On Wednesday South Africa's Pretoria High Court set aside the findings of the Seriti Commission of Inquiry into the Strategic Defence Procurement Package (the 'arms deal').
The application was brought by civil society organisations Corruption Watch and the Right2Know campaign. The judgment is a victory for civil society groups that have been part of a decades-long campaign for some form of accountability after the corruption-riddled deal.
The commission, appointed by former president Jacob Zuma in 2011, was to investigate 'allegations of fraud, corruption, impropriety or irregularity in the strategic defence procurement package.' However it was patently clear to most objective observers that Judge Willie Seriti was unwilling to find any evidence of corruption. Its witnesses implicated in corruption were rarely cross-examined while those presenting evidence were vigorously grilled.
Despite Tony Yengeni and Schabir Shaik being criminally convicted for corruption related to the arms deal, and foreign arms companies paying many millions of dollars and euros in fines to their home countries for irregularities related to graft, Seriti found 'not one iota of corruption.' The ill-fated commission cost the country R137 million.
In 1999 Thabo Mbeki's cabinet decided to buy R29.9 billion worth of military hardware SA didn't need
This week, however, Judge Dunstan Mlambo didn't mince his words when he said, 'It is clear that the commission failed to inquire fully and comprehensively into the issues which it was required to investigate on the basis of its terms of reference.'
Given the plethora of commissions set up in South Africa to deal with corruption, and ultimately the failure of our political system, this is an important judgment. Now that the commission findings have been set aside, logic would dictate that fresh investigations and subsequent prosecutions follow.
Yet one has to wonder given the limited capacity of the National Prosecuting Authority (NPA) and the overwhelming instinct to prosecute the larger, more recent and most egregious instances of state capture. Prosecuting historical crimes is always difficult and will be especially tough given the many challenges the NPA faces.
It is easy to forget the details of the arms deal given the far more sensational stories of state capture during the Zuma years. In a sense, state capture makes the arms deal look like proverbial child's play.
The arms deal was an early red flag that ANC politics would undermine SA's democratic institutions
Yet the arms deal, after the Sarafina corruption scandal of 1996, was the largest scandal of its kind a mere five years into democracy. It was an early red flag that ruling party politics would contribute to the failure of South Africa's democratic institutions. In particular Parliament failed to exercise oversight over the executive while other institutions failed to hold the corrupt to account either civilly or criminally.
In 1999, former president Thabo Mbeki's cabinet decided to purchase R29.9 billion worth of military hardware the country had no need for - at great risk. In late 2000, then auditor-general Shauket Fakie investigated certain aspects of the arms transactions and recommended an investigation.
In October 2000, the Parliament's Standing Committee on Public Accounts (Scopa) produced its own report on the arms transactions after conducting hearings into the matter. During those hearings, Chippy Shaik, the Department of Defence's head of arms acquisition, and Jayendra Naidoo, government's chief arms deal negotiator, admitted that the costs of the deal had by then ballooned to R43.8 billion.
Scopa has a very specific and significant role in the parliamentary oversight process. Its core function is to satisfy the legislature that money has been spent in accordance with decisions in the budget. Its chairperson at the time of the arms deal investigation was Inkatha Freedom Party (IFP) Member of Parliament (MP) Gavin Woods, a man of unassailable integrity.
Commissions of inquiry cannot replace effective and strong democratic institutions
Before the arms deal, Scopa enjoyed a reputation as one of the best-run, most efficient committees in Parliament, working effectively across party lines. It recommended that the Special Investigating Unit (SIU) headed by Judge Willem Heath form part of a multi-agency investigation team to probe the arms deal. This was refused by Mbeki, and then Parliament's speaker Frene Ginwala also actively intervened to stymie Scopa's work.
Instead, a joint investigation team into the arms deal comprising public protector Selby Baqwa, auditor-general Fakie and national director of public prosecutions Bulelani Ngcuka was charged to look into the arms deal in 2000.
They produced a Joint Investigation Team (JIT) report in November 2001 which Woods subsequently described as 'sub-standard'. That report essentially exonerated government. Woods resigned in February 2002 in protest at what he deemed to be a 'cover up' of possible corruption in the deal, as did African National Congress MP Andrew Feinstein. Scopa has never quite recovered from the manipulation of Parliament and a powerful executive.
What the Seriti Commission judgment this week shows is that commissions of inquiry cannot replace effective and strong democratic institutions. Had Parliament and other institutions fulfilled their constitutional mandates two decades ago, many more senior politicians guilty of corruption in the arms deal would have found themselves behind bars. The Zuma-led state capture project would also probably not have found fertile ground.
This might well be one of the most fundamental lessons of post-apartheid South Africa. Our democratic institutions are meant to be living, breathing instruments that shape our society for the better. Yet political battles have seen weakened institutions struggle to maintain their independence in the face of an onslaught of political pressure. Institutions recover with difficulty once they have been hollowed out either by political interference or weak leadership.
These are important lessons for the current Parliament as it investigates the fitness of the Public Protector to hold office and as the Zondo Commission continues its painstaking but necessary work.
Judith February, Senior Research Associate, Justice and Violence Prevention, ISS Pretoria