Prayers to the wind

The US: The bully who cried wolf

noreply@blogger.com (Barry Giesken) — Thu, 27 Jun 2019 07:28:00 +0000

A habitual liar cannot be believed even when telling the truth.

There is a famous fable by ancient Greek storyteller Aesop about a shepherd boy who habitually lied for fun. While looking after a flock of sheep near a village, every now and then he would cry "Wolf! Wolf!" to bring the villagers rushing, just to laugh at them and their naivety. One day the wolf did actually attack his flock, and the shepherd boy cried "Wolf!! Wolf!"- this time for real.

But by then, the villagers had wisened up and ignored his cries. With no one coming to help, the boy could do nothing to stop the wolf feasting on his flock. Aesop concludes: "There is no believing a liar, even when he speaks the truth."

Thinking of this fable today, one cannot help but wonder: Did Iran attack the Japanese tanker Kokuka Courageous with limpet mines - as the United States claims it did on June 13? Does the video the US army produced indeed prove the accusation?

The US, Saudi Arabia, and the United Kingdom say it does, Iran says it does not, and others have expressed doubts. So, who is telling the truth? Iran or the US and its allies? And why does it matter?

The urgency of these questions is now a matter of war and peace, of life or death. After that accusation, the potential military confrontation between the US and Iran has increased exponentially. On June 20, the Islamic Revolutionary Guard Corps (IRGC) announced that it had shot down a US RQ-4A Global Hawk surveillance drone that it said had violated its airspace. US Central Command confirmed the drone was shot down by Iranian surface-to-air missiles but denied that it had violated Iranian airspace.

President Donald Trump called the downing of the drone a "big mistake", and then ordered a military attack on Iran only to reportedly change his mind and cancel it. There would have been approximately 150 Iranian casualties, Trump said, and that would have been "disproportionate".

As the US and Iran inch ever closer to a military confrontation, the question the world faces at large is who to trust, what to believe, where to place our critical judgement?

An average of 12 lies a day

As of June 10, by Washington Post's estimates, "President Trump has made 10,796 false or misleading claims over 869 days." That is probably a dictionary definition of a congenital liar. The newspaper further states: "The president crossed the 10,000 thresholds on April 26, and he has been averaging about 16 fishy claims a day since then. From the start of his presidency, he has averaged about 12 such claims a day."

In this context, it would be a mistake to judge the particulars of politics with the proverbial "Sunday School" sense of morality that is farthest removed from the abiding concerns of those who habitually lie. States, particularly the most powerful states, lie and these lies are for the best interests of the ruling elites in charge of those states.

From Vietnam to Iraq, the US has systematically and consistently lied to advance its own warmongering objectives. But the US is not the only state that lies habitually.

Right now, the interests of the US, Saudi Arabia, the United Arab Emirates (UAE) and Israel all coalesce around targeting Iran and dismantling its share of regional power. Each one of these forces has its own internal reasons to wish Iran harm.

They, therefore, manufacture lies, exaggerate facts, take a smidgeon of truth and weave a long tale around it, all to turn Iran into a demon, the way they did with Iraq and Afghanistan in the past.

The US media is complicit in this charade. The Washington Post and the New York Times have stopped counting the lies Trump tells when it comes to the war with Iran.

The first casualty of war they say is the truth. That means all wars begin with a lie. Is the explosion of this Japanese tanker in the Gulf of Oman the lie that will result in yet another calamitous war in the region?

Today the fragile being of more than 80 million people is at the mercy of that piece of news for which John Bolton and Mike Pompeo have been gunning most of their political careers.

THE REGIME OF DECEPTION

The regime of deception now code-named "post-truth" or "alternative facts" is predicated on what the French philosopher Guy Debord called "the society of the spectacle", where an image has assumed a reality of its own and it no longer matters what it actually means.

We see a ship burning and we read the story that the US imperial narrative ascribes to it and its media regurgitates. What actually caused that fire and what proof there is for the claim are all entirely irrelevant questions.

Three sources tell us Iran did it: the US, Saudi Arabia, and the UK. They all might be what we think them to be - habitual liars - but they might still be telling the truth that Iran did actually blow a hole in that ship. The problem is, as wise Aesop points out, "there is no believing a liar, even when he speaks the truth."

Let us take them one at a time. The US launched a massive military attack against Iraq and wreaked havoc in the region, all based on a blatant lie that Saddam Hussein had weapons of mass destruction - a lie that the Bush administration staged and the New York Times consistently collaborated. Under the current administration that habitual tendency of states to lie has been exacerbated by a man who has a very casual relationship with the truth.

What about the UK? They also say the Iranians did it. They may very well be telling the truth. But we know for a fact that the British have a long colonial proclivity to tell lies to suit their interests. One such sustained course of lies was directed against democratically elected Iranian Prime Minister Mohammad Mossadegh during the CIA-MI6 military coup of 1953 staged against him. The BBC was integral in spreading fake news at the time.

Well, that is the past, you might say, today the UK is certainly the paragon of truth and justice. Indeed it might be, except that it recently chose to turn its back on the truth: "The UK refuses to back UN inquiry into Saudi 'war crimes' amid fears it will damage trade Britain's Middle East and North Africa minister Alistair Burt argued that the Saudi-led coalition itself should investigate any atrocities it committed in its conflict against rebel forces in Yemen."

Can we really trust a treacherous regime that has an equally causal relationship with truth and can turn a blind eye to facts when it suits its purposes?

What about Saudi Arabia, which too has claimed Iranians did it. Certainly, Mohammed bin Salman (MBS) could be a trustworthy source - except, he and his backers have repeatedly lied to the public in the face of facts about the tragic fate of slain Saudi journalist Jamal Khashoggi. The same Saudi prince - a favourite of New York Times columnists and President Trump's Zionist son-in-law - is chiefly responsible for a genocide in Yemen in which "85,000 children have died from starvation".

None of this is to exempt Iran from being part and parcel of the selfsame scene and engaging in its own game of lies. Despite the death toll in Syria surpassing half a million, it has continued to fabricate a story about supporting a "legitimate government", while Bashar al-Assad has continued in a sustained course of murderous mayhem. Indeed, the Iranian authorities may very well have planted that mine in the Japanese tanker.

The issue we face is not the guilt or innocence of any party involved, but, instead, the complete collapse of any moral authority standing on the side of truth.

Nietzsche famously said: "Truths are illusions of which we have forgotten that they are illusions, metaphors which have become worn by frequent use and have lost all sensuous vigour."

In the Gulf of Oman, the truth has dived into the lowest depths of the sea in search of new, more convincing, metaphors.

