Terry Crawford Browne has waged a long campaign against the government’s 1999 decision to spend billions of rand on military equipment –  even more so because of the government’s inability to identify actual or even likely enemies to justify the huge expenditure. Money was available for war rather than for meeting the desperately urgent basic needs of most of the people. Corruption was suspected from the very beginning. The South African Directorate for Priority Crime Investigation (the Hawks) established evidence against the Swedish arms manufacturing concern Saab and the British defence company British Aerospace (BAe). Twelve years later, the only still unanswered questions are the full extent of the corruption and the corrective measures to be taken against the corporations that did the bribery. 
Terry, the spokesperson for Economists Allied for Arms Reduction (ECAAR), has taken President Zuma to the Constitutional Court in his bid to get Zuma to hold a Commission of Enquiry into the R70 billion arms deal.  On 16 September 2011, Zuma surprised everyone by agreeing to have such a Commission.

In this article, written in late August, Terry gives the facts that forced a most reluctant Zuma to concede defeat. Whether Zuma’s dramatic about-turn is genuine or a trick remains to be seen. Terry and Amandla! will keep you informed.

Lieutenant General Anwar Dramat, head of the Directorate for Priority Crime Investigation – otherwise known as the Hawks – told the parliamentary Standing Committee on Public Accounts (SCOPA), in September 2010, that the Hawks had inherited from their predecessors, the Scorpions, 460 boxes and 4.7 million computer pages of evidence against BAe Systems (the 2nd largest global defence company, according to its website).

Astonishingly, Dramat declared it would take years to analyse so much evidence, for only one officer was assigned to the case.

Dramat’s office announced two weeks later that the Hawks had abandoned the arms deal investigations. The Hawks argued that, since the arms deal took place in the 1990s, companies, witnesses and evidence were no longer available. It additionally declared that a proper investigation would be resource-intensive, that some suspects had died and that parallel foreign investigations had been closed. These arguments were patently false.

The beneficiaries of the BAe bribes detailed in 160 pages of affidavits from the Scorpions and the British Serious Fraud Office are, with one exception, all still alive and are resident in South Africa for most or at least part of the year. Moreover, investigations in the United States and Sweden against BAe were still continuing. Indeed, in February 2010 US authorities fined BAe US$400 million for laundering bribes; in May 2011, an additional fine of US$79 million was imposed for 2 591 violations of American arms export regulations.

Consequently, in early October 2010, given the mass of evidence against BAe, I filed an application with the Constitutional Court. I requested the Court to overrule President Jacob Zuma’s continuing refusal to appoint a judicial commission of inquiry into the arms deal. I argued it was irrational – and therefore unconstitutional – for the President to continue to block demands for a judicial inquiry that were first made as long ago as August 1999, by Archbishop Njongonkulu Ndungane.

The case was heard in May 2011. Having failed to persuade the Court’s 11 judges that there was no presidential obligation to appoint a judicial commission of inquiry, a postponement was granted until 20 September 2011. I was instructed to supplement my papers by 15 June, with the President having to respond by 1 August. We used that opportunity to file an additional 1 500 pages of evidence into the Court record.

Meanwhile, a Swedish TV programme aired a 40-minute documentary, in late May 2011, detailing how bribes were paid to Fana Hlongwane, by Saab, the Swedish arms company jointly involved with BAe in supplying South Africa with jet fighters. Hlongwane was an advisor to the former defence minister, the late Joe Modise. Saab’s chief executive officer, Häkan Bushke, alleged three weeks later that BAe had fraudulently misused Saab’s accounts to pay bribes of R24 million to Hlongwane.

Affidavits also reveal how British lawyers close to former British prime minister Margaret Thatcher had used BAe’s offset obligations under the arms deal to hide  bribery payments. 
Allegations of BAe’s use of Swedish institutions to launder bribes to ANC politicians are not new. In late 1998, whispers that Tony Yengeni was a recipient of a £1 million ‘first success fee’ for his assistance in awarding the arms deal warplane contracts to BAe swept through the corridors of Parliament.

In June 1998, I sat directly across the table from Yengeni when he hosted a parliamentary breakfast for the visiting Swedish defence minister, Bjorn von Sydow. In response to Von Sydow’s speech, Yengeni declared that the decision on what equipment South Africa would buy would ‘depend upon the generosity of the offsets’. To me, his body language screamed: ‘How big are the bribes?’ [Unless otherwise indicated, all quotes are from my own notes made at the time.]

Von Sydow replied that he had ‘got the message’, but the decision was not his to make. He then repeated: ‘I have got the message, and will take that message back with me to Sweden.’
In December 1998, NUMSA shop stewards informed me that a further R30 million in BAe bribes for ANC politicians ahead of the June 1999 elections was being transferred via SANCO, the ANC-aligned civic organisation. The bribes were allegedly being routed through two Swedish trade unions, and would be described as funding for an industrial training school.

Swedish journalists confirmed the payments. Through Campaign Against Arms Trade (CAAT) in London, I asked the British government to investigate. Scotland Yard was appointed to the task. I learnt eventually that it was then not illegal in English law to bribe foreigners, and therefore there was no crime to investigate. (It became illegal in 2002, but the British government remains extremely lax in prosecuting bribor companies, especially BAe).

In November 1999, Swedish prime minister Goran Persson brought a 700-person trade delegation to South Africa. His prime objective was to lobby for the BAe/Saab Gripen fighter aircraft contracts. Persson’s ‘international advisor’, Roger Hallhag, was grilled at a civil society seminar at the Centre for the Book in Cape Town, where he admitted that offsets are internationally notorious for corruption. He compounded his blunder by pleading that ‘lower standards apply in the third world’.

After initial denials, in June 2003 Britain’s secretary for trade and industry, Patricia Hewitt, finally admitted in the British parliament that BAe had paid ‘commissions’ (a euphemism for bribes) to secure its contracts with South Africa but, she pleaded, ‘they were within reasonable limits’.

In 2006, Prime Minister Tony Blair quashed British Serious Fraud investigations into allegations of massive bribery payments by BAe to Saudi Arabian princes. He claimed the investigations violated British national security.

CAAT took the British government to court in London, and won its case. On appeal to the House of Lords – Business Report ’s highest court of appeal – the ‘law lords’ overruled the court; they decided that the government held the prerogative when determining the meaning of ‘national security’. 

The recent announcement that the Hawks have reopened their investigations into the arms deal because of the evidence from the Swedish TV programme is farcical. There is no shortage of evidence already in their possession, including the affidavits which detail why and how BAe paid bribes of £115 million (R1.5 billion), to whom and into which bank accounts. What is necessary is not further investigation, but prosecution.

In terms of the ‘remedies in case of bribes’ clauses in the supply contracts, the South African government has the right summarily to cancel the contracts and to claim compensation. Cancelling the BAe and BAe/Saab contracts could recover R35 billion for South African taxpayers, plus save future expenditures on aircraft for which the country has neither the pilots nor the mechanics to maintain them.

Most importantly, and unlike England, post-apartheid South Africa is a constitutional democracy. Section 2 of the Constitution stipulates: ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’

In short, even the President is not above the law. Back in 2001, the Institute for Democracy in Africa (Idasa) described the arms deal scandal as the ‘litmus test of South Africa’s commitment to democracy and good governance’.

This is the heart of my case before the Constitutional Court on 20 September 2011. Will our much-lauded Constitution become yet another casualty of the arms deal debacle?
Terry Crawford-Browne represented the Anglican Church during the 1996–1998 Parliamentary Defence Review, and in the public interest is the applicant in case 103/10 now before the Constitutional Court.