THE latest resurgence of the arms deal scandal could be the most damaging of all. A senior investigator in the judicial commission of inquiry President Jacob Zuma set up 15 months ago to probe the scandal has resigned, claiming the commission is being manipulated in the direction of a "second agenda", which is not aimed at getting to the bottom of the scandal.
"I joined the commission to serve with integrity, dignity and dedication to truth," lawyer and former acting judge Norman Moabi wrote in his hand-delivered resignation letter. "I cannot, with a clear conscience, pretend to be blind to what is going on…. I am unable to be part of this commission, since I have satisfied myself that the chairperson (Judge Willie Seriti of the Supreme Court of Appeal) seems to have other ideas and modus operandi to achieve with the commission that is not the clear mandate of the enabling Government Gazette."
That in itself is enough to cause ordinary citizens to conclude that Moabi believes Seriti is turning the inquiry into a whitewash and that he doesn’t want to be part of it.
But the real devil, as always, is in the details of that letter.
Some of Moabi’s allegations are precise and specific. He claims the proceedings are characterised by "a total obsession with the control of the flow of information to and from the commission"; that briefs and documents are prepared clandestinely; and that "unknown persons" dictate what information goes into the briefs and which evidence leaders should deal with which witnesses.
He paints a picture of a secretive process in which aspects of the inquiry are compartmentalised and there is no attempt at collective input or analysis of the evidence from all members of the commission.
If true, these allegations are fatal to the credibility of the commission, making it essential for Seriti to refute each and every one precisely and convincingly.
Seriti did issue a statement last Thursday denying the allegations, but in broad terms, saying no member of the commission had received instructions or was cajoled into producing a particular outcome. His statement was supported by a memorandum signed by the commission’s 10 evidence leaders, who expressed full confidence in their chairman — but it was not signed by the two other commissioners sitting with Seriti, judges Hendrick Musi and Francis Legodi.
Seriti insisted the commission’s work was being conducted openly and that there had been sessions for collective discussion, but he did not specify when or where these took place — an omission that drew a demand from Moabi to provide those details, and a challenge that they both take lie-detector tests.
One can dismiss the lie-detector challenge as theatre on Moabi’s part, but there can be no doubt that Seriti’s response has been inadequate to dispel all doubts in the public mind about the integrity of his commission.
Part of the problem is that this commission began life under a cloud of suspicion. It came into existence as a last-minute move to pre-empt an application to the Constitutional Court by that indefatigable arms deal investigator, Terry Crawford-Browne, to order the establishment of a commission of inquiry into the scandal in light of Zuma’s failure to do so. Realising that if Crawford-Browne won his case, the Constitutional Court would set up the commission and draft its terms of reference, Zuma just managed to beat the deadline for responding to Crawford-Browne’s application so that he could control the vital features of the commission’s structure and modus operandi.
His administration, through the Department of Justice, chose Seriti as chairman. Given Zuma’s record of waging a Stalingrad-style rearguard action to ward off "his day in court", the whole process was inevitably subjected to close public scrutiny. The cloud of suspicion darkened right away, when it was reported that Seriti was the judge who had granted the National Prosecuting Authority permission to tape conversations between its own head, Bulelani Ngcuka, and the Scorpions chief, Leonard McCarthy — controversial tapes, which led eventually to the dropping of the corruption charges against Zuma.
This raised the question of whether there was a conflict of interest between Seriti’s involvement in an aspect of the arms deal and his role as leader of the commission to investigate it.
Seriti’s response was that he couldn’t remember having signed the authorising documents — an astonishing lapse of memory in a matter of such monumental importance.
Seriti’s role also raises the question of whether the Department of Justice officials knew before approaching him to authorise the taping which judge was likely to be the most sympathetic to their request.
Then two lead advocates, Vas Soni and Sthembiso Mdladla, were removed from the commission without adequate explanation. This was followed by the appointment of advocate Fanyana Moses Mdume, of the Department of Justice and thus a public servant in the Zuma administration, as head of legal research in the commission — a pivotal position in charge of the flow of information that Moabi claims is being "obsessively controlled."
Now we have Moabe’s resignation letter, and again Seriti’s plea that "I can’t recall making such utterances" in response to statements Moabi claims he made and which he says point to the existence of that "second agenda" in the inquiry.
One is a statement that "once we have dealt with the first witnesses, they will not again make noises in the public media". This is presumably based on a commission regulation stating that no person shall disseminate any document, or its contents, submitted to the chairman without the chairman’s written permission.
Such a gag would in fact be illegal, both in terms of the constitution and of a judgment in which I was involved as editor of the Rand Daily Mail during the Infogate scandal back in 1980, when the Erasmus Commission tried to stop the paper publishing further details of the scandal.
A full bench of the Transvaal Supreme Court ruled that "contempt proceedings cannot prevent a person from continuing to discuss publicly a matter which may fairly be regarded as one of public interest".
A second statement had Seriti allegedly saying: "When you look at the submissions made by the Terry Crawford-Brownes of this world, you realise that they are not factual but are based on hearsay. There is no substance in what they have said in the public media up to now."
Again that reveals a misunderstanding of the law.
Again, that judgment I was involved in states specifically: "A court of law is bound by rules of evidence but a commission is not. It may inform itself of facts in any way it pleases — by hearsay evidence and from newspaper reports or even through submissions or representations or representations on submissions without sworn evidence."
But, for me, it’s that phrase "the Crawford-Brownes of this world" that is the killer. That all-too-familiar phraseology betrays ideological and political bias, a collective categorising of "the other", more vividly than anything else in this matter.
And Seriti doesn’t even deny using it. All he relies on is his fatally defective memory.
And that, I’m afraid, renders his commission fatally flawed.
• Sparks is a veteran journalist and political analyst.