SOURCE: AL JAZEERA

Hamid Dabashi

AU says closely monitoring situation in Libya

noreply@blogger.com (Barry Giesken) — Thu, 11 Apr 2019 16:24:00 +0000

The African Union says it is closely monitoring developments in Libya where dozens of people have been killed in fighting this week, according to the World Health Organization.

Rebel forces are trying to seize the capital, Tripoli, where the country’s internationally recognized government is based.

The AU Commission says the current insecurity in Libya is not what it expected after Chairperson Moussa Mahammat Faki visited the country at the start of April.

His spokesperson, Ebba Kalondo told the SABC, Faki met leaders of the main warring factions, General Khalifa Haftar and Prime Minister Fayez al-Serraj.

She says they both, at the time, embraced the AU’s call for dialogue.

“The African Union remains of the view that these development in Libya do not help the resolution for a crisis that is multidimensional and that has been the cause of great suffering to the Libyan people and the region that it resides and only negotiated inter Libyan political and inclusive dialogue of all the actors can come to a durable solution.”

The United Nations estimates around 3000 people have fled fighting around Tripoli.

Kalondo says the AU Commission is concerned about the many African migrants in Libya, thousands of who are held up in detention centres in the country.

“It is now more than ever important for all the sectors on the ground to assure the protection, the safety of all civilians especially those that already have so little protection to start with who are the migrants being helped in in these detention centres mostly women and children.”

Libya has had no stable government since 2011 when its leader Moammar Gadhafi was deposed and killed.

The AU maintains that it will still go ahead with its planned conference of reconciliation for Libya in July 2019.

Source Channel Africa

Open Letter by Over 70 Scholars and Experts Condemns US-Backed Coup Attempt in Venezuela

noreply@blogger.com (Barry Giesken) — Mon, 28 Jan 2019 12:57:00 +0000

"For the sake of the Venezuelan people, the region, and for the principle of national sovereignty, these international actors should instead support negotiations between the Venezuelan government and its opponents."

The United States government must cease interfering in Venezuela’s internal politics, especially for the purpose of overthrowing the country’s government.

Actions by the Trump administration and its allies in the hemisphere are almost certain to make the situation in Venezuela worse, leading to unnecessary human suffering, violence, and instability.

Venezuela’s political polarization is not new; the country has long been divided along racial and socioeconomic lines. But the polarization has deepened in recent years.

This is partly due to US support for an opposition strategy aimed at removing the government of Nicolás Maduro through extra-electoral means. While the opposition has been divided on this strategy, US support has backed hardline opposition sectors in their goal of ousting the Maduro government through often violent protests, a military coup d’etat, or other avenues that sidestep the ballot box.

Under the Trump administration, aggressive rhetoric against the Venezuelan government has ratcheted up to a more extreme and threatening level, with Trump administration officials talking of “military action” and condemning Venezuela, along with Cuba and Nicaragua, as part of a “troika of tyranny.” Problems resulting from Venezuelan government policy have been worsened by US economic sanctions, illegal under the Organization of American States and the United Nations ― as well as US law and other international treaties and conventions.

These sanctions have cut off the means by which the Venezuelan government could escape from its economic recession, while causing a dramatic falloff in oil production and worsening the economic crisis, and causing many people to die because they can’t get access to life-saving medicines. Meanwhile, the US and other governments continue to blame the Venezuelan government ― solely ― for the economic damage, even that caused by the US sanctions.

Now the US and its allies, including OAS Secretary General Luis Almagro and Brazil’s far-right president, Jair Bolsonaro, have pushed Venezuela to the precipice.

By recognizing National Assembly President Juan Guaido as the new president of Venezuela ― something illegal under the OAS Charter ― the Trump administration has sharply accelerated Venezuela’s political crisis in the hopes of dividing the Venezuelan military and further polarizing the populace, forcing them to choose sides.

The obvious, and sometimes stated goal, is to force Maduro out via a coup d’etat.

The reality is that despite hyperinflation, shortages, and a deep depression, Venezuela remains a politically polarized country. The US and its allies must cease encouraging violence by pushing for violent, extralegal regime change.

If the Trump administration and its allies continue to pursue their reckless course in Venezuela, the most likely result will be bloodshed, chaos, and instability. The US should have learned something from its regime change ventures in Iraq, Syria, Libya, and its long, violent history of sponsoring regime change in Latin America.

Neither side in Venezuela can simply vanquish the other. The military, for example, has at least 235,000 frontline members, and there are at least 1.6 million in militias. Many of these people will fight, not only on the basis of a belief in national sovereignty that is widely held in Latin America ― in the face of what increasingly appears to be a US-led intervention ― but also to protect themselves from likely repression if the opposition topples the government by force.

In such situations, the only solution is a negotiated settlement, as has happened in the past in Latin American countries when politically polarized societies were unable to resolve their differences through elections.

There have been efforts, such as those led by the Vatican in the fall of 2016, that had potential, but they received no support from Washington and its allies who favored regime change. This strategy must change if there is to be any viable solution to the ongoing crisis in Venezuela.

For the sake of the Venezuelan people, the region, and for the principle of national sovereignty, these international actors should instead support negotiations between the Venezuelan government and its opponents that will allow the country to finally emerge from its political and economic crisis.

Signed:

Noam Chomsky, Professor Emeritus, MIT and Laureate Professor, University of Arizona

Laura Carlsen, Director, Americas Program, Center for International Policy

Greg Grandin, Professor of History, New York University

Miguel Tinker Salas, Professor of Latin American History and Chicano/a Latino/a Studies at Pomona College

Sujatha Fernandes, Professor of Political Economy and Sociology, University of Sydney

Steve Ellner, Associate Managing Editor of Latin American Perspectives

Alfred de Zayas, former UN Independent Expert on the Promotion of a Democratic and Equitable International Order and only UN rapporteur to have visited Venezuela in 21 years

Boots Riley, Writer/Director of Sorry to Bother You, Musician

John Pilger, Journalist & Film-Maker

Mark Weisbrot, Co-Director, Center for Economic and Policy Research

Jared Abbott, PhD Candidate, Department of Government, Harvard University

Dr. Tim Anderson, Director, Centre for Counter Hegemonic Studies

Elisabeth Armstrong, Professor of the Study of Women and Gender, Smith College

Alexander Aviña, PhD, Associate Professor of History, Arizona State University

Marc Becker, Professor of History, Truman State University

Medea Benjamin, Cofounder, CODEPINK

Phyllis Bennis, Program Director, New Internationalism, Institute for Policy Studies

