Big Mac bites off more than he can chew - or so it seems
- Sipho Hlongwane
- 21 Nov 2011 (South Africa)
Damn the Arms Deal. Is there any politician or civil servant it won’t eventually taint? City Press editor-in-chief Ferial Haffajee is right when she says that it singularly cost the ANC its morals. It is the one thing we can point to and say that brought down the ruling party.
I’ve had a lot of respect for Mac Maharaj. You should read Shades of Difference: Mac Maharaj and the struggle for South Africa by Padraig O’Malley to understand the depths Maharaj went to for the struggle against apartheid. It was a monumental personal sacrifice, and one can’t but deeply admire such a man.
That may change.
On Thursday, Mail & Guardian editor and other journalists working at the paper rushed on Twitter with some news: their cover story on Maharaj would be blacked out because of the threat of legal action against the paper and the two reporters who wrote the story.
What we were allowed to know was it related to the arms deal.
The Sunday Times went ahead and told us there was a paper trail linking Zuma’s spokesman with payments made by French weapons maker, Thales, a company which was awarded major tenders during the tenure of Nelson Mandela as the country’s president. At the time, Maharaj was minister of transport.
Maharaj responded to the M&G by going on the war path. On Sunday, he laid charges against the paper, and reporters Stefaans Brümmer and Sam Sole. It isn’t clear what exactly these journalists were allegedly guilty of doing – they didn’t publish the information after all, and mere possession of classified material will only become a criminal offence in a few days' time.
He also sort of denied the allegations. Sunday Times quoted him as saying: “The fact that the Scorpions did not bring any charges against either of us should make you alive to the fact that the reported insinuations and allegations of unlawful conduct by us implied in your questions may once again result in, and subject us to character assassination and trial by media consciously making use of selective information only.”
It was very interesting that Maharaj went after M&G when it is clear he knew the Sunday Times would be running a story as well. Is the interview with the Scorpions that damning? Or did he really lie to the Scorpions, as M&G indelicately accused him of doing.
He is fortunate that Section 41 of the National Prosecuting Authority Act gave him a way out, for now.
M&G explained it, “The story was published with large black print covering sections of the article that were deemed by Maharaj's attorneys as contravening the National Prosecuting Authority Act that makes it an offence to disclose evidence gathered in camera by a section 28 inquiry. Under section 28 of the Act, individuals can be subpoenaed to testify under oath.
“The section can also compel people to hand over relevant evidence. This was used to empower NPA and Scorpions investigations. Under section 41, sub-paragraph 6 of the Act, disclosure of any information gathered from a section 28 interview is a criminal offence,” M&G said.
The paper claimed the clause was unconstitutional. So why didn’t the paper just publish and let the chips fall where they may in court?
M&G editor Nic Dawes said to me, even though the feel that certain sections of the NPA Act were unconstitutional, they decided not to proceed with publishing.
“We’re not saying that S.28 is unconstitutional, we’re saying that 41.6b is definitely unconstitutional, and 6c is also unconstitutional, but are advised that the case in c is a little more complex,” Dawes said. “Either way it is a big decision to commit a criminal act, even if you feel the law you are breaking is problematic. We decided, on legal advice, to fight the bad law within a legal framework. You can debate whether we are at a stage in the media freedom debate to start defying the law or not. We had to make a very quick call, and based on pretty difficult weighing of the factors, decided to stay within the law. It was a hard decision.
“Also, I’d caution people against saying casually, ‘why didn’t you just go to court?’ Exposing your staff to criminal prosecution is a big deal. As you’ve seen, we are already accused of behaving as if we are above the law, when in fact we’ve done the opposite."
“Of course, we are now facing a completely spurious prosecution anyway. A prosecution designed to discover our sources and ascertain what we know. We will have to assess our strategy on an ongoing basis. You shouldn’t have to weigh whether a story so clearly in the public interest is worth 15 years in jail, or five years in court. It’s a textbook case of the chilling effect,” M&G’s editor said.
It was always going to be a difficult hole for Maharaj to get out of.
The worst possible thing he’s done is agree to an interview with Justice Malala on the “Justice Factor” on Sunday morning. It didn’t go well at all for Maharaj. He shifted the goalposts away from what he said to the Scorpions about his alleged involvement in arms deal corruption to the debate between press freedom versus the privacy of the individual. He also said he wouldn’t be subjected to trial by media (then why did he do the interview?) which was only interested in character assassinating him anyway.
Maharaj failed, however, to answer a simple question: did he lie to the Scorpions?
Before that interview, I personally thought M&G may have been a bit shrill in its reaction (even if the arrival of the lawyers’ letter must have completely messed up the print deadline) to the threat of criminal charges. Regardless of the constitutionality problem with the law, it did offer protection to Maharaj. And I don’t think innocent people will always invite public scrutiny.
After the “Justice Factor” interview, I think M&G was fully justified in blacking out large chunks of the story, and thereby harking back to the days of apartheid censorship. Maharaj’s possible involvement in the arms deal is of massive public interest and it is disturbing that he seems unable to answer the questions raised by the media without resorting to distraction tactics and legalese.
If the arms deal commission subpoenas the president’s spokesman, I don’t see that going well at all.
Noseweek added a very interesting angle to the unfolding saga. In an article published 10 years ago, it said Maharaj was the leader of Operation Vula, a group of operatives given the task in the late 1980s and early 1990s of preparing for violent revolution instead of a negotiated settlement. This operation was supposedly unknown to most ANC leaders. As ANC intelligence chief, Jacob Zuma would have known. Other Operation Vula operatives included Ronnie Kasrils (he once sued four newspapers for alleging that he was being investigated for possible involvement in arms deal corruption), the Schaik brothers and Siphiwe Nyanda.
This group was allegedly not only vying for power against the Thabo Mbeki camp, it was vying for a share of the arms deal spoils.
It seems anywhere you look, fingers are pointed at Maharaj, and not in a nice way.
And as I said, he didn’t help himself by accepting the invitation to defend himself on TV. He has planted much doubt in the minds of the public which may have felt he was being mistreated by the press. What he will say going forward is going to be rather interesting. Unlike Fikile Mbalula, he can’t exactly acknowledge guilt (if he is indeed guilty) and then let the harsh light of public scrutiny move on to something else. If Maharaj did lie to the Scorpions and was somehow involved in the arms deal corruption, he will be looking at sanctions of some sort.
These revelations explain once more why Jacob Zuma suddenly acquiesced to the idea of an arms deal commission, constituted on his terms and not the Constitutional Court’s. Once again someone who has a long history with Zuma has been accused of arms deal corruption. With his hand forced on the issue, he will definitely have wanted to constitute a commission of inquiry on his own terms.
Will we see everyone around Zuma fall and not the president himself?
More disturbingly, who else has answers to give for payments made by foreign weapons manufacturers? It feels like the circle of the untainted is growing smaller at an alarming rate. DM
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