R113 million was spent, 54 witnesses called, numerous postponements, just as many withdrawals, and, four years later, the Seriti Commission has not made any recommendations or findings. The Seriti Commission’s lack of findings means that no one will be held accountable for the R70 Billion Strategic Defence Procurement Packages (SDP) signed in 1999. Tellingly, the report concludes by stating that “We have given reasons why it would serve no purpose to recommend that the allegations of fraud, bribery and corruption of the SDP procurement processes be referred to another body for investigation.” Despite the fact that the initial dossier alleging bribery, fraud and corruption had led to the criminal prosecution of Shabir Shaik and Tony Yengeni – the Seriti Commission found itself unable to assign any liability to any individual.

On the other hand, the Constitution at section 1 establishes an accountable, responsive and open government as a foundational value of the nation. These foundational values inform interpretation of the Constitution in addition to setting the standard to which all laws must comply. Further, section 32 of the Constitution provides that everyone has the right of access to information held by the state. The Courts, as well as legislation in the form of the Promotion of Access of Information Act, further underscore the notion that openness and access to information are default values in a constitutional democracy. While the right to access information may be limited in certain narrowly prescribed circumstances, the Courts have made it abundantly clear that the limitation can only be in the public interest – such as the prevention of harm. The Commission’s Act on the other hand appears to default to secrecy through its discretionary provision on public access to the Report. The right to access information at its core “demands that public policies be rationally justified in public and that the workings of politics be made transparent to everyone”. The right to access information enables South Africans to exercise and protect other rights, be it freedom of expression or the right to vote.

It is time that the Commission’s Act was amended in order to give greater meaning to constitutional values. It cannot be that the Commission’s Act has made it possible for the Seriti Commission to make no findings and recommendations, despite what the media has described as overwhelming evidence of law-breaking. Even if the Seriti Commission’s hearings were open to the public, the fact that the discretion to release the final Report to the public rests with the President, is the antithesis of South African constitutional democracy, whose default should be openness. 

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights