Paul Trewhela
After the party, the hangover
If there is a single book to read to get an understanding of contemporary South Africa, it must be Andrew Feinstein's After the Party. A Personal and Political Journey inside the ANC (Jonathan Ball, Johannesburg, 2007). The African National Congress - party and government, under President Thabo Mbeki - has never been written about before with such intimacy, such candour, such extensive first-hand personal and professional experience. Still in his mid-forties, Feinstein was an ANC MP for seven years and head of the ANC group in the Special Committee on Public Accounts in 2000-2001 when Scopa acted to carry out its parliamentary mandate to examine government finances, and found itself confronted with corruption at top of government over the grotesque arms deal of 1998/99. He was forced out of his position on Scopa by his enemies in government and their stooges in January 2001 and resigned as an MP the following August, though he remains a member of the ANC while resident with his family in Britain. He presents unchallengeable evidence that President Mbeki, Deputy President Jacob Zuma, relatives of the late Defence Minister Joe Modise, Shamin 'Chippy' Shaik - the Director of Procurement in the Department of Defence at the time of the arms deal and brother of Schabir Shaik, convicted recipient and broker of bribes relating to the arms deal – and others have a case to answer in court, whether relating to corruption for their own material benefit or in the interest of funding of the ANC. His research indicates that the ANC won the general elections in 1999 and 2004 on the basis of secret illegal funding, the first directly as beneficiary of the arms deal. He presents telling clues to the view that Mbeki’s government corruptly and illegally funded the ANC at taxpayers' expense, a bill to be paid for years to come.
How government became an autocratic monster
Feinstein shows how along with arms deal corruption, Mbeki's government became an autocratic monster. With general atrophy of public and private morality from the top down, Mbeki and his inner cabal headed by his colleague from exile and Minister in the Presidency, Essop Pahad - reported as 'the only person [Mbeki] trusts' (p.175) - removed every shred of personal integrity from ANC MPs by demanding cow-like obedience. Even mildly independent MPs such as the Arts and Culture Minister, Dr Z. Pallo Jordan, and the Communist Party leader, Jeremy Cronin - both re-elected to the party’s National Executive Committee last month - buckled under pressure and proved themselves 'weak-kneed' when required to be compliant. As Feinstein says, 'when push came to shove they were found wanting and Parliament and South Africa’s democracy have been the poorer for it.' (p.216) It was not the first time these luminaries were proved made of clay, and it will not be the last.
No scrutiny of the Executive
Under Mbeki, the legislative assembly crumbled away before the executive, and parliamentary accountability evaporated like sea mist. The Auditor-General censored and revised his report to parliament when ordered by the Boss to do so, the Speaker tyrannised the legislature instead of championing its rights, one Chief Whip was imprisoned (briefly) for corruption and returned a hero to parliament while his successor was removed from office on the grounds of proven sexual harassment. No scrutiny of the executive was permitted. (Tony Yengeni, the jailed former Chief Whip, who entered prison and returned to Parliament a hero to his colleagues, was elected to the NEC last month, along with his wife – a tribute possibly to his four months within four walls, in place of the four years to which he had been sentenced. Yengeni was one of the worst abusers of Feinstein and his few brave, honest colleagues).
The venality of the party list
Feinstein gives also a detailed exposition of the party list system, by which ANC candidates climb the greasy pole to Parliament and are then appointed like imperial pro-consuls to this or that constituency. The electoral law in the Constitution of 1994 enshrines a system of coercion through a system of proportional representation which gives unfettered power to the party bosses in Luthuli House, the ANC headquarters in Johannesburg, and guarantees the sycophancy of MPs. [See 'The ANC and the ‘Kenya option', 5 January 2008]. Though elevated into national public life under the PR system, Feinstein honestly becomes its critic and recommends towards the end of his book a revision in the constitution that will set in place a new electoral law.
Parliamentary unacccountability
Despite lapses - an 'admirable constitution' (p.86), 'arguably the world's most progressive' (p.239), he says, in unfortunate reversion to the illusions of his younger self - Feinstein shows how the electoral law of 1994 establishes a slavish partiinost (Russian for 'party spirit') almost as thorough-going as under the great Vozhd (or Leader) himself. He gives the best available exposition of how this system of parliamentary unaccountability works, moving upwards from the democratic to the despotic. Selection of ANC candidates is as follows: local party branches nominate members to the regional party structure, regional conferences then finalise a regional list of candidates to go to the Provincial Legislature and national Parliament, these names are then submitted to a Provincial List Conference made up of representatives of all the branches in the province and the ANC’s constituent organisations (i.e.Youth League, Women’s League), with the provincial lists finally being submitted to a National List Conference. As Feinstein says, up to this point the selection process - though 'unwieldy and cumbersome' - is ‘profoundly democratic'. Everything now gets murky. After the National List Conference, 'the national leadership then deliberates on the final lists for submission to the Electoral Commission. At this point the process loses its democratic character and falls hostage to the whims and internecine battles of the leadership of the ANC'. (p.81). In other words, candidates for election to Parliament or Provincial Legislatures on the ANC slate are the hostage of the party bosses, who in terms of the electoral law can also remove and replace them by whim.
The undermining of Parliament
Only the naïve will consider it a surprise, then, that Feinstein finds 'the party leadership undermining the parliamentary system'. While in theory ‘the Legislature is intended to hold the Executive to account’, the reality is that under 'South Africa’s proportional representation system, a dissenting voice is easily removed from the party lists', leading to what he delicately terms a 'weakness in the accountability cycle' (p.86) and the 'subservience of the ANC backbench' (p.90). This, and the accusation by the Mbeki grouping that political rivals were plotting against the President, had an obvious result. 'People were too frightened to lobby or promote anti-Mbeki nominees'. (p.122) With the assistance especially of the 'rude, 'abrasive' and 'fearsome' Essop Pahad, an 'uncouth enforcer of limited principle' (pp.175, 241, 15, 116), Mbeki for several years 'silenced dissent within the party.' (p.138) Known in the media as the ANC’s 'Mr Clean' before his own removal, Feinstein is engagingly open about his own fears, doubts and shaming silences in this scary bear pit, before finding the courage to act according to his conscience. The PR system gave him no protection. He had no constituents to endorse his bravery and integrity. He either jumped or was pushed, and chose to jump.
