With the announcement of a judicial commission of inquiry under Judge Sandile Ngcobo into the vexed Arms Deal scandal, there are valuable lessons to be learnt from similar exercises – called investigations by special prosecutors – in the US. J BROOKS SPECTOR analyses the case of the Clintons.
While we don’t really know what the commission of inquiry into the arms deal, under Judge Sandile Ngcobo, will be allowed to examine, its terms of reference and mandate give it serious gravitas.
Presumably it will examine the initial call to supply South Africa with new weapons systems, the way those tenders were evaluated and who actually had the final decision-making, the terms of the orders, payments and how those elusive local offsets were determined. If it’s real credibility, it will have to follow the apocryphal advice of Watergate’s famous “Deep Throat” to “follow the money” - identifying all the intermediaries, payments and agreements.
And almost inevitably, that’s where the real troubles will begin.
What’s the point of a special commission, anyway? These special commissions are what governments usually arrange when they don’t know what else to do. Sometimes they’re appointed to investigate a difficult issue where all the choices are unpalatable. Sometimes they address a daunting policy challenge. Sometimes, too, they must assess blame or exonerate the politically well-connected.
In a democracy with traditions of strong opposition politics, special commissions come into being – usually after lots of foot-dragging – as a concession to the opposition. And sometimes these mechanisms help those in power shift responsibility for a mess to their political foes.
As South Africa girds itself for the whole tawdry public washing of the dirty linen, it may be helpful to look back at Kenneth Starr’s performance as the special prosecutor who sifted through the life of then-president Bill Clinton.
When he was first appointed to investigate the suicide of White House senior staffer Vince Foster and the ambiguous real estate investments of the Clintons, Republican Kenneth Starr was seen as a star – a conservative one - but a true high flier. He had already served as a federal judge and he had been solicitor general of the justice department in George Bush’s administration. Authorised under a three-judge panel appointed by Clinton’s own attorney general, Starr’s investigation eventually took on the prosecutorial equivalent of metastasising mission creep.
Over time, Starr sought authority to carry out a raft of additional investigations, each one theoretically linked to the one before it, but eventually including the firing of some White House travel office personnel, potential political abuse in the handling of confidential FBI files, the finances of an investment bank, the operations of the Rose Law Firm, Paula Jones’ law suit against Bill Clinton and, then, most notoriously, charges of perjury and obstruction of justice to cover up Clinton's sexual relationship with Monica Lewinsky. The Lewinsky investigation eventually ended up with the secret taping of conversations between Lewinsky and a co-worker, requests by Starr to tape Lewinsky's conversations with Clinton, and finally, requests by Starr to compel Secret Service agents to testify about what they might have seen while guarding Clinton.
By the time Starr was investigating Clinton's possible adulterous behaviour and Clinton’s infamous “whatever ‘is’ is” comment, Starr’s growing list of critics were charging he had crossed the line – a big one. The charge was that he was acting more like a political hitman, acting on his own sense of appropriate sexual behaviour, rather than his ostensible task as a special prosecutor – investigating issues only remotely connected to his original mandate. By the time it was all over, the evening TV news had become the kind of programme parents felt they had to monitor carefully for age-appropriate content and language.
After years of investigation and millions of dollars, Starr and his staff generated a report that Clinton had lied about his affair with a White House intern, rather than somehow engineering the death of Vince Foster or subverting the country’s real estate investment universe.
CNN said, “The [Starr] report refutes claims by conservative political organizations that Foster was the victim of a murder plot and cover-up…[but] despite those findings, right-wing political groups continue to allege darkly that – somehow, some way - there was more to his death” and that the president and first lady had tried to cover it all up, rather than simply acknowledging Vince Foster’s undiagnosed depression as the real root cause of his death. Moreover, by the time Starr’s investigations had been wrapped up, he now stood accused of his own collection of some significant violations of conflict of interest rules.
Nonetheless, the Lewinsky charge was the trigger for Clinton’s impeachment by a Republican-led House of Representatives – although not a conviction in the Senate. But it also led to the restoration of the Democrats’ control of the House, Kenneth Starr’s moving out of Washington to head, first the socially conservative Pepperdine University Law School in California and then, more recently, the equally conservative Baylor University in Waco, Texas. Bill Clinton, meanwhile, finished his second term of office to almost global popularity and the start of a career as a philanthropist, sage-author, world-traveller and international motivational speaker.
And so, can we draw any lessons from this rather squalid episode in American politics that may help a putative Ngcobo Commission? Perhaps there are four big ones.
- First of all, a commission must keep its eye firmly on the key issue. If the task is to winkle out the money trail of an arms deal pointing to illegal transactions, they must resist the urge to dig into the fun bits like those lavish parties the companies bidding for contracts undoubtedly hosted.
- Secondly, they must resist the urge to dribble out the juicy bits to the media piecemeal – the resulting pre-publicity will only compound the difficulties of successful potential prosecutions down the line, once the whole investigation is wrapped up.
- Thirdly, the investigation must let the chips fall where they will and follow the leads where they lead. But this task will not be made easier by developing what lawyers call “a theory of the crime” that avoids uncomfortable facts, connections and the role of powerful individuals.
- Finally, keep the investigation out of the clutches of any one political party or faction. The investigation is on behalf of the public, not in partisan service.
American Supreme Court Justice Louis D Brandeis was almost certainly right when he said, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” DM
Photo: Ken Starrr, 1998. (Reuters)