W hy exactly have the Directorate for Priority Crime Investigation (also known as the Hawks) pounced so suddenly on whistleblowers who are giving evidence at the State Capture Commission of Inquiry, and on those who have yet to give evidence at that Commission on, among other things, corruption involving senior government officials, business executives in the private sector, Cabinet Ministers, and other members of Parliament?
Lest we forget, the Terms of Reference of the State Capture Commission of Inquiry include to
“inquire into, make findings, report on and make recommendations concerning whether the President or any members of the present or previous members of his National Executive (including Deputy Ministers) or public official or employee of any state owned entities (SOEs) breached or violated the Constitution or any relevant ethical code or legislation by facilitating the unlawful awarding of tenders by SOEs or any organ of state to benefit the Gupta family or any other family, individual or corporate entity doing business with government or any organ of state.”
This goes much wider than many had hoped, and covers much of what we have thus far heard from numerous witnesses at the State Capture Commission of Inquiry about the Bosasa exploits and the family that owns that corporate entity. The ruling party and Cabinet are well and truly on trial at the State Capture Commission of Inquiry. It must be more than unsettling to them.
Many have been quick to say that these arrests have nothing to do with the State Capture Commission of Inquiry and that they arise from a report of the Special Investigating Unit (SIU). But that SIU Report came out almost ten years ago! So why act on it now? What exactly have the Hawks been waiting for all these years? It’s not as if they had more to investigate as the SIU had done that work for them. Even if they had more leads to follow, what could possibly have taken them ten years to bed down? But more importantly, why now when allegations of corruption implicating Cabinet Ministers are emerging in full glare of live television coverage?
Is it because the heat that has come out of the evidence thus far presented at the State Capture Commission of Inquiry is getting increasingly unbearably too close for the comfort of the political and corporate big wigs? Or is it a matter of the government finally acting on graft?
Many will argue (and some have already argued) that evidence given at the State Capture Commission of Inquiry is not admissible at a subsequent criminal trial. So, the argument goes, Angelo Agrizzi’s evidence at the Commission will not be admissible as evidence against him or those he has implicated if he and they were charged and prosecuted for the crimes to which he has admitted in his evidence at the State Capture Commission of Inquiry. Therefore, says the argument, these arrests will have no effect on the State Capture Commission of Inquiry.
Well, it is true that evidence given at a Commission of Inquiry is generally not admissible in any subsequent criminal trial on the issues covered by that evidence. This is a standard provision in commissions of inquiry regulations around the world. The State Capture Commission of Inquiry is no exception. Regulation 8(2) prohibits the admissibility of such evidence in any subsequent criminal trial, except where the charge is perjury or other numerous infractions of a disreputable sort. The idea is to encourage even those who may incriminate themselves to give evidence at a Commission of Inquiry which, unlike a criminal trial, is less about finding guilt but more about unearthing the truth in all its unpleasant detail.
But there is a catch. It is the evidence already given at the Commission of Inquiry that is not admissible in any subsequent criminal trial. It does not follow that such evidence may not be led or extracted from the same witness afresh in criminal proceedings either against himself or against others that he may have implicated. If his evidence at the criminal trial should be materially different from the evidence he gave at the Commission of Inquiry on the same issue, then he opens himself up to a charge of perjury because either the version he gave at the Commission was false or the version he gives at the criminal trial is false. They cannot both be true.
But the admissibility at a subsequent criminal trial of evidence given at the State Capture Commission of Inquiry is not even the issue here. The issue is this: the moment Agrizzi and his gang of State corruptors become accused persons in a criminal case involving corruption, the Constitution protects each of them against incriminating themselves.
Section 35(3)(j) of the Constitution says:
“Every accused person has a right to a fair trial, which includes the right . . . not to be compelled to give self-incriminating evidence”
In order to spill the beans at the State Capture Commission of Inquiry against those Cabinet Ministers that they have allegedly corrupted, the Bosasa gang have to tell Deputy Chief Justice Zondo, under oath or affirmation, that they did the corrupting and how they did it. Those who have been named as having been on Bosasa’s bribery payroll may wish to cut a deal with the prosecuting authorities by offering bigger fish, incriminating themselves in the process. Section 35(3)(j) of the Constitution protects them from doing that and the evidence leaders at the State Capture Commission of Inquiry may have a tough time trying to compel them under regulation 8(1) to give evidence against those Cabinet Ministers.
A related defence that the arrestees may raise is the much-abused sub-judice principle. They may say that because the matters about which the evidence leaders want them to give evidence at the State Capture Commission of Inquiry are now the subject of a criminal case, they cannot give evidence and so either the Commission must await the conclusion of the criminal trial or the criminal case must be quashed so that they can be free to give evidence at the Commission.
Therein lies the rub. The Cabinet Ministers – perhaps even arguably the one at whose pleasure they all serve – are likely to get away with alleged corrupt activities on a technicality brought about by a series of arrests and threatened prosecutions curiously timed. But if the evidence leaders are imaginative, there is a neat way around this which I suspect those who contrived the idea of these curiously timed arrests may have missed.
Anyway, there is a risk that no serious prosecution will come from these arrests anytime soon. With the elections barely three months away, the arrests by themselves have done the trick and may effectively close the whistleblowing tap until both those implicated and those who have yet to be implicated devise another plan to make these allegations go away – for good.
Let us see how the evidence leaders respond to these developments.