The need for constituency MPs
Among measures which are 'desperately needed' given 'the ANC’s moral decline' (p.249), he argues that South Africa should change to a 'mixed constituency/PR system, so that MPs are able to have an independent voice either as non-party constituency MPs or as representatives of a party directly elected by people from a specific geographical area, so that they are not beholden exclusively to their party leaders.' Feinstein argues that a mixed electoral system is essential for two reasons. 'An element of proportional representation allows minorities to be represented in Parliament', while constituencies would provide the 'direct link between representatives and the voters…as well as diluting the power of the party leadership to get rid of independent MPs.' This would create an environment in which MPs would be more likely to be 'driven by principle and the needs of their constituents rather than the narrow loyalty required to remain in favour with the party leadership' (pp. 260-61). This proposal preceded by several weeks a similar call by the mother of President Mbeki, the widow of Nelson Mandela's Robben Island colleague, Govan Mbeki. (See 'Mbeki’s mother calls for ANC HQ to be disbanded', 5 January 2008). The involuntary coming together of Epainette Mbeki and Andrew Feinstein - two people with such opposite experiences of the ANC - shows that reform of the electoral law is an idea whose time has come.
Subservience and patronage
Feinstein is right to link corruption to Parliament's lack of internal democracy. The proportional representation system, he writes, 'ceded power to the party at the expense of Parliament' and 'removed the backbone of the ANC backbench', leading to its 'wimpishness in the face of Executive authority.' PR created a party leadership that 'demands loyalty and is quick to dispense patronage'. (p.89) He is right to find an earlier source in the nature of the ANC’s exile apparatus. As he says, the 'paranoid style of organisation in exile' of the ANC and the South African Communist Party (to which Feinstein never belonged), and in which 'Mbeki was steeped' (p.150), created the basic conditions for parliamentary sclerosis and corruption in government. He discovered at first hand that 'the exiles were organised in a very hierarchical manner, with information tightly guarded and decision making centralised. Open debate was constrained….The vanguardist, democratic centralist aspects of the organisation in exile betrayed Leninist roots, while an additional Stalinist dimension saw the party as paramount and loyalty as the crucial currency'. (p.21). Its outcome was the 'autocratic, insulated and deaf-to-criticism-or-dissent style of leadership that has marked the Mbeki era'. To protect power, the 'ANC leadership of both the executive and legislative arms of government was prepared to sacrifice the integrity and rigour of Parliament', leaving Parliament today 'an empty vessel.' The ANC had 'lost its moral compass' (p.240).
A lethal bullet aimed at government
Feinstein's book is well-written, easy to read and develops the momentum of a thriller. He emerges as engaging, well-intentioned and trustworthy, recording a journey from innocence to experience in which he has become ultimately more dangerous to his previous masters when outside Parliament than in it. His book is a lethal bullet aimed at the heads of the government and their cronies, all the more because only a few weeks after its publication they lost all power in the ANC. Feinstein is listed as a witness in the forthcoming trial of the Deputy President, Jacob Zuma. A summary of some of the evidence he presents in his book runs as follows:
Thabo Mbeki (President): Discussing 'Thabo Mbeki's involvement in the arms deal', he notes that Mbeki - then Deputy President - met with the three most senior executives of the French arms company, Thomson-CSF, in Paris on 17 December 1998. 'It appears both from court documents and from a source close to South Africa's ambassador to France at the time that this was Mbeki’s third meeting with Thomsons. At the December meeting Mbeki was asked about the bona fides of Schabir Shaik, with whom Thomsons were about to go into partnership. Mbeki supposedly gave Shaik the thumbs down, but the deal went ahead.' Shaik is serving a 15 year sentence arising from his relationship with Thomsons, a matter that forms the basis of the case against Zuma. Mbeki himself has questions to answer in court. Feinstein notes that a South African firm, Futuristic Business Solutions (FBS), was the 'alternative to Shaik that was, at least implicitly, approved by Mbeki'. Directors of FBS included 'two members of Joe Modise’s extended family'. Feinstein notes that Zuma’s defence counsel have announced that they will, in all likelihood, call Mbeki as a witness, as - in their words – 'he is the only one who would know whether the arms deal was corrupt or not'. Feinstein takes this as a 'veiled threat that if Zuma was tried, he would spill the beans on far broader and more substantial ANC benefit from the arms deal'. (p.223)
Joe Modise (Defence Minister: resigned 1999, died 2001): A number of leads point to Modise's corruption, one of them a German investigation into the role of the arms supplier, Thyssen-Krupp, recipient of a contract for frigates for the South African navy. Feinstein reports a 'source close to the German investigation' as telling him the prosecutors were 'confident of linking additional millions directly to Joe Modise and a portion of the balance to the ANC for party purposes…The German authorities have submitted requests for assistance to their South African counterparts, as well as UK and Swiss investigators.' (p.227) According to Feinstein, there is evidence of Modise's role in the deal with the British arms company, BAe. He reports that a 'very senior Defence Force leader at the time' has claimed to have 'flight records showing Chippy Shaik and Joe Modise flying to London to meet with the Chairman of BAe clandestinely.' (p.231) BAe Systems plc has 'admitted to funding the MK Veterans Association of which Joe Modise was Life President…' (p.235) A representative of a tendering company told Feinstein following the Scopa hearings that Chippy Shaik had told him that 'to stand a chance of winning the contract we get in touch with one Tsepo Molai….We didn’t know that Molai was linked to Joe Modise. When we met him Molai proposed that the bidding company hire him as a consultant, suggesting a $ 250,000 start-up fee and $ 25,000 a month retainer. We declined the offer. Clearly this was the death knell for our bid.' (p.168) The French firm Thomson-CSF owned a South African company, African Defence Systems (ADS), which had a major role in the deal. South African directors of ADS included Schabir Shaik as well as Joe Modise's brother-in-law, Lt General (Retired) Lambert Moloi, and General Moloi's son-in-law, Tshepo Maloi. Chippy Shaik’s wife worked for the marketing department of ADS at the time. There is other incriminating material relating to Modise.