Dr. Robert E. Birt, Professor of Philosophy, Bowie State University

Aviva Chomsky, Professor of History, Salem State University

James Cohen, University of Paris 3 Sorbonne Nouvelle

Guadalupe Correa-Cabrera, Associate Professor, George Mason University

Benjamin Dangl, PhD, Editor of Toward Freedom

Dr. Francisco Dominguez, Faculty of Professional and Social Sciences, Middlesex University, UK

Alex Dupuy, John E. Andrus Professor of Sociology Emeritus, Wesleyan University

Jodie Evans, Cofounder, CODEPINK

Vanessa Freije, Assistant Professor of International Studies, University of Washington

Gavin Fridell, Canada Research Chair and Associate Professor in International Development Studies, St. Mary’s University

Evelyn Gonzalez, Counselor, Montgomery College

Jeffrey L. Gould, Rudy Professor of History, Indiana University

Bret Gustafson, Associate Professor of Anthropology, Washington University in St. Louis

Peter Hallward, Professor of Philosophy, Kingston University

John L. Hammond, Professor of Sociology, CUNY

Mark Healey, Associate Professor of History, University of Connecticut

Gabriel Hetland, Assistant Professor of Latin American, Caribbean and U.S. Latino Studies, University of Albany

Forrest Hylton, Associate Professor of History, Universidad Nacional de Colombia-Medellín

Daniel James, Bernardo Mendel Chair of Latin American History

Chuck Kaufman, National Co-Coordinator, Alliance for Global Justice

Daniel Kovalik, Adjunct Professor of Law, University of Pittsburgh

Winnie Lem, Professor, International Development Studies, Trent University

Dr. Gilberto López y Rivas, Professor-Researcher, National University of Anthropology and History, Morelos, Mexico

Mary Ann Mahony, Professor of History, Central Connecticut State University

Jorge Mancini, Vice President, Foundation for Latin American Integration (FILA)

Luís Martin-Cabrera, Associate Professor of Literature and Latin American Studies, University of California San Diego

Teresa A. Meade, Florence B. Sherwood Professor of History and Culture, Union College

Frederick Mills, Professor of Philosophy, Bowie State University

Stephen Morris, Professor of Political Science and International Relations, Middle Tennessee State University

Liisa L. North, Professor Emeritus, York University

Paul Ortiz, Associate Professor of History, University of Florida

Christian Parenti, Associate Professor, Department of Economics, John Jay College CUNY

Nicole Phillips, Law Professor at the Université de la Foundation Dr. Aristide Faculté des Sciences Juridiques et Politiques and Adjunct Law Professor at the University of California Hastings College of the Law

Beatrice Pita, Lecturer, Department of Literature, University of California San Diego

Margaret Power, Professor of History, Illinois Institute of Technology

Vijay Prashad, Editor, The TriContinental

Eleanora Quijada Cervoni FHEA, Staff Education Facilitator & EFS Mentor, Centre for Higher Education, Learning & Teaching at The Australian National University

Walter Riley, Attorney and Activist

William I. Robinson, Professor of Sociology, University of California, Santa Barbara

Mary Roldan, Dorothy Epstein Professor of Latin American History, Hunter College/ CUNY Graduate Center

Karin Rosemblatt, Professor of History, University of Maryland

Emir Sader, Professor of Sociology, University of the State of Rio de Janeiro

Rosaura Sanchez, Professor of Latin American Literature and Chicano Literature, University of California, San Diego

T.M. Scruggs Jr., Professor Emeritus, University of Iowa

Victor Silverman, Professor of History, Pomona College

Brad Simpson, Associate Professor of History, University of Connecticut

Jeb Sprague, Lecturer, University of Virginia

Kent Spriggs, International human rights lawyer

Christy Thornton, Assistant Professor of History, Johns Hopkins University

Sinclair S. Thomson, Associate Professor of History, New York University

Steven Topik, Professor of History, University of California, Irvine

Stephen Volk, Professor of History Emeritus, Oberlin College

Kirsten Weld, John. L. Loeb Associate Professor of the Social Sciences, Department of History, Harvard University

Kevin Young, Assistant Professor of History, University of Massachusetts Amherst

Patricio Zamorano, Academic of Latin American Studies; Executive Director, InfoAmericas

Source: Open Democracy

Dirty Apartheid Lies: SA's Murderous Arms Machine And The Bank That Cashed In (And Out)

noreply@blogger.com (Barry Giesken) — Mon, 05 Feb 2018 11:18:00 +0000

Startling revelations and powerful evidence of grand corruption implicating politicians from PW Botha to Jacob Zuma, global banks and corporations was presented at The People's Tribunal on Saturday and Sunday.

Overseen by an esteemed panel including former Constitutional Court Justice Zac Yacoob, the Tribunal has been set up by civil society groups to hear evidence on corruption, capture and economic crime over the last 40 years in South Africa.

The Tribunal has, thus far, heard evidence of covert networks of politicians, state companies and corporations involved in the systemic violation of the United Nations' weapons embargo on South Africa during apartheid.

Standing as a witness, author of "Apartheid Guns and Money" Hennie van Vuuren emphasised the importance of bringing this evidence to light is in recognising the actors that contributed to the gross violation of human rights during apartheid. Beyond the pursuit of justice, he said, the goal is also to recognise how these crimes are connected.

Apartheid's murderous military machine

At the heart of the arms machine, he said, was South African state-owned arms company Armscor which bought (and sold) weapons from abroad in contravention of a compulsory U.N. embargo on trading arms with the country.

Almost all military expenditure, which amounted to approximately 28% of the country's budget at the time or half a trillion rand in today's value, passed through the company, he said.

But to oil this military machine -- which was created in response to the "appetite for the apartheid government's involvement in conflict locally and on the continent" -- the company needed to circumvent the compulsory global sanctions. In come the French.

Die Groot Krokodil's deathly French Kiss

Realising weapons couldn't be procured from Pretoria, then-Prime Minister PW Botha ('Die Groot Krokodil') took business abroad. For some a city of love, South Africa's government made Paris, France, its city of bloodlust.

The South African embassy in Paris housed what was called the tegniese raad (technical council) from which Armscor would strike it's deals, which van Vuuren said was not known until they began researching years ago.

"This was there base... from which they'd go around Europe doing deals, in some instances liaising with partners in Africa (like Zaire)... and perhaps even China," he said.

Even leading figures in the anti-apartheid movement who tried to expose these links had no idea what was happening in Paris. Documentary evidence, van Vuuren said, showed how French intelligence would have regular meetings with Armscor officials on a regular basis in the 1970s and 1980s. That heads of intelligence from France and South Africa were meeting suggests politicians in the upper echelons of France's government were well aware of sanctions being broken, he said.

