nationalFraud Office are, with one exception,all still alive and are resident in SouthAfrica for most or at least part of the year.Moreover, investigations in the UnitedStates and Sweden against BAe were stillcontinuing. Indeed, in February 2010 USauthorities fined BAe US$400 millionfor laundering bribes; in May 2011, anadditional fine of US$79 million wasimposed for 2 591 violations of Americanarms export regulations.Consequently, in early October2010, given the mass of evidence againstBAe, I filed an application with theConstitutional Court. I requested theCourt to overrule President Jacob Zuma’scontinuing refusal to appoint a judicialcommission of inquiry into the arms deal.I argued it was irrational – and t<strong>here</strong>foreunconstitutional – for the President tocontinue to block demands for a judicialinquiry that were first made as long ago asAugust 1999, by Archbishop NjongonkuluNdungane.The case was heard in May2011. Having failed to persuade theCourt’s 11 judges that t<strong>here</strong> was nopresidential obligation to appointa judicial commission of inquiry, apostponement was granted until 20September 2011. I was instructed tosupplement my papers by 15 June, withthe President having to respond by1 August. We used that opportunityto file an additional 1 500 pages ofevidence into the Court record.Meanwhile, a Swedish TVprogramme aired a 40-minutedocumentary, in late May 2011,detailing how bribes were paid to FanaHlongwane, by Saab, the Swedisharms company jointly involved withBAe in supplying South Africa with jetfighters. Hlongwane was an advisorto the former defence minister, thelate Joe Modise. Saab’s chief executiveofficer, Håkan Bushke, alleged threeweeks later that BAe had fraudulentlymisused Saab’s accounts to pay bribesof R24 million to Hlongwane.Affidavits also reveal how Britishlawyers close to former British primeminister Margaret Thatcher had usedBAe’s offset obligations under the armsdeal to hide bribery payments.Allegations of BAe’s use of Swedishinstitutions to launder bribes to ANCpoliticians are not new. In late 1998,whispers that Tony Yengeni was arecipient of a £1 million ‘first success fee’for his assistance in awarding the armsdeal warplane contracts to BAe sweptthrough the corridors of Parliament.In June 1998, I sat directly across thetable from Yengeni when he hosted aparliamentary breakfast for the visitingSwedish defence minister, Björn vonSydow. In response to Von Sydow’sspeech, Yengeni declared that the decisionon what equipment South Africa wouldbuy would ‘depend upon the generosityof the offsets’. To me, his body languagescreamed: ‘How big are the bribes?’[Unless otherwise indicated, all quotes arefrom my own notes made at the time.]Von Sydow replied that he had ‘got themessage’, but the decision was not his tomake. He then repeated: ‘I have got themessage, and will take that message backwith me to Sweden.’In December 1998, NUMSA shopstewards informed me that a further R30million in BAe bribes for ANC politiciansahead of the June 1999 elections wasbeing transferred via SANCO, the ANCalignedcivic organisation. The bribeswere allegedly being routed throughtwo Swedish trade unions, and would bedescribed as funding for an industrialtraining school.Swedish journalists confirmed thepayments. Through Campaign AgainstArms Trade (CAAT) in London, I askedthe British government to investigate.Terry Crawford Browne, the spokesperson for EconomistsAllied for Arms Reduction (ECAAR), has taken PresidentZuma to the Constitutional Court.Scotland Yard was appointed to the task.I learnt eventually that it was then notillegal in English law to bribe foreigners,and t<strong>here</strong>fore t<strong>here</strong> was no crime toinvestigate. (It became illegal in 2002, butthe British government remains extremelylax in prosecuting bribor companies,especially BAe).In November 1999, Swedish primeminister Göran Persson brought a700-person trade delegation to SouthAfrica. His prime objective was to lobbyfor the BAe/Saab Gripen fighter aircraftcontracts. Persson’s ‘international advisor’,Roger Hallhag, was grilled at a civilsociety seminar at the Centre for the Bookin Cape Town, w<strong>here</strong> he admitted thatoffsets are internationally notorious forcorruption. He compounded his blunderby pleading that ‘lower standards apply inthe third world’.After initial denials, in June 2003Britain’s secretary for trade and industry,Patricia Hewitt, finally admitted in theBritish parliament that BAe had paid‘commissions’ (a euphemism for bribes)to secure its contracts with South Africabut, she pleaded, ‘they were withinreasonable limits’.In 2006, Prime Minister TonyBlair quashed British Serious Fraudinvestigations into allegations ofmassive bribery payments by BAe toSaudi Arabian princes. He claimed theinvestigations violated British nationalsecurity.CAAT took the British governmentto court in London, and won its case. Onappeal to the House of Lords – BusinessReport’s highest court of appeal – the ‘lawlords’ overruled the court; they decidedthat the government held the prerogativewhen determining the meaning of‘national security’.The recent announcement that theHawks have reopened their investigationsinto the arms deal because of the evidencefrom the Swedish TV programme isfarcical. T<strong>here</strong> is no shortage of evidencealready in their possession, includingthe affidavits which detail why and howBAe paid bribes of £115 million (R1.5billion), to whom and into which bankaccounts. What is necessary is not furtherinvestigation, but prosecution.In terms of the ‘remedies in case ofbribes’ clauses in the supply contracts, theSouth African government has the rightsummarily to cancel the contracts and toclaim compensation. Cancelling the BAeand BAe/Saab contracts could recover R35billion for South African taxpayers, plussave future expenditures on aircraft forwhich the country has neither the pilotsnor the mechanics to maintain them.Most importantly, and unlikeEngland, post-apartheid South Africa is aconstitutional democracy. Section 2 of theConstitution stipulates: ‘This Constitutionis the supreme law of the Republic; lawor conduct inconsistent with it is invalid,and the obligations imposed by it mustbe fulfilled.’In short, even the President is notabove the law. Back in 2001, the Institutefor Democracy in Africa (Idasa) describedthe arms deal scandal as the ‘litmus test ofSouth Africa’s commitment to democracyand good governance’.This is the heart of my case before theConstitutional Court on 20 September2011. Will our much-lauded Constitutionbecome yet another casualty of the armsdeal debacle?Terry Crawford-Browne represented theAnglican Church during the 1996–1998Parliamentary Defence Review, and in the publicinterest is the applicant in case 103/10 nowbefore the Constitutional Court.22 <strong>Amandla</strong>! Issue No.21 | OCTOBER 2011
nationalProtest organised in Grahamstown by the Unemployed People’s Movement (UPM) and Women’s Social Forum (WSF).Credit: Timothy GappA living solidarity:students and workersBy Benjamin FogelGrahamstown, small anddusty and nestled in the centreof the Eastern Cape, is amicrocosm of contemporarySouth Africa and its social problems.Hovering at around 70%, unemploymentis high, inequality vast and the cityracially structured along a highly visibleapartheid-like geography. A corrupt andinefficient local government presides.Only a few kilometres away from theGrahamstown of arts festivals, cathedralsand Rhodes University lies an altogetherdifferent world: the townships of Joza,Sun City, Phampamani and others, w<strong>here</strong>the majority of the town’s inhabitants live.Seventeen years into ANC rule, most ofthese townships still do not have access towater and electricity, the waiting list forhousing sits at more than 20 000 and thebucket system is still prevalent.The interaction of students with theother side of Grahamstown is generallyconfined to either budding journalistscommanded to ‘go find stories in thetownship’, or post-graduates conductingresearch for their theses. Students exploitthe impoverished conditions of the pooras exciting opportunities for news articlesbut are seldom seen after the storiesare published.As life for Rhodes students carrieson in much the same way, the poormajority of Grahamstown have begunto reject the false allegiances of localgovernment to support the struggle asa distraction for their inefficiency andcorruption. According to Grocott’s Mail,R53.7 million of Makana Municipality’sR69.6 million budget went unspent in thelast year [1]. Officials rather patheticallyblamed ‘red tape’ for their inability toperform basic functions of government.Yet somehow they managed to spendR250 000 to award President Zuma thekey to the city.[2]Over the last few years we haveseen the refusal of thousands across thecountry to sit back and wait passivelyfor ‘service delivery’; citizens from CapeTown to Durban have taken to the streetsto demand dignity and their constitutionalrights. This rebellion of the poor hascome to Grahamstown in the form of theUnemployed People’s Movement (UPM).In response to the increasingly visiblestruggle in Grahamstown, a new studentorganisation, the Students for SocialJustice (SSJ), has begun to take up the taskof bridging the gulf between town andgown. This has taken the form of an activesolidarity and partnership with the UPM.A march in February this year, whichfollowed the rape and murder of recentlymatriculated student Zingiswa Centwa,who was attacked as she walked to oneof the few toilets in her community, wasa catalyst for heightened resistance bythe poor. Zingiswa’s was one of manyrapes in which women walking to thetoilet at night (t<strong>here</strong> are no streetlightsin most of the townships) are attacked.The UPM and the Women’s Social Forum(WSF) organised this march to protestagainst the rapes and the municipality’s<strong>Amandla</strong>! Issue No.21 | OCTOBER 2011 23
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