Shamin 'Chippy' Shaik (Director of Procurement at the time of the arms deal, currently in Australia): Feinstein is blunt: Chippy Shaik 'lied to Parliament', an indictable offence for which he remains untouched. (p.210) 'Chippy Shaik had a massive conflict of interest and didn’t recuse himself from relevant meetings.' Shaik told Scopa he had recused himself from meetings in which the company of his brother, Schabir Shaik, was discussed; Feinstein shows this was false. He presents information that an Italian arms company, Fincantiere, had a meeting with Chippy Shaik at which he 'suggested his brother Schabir as an appropriate empowerment partner, implying that failure to follow his advice would hinder their efforts to secure a contract.' (p.168) (Fincantiere did not get the contract). Feinstein shows that Alec Erwin (Minister for Trade and Industry) inaccurately and misleadingly told Scopa that during arms deal negotiations involving a 'company that his [Chippy Shaik's] brother was involved in, we took specific steps to ensure that the person [Chippy Shaik] recused himself….We were satisfied that we had taken sufficient precautions to deal with that.' (quoted, p.199) Feinstein notes that Erwin was 'particularly aggressive and enthusiastic in defence of Chippy Shaik', and that he, the current Defence Minister Mosiuoa Lekota and the Finance Minister Trevor Manuel had been 'belligerent and arrogant in their responses'. (p.199) He cites information reported in the South African press that the Auditor-General, Shauket Fakie, had 'shown a copy of his final draft report to Chippy Shaik before submitting it to Parliament, and that Shaik had meaningfully changed a part of the report that referred directly to his brother’s interests'.
Capitulation of the Auditor-General
Feinstein's courageous colleague and chairman of Scopa, Dr Gavin Woods, had sight of a 'letter from Chippy to the AG insisting on the removal of a paragraph on conflicts of interest that referred to him. This was yet another indication of the power and authority that Chippy wielded over the process and its cover-up'. Feinstein notes that the AG had 'kowtowed to the Executive' and had been 'found by the High Court to be in contempt of court and threatened with a jail term before he would make the original draft reports available. It was soon clear why: the original draft report contained handwritten instructions indicating what was to be removed, amended or added.…Without fail these instructions were followed in the final report, starting with the first sentence, which completely exonerates the Executive from any wrongdoing. The most significant change concerned Joe Modise….' (p.213)
After Polokwane
There is a good deal more in this valuable book, but this is enough for a review. Mbeki, Pahad, Erwin and Lekota were removed from any position of power in the ANC at its national conference at Polokwane last month. Their efforts to perpetuate a cover-up by deflection of prosecution towards Zuma, who was not a member of the national government at the time of the arms deal but was later involved in the cover-up after being appointed Deputy President in 1999, has brought about their downfall by vote of ordinary members of the ANC, who have held the Executive to account when Parliament failed. Feinstein has added honest witness. The new NEC at its first formal meeting on 7 January has gone some distance to endorsing his stand by establishing a committee to investigate the arms deal. His book is an essential guide to the immediate past, the present and the future of South Africa. It records a history, and will play its part in the making of it.
Showing posts with label arms deal. Show all posts
Showing posts with label arms deal. Show all posts
Thursday, 17 January 2008
CONSTITUTIONAL CRISIS OF FIRST MAGNITUDE
Paul Trewhela
The ANC as prime suspect in arms deal corruption
It is clear that South Africa has now fallen into a constitutional crisis of first magnitude, the most dangerous since the re-constitution of the state in 1994. The new National Working Committee of the African National Congress, which was appointed last week by the National Executive Committee elected at Polokwane in December, last week also appointed a committee of its own members to investigate arms deal corruption. This will not wash. From information that has come to light so far, the prime suspect in arms deal corruption is the ANC itself. It seems most likely that the ANC itself, as the party of government under President Nelson Mandela in the late 1990s – but effectively under the control of then Deputy President Thabo Mbeki – arranged the arms deal as the means of funding its campaign in the general election of June 1999. The ANC won that election with an increased majority, Mbeki replacing Mandela as State President. The means by which it won that election appears to have been a criminal fraud on the nation.
Party benefit at the expense of the nation
The ANC as government bought goods from foreign suppliers that the armed forces did not want and now cannot afford to use properly. The means by which it did so was at taxpayers’ expense and to the loss of other funding priorities, for years past and for years to come. As charged in hearings of the parliamentary Select Committee on Public Accounts on 11 October 2000 by Laloo Chiba MP, a member of the High Command of the ANC military wing during the trial of Mandela and Mbeki’s father and others in 1963-64, and then their fellow-prisoner on Robben Island for 18 years: ‘The South African nation is being defrauded!’ [See "‘South Africa is being defrauded!' – ANC MP" (3 January 2008)] and ‘Things fall apart’ (10 January)]. Debts were incurred to the account of the South African people as a whole, with a rake-off going to the ANC as a party: that appears to be the bottom line. Huge corruption costs to the benefit of the ANC as a party and to individual politicians and state officials were structured into the inflated cost of these weapons purchases, while the arms suppliers were paid through massive loans to the South African state from foreign banks, to be repaid (principal and interest) over years to come.