Central to this relationship, he added, was French arms company Thompson CSF -- today Thales -- which documentary evidence showed met with PW Botha's minister of defence to co-develop sophisticated missile technology for use in apartheid South Africa's warmongering locally and abroad.

Demonstrating just how far into the present dodgy relations continued, Van Vuuren highlighted that the same company, Thales, is implicated in paying bribes to now President Jacob Zuma through his financial adviser (and now convicted fraudster) Schabir Shaik.

"These are the 783 counts of corruption, fraud and money laundering [Zuma] currently faces today," he said.

The two faces of the international community

The story of the apartheid government's circumvention of sanctions, however, was more than just a French love affair with the Broederbond.

More than 50 countries were involved in sanctions-busting in one way or another, he said. Most notably, every single country on the United Nation's Security Council -- those very nations tasked with policing the sanctions that were imposed -- were all involved to some extent, he said.

Others included many countries across Europe and, notably, Israel. Armscor, he said, created offices in Tel Aviv which was "active in ensuring the relationship with Israel in the procurement and co-development of weapons could take place with a large contingent of officials based there".

Many of these nations, he said, voiced public opposition to apartheid while secretly adding fuel to the fire.

How to bankroll a bloody regime

Another key player, this time a bank, was Kredietbank in Belgium and its Luxembourg subsidiary.

Professor Bonita Meyersfeld, an academic and former director of the Centre for Applied Legal Studies at Wits, reiterated the bank's role in aiding Armscor: firstly, through creating shell companies to help erase the trail of money and, secondly, in creating access to bank accounts.

Through accounts managed by the bank, money to purchase arms could be transferred from Pretoria to the ultimate recipients without raising any alarms. More simply, by setting up fake companies and chanelling money through them, the apartheid regime was able to oil its military machine without let or hindrance.

"Countries such as Belgium, France, Portugal and others were able to utilise private entities to enter into engagements with banks that very elegantly set up these shelf companies," she said.

"There'd be hundreds of these across the world where a corporate actor in the Global North would take funds, channel them through shelf companies and money would land up in SA which then went to Armscor (and vice versa)".

"These are not just AK47s -- an image incalcated in films -- but parts of machine guns, helipcopters, parts used to maintain and facilitate this crime against humanity," she said.

Like a spy novel, though, they occurred in the back rooms of the very embassies that stood against apartheid, she said.
Why does this matter today?

In detailing the secret flow of money for arms, Meyersfeld said the purpose is to shine a light on the fact that there remains an urgent need to create a global body to regulate the conduct of banks.

"The reality is there is no international entity that can hold banks to account for their compliance or their non-compliance with standards around international banking, and more importantly for the participation in criminal activity," she said.

Despite the "accountability vacuum," one option she said was to use the OECD National Contact Point (NCP) which hears complaints from individuals who claim corporations are guilty of human rights violations. OECD countries adhering to guidelines on multinational corporations are required to setup NCPs which provide a mediation and conciliation platform for resolving issues involving those companies, she said.

While no silver bullet, this would be one currently available option for "some semblance of accountability" in relation to Kredietbank, she said. Reputation damage, she said, could ultimately result in operations closing or at the least spark efforts at reparations in the absence of a global entity with real teeth.

Insisting on the necessity of global institutions or mechanisms to ensure justice, Meyersfeld said corporations had gotten off scot-free for too long.

"They may not hold the gun to the mineworker at the mine, but they are the ones providing the funds to do this," she said.

When they do, she added, corporate social responsibility projects in response are not enough:

"Corporates can be the agent of harm and the agent of good. But you can't bomb an economy, then build a school".

Source: Marc Davies - Huffington Post

Press Statement by Andrew Feinstein, Paul Holden and Hennie Van Vuuren regarding the release of the SERITI COMMISSION REPORT into the ARMS DEAL

noreply@blogger.com (Barry Giesken) — Thu, 21 Apr 2016 12:32:00 +0000

On the 21st of April 2016, President Jacob Zuma announced the release of the report of the Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Package (the ‘Arms Deal’). During the same announcement, President Zuma provided a summary of the findings of the Commission.

The Commission found that there was nothing wrong with the Arms Deal in its conception, execution or economic impact, despite considerable evidence in the public domain to the contrary. Most importantly, it found that there was no evidence that any of the contracts in the Arms Deal were tainted by evidence of corruption, fraud or irregularity.

We are disappointed, but hardly surprised, that the Commission has come to these findings, which are tantamount to a cover-up. Indeed, it was abundantly clear during the work of the Commission that it was ill-disposed towards undertaking a full, meaningful and unbiased investigation into the Arms Deal. It routinely failed to either admit or interrogate any evidence of wrongdoing in relation to the Deal.

In August 2014, we withdrew from the Commission of Inquiry in protest at the manner in which it was conducting its investigation. Our withdrawal and subsequent refusal to testify before the Commission in October 2014 was supported by over forty civil society organisations who shared our concerns. We identified four primary problems, which we believed indicated that the Commission was failing to investigate the Arms Deal fully, meaningfully and without favour. These concerns were:

1. During the life of the Commission, a number of employees resigned in protest at the manner in which it was conducting its work. In at least two cases, the employees stated that they were resigning because the Commission did not intend to investigate the Arms Deal. Rather, the Commission was pursuing a ‘second agenda’, namely, to discredit critics of the Arms Deal and find in favour of the State and arms companies’ version of events;

2. The Commission refused to admit vital documentary evidence of wrongdoing during the public hearings. One such document was the Debevoise Plimpton Report, an internal audit of the arms company Ferrostaal, which received contracts in the Arms Deal. The Report indicated that Ferrostaal had made tens of millions of rands in payments to politically connected politicians and procurement officials. The report also quoted senior Ferrostaal employees as stating that the offset program was merely a conduit for bribes. In their resignation from the Commission, evidence leaders Advocates Barry Skinner and Carol Sibiya specifically pointed out that refusing to admit the Report ‘nullifies the very purposes for which the Commission was set up.’

3. The Commission refused to allow critical witnesses to testify about documents that they had not written, or events to which they were not personally witness. One major consequence of this is that the only people who could testify to corruption in the Arms Deal were those who paid or received bribes.

4. The Commission failed to provide documents to which we were entitled under the terms of our subpoena, despite repeated requests. The Commission claimed that it was refusing to do so as we were undertaking a ‘fishing expedition.’ The failure of the Commission to provide us with the documents to which we were legally entitled was typical of the Commission’s attitude of sometimes open hostility to critical witnesses.

Despite the above concerns, we are pleased that the Commission Report is now public. We look forward to interrogating its contents in full, and intend to provide a detailed response to the material therein at the earliest opportunity.

In addition, we are seeking legal advice as to the legality of the Commission’s conduct and the viability of a legal review to have the Report set aside. An announcement on this process will be made in due course.

We believe that the report represents a massive missed opportunity at arriving at the truth. However this is not the end of the road in the struggle for truth justice and accountability of corruption in the arms deal.

CONTACT

HENNIE VAN VUUREN

+27 82 902 1303

hennievvuuren@gmail.com

ANDREW FEINSTEIN

+1 929 392 0133

+44 7809728164

andrewfeinstein@me.com

PAUL HOLDEN

+44 795 088 3329

pauledwardholden@gmail.com

Source: Lawyers for Human Rights

NGO statement on Helen Suzman Foundation raid

noreply@blogger.com (Barry Giesken) — Tue, 22 Mar 2016 15:08:00 +0000

On Sunday afternoon the Helen Suzman Foundation (HSF) offices in Parktown, Johannesburg were the target of a military-style raid. Those conducting the raid clearly knew what they were looking for: computers and other documentation relating to the programmatic work of the HSF were taken. The brazen, coordinated nature of the operation and its targeted, selective focus are sinister. So, too, is its timing.

In its bid to promote constitutional democracy, the HSF undertakes vital but often politically sensitive and contentious activity. Among its most recent activities was the launch last Wednesday of an application in the Pretoria High Court to block the head of the Hawks from exercising any of his powers pending the outcome of its application to have his appointment set aside as irrational and unlawful.

We, the undersigned, are alarmed at the raid on the HSF. Thuggery such as this is probably intended to intimidate the HSF and others in civil society engaged in promoting constitutional democracy, advancing human rights, fighting endemic corruption and protecting the Rule of Law.

While the culprits of the raid have yet to be identified, we note that it takes place in a context of increasing hostility by some within the state towards civil society. Should it be established that the perpetrators of the raid are in any way linked to police, army or intelligence functionaries, it will represent an attack on our democracy of the gravest kind. Even absent such linkages, government is not without responsibility. The enmity currently characterising its relationship with outspoken NGOs helps encourage the view that NGOs are fair targets.

To discharge its responsibility, government will need to act swiftly and decisively. We call on it to ensure that the raid is properly investigated and the perpetrators prosecuted.

Centre for Applied Legal Studies (CALS)

Centre for Human Rights (CHR)

Centre for Environmental Rights

Corruption Watch

Freedom Under Law (FUL)

Lawyers for Human Rights (LHR)

Legal Resources Centre (LRC)

Socio-Economic Rights Institute of South Africa (SERI)

South African History Archive (SAHA)

Southern Africa Litigation Centre (SALC)

Treatment Action Campaign (TAC)

Women’s Legal Centre (WLC)

LHR wants prison torture claims investigated

noreply@blogger.com (Barry Giesken) — Wed, 18 Nov 2015 15:29:00 +0000

LHR details incidents of alleged abuse and torture against 16 inmates by correctional officials.

Allegations of severe torture against 16 inmates who allegedly witnessed the murder of another inmate by wardens at the Kgosi Mampuru II Correctional Centre in Pretoria, have surfaced.
Lawyers for Human Rights (LHR) have now requested the Pretoria Central Police station to investigate the allegations.

In a letter sent to the station commander, LHR details incidents of alleged abuse and torture against 16 inmates by correctional officials.

Clare Ballard, head of LHR’s Penal Reform Programme, said they were prompted to call for the investigation after receiving an increasing number of complaints of severe assault.

It appears that the alleged incidents of assault have, for the most part, occurred during purported search and seizure operations.

“If we are to prevent incidents of assault and torture, which our international obligations indeed require of us, then the criminal prosecution of those responsible for assaults and torture is vital,” said Ballard.

Source: The Citizen

Court rules in favour of asylum seeking children

noreply@blogger.com (Barry Giesken) — Fri, 10 Jul 2015 15:55:00 +0000

The High Court in Pretoria has ruled that foreign children who enter South Africa with a relative who qualifies as an asylum seeker should be included as a dependent.

The ruling was made on Thursday, said Zita Hansungule of the Centre for Child Law in a statement.
"This gives the child immediate protection and ensures that they are not separated from people with whom they have a relationship," she said.

The ruling came about after the Centre for Child Law and the Lawyers for Human Rights took on the case of a 16-year-old boy who had entered South Africa with his aunt after he was orphaned during the conflict in the Congo.

The aunt excluded him in her asylum seeker permit because he was not her biological child. "This meant that, although he qualified to apply for asylum he had no papers and thus battled to get access to education and health services," said Hansungule.

The department of home affairs opposed the boy's application before the courts. The department agreed that while children who entered the country needed protection and services, there was a risk that they were victims of trafficking.

The court said it recognised that there may be risks, but that the risks to a child who was undocumented were greater.

It highlighted that the inclusion of the child in the asylum seeker permit would ensure his or her protection from the earliest possible opportunity.

The court also said the matter may take a while to be finalised in the children's court, thus preventing the child from immediate access to education and other essential services.

Source: News 24

Jiba: Nxasana accuses police of 'assuming the role of defence'

noreply@blogger.com (Barry Giesken) — Fri, 27 Mar 2015 12:33:00 +0000

National director of Public Prosecutions (NDPP), Mxolisi Nxasana, says a perception is being created that the police are trying to protect his deputy, Nomgcobo Jiba, from prosecution. Nxasana addressed the media at a press conference on Friday morning.

This week, a senior police official served a summons on Jiba related to an investigation into her conduct. But Jiba was not there to receive the summons, which Nxasana tried to deliver to her.

The police denied that the summons was issued, saying their case was not ready to go to court. “It is our view that the NPA, who are also complainants in the matter, jumped the gun when they issued a summons against advocate Jiba,” said SAPS spokesperson Lieutenant-General Solomon Makgale on Wednesday.

Nxasana was asked on Friday if he believed the police were trying to protect Jiba. “I don’t believe that she’s protected. But a perception is created, and it’s unavoidable, that she’s being protected at all costs,” Nxasana said.

Prosecution

He said the idea that a matter could only proceed to court once the investigation was complete was not true. “Matters in court, although I’m not condoning it, are enrolled and they get postponed time and time again, for further investigation. Therefore any suggestion that the matter can only be enrolled once its been investigated is misleading. It’s the responsibility of the investigating officer to make a decision as to whether the matter could be prosecuted,” Nxasana said.

