The regulations governing the yet-to-start Commission of Inquiry into the R47 billion 1999 Strategic Defence Package may give President Jacob Zuma and inquiry chairman, Judge Willie Seriti, too much latitude.

In what may be hyperbole, The Star newspaper reports today Zuma could keep the arms deal inquiry’s final report secret and the inquiry chairman could restrict information access. The papr adds the inquiry regulations which Zuma signed into law this month does not close the inquiry to the public but “do make restrictions possible”.

The inquiry has not yet started, although the two-year clock started ticking when the terms of reference were gazetted in November, The Star adds.

President Jacob Zuma announced the probe into the multibillion-rand strategic defence procurement package, or “arms deal”, last September to ward off a Constitutional Court challenge by activist Terry Crawford-Browne to compel him to do so, Business Day adds.

The regulations are in terms of the Commissions Act of 1947, which orders that evidence be heard in public unless the chairman decides otherwise. According to the regulations:
* No copy of the report or interim report or part of these may be released without the president’s authorisation;
* Witnesses may not refuse to answer questions, but that evidence may not be used against them in criminal proceedings;
* Cross-examination of witnesses happens only if the chairman deems it necessary;
* Documents may be seized with a warrant, but only if this is based on information revealed under oath;
* Nobody may provide information or access to records of the inquiry “except insofar as it is necessary in the performance of his or her duties in connection with the functions of the commission or by order of a competent court”;
* No disseminating or publishing of documents submitted to the inquiry without the chairman’s written permission; and
* No shorthand notes or recordings transcribed without the chairman's permission.
The possible penalty is a fine up to R200 or imprisonment of up to six months.

Anti-arms deal activist Terry Crawford-Browne said the regulations appeared to disregard presidential expressions of commitment to deal with corruption. “The government and ANC [ruling African National Congress] obviously still think they can brush the arms deal scandal under the carpet and, if necessary, then pass the Protection of Corrupt Politicians Bill [sic, Protection f State Information Bill] to bury a political hot potato. Heavens, even the Americans cannot protect themselves these days from WikiLeaks – it’s time our guys woke up to the 21st century instead of trying to reinvent the apartheid-era sledgehammer,” said Crawford-Browne.

Commission chairman Judge Willie Seriti said that giving the president the authority to release the report was standard. “You don’t want him to see the findings of the commission in the newspaper without even seeing it.” Releasing the report would thus be solely his discretion, said Judge Seriti, who referred to precedents when courts ordered the president to release other inquiry reports.

“The president will refuse to put the final report and interim reports into the public domain at his peril,” said advocate Paul Hoffman SC, also referring to court orders to release other inquiry reports. Hoffman has also appeared in court on behalf of Crawford-Browne.

Media lawyer Dario Milo also referred to court action to release other reports. “A similar regulation to this was struck down by Judge Meyer Joffe in a 1995 case, where he held that the prohibition against publication without the president’s consent of the report in that case was ‘cast in such a manner that the report may never see the light of day. If the president does not release the publication… a matter of public interest could well be kept from the public forever’. The same could be said here,” said Milo.

“Some of the regulations are at odds with the principles of open justice and the right to freedom of expression,” added Milo, raising concern about the apparent prohibition on access to records “unless there is a court order determining otherwise” and on disseminating documents without the chairman’s permission.

Hoffman said the powers to limit publication of evidence or documents or closing of hearings “seems to be limited to circumstances in which the witness giving evidence of a whistle-blowing nature will want protection for fear of reprisal”.

Judge Seriti said the inquiry would be open to the public to a “great extent” unless there were reasons to close specific parts. The release of documents would depend on their contents, and the intention was to avoid people issuing press statements without the chairman knowing.

Seriti could not say whether the restrictions on transcribing notes would affect media reporting. Hoffman and Milo said the restriction on notes and recordings was probably aimed at the official transcript rather than journalists’ notes. “A refusal to allow press coverage will have to be reasonable and justifiable, and a ruling unwarrantedly prohibiting coverage could be challenged in court,” said Hoffman.

The commission, which will sit in Johannesburg at an estimated cost of R40 million, must determine the rationale for the strategic defence procurement packages; whether the acquired arms and equipment are being used; whether the anticipated job opportunities materialised; whether any person(s) within and outside the government improperly influenced the awarding or conclusion of any contracts; and whether there should be legal proceedings against such person(s), or any basis to pursue the recovery of losses to the state.