The nation’s future mortgaged for a party election
The future of South Africa was mortgaged for an election funding scam. Foreign weapons firms, banks and governments were the beneficiaries. South Africa ’s people – above all, the poor, who have lost the services they might have had – were the losers. This was not a ‘victimless’ crime. At the same time, the whole political process was corrupted. Words and deeds became separated from each other, much more than tends normally to happen in politics. Boorish, thuggish, autocratic behaviour increasingly replaced ordinary parliamentary norms. Tony Yengeni, the ANC politician and parliamentary official who brazenly broke up the Scopa investigation was sent to prison six years later because of arms deal corruption, having earlier been the chairman of the parliamentary Joint Standing Committee for Defence that had helped fix the deal in the first place. Yengeni was then elected to the NEC in December and appointed to the NWC in January, along with another recipient of arms deal bribes who has been appointed to the party committee which is supposed to investigate the whole scam! This scandal degenerates to farce. [See ‘Yengeni, Schreiner and the ethics of the ANC’ (14 January 2008 )]. The farce corrupts the democratic process. All that the ANC claims to stand for as it approaches the centenary of its founding is rendered risible, worthy only of a sneer. It is very dangerous.
The ANC is not above the Constitution
The new ANC president Jacob Zuma has been charged in court with corruption, racketeering, money laundering and fraud in connection with the arms deal. Mbeki, the outgoing party president, and continuing President of the country, should be investigated as to his leadership of the ANC at the time of the arms deal and his chairing of the Cabinet committee which approved it. His grouping in the ANC was responsible for the increasingly boorish, thuggish and autocratic behaviour which led the great majority of ordinary ANC members throughout the country to throw them out of office from the party last month. The clean sweep of almost the entire Mbeki cabal at Polokwane was a necessary but very far from a sufficient step for disinfecting the corruption poison. Whatever might have been thought at Polokwane, the ANC cannot investigate itself on this matter. South Africa has a constitution, set in place in 1994, which the ANC helped to fashion. The ANC cannot now justify a claim to override the Constitution, in its own self-interest, as if the law of South Africa was of no account and did not apply to it.
Judicial process or an ANC putsch
There is now an important constituency in the ANC, the South African Communist Party and the Congress of South African Trade Unions that is arguing that they should override the Constitution. [See ‘J’Accuse! Cosatu considering a putsch?’ (3 January 2008)]. ANC policies which were decided by majority vote at Polokwane would require, if implemented, that South Africa’s judicial process be set aside, in the interest of negating Zuma’s prosecution. This is a recipe for mayhem, violence, potential civil war and the collapse of South Africa into yet another African basket case and failed state, the most terrible failure of all. That is clearly the warning by two of the country’s most eminent jurists who defended Nelson Mandela and his colleagues in the Rivonia Trial, retired Chief Justice Arthur Chaskalson and Advocate George Bizos. [See ‘Chaskalson and Bizos alarm at tone of Zuma debate’ (5 January 2008)].
Members of the NWC arms deal committee
The NWC and its arms deal committee now have central responsibility for preventing this outcome. With the exception of one of its eight members (retired General Siphiwe Nyanda, head of the South African National Defence Force at the time of the arms deal), none of the arms deal committee appears to have been contaminated by the deal. Kgalema Motlanthe, the new deputy president of the ANC, a former trade unionist and a Sotho-speaker, distanced himself from the actions of the Mbeki government on several occasions in the years before the conference at Polokwane. As ANC secretary general he was very civil and collegial when Chiba’s colleague in the Scopa hearings, Andrew Feinstein, resigned as an ANC MP in August 2001, following the bruising Feinstein had received from Mbeki’s then rottweiler (and now Zuma supporter and NWC member), the jailed fraudster, former ANC Chief Whip and previous chairman of the Defence Committee, Yengeni. Two other leading members of the arms deal committee, Cyril Ramaphosa and Mathews Phosa, were run out of politics in April 2001 by Mbeki’s Safety and Security Minister, the late Steve Tshwete, with trumped-up charges of ‘conspiracy’ and a police probe, in order to bolster Mbeki's grip on government . (The third accused ‘conspirator’, Tokyo Sexwale – Feinstein’s former boss and confidante when he was premier of Gauteng province – emerged as the principal kingmaker of the Zuma victory and is a member of the NWC, though not the arms deal committee). There are enough clear heads and clean hands on the arms deal committee for it to make vital decisions, which will have significant bearing on how the ANC carries itself into the country’s general elections in 2009, or sooner; and how well or ill it serves the country.
Legacy of Skweyiya and Motsuenyane Commissions
The arms deal committee must first become clear in what ways it does and does not have continuity with two previous commissions of inquiry appointed by the ANC to investigate its own past misdemeanours, the Skweyiya (1992) and Motsuenyane (1993) commissions. In the years immediately following the unbanning of the ANC and the return of the exiles, these two commissions took evidence from ANC members and former members about human rights abuses committed in exile, principally by the ANC Security Department, the secret police division of the ANC’s Department of Intelligence and Security. (Zuma was head of Military Intelligence, with a separate area of authority). Put together, the investigations of these two commissions were relatively thorough and complemented the findings of Amnesty International (‘South Africa: Torture, ill-treatment and executions in African National Congress camps’, London , December 1992. AI Index: AFR 53/27/92). Victims were able to give evidence and perpetrators were named. The ventilation of these abuses by the ANC itself went some way to meeting the demands of victims who had called for an international commission of inquiry, and provided one of the immediate preconditions for the convening of the Truth and Reconciliation Commission when the ANC became the government in 1994.
