warplanes returned to Europe, and to recover the money. In so doing, we would thus recover the bribes since obviously they were built into the prices. The financial consequences of cancellation would also fall to British and German taxpayers who guaranteed the transactions, rather than to South African taxpayers.
We hope, in turn, that Europeans will demand explanations from their governments on the pressures they exert in promoting arms exports to countries such as South Africa.