Arms Deal: SCOPA Access to Confidential Strategic Defence Package Documents

Meeting report

Access to Confidential Strategic Defence Package Documents
The Chairperson formally notified Members that he had received a letter from the Secretary of the National Assembly, dated 21 August 2008, in which it was indicated that on 21 May 2008 Mr Trent had made application to the Secretary to view the documents that were in the custody of Parliament. The Secretary noted that these documents had been declared confidential in terms of National Assembly Rule 157 and could be accessed only by full Members of SCOPA, with the permission of the Chairperson.

The Chairperson said that when he was elected to his position, this state of affairs was not brought to his attention. In order to process the application, he had deemed it necessary to acquaint himself with those documents, so that he was fully apprised of the position before making a response. He then proceeded to the much-publicised reading of these documents. He had then realised, both for the sake of the current and future Members of this Committee, that there should be some guidelines for the Committee as to how it should interact with such documents, to avoid any arbitrary or subjective responses by any Chairperson. Those guidelines should ensure consistency, predictability and fairness in terms of how Members accessed those documents, since the Chairperson was given the discretion as to whether to grant or deny permission for any Member of SCOPA to see the documents. He had drafted some guidelines and read them out.

The guidelines referred to the confidential documents that SCOPA had, in its oversight role, received from the Department of Defence in the year 1999/2000. These documents were currently in the custody of the National Assembly, and had been declared confidential in terns of National Assembly Rule 157. This had implications for the handling of information, once accessed. The guidelines provided that the documents would be accessed only by full SCOPA Members, with the express consent of SCOPA in terms of Rule 157. All applications should be made to the Chairperson in writing, with an explanation of the basis of the application, and how this related to the work of SCOPA or the Committee programme. Applications should be made individually, with at least a week’s notice. The Chairperson should respond in writing, either giving permission or reasons for refusal.  No Member granted access might disclose information, except in a closed SCOPA Committee meeting or with the express permission of the Committee, the Speaker of the National Assembly, or by a resolution of the National Assembly.

On 16 October 2008 the Chairperson had responded to Mr Trent by asking him to make a new application informed by these guidelines.

The Chairperson explained this because the matter had been raised in the media and Members might have been alarmed by what was happening. He noted that the situation had been aggravated by a time-lag as the Committee had not been able to meet.

He asked for Members’ comments.

Adv Stephens objected to the requirement in the guidelines that the application for access to the documents must be based on relevance to the Committee programme. If a Member did not know what was in the documents, it was not possible to know if his or her interest would be relevant to the Committee programme. This would be an undue restriction.

Advocate Frank Jenkins, Parliamentary Legal Advisor, outlined the provisions of the Promotion of Access to Information Act.

Mr Trent agreed that there was a problem of lack of transparency. Whilst he did not object to the Chairperson’s guidelines, Mr Trent felt that he was ‘being gagged’ by Rule 157.

Mr D Gumede (ANC) said that any State would have confidential documents, where access would need to be restricted in the public interest. He hoped that Mr Trent’s aim was in the national interest, not in the interest of the Democratic Alliance alone. He believed that access, if granted, should be limited to not more than two weeks, and should not be open-ended.

Mr Smith said that the third paragraph of the guidelines sounded ‘dictatorial’. He asked for removal of ‘express consent’. He suggested adding ‘concurrence with the Speaker’.

Adv Stephens supported addition of the words ‘concurrence of the speaker’

Mr Bekker said that he agreed with Mr Smith, except that, in his view, ‘concurrence with the Speaker’ was superfluous. He restated the Inkatha Freedom Party’s position that substantive evidence must be to hand.  SCOPA must not associate itself with speculation in the media.

Mr G Koornhof (ANC) said that, since the documents emanated from the Department of Defence, it was not for Parliament to declare on their confidentiality or otherwise. Parliament should respect an organ of State. He asked why there was a need to argue about the matter.

Advocate Jenkins said that the documents were in the possession of Parliament.

Mr Gerber asked what would happen if a future Chairperson refused permission. He asked for more careful wording.

The Chairperson emphasised that the guidelines were intended for the future, not just the present. If the Chairperson could not refuse, that would mean that access must be granted. There had to be a basis for refusal, and it could not be merely arbitrary.