Rationale of the ANC commissions of inquiry
Several criticisms have been made before and after the work of the Skweyiya and Motsuenyane commissions, and of the TRC. A significant number of victims of human rights abuses by the ANC in exile refused to give evidence to all three commissions because they did not have confidence that they would receive justice and that their persecutors would be punished. It is true that no punishments were or could be inflicted by any of these commissions. In the case of the TRC, it had the statutory authority to issue amnesty from prosecution in court, if it concluded that a perpetrator had made full disclosure for a ‘politically motivated’ crime (an elastic concept). A very wide range of murderers and torturers from both the apartheid state and the ANC Security apparatus emerged unscathed from these commissions, to enjoy further careers of one kind or another, and/or pension entitlement. There is some bitterness and recrimination about this, partly justified but partly missing the point.
The necessity, limitations and value of the TRC
The main point is that the ANC did admit publicly through these commissions to its own previous guilt. This did not take place with Swapo of Namibia or Zanu-PF in Zimbabwe, a huge advantage for South Africa in terms of decency, openness and respect for the moral law. The TRC was a necessity because the alternative was mutual slaughter. The apartheid state was intact and undefeated at the time of the unbanning of the ANC in February 1990, while the ANC’s troops in Umkhonto weSizwe had been withdrawn from Angola to Zambia and Tanzania under the Crocker Accords of 1988 – far from any border with South Africa, and in a mood of great dissatisfaction in both countries. The fall of the Soviet Union and the end of the Cold War (including the Cold War in Africa) permitted a relatively peaceful resolution of the ending of apartheid in South Africa, in which a deal was struck between the two sides. The basis of the deal was that there would be no settling of accounts with the other side. The TRC gave expression to this basic deal between the ANC and the former ruling National Party. It permitted truth to come to light, victims to be heard, perpetrators to be named and shamed, but it excluded a punishing of the guilty (provided they conformed to the conditions for amnesty). No more than that could have been achieved, without precipitating future violence.
Electoral logic of ANC commissions of inquiry
The Skweyiya and the Motsuenyane Commissions, preceding the TRC, had a further logic. The bulk of the abuses they investigated had taken place in the ANC in exile, in Angola, Zambia, Tanzania and some other African countries. The ‘inziles’ – the internal leaders of the ANC, who had fought the battles of the United Democratic Front, the trade unions and the civic associations within South Africa, or had been in prison – knew nothing of the details of what their exile comrades had done in exile. Yet the security forces of the apartheid state, whether its security police or its Directorate of Military Intelligence, did have very extensive and detailed knowledge, since they had penetrated the ANC in exile right up to the top, the Security Department in particular. Once the ANC was legalised, the inziles demanded the setting up of the Skweyiya and Motsuenyane Commissions by the ANC itself, as a means of finding out for themselves what had really happened in exile. They argued in the NEC that without this knowledge the ANC could not realistically confront the NP, as the former party of government in the apartheid era, in a general election. ANC candidates guilty of human rights abuses in exile would be liable to exposure, compromising the party. There was a crucial difference between both these commissions and the NWC arms deal committee, however: though appointed by the ANC, no ANC politician sat on either of the former, an essential condition of their integrity.
Roles of Mandela and Mbeki contrasted
In each debate on this issue, Mandela sided with the inziles, who carried the day. Characteristically, Anthony Sampson gave no attention to this subject in his hagiographic Mandela: The Authorised Biography (HarperCollins, London, 1999), even though Mandela's role was hugely to his credit. In October 1998, when Mbeki and his exile comrades tried to get the final report of the TRC suppressed, since they regarded it as too critical, Mandela once again sided with the revelation of abuses. The report appeared. (On this conflict of approaches between Mandela and Mbeki, see Mark Gevisser, Thabo Mbeki: The Dream Deferred, Jonathan Ball, Johannesburg, 2007. p.710-712. For a step-by-step account, see also Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission, OUP, 2000).
Alternatives facing the arms deal committee
These are the precedents immediately available to the arms deal committee. It can with courage proceed without fear or favour to disclosure of the ANC’s own corruption abuses, as a prelude to the entire affair being placed before the courts. Or it can wreck South Africa ’s Constitution, the judicial system, civil peace, the economy and trust between the races by placing the interests of party above the state, and the interests of a small number of guilty men and women above the interests of the whole. The committee must choose. It can follow Mandela’s precedent, or Mbeki’s. Ramaphosa, one of the leading ‘inziles’, who is on the arms deal committee, played a major role within the NEC alongside Mandela in support for the Skweyiya and Motsuenyane commissions, and for the TRC (including publication of its report). So did one of the leading exiles, Pallo Jordan, a member of the NWC though not a member of the arms deal committee. Jordan lacked any power base in exile, but felt on his own flesh the sharp claws of the ANC Security Department (Imbokodo, the boulder that crushes) when he was held its prisoner for six weeks in Lusaka in 1982, for arbitrary ideological reasons.
Pallo Jordan’s ironic comparison
Judge Albie Sachs of the Constitutional Court, an ANC activist of many decades, has vividly described the ‘seminal’ meeting of the NEC in August 1993 – a ‘passionate meeting, sharp, uncomfortable’ – which accepted the proposal to set up the TRC. At this critical moment for South Africa and the ANC, there were forceful arguments against the proposal. Jordan’s words at that meeting had tremendous moral importance for the future of the country. He should use them again in the NWC over the coming weeks, substituting only the words ‘corruption’ and ‘arms deal’ in place of the issue facing the NEC at that time, ‘torture’. As Jordan sharply and ironically reminded his colleagues at that NEC meeting in 1993: ‘Comrades, I’ve learnt something very interesting today. There is such a thing as regime torture [read: corruption], and there is ANC torture [read: corruption], and regime torture is bad and ANC torture is good; thank you for enlightening me!’ (Sachs’s account is cited in Boraine, A Country Unmasked, pp.258-259).