He accused the police of “assuming the role of defence”. Nxasana said Jiba “knows her rights”, and if she felt that the summons issued against her was false, that he hoped charges would be laid and those responsible would be brought to book.

‘Very strange’ saga

Nxasana said the idea that Jiba was “awol” this week did not emanate from the National Prosecuting Authority (NPA). He said that on the morning the summons was issued, he had tried to contact her in an unrelated matter, but she was not at work. But this did not mean she was “absent without leave”. On the whole, Nxasana said he found the entire saga “very strange”.

“I was hoping that the police as our partners would tell us if they are ready to prosecute this matter. The police have now assumed the role of being the defence.

“I can only hope that after all this – the impression created is that the police were merely instructed by the prosecutor to take the summons – that if the conduct of the prosecutor (in Jiba’s matter) is found wanting, which I strongly deny, he’ll have also to face the might of the law.

“And if the police officers and others acted (involved in the investigation into Jiba) unlawfully I expect stern actions be taken against them.”

Summons

Questions still remain about who was responsible for delivering the summons to Jiba. Nxasana said, “I attempted to serve the summons upon her. But my understanding of the law is that that is one of the manners to effect service upon a person. My understanding is that the summons has been served upon her. And if she doesn’t appear in court I have no doubt in my mind that the prosecutor will do what is necessary and the court will be the final arbiter.

“When she refused to accept the summons, I wrote on the summons and witness wrote what happened.

“I’m more concerned about the integrity of the NPA especially because the public looks to and expects the NPA to do its work without fear or favour of prejudice as enjoined by the Constitution,” Nxasana said. “The integrity of the NPA must remain in tact and untarnished.”

Source: Mail & Guardian

McBride suspended

noreply@blogger.com (Barry Giesken) — Tue, 24 Mar 2015 08:43:00 +0000

Independent Police Investigative Directorate (IPID) head Robert McBride has been suspended, eNCA reported on Tuesday.

On Wednesday last week, an urgent interdict sought by McBride to prevent his suspension from IPID was struck off the roll in the North Gauteng High Court in Pretoria.

"The facts do not support the relief sought, nor the applicable legal considerations. It is accordingly struck off the roll," Judge Hans Fabricius said in his written judgment.

Police Minister Nathi Nhleko had opposed McBride's application.

McBride had received a letter from Nhleko, asking him to make submissions about why he should not be suspended.

Source: News24

DR Congo: Mass Arrests of Activists

noreply@blogger.com (Barry Giesken) — Wed, 18 Mar 2015 12:51:00 +0000

The arrest of at least 26 activists and others in Kinshasa on March 15, 2015, raises serious concerns of a broader crackdown on free expression before the 2016 Democratic Republic of Congo presidential elections, Human Rights Watch said today.

The arrests, including of foreign journalists and a United States diplomat, followed a news conference by the pro-democracy youth movement Filimbi, organized with support from the US embassy in Kinshasa.

On March 17, 2015, the authorities arrested and roughed up at least 10 Congolese activists in the eastern city of Goma during a peaceful protest outside the office of Congo’s National Intelligence Agency (Agence Nationale de Renseignements, ANR), calling for the release of those arrested in Kinshasa. ANR agents beat a Belgian woman bystander who was later hospitalized, and briefly detained a Belgian journalist.

“The Congolese government’s detention of pro-democracy activists is the latest alarming sign of a crackdown on peaceful protest ahead of next year’s presidential elections,” said Ida Sawyer, senior Africa researcher at Human Rights Watch. “Congolese authorities should immediately release those detained if they haven’t been charged with a credible offense and ensure access to their lawyers and families.”

Human Rights Watch called on United Nations Security Council members, who are due to discuss the situation in Congo on March 19, to publicly press Congolese authorities to immediately release all those detained for their peaceful activities and speech.

Among those arrested on March 15 were Congolese activists, musicians, journalists, technicians, and bystanders; youth leaders and activists from Senegal and Burkina Faso; a US diplomat; two French journalists; and the French director of a production company. The US and French citizens and two Congolese were released after several hours. The others remain detained, possibly by the intelligence agency. They have not been brought before a judge, officially charged with offenses, or had access to their lawyers or families, raising concerns for their safety.

Following the news conference at the Eloko Makasi music studio, men in military police uniform arrived at about 4 p.m. and began arresting people. Witnesses said that the officers at first targeted foreigners. They then began arresting Congolese as well, including those who were preparing the concert stage, and bystanders. The security forces were very rough with several Congolese and West Africans, witnesses said, banging the head of a Senegalese activist against the door of a pickup truck and beating others.

The security forces also took computers and other documents and materials from the hall and destroyed banners.

The military police drove those arrested away in at least three unmarked, white pickup trucks. The US and French citizens were taken to the headquarters of the ANR in Kinshasa, where they were interrogated by senior intelligence officials, then released after several hours. It is not known where the Congolese, Senegalese, and Burkinabe citizens are being detained.

Communications Minister Lambert Mende told journalists that the activists from Senegal and Burkina Faso were “promoting violence through a form of training … coaching of certain youth groups close to a certain opposition to use violent means against other groups or against the institutions of the republic.”

Several Congolese pro-democracy organizations had organized a workshop to introduce Filimbi (“whistle” in Swahili), a new Congolese youth movement. The workshop’s objectives were to promote civic engagement and youth mobilization, and to discuss how Congolese youth can organize in a peaceful and responsible manner to fulfill their duties as citizens.

Youth leaders and activists from Senegal and Burkina Faso came to Kinshasa for the workshop to share their experiences. The Senegalese were members of Y’en a Marre, a group involved in protests against former President Abdoulaye Wade’s controversial bid for a third term in 2012. Those from Burkina Faso were part of Balai Citoyen, a group that participated in protests against former President Blaise Compaoré’s attempt to change the constitution to extend his 27-year term.

“Y’en a Marre and Balai Citoyen are well respected organizations that have worked to promote responsible, civic engagement by youth in West Africa,” Sawyer said. “They came to Kinshasa to share their experiences with Congolese youth, including the importance of peaceful means for youth to engage in the political process.”

Filimbi worked in partnership with Eloko Makasi, a socially conscious music and video production company based in Kinshasa’s Masina neighborhood. Musicians who participated in the workshop went to the Eloko Makasi studio on March 14, 2015, to create a song based on what was discussed at the workshop to encourage Congolese youth to be involved in the democratic process and to promote a free, transparent, and peaceful electoral process.

In a March 16 statement, the US embassy in Kinshasa said the Filimbi workshop was one of many activities the US government supports that involve youth and civil society. “These well-known, well-regarded, non-partisan youth groups as well as the organizers of the weekend’s events intended to promote Congolese youth participation in the political process and encourage young people to express their views about issues of concern to them,” the statement said. “DRC government officials and ruling coalition parties were invited to and some were present during the event.”