Mr Smith said that, in case of refusal, nothing prevented SCOPA Members from approaching the Speaker. He believed that the existing checks and balances and deadlock-breaking mechanisms sufficed.

Mr Trent assured Mr Smith and Mr Gumede that both he and his party did honour confidentiality. The Secretary of the National Assembly had not informed him that the documents had been classified by the Department of Defence.

Adv Stephens asked if there could be provision for a collective application for access.

The Committee adopted the guidelines, with amendments.

The Chairperson reminded Members that at the Committee's 13 February 2008 meeting, the Committee had asked its research component to examine the issues arising from the reports concerned. The Committee would thereafter meet to decide if sufficient action had been taken.

Mr Gumede said that, as Parliament was approaching the end of its term, it was the wrong time to resurrect the subject. There was simply not enough time available before the upcoming general election. He felt that it was impracticable, and not in the country’s interest.

Mr Smith expressed anger at Mr Trent’s press statement, which he had felt was deeply offensive to the ANC.

Mr Smith said that he had no problem with the National Prosecuting Authority (NPA), but he objected to expecting the Committee to call individuals to respond, without first establishing that there was good reason to make such a call. He believed that instead, such individuals should write to the Committee with relevant evidence. He wished to put on record that the ANC component of the Committee was not opposed to investigating any aspect of the Arms Deal, but would not ‘be ambushed’. It was necessary to engage intelligently. He criticised the Feinstein publication After the Party.

Mr Smith called upon Mr Trent to bring forth his evidence. After the Committee had read the Auditor General’s report, it could then perhaps call the Department of Defence to appear before the Committee

Mr Bekker reaffirmed his rejection of baseless newspaper reports and insisted on the presentation of firm evidence to the Committee.

The Chairperson asked Members if they agreed on the process. It was necessary to identify and activate recommendations.

Mr G Koornhof (ANC) said that he agreed with the process, but asked if the Committee had at its disposal the documents necessary to enable it to take a decision.

The Chairperson agreed, and said that it was necessary to communicate with the relevant authorities. Based on whatever information that they might supply, the Committee could decide.

Mr Trent said that it had been ‘a useful debate’. He noted that he had issued his press statement out of frustration that for months nothing had happened with regard to this issue, which had been ongoing for some four years.

Mr Koornhof and Mr Smith proposed that the matter be concluded. They opposed re-opening the subject.

Mr Smith noted specifically that there was no suppression of information. He called upon Mr Trent to collect substantial information and put it on the table. He said that political parties had accused the Executive of exerting pressure on Parliament. It was therefore unwise for SCOPA to risk falling into a trap by basing its decision to proceed in the matter on a recent remark made by the President to the leader of the DA. He said that the Committee did not ‘owe the Executive any answers’.

Mr G Madikiza (UDM) said that the matter had been tied down to paragraph four. He did not see the need for further debate.

The Chairperson assured Mr Trent that every effort had been made to accommodate his subject in the Committee’s programme. Unfortunately, the Committee had had hearings at almost all its meetings, and although it had intended to discuss the matter, this was in fact the first day on which the opportunity to do so was available. He noted that the Committee had always managed to remain focused and had not drawn any battle lines.

The Chairperson confirmed the Committee’s decision, in its 15^th Report, to interact with the relevant authorities, and, after receiving their response, to then decide how to proceed. 

The Chairperson noted that although this decision referred specifically to the 15^th Report, if anyone wanted to write to the Committee on the Arms Deal or any other issue, they were always free to do so.

Consideration of Committee resolutions
The Chairperson said that constraints of time necessitated that the Committee endeavour to ensure that all six draft resolutions, which had been circulated to Members, be adopted without further delay in order to complete the Committee’s business by the end of the Parliamentary term. In regard to progress of the resolutions in the National Assembly, the Committee was assured of the assistance of the programme whips.

Mr E Trent (DA) requested that paragraph D on page 3 of the draft Resolution on Housing be amended by the addition of 'and that a criminal investigation into collusion and corruption be conducted.' 

Adv M Stephens (DA) concurred with Mr Trent but suggested that 'criminal' be replaced by 'forensic'.

Members agreed to the addition.