Schizophrenic stance on criminal justice system
Today the omens are not good. The NWC made a major attack on the judiciary in a statement issued today, following its first meeting yesterday at Luthuli House, the ANC headquarters, in Johannesburg. Its stance is schizophrenic. On the one hand, the NWC stated that that it had ‘discussed transformation and the need to restore the integrity of law enforcement units and the entire criminal justice system’. Contrary to affirming and strengthening the criminal justice system, as Chaskalson and Bizos have urged, it expressed itself ‘shocked’ that Deputy Chief Justice Dikgang Moseneke on the occasion of his 60th birthday had shown ‘disdain’ for the delegates to the conference at Polokwane, a matter that the NEC said ‘highlights the difficulty that many within the judiciary appear to have in shedding their historical leanings and political orientation.’ This is the language of the goons of the ANC Security Department in Lusaka, when they imprisoned Pallo Jordan on the grounds that ‘Leli intellectual lase Merika liijwayela kabi’ - ‘This American intellectual is not showing respect’. (See ‘Jacob Zuma, the ANC and the administration of justice', 30 December 2007). It is the wide open highway to dictatorship and chaos.
Heading for the abyss
Even worse is the subsequent paragraph, in which the NWC states: ‘The sudden withdrawal of charges against Scorpions Gauteng head Gerrie Nel raises a number of questions. The manner in which this case has been handled suggests that South Africa has a long way to go to achieve equality before the law. It strengthens suspicions that those who occupied positions in agencies of the former apartheid government can act with impunity while the offensive against cadres of the democratic movement is intensified. This brings into sharp relief the transformation of state agencies.’ Equality before the law! This verbiage avoids any comment about the NWC fraudster, Yengeni, or the NWC recipient of foreign arms deal largesse, General Nyanda, both present at the meeting which issued these disgraceful, pro-corruption threats. No comment either about the National Police Commissioner and (resigned) president of Interpol, ANC comrade Jackie Selebi, submerged up to the crown of his head in charges of corruption. No mention either of the foul secret at the centre of this ship of fools: the corrupt funding of the ANC itself. With leaders like these, South Africa is heading for the abyss
The ANC as prime suspect in arms deal corruption
It is clear that South Africa has now fallen into a constitutional crisis of first magnitude, the most dangerous since the re-constitution of the state in 1994. The new National Working Committee of the African National Congress, which was appointed last week by the National Executive Committee elected at Polokwane in December, last week also appointed a committee of its own members to investigate arms deal corruption. This will not wash. From information that has come to light so far, the prime suspect in arms deal corruption is the ANC itself. It seems most likely that the ANC itself, as the party of government under President Nelson Mandela in the late 1990s – but effectively under the control of then Deputy President Thabo Mbeki – arranged the arms deal as the means of funding its campaign in the general election of June 1999. The ANC won that election with an increased majority, Mbeki replacing Mandela as State President. The means by which it won that election appears to have been a criminal fraud on the nation.
Party benefit at the expense of the nation
The ANC as government bought goods from foreign suppliers that the armed forces did not want and now cannot afford to use properly. The means by which it did so was at taxpayers’ expense and to the loss of other funding priorities, for years past and for years to come. As charged in hearings of the parliamentary Select Committee on Public Accounts on 11 October 2000 by Laloo Chiba MP, a member of the High Command of the ANC military wing during the trial of Mandela and Mbeki’s father and others in 1963-64, and then their fellow-prisoner on Robben Island for 18 years: ‘The South African nation is being defrauded!’ [See "‘South Africa is being defrauded!' – ANC MP" (3 January 2008)] and ‘Things fall apart’ (10 January)]. Debts were incurred to the account of the South African people as a whole, with a rake-off going to the ANC as a party: that appears to be the bottom line. Huge corruption costs to the benefit of the ANC as a party and to individual politicians and state officials were structured into the inflated cost of these weapons purchases, while the arms suppliers were paid through massive loans to the South African state from foreign banks, to be repaid (principal and interest) over years to come.
The nation’s future mortgaged for a party election
The future of South Africa was mortgaged for an election funding scam. Foreign weapons firms, banks and governments were the beneficiaries. South Africa ’s people – above all, the poor, who have lost the services they might have had – were the losers. This was not a ‘victimless’ crime. At the same time, the whole political process was corrupted. Words and deeds became separated from each other, much more than tends normally to happen in politics. Boorish, thuggish, autocratic behaviour increasingly replaced ordinary parliamentary norms. Tony Yengeni, the ANC politician and parliamentary official who brazenly broke up the Scopa investigation was sent to prison six years later because of arms deal corruption, having earlier been the chairman of the parliamentary Joint Standing Committee for Defence that had helped fix the deal in the first place. Yengeni was then elected to the NEC in December and appointed to the NWC in January, along with another recipient of arms deal bribes who has been appointed to the party committee which is supposed to investigate the whole scam! This scandal degenerates to farce. [See ‘Yengeni, Schreiner and the ethics of the ANC’ (14 January 2008 )]. The farce corrupts the democratic process. All that the ANC claims to stand for as it approaches the centenary of its founding is rendered risible, worthy only of a sneer. It is very dangerous.
The ANC is not above the Constitution
The new ANC president Jacob Zuma has been charged in court with corruption, racketeering, money laundering and fraud in connection with the arms deal. Mbeki, the outgoing party president, and continuing President of the country, should be investigated as to his leadership of the ANC at the time of the arms deal and his chairing of the Cabinet committee which approved it. His grouping in the ANC was responsible for the increasingly boorish, thuggish and autocratic behaviour which led the great majority of ordinary ANC members throughout the country to throw them out of office from the party last month. The clean sweep of almost the entire Mbeki cabal at Polokwane was a necessary but very far from a sufficient step for disinfecting the corruption poison. Whatever might have been thought at Polokwane, the ANC cannot investigate itself on this matter. South Africa has a constitution, set in place in 1994, which the ANC helped to fashion. The ANC cannot now justify a claim to override the Constitution, in its own self-interest, as if the law of South Africa was of no account and did not apply to it.