Under Congo’s constitution, presidents may serve only two consecutive terms. President Joseph Kabila’s second term ends in 2016. While presidential elections are not scheduled until November 2016, political tensions have been rising across the country. In January 2015, at least 40 people were killed when security forces brutally repressed demonstrations in Kinshasa and other cities to protest proposed changes to Congo’s electoral law that would have delayed elections and enabled Kabila to prolong his term. Numerous political party and civil society leaders have been arrested after speaking out against proposed changes to the constitution or Congo’s electoral system.

“These latest arrests signal a worrying clampdown on freedom of expression and assembly in Congo – fundamental elements of a free, transparent, and peaceful electoral process,” Sawyer said. “Youth leaders, musicians, and activists should be able to meet, discuss, and learn without fear of arrest.”

Source: Human Rights Watch

Robert McBride accused of stealing incriminating USB stick from Hawks

noreply@blogger.com (Barry Giesken) — Sun, 15 Mar 2015 08:49:00 +0000

Robert McBride is now the subject of a criminal investigation – over an allegation that he stole a memory stick containing evidence that could implicate himself as well as Hawks bosses Anwa Dramat and Shadrack Sibiya in unspecified “wrongdoing”.

City Press has learnt the Hawks are now investigating a case of defeating the ends of justice against the head of the Independent Police Investigative Directorate (IPID) after he personally went to the office of suspended Gauteng Hawks head Shadrack Sibiya to take possession of the memory stick that was kept in the walk-in safe.

A senior Hawks officer told City Press on Saturday they were also investigating the relationship between McBride and Sibiya following allegations they received that Sibiya helped McBride evade arrest and a blood test after he allegedly drove drunk and crashed his car after a Christmas party in 2006.

Neither McBride nor Sibiya were available for comment on this allegation on Saturday.

McBride, however, is hitting back and is investigating how acting Hawks head Mthandazo Ntlemeza came to be in possession of the IPID docket into the illegal rendition of five Zimbabweans. He is seeking legal advice on what charges to lay against Ntlemeza.

On Thursday night, McBride filed an urgent application at the North Gauteng High Court in which he asked for an interdict against Police Minister Nathi Nhleko suspending him.

Nhleko had sent him a letter on Wednesday giving him notice of his intention to suspend him.

In his affidavit in court papers, McBride said he met Nhleko and Ntlemeza in Cape Town in February and was told he had been accused of “raiding” Gauteng Hawks provincial headquarters.

'Bugging device'

Two senior sources, one from the Hawks and another from IPID, told City Press the criminal investigation to “nail” McBride was still in its early stages.

“There is an investigation that focuses on whether McBride stole the memory stick, which we believe contained incriminating evidence implicating Dramat, Sibiya and himself,” said the senior Hawks source.

The device has been handed to the State Security Agency for analysis.

However, in another affidavit, Sibiya says two colonels from the Crime Intelligence Unit arrived at his offices in Parktown asking for the device because it belonged to their then suspended boss, Lieutenant General Richard Mdluli, who wanted it back.

Sibiya, who was also suspended at the time, then asked McBride to collect it and examine its contents “to see if it was not a bugging device that was installed unlawfully to monitor my communications”.

The Hawks investigation against McBride relies on an affidavit by Sibiya’s chief administration clerk, Pearl Angel Pomuser, which says McBride and two other men arrived at the provincial headquarters and demanded the device.

McBride allegedly threatened Pomuser with criminal charges if she did not comply, and he was then given the “Data 6 line box” device.

In his letter to Pomuser, McBride said IPID was “investigating a case of systematic corruption” and needed to examine it.

Criminal charges

Last week, City Press reported that McBride faced suspension for allegedly changing the findings of a report into the roles Dramat and Sibiya played in the renditions. The differences between the draft report that implicates the two and the final version that clears them is under way by law firm Werksmans Attorneys.

The senior Hawks officer said that if McBride were found to have played a role in altering the report, he would face additional criminal charges of defeating the ends of justice.

A source within the Sandton law firm told City Press they were still analysing the reports and had asked Nhleko for another two weeks to complete their investigation, which was initially due on Friday.

“Our mandate has been extended to a month,” the source said.

In his notice of intention to suspend McBride, Nhleko accuses McBride of deliberately misleading Dramat and Sibiya by saying they had been cleared of their role in the renditions when they had not.

McBride is also accused of not informing Nhleko that there were two reports and of undermining the minister by writing to the parliamentary portfolio committee on police two weeks ago to request a special sitting to explain the differences in the reports.

Hawks spokesperson Brigadier Hangwani Mulaudzi declined to comment on Saturday, referring questions to police ministry spokesperson Musa Zondi.

Zondi confirmed Nhleko had asked McBride “in the letter whether taking the device could not be construed as tampering with evidence”.

In 2011, McBride was sentenced to two years in prison for drunken driving and an effective three years for trying to defeat the ends of justice.

He successfully appealed his conviction on both counts in 2013.

Source: News24

Police Minister launches investigation into Robert McBride

noreply@blogger.com (Barry Giesken) — Sun, 08 Mar 2015 09:01:00 +0000

Police Minister Nkosinathi Nhleko has launched an investigation into Independent Police Investigative Directorate (Ipid) Head Robert McBride’s handling of the case involving senior Hawks officials and their role in the rendition of Zimababweans in 2010.

It’s understood Ipid filed conflicting reports on the case.

The City Press is reporting Nhleko has accused McBride of changing the findings on the report allegedly in an attempt to protect the Hawks bosses.

The police ministry has also confirmed that Nhleko called the IPID boss asking to explain why there were differences in the two IPID reports.

Spokesperson Musa Zondi, “The minister has asked Werksmans Attourneys to look into both reports and come back to us as soon as possible and tell us when exactly these reports were changed and what the reasons were.”

Weekend reports suggest McBride could soon be joining Hawks boss Anwa Dramat and Shadrack Sibiya on suspension, in the wake of the illegal rendition of five Zimbabweans from Diepsloot, over the Beitbridge Border Post in 2010.

The police minister suspended the pair late last year however, the High Court in Pretoria rendered Dramat's suspension null and void.

However, the Police Ministry last month confirmed that Dramat has not reported for duty, and is on leave by mutual agreement with Nhleko.

Source: EWN

Zuma orders inquiry to probe Nxasana fitness to hold office

noreply@blogger.com (Barry Giesken) — Sat, 07 Feb 2015 12:04:00 +0000

“The inquiry would look at whether the facts and circumstance surrounding his previous convictions were “constant with the conscientiousness and integrity of an incumbent of the office of the National Director of Public Prosecutions”, according to the terms of reference published on Friday.