Mr Trent said that the word “recommendation” on the last page of this Resolution on Housing was too weak. The six month period was too long. The Minister should report on what was being done, and a sentence should be added to that effect.

The Chairperson suggested that the first part of the sentence be reconstructed. He noted Mr Trent's complaint about the six month period specified in the resolution, but advised that it was his understanding that it was a continuous process. SCOPA resolutions should not be limited in their application to those Members physically present at the time of drafting or passing the resolution concerned. The resolutions would be equally binding on a future SCOPA Committee.

The Chairperson however disagreed with Mr Trent's suggestion that a sentence be added to the effect that 'The Minister should report'. He was satisfied with the second element around the six month period.

Mr Trent clarified that his suggestion was that the Minister's report should be delivered to Parliament, not to the Committee.

Mr Smith objected to this suggestion that the Minister’s report should be delivered to Parliament. The National Assembly as an entity did not have the range of contacts that the Committee had at its disposal. The report should therefore come to the Committee; otherwise it would be a meaningless process. He agreed that the reporting process should remain as it was. He noted that in addition it would not be possible to ask 400 persons who had not seen the report previously to comment on it. SCOPA itself must assess the report. He believed that the resolution was satisfactory in its existing form.

Mr Smith was in accord with the Chairperson on the continuity of the process, saying that in spite of changes of members, there would always be a Standing Committee on Public Accounts.

Mr H Bekker (IFP) supported Mr Smith.

Mr Trent said that he believed firmly that the Minister should be the one to receive the report, since it was the Minister's responsibility. The period of six months was too long, and he felt that three months would be enough.

The Chairperson responded that if it were a 'once-off' process, then three months would be enough. However, he reiterated that this was a continuing process and six months, or more, was appropriate. He said that he could agree partially with Mr Trent, but felt that the report should first be submitted to the Committee.

Mr Trent said that he was grateful at least to obtain the opportunity for debate.

Mr Trent then suggested an amendment to the draft Resolution on the Independent Complaints Directorate. The time frame for a report-back, of sixty days, should be specified clearly.

With regard to the Water Board draft Resolution, Mr Trent suggested some amendments to the wording and also said that it was essential to specify the time frame for reporting back.

Mr P-J Gerber (ANC) questioned whether the allegation 'alleged poor work performance' should be included in the draft resolution on the Construction SETA.

The Chairperson said that the third and fourth paragraphs needed to be reworded more concisely.

Mr Smith said suggested changing the wording to 'raises its concerns'.

The Chairperson noted that the first and second sentences spoke about the same thing and should be combined.

Adv Stephens said that reference to ‘poor performance’ should be removed, as it was rather a matter of ‘lack of skills’.

The Chairperson replied that, in his view, the problem was, without mentioning individuals, ‘the poor internal controls’ of the organisation as a whole.

Mr Trent then turned to the draft Resolution on the Health and Welfare Sector Education and Training Authority  (SETA). He indicated that the term ‘Parliament’ included the National Council of Provinces.

The Chairperson said that the term ‘National Assembly’ should be substituted in the context of this particular sentence.

Mr Trent indicated a need for a correction on page three of the draft Resolution on the Local Government SETA.

The draft resolutions were adopted, with amendments.

Association of Public Accounts Committees (APAC) Conference 2009
The Chairperson noted that on 13 February the Committee had discussed whether it should request the organisers of the Association of Public Accounts Conference to postpone the conference, on account of the forthcoming general elections. The organisers had, however, declined to postpone. Arrangements for the Conference would be discussed on Wednesday 22 October. 

Adoption of minutes
The Chairperson noted that the Minutes were a summary of the various hearings held by the Committee.

He asked the Committee Secretary if a copy of the minutes concerning item 1.7 was available.

Mr G Dixon, Committee Secretary, replied that the Minutes of 13 February 2008 pertained to item 1.7 and were given out to Members.

He further noted, in response to another question, that the Committee’s 15^th Report, dated 12 December 2001, was also in the batch of documentation. The Minutes of 13 February referred to the Committee's Resolution. The Committee Researchers’ Report of 19 February 2008, which referred to the 15^th Report, was also in the batch. That would enable the Committee to discuss the matter in its proper context. 

The meeting was adjourned.