Judicial process or an ANC putsch
There is now an important constituency in the ANC, the South African Communist Party and the Congress of South African Trade Unions that is arguing that they should override the Constitution. [See ‘J’Accuse! Cosatu considering a putsch?’ (3 January 2008)]. ANC policies which were decided by majority vote at Polokwane would require, if implemented, that South Africa’s judicial process be set aside, in the interest of negating Zuma’s prosecution. This is a recipe for mayhem, violence, potential civil war and the collapse of South Africa into yet another African basket case and failed state, the most terrible failure of all. That is clearly the warning by two of the country’s most eminent jurists who defended Nelson Mandela and his colleagues in the Rivonia Trial, retired Chief Justice Arthur Chaskalson and Advocate George Bizos. [See ‘Chaskalson and Bizos alarm at tone of Zuma debate’ (5 January 2008)].
Members of the NWC arms deal committee
The NWC and its arms deal committee now have central responsibility for preventing this outcome. With the exception of one of its eight members (retired General Siphiwe Nyanda, head of the South African National Defence Force at the time of the arms deal), none of the arms deal committee appears to have been contaminated by the deal. Kgalema Motlanthe, the new deputy president of the ANC, a former trade unionist and a Sotho-speaker, distanced himself from the actions of the Mbeki government on several occasions in the years before the conference at Polokwane. As ANC secretary general he was very civil and collegial when Chiba’s colleague in the Scopa hearings, Andrew Feinstein, resigned as an ANC MP in August 2001, following the bruising Feinstein had received from Mbeki’s then rottweiler (and now Zuma supporter and NWC member), the jailed fraudster, former ANC Chief Whip and previous chairman of the Defence Committee, Yengeni. Two other leading members of the arms deal committee, Cyril Ramaphosa and Mathews Phosa, were run out of politics in April 2001 by Mbeki’s Safety and Security Minister, the late Steve Tshwete, with trumped-up charges of ‘conspiracy’ and a police probe, in order to bolster Mbeki's grip on government . (The third accused ‘conspirator’, Tokyo Sexwale – Feinstein’s former boss and confidante when he was premier of Gauteng province – emerged as the principal kingmaker of the Zuma victory and is a member of the NWC, though not the arms deal committee). There are enough clear heads and clean hands on the arms deal committee for it to make vital decisions, which will have significant bearing on how the ANC carries itself into the country’s general elections in 2009, or sooner; and how well or ill it serves the country.
Legacy of Skweyiya and Motsuenyane Commissions
The arms deal committee must first become clear in what ways it does and does not have continuity with two previous commissions of inquiry appointed by the ANC to investigate its own past misdemeanours, the Skweyiya (1992) and Motsuenyane (1993) commissions. In the years immediately following the unbanning of the ANC and the return of the exiles, these two commissions took evidence from ANC members and former members about human rights abuses committed in exile, principally by the ANC Security Department, the secret police division of the ANC’s Department of Intelligence and Security. (Zuma was head of Military Intelligence, with a separate area of authority). Put together, the investigations of these two commissions were relatively thorough and complemented the findings of Amnesty International (‘South Africa: Torture, ill-treatment and executions in African National Congress camps’, London , December 1992. AI Index: AFR 53/27/92). Victims were able to give evidence and perpetrators were named. The ventilation of these abuses by the ANC itself went some way to meeting the demands of victims who had called for an international commission of inquiry, and provided one of the immediate preconditions for the convening of the Truth and Reconciliation Commission when the ANC became the government in 1994.
Rationale of the ANC commissions of inquiry
Several criticisms have been made before and after the work of the Skweyiya and Motsuenyane commissions, and of the TRC. A significant number of victims of human rights abuses by the ANC in exile refused to give evidence to all three commissions because they did not have confidence that they would receive justice and that their persecutors would be punished. It is true that no punishments were or could be inflicted by any of these commissions. In the case of the TRC, it had the statutory authority to issue amnesty from prosecution in court, if it concluded that a perpetrator had made full disclosure for a ‘politically motivated’ crime (an elastic concept). A very wide range of murderers and torturers from both the apartheid state and the ANC Security apparatus emerged unscathed from these commissions, to enjoy further careers of one kind or another, and/or pension entitlement. There is some bitterness and recrimination about this, partly justified but partly missing the point.
The necessity, limitations and value of the TRC
The main point is that the ANC did admit publicly through these commissions to its own previous guilt. This did not take place with Swapo of Namibia or Zanu-PF in Zimbabwe, a huge advantage for South Africa in terms of decency, openness and respect for the moral law. The TRC was a necessity because the alternative was mutual slaughter. The apartheid state was intact and undefeated at the time of the unbanning of the ANC in February 1990, while the ANC’s troops in Umkhonto weSizwe had been withdrawn from Angola to Zambia and Tanzania under the Crocker Accords of 1988 – far from any border with South Africa, and in a mood of great dissatisfaction in both countries. The fall of the Soviet Union and the end of the Cold War (including the Cold War in Africa) permitted a relatively peaceful resolution of the ending of apartheid in South Africa, in which a deal was struck between the two sides. The basis of the deal was that there would be no settling of accounts with the other side. The TRC gave expression to this basic deal between the ANC and the former ruling National Party. It permitted truth to come to light, victims to be heard, perpetrators to be named and shamed, but it excluded a punishing of the guilty (provided they conformed to the conditions for amnesty). No more than that could have been achieved, without precipitating future violence.
Electoral logic of ANC commissions of inquiry
The Skweyiya and the Motsuenyane Commissions, preceding the TRC, had a further logic. The bulk of the abuses they investigated had taken place in the ANC in exile, in Angola, Zambia, Tanzania and some other African countries. The ‘inziles’ – the internal leaders of the ANC, who had fought the battles of the United Democratic Front, the trade unions and the civic associations within South Africa, or had been in prison – knew nothing of the details of what their exile comrades had done in exile. Yet the security forces of the apartheid state, whether its security police or its Directorate of Military Intelligence, did have very extensive and detailed knowledge, since they had penetrated the ANC in exile right up to the top, the Security Department in particular. Once the ANC was legalised, the inziles demanded the setting up of the Skweyiya and Motsuenyane Commissions by the ANC itself, as a means of finding out for themselves what had really happened in exile. They argued in the NEC that without this knowledge the ANC could not realistically confront the NP, as the former party of government in the apartheid era, in a general election. ANC candidates guilty of human rights abuses in exile would be liable to exposure, compromising the party. There was a crucial difference between both these commissions and the NWC arms deal committee, however: though appointed by the ANC, no ANC politician sat on either of the former, an essential condition of their integrity.
Roles of Mandela and Mbeki contrasted
In each debate on this issue, Mandela sided with the inziles, who carried the day. Characteristically, Anthony Sampson gave no attention to this subject in his hagiographic Mandela: The Authorised Biography (HarperCollins, London, 1999), even though Mandela's role was hugely to his credit. In October 1998, when Mbeki and his exile comrades tried to get the final report of the TRC suppressed, since they regarded it as too critical, Mandela once again sided with the revelation of abuses. The report appeared. (On this conflict of approaches between Mandela and Mbeki, see Mark Gevisser, Thabo Mbeki: The Dream Deferred, Jonathan Ball, Johannesburg, 2007. p.710-712. For a step-by-step account, see also Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission, OUP, 2000).
Alternatives facing the arms deal committee
These are the precedents immediately available to the arms deal committee. It can with courage proceed without fear or favour to disclosure of the ANC’s own corruption abuses, as a prelude to the entire affair being placed before the courts. Or it can wreck South Africa ’s Constitution, the judicial system, civil peace, the economy and trust between the races by placing the interests of party above the state, and the interests of a small number of guilty men and women above the interests of the whole. The committee must choose. It can follow Mandela’s precedent, or Mbeki’s. Ramaphosa, one of the leading ‘inziles’, who is on the arms deal committee, played a major role within the NEC alongside Mandela in support for the Skweyiya and Motsuenyane commissions, and for the TRC (including publication of its report). So did one of the leading exiles, Pallo Jordan, a member of the NWC though not a member of the arms deal committee. Jordan lacked any power base in exile, but felt on his own flesh the sharp claws of the ANC Security Department (Imbokodo, the boulder that crushes) when he was held its prisoner for six weeks in Lusaka in 1982, for arbitrary ideological reasons.
Pallo Jordan’s ironic comparison
Judge Albie Sachs of the Constitutional Court, an ANC activist of many decades, has vividly described the ‘seminal’ meeting of the NEC in August 1993 – a ‘passionate meeting, sharp, uncomfortable’ – which accepted the proposal to set up the TRC. At this critical moment for South Africa and the ANC, there were forceful arguments against the proposal. Jordan’s words at that meeting had tremendous moral importance for the future of the country. He should use them again in the NWC over the coming weeks, substituting only the words ‘corruption’ and ‘arms deal’ in place of the issue facing the NEC at that time, ‘torture’. As Jordan sharply and ironically reminded his colleagues at that NEC meeting in 1993: ‘Comrades, I’ve learnt something very interesting today. There is such a thing as regime torture [read: corruption], and there is ANC torture [read: corruption], and regime torture is bad and ANC torture is good; thank you for enlightening me!’ (Sachs’s account is cited in Boraine, A Country Unmasked, pp.258-259).
Schizophrenic stance on criminal justice system
Today the omens are not good. The NWC made a major attack on the judiciary in a statement issued today, following its first meeting yesterday at Luthuli House, the ANC headquarters, in Johannesburg. Its stance is schizophrenic. On the one hand, the NWC stated that that it had ‘discussed transformation and the need to restore the integrity of law enforcement units and the entire criminal justice system’. Contrary to affirming and strengthening the criminal justice system, as Chaskalson and Bizos have urged, it expressed itself ‘shocked’ that Deputy Chief Justice Dikgang Moseneke on the occasion of his 60th birthday had shown ‘disdain’ for the delegates to the conference at Polokwane, a matter that the NEC said ‘highlights the difficulty that many within the judiciary appear to have in shedding their historical leanings and political orientation.’ This is the language of the goons of the ANC Security Department in Lusaka, when they imprisoned Pallo Jordan on the grounds that ‘Leli intellectual lase Merika liijwayela kabi’ - ‘This American intellectual is not showing respect’. (See ‘Jacob Zuma, the ANC and the administration of justice', 30 December 2007). It is the wide open highway to dictatorship and chaos.
Heading for the abyss
Even worse is the subsequent paragraph, in which the NWC states: ‘The sudden withdrawal of charges against Scorpions Gauteng head Gerrie Nel raises a number of questions. The manner in which this case has been handled suggests that South Africa has a long way to go to achieve equality before the law. It strengthens suspicions that those who occupied positions in agencies of the former apartheid government can act with impunity while the offensive against cadres of the democratic movement is intensified. This brings into sharp relief the transformation of state agencies.’ Equality before the law! This verbiage avoids any comment about the NWC fraudster, Yengeni, or the NWC recipient of foreign arms deal largesse, General Nyanda, both present at the meeting which issued these disgraceful, pro-corruption threats. No comment either about the National Police Commissioner and (resigned) president of Interpol, ANC comrade Jackie Selebi, submerged up to the crown of his head in charges of corruption. No mention either of the foul secret at the centre of this ship of fools: the corrupt funding of the ANC itself. With leaders like these, South Africa is heading for the abyss
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