It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.

The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).

“[The inquiry will] make findings, report on and make recommendations concerning the matters.

“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”

On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.

In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.

Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.

Judge Joseph Raulinga postponed his application indefinitely.

Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.

This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.

Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.

On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.

In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.

Cassim would determine the rules of the enquiry. –Sapa

Source: mail & Guardian

JZ ignores damning NPA report

noreply@blogger.com (Barry Giesken) — Fri, 06 Feb 2015 12:18:00 +0000

Recommendations against the key actors in the Richard Mdluli fraud case have gone unheeded.

The report of an inquiry by retired Constitutional Court Justice Zak Yacoob into the turmoil at the National Prosecuting Authority (NPA) has made damning findings against former acting prosecutions head Nomgcobo Jiba and her key ally, specialised commercial crimes unit head Lawrence Mrwebi.

The report, sent to President Jacob Zuma in October, confirms previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.

Until this week Zuma had failed to respond to the Yacoob report’s recommendations (that Mrwebi should be suspended and an inquiry set up into improprieties at the NPA), reinforcing perceptions that Zuma is protecting his allies in the prosecution service.

On Thursday, after three months of increasing drama and infighting, the presidency announced that Zuma had established an inquiry into the NPA. But that enquiry will not follow the lines recommended by Yacoob. Instead it will deal with the fitness of Mxolisi Nxasana to be the national director of the NPA.

The precise terms of reference for the inquiry are due to be gazetted this Friday, February 6.

The Yacoob report, which included an investigation by advocate Kenneth Manyage, was conducted at the request of Nxasana, the very national director who must now face a presidential inquiry.

Unlike the inquiry now to be instituted into Nxasana, the Yacoob report has no legal force, but strengthens an earlier formal request by Nxasana to Zuma urging him to suspend Jiba and Mrwebi pending the investigation of their alleged perjury by lying under oath.

Both remain in office. NPA spokesperson Velekhaya Mgobhozi confirmed that Zuma, who alone has the power to suspend prosecutors at this level, has never responded to the request.

Jiba and Mrwebi declined to co-operate with Yacoob’s inquiry and Jiba questioned its mandate and lawfulness.

The NPA confirmed last week that the acting head of the Hawks, Major General Berning Ntlemeza, has requested the return of the perjury dockets of Jiba, Mrwebi and Sibongile Mzinyathi, another senior prosecutor accused of altering his evidence in the Mdluli matter.

Ntlemeza’s spokesperson has denied he personally intervened to retrieve the docket, saying “he has the right to ask for progress on any matter”.

The move blocks any formal decision by the NPA on whether to prosecute the trio.

Nxasana inquiry

The inquiry into the fitness of Nxasana comes hard on the heels of the suspension of Hawks commander Anwa Dramat, and what critics see as a political purge at the South African Revenue Service. The move appears to support the view that Zuma is moving against his perceived opponents across a broad front.

The inquiry into Nxasana was first announced more than six months ago, but appeared to have been suspended pending negotiations between Zuma and Nxasana.

Its formalisation now signals a new phase in the increasingly dirty infighting at the NPA. Two independent sources familiar with the matter told amaBhungane that Jiba and Mrwebi were the key stumbling blocks to a settlement between the president and the head of the NPA.

One said: “Nxasana wrote to Zuma and offered to go if Jiba and Mrwebi were removed. He told the president: ‘If they are out, I will go immediately.’

“I suspect he has not changed his position, which is why the president is now proceeding against him.”

Zuma first announced an inquiry into Nxasana in July last year after it emerged he was denied security clearance, purportedly because he did not disclose that he had killed a man at the age of 18.

Nxasana said he was acquitted of the 1985 murder and insisted the revelations about his past were part of factional machinations by his NPA rivals and politicians out to get rid of him.

Until Thursday’s announcement, Zuma had not announced the inquiry’s terms of reference and, following an urgent court application by Nxasana, did not suspend him.

Long shadow

The emergence of the Yacoob report has underscored the central role of the Mdluli saga in the battle for control of the NPA.

It reserves most of its criticism for Mrwebi, a special director appointed by Zuma to head the specialised commercial crime unit in the office of the national director.

The report notes that even before his appointment was gazetted in November 2011, Mrwebi had received hand-delivered representations from Mdluli’s lawyers.

Mdluli had been charged for alleged kickbacks he received in relation to vehicles bought using the crime intelligence division’s secret fund.

The charges emerged from a broader Hawks investigation of abuses of the fund and was under the direction of Pretoria commercial crimes unit boss Glynnis Breytenbach and her divisional director, Mzinyathi.

At the time Mdluli was also fending off a Hawks reinvestigation of murder relating to the unsolved 1999 killing of Mdluli’s former love rival, Oupa Ramogibe.

Mrwebi’s move

Following the representations on the corruption case, Mrwebi determined that the matter could only be investigated by the inspector general of intelligence – despite the latter disputing this interpretation – and instructed Breytenbach to withdraw the charges.

Along the way, Breytenbach appealed in vain to Jiba to review Mrwebi’s decision. She blamed her later suspension and protracted disciplinary battles with the NPA on her determination to prosecute Mdluli. She has since resigned and joined the Democratic Alliance.

In overruling Breytenbach and Mzinyathi, the Yacoob report finds that Mrwebi flouted legislation, stating that such decisions can only be taken “in consultation with” the divisional director.

At Breytenbach’s disciplinary hearing Mzinyathi gave evidence that he had disagreed with Mrwebi’s decision to withdraw charges against Mdluli.

However, when lobby group Freedom Under Law challenged decisions to withdraw murder and corruption charges against Mdluli, Mzinyathi provided an affidavit that appeared to suggest he had agreed with Mrwebi. It is that shift that forms the basis of the perjury investigation against him.

Short shrift

The Yacoob report gives short shrift to these machinations.

“It is trite law that the phrase ‘in consultation with’ means with the concurrence of,” it says. “Yet Mrwebi, for reasons that are difficult to comprehend, chose either not to understand this or to ignore the provision and withdraw charges against Mdluli in circumstances where Mr Mzinyathi did not agree with this course.

“Mr Mrwebi’s evidence at Ms Breytenbach’s disciplinary inquiry is telling … He veered, with some instability, among three possibilities: there was substantial agreement, it was 50-50, or no agreement at all …

“His evidence at the disciplinary hearing left a great deal to be desired. He displayed much arrogance, contradicted himself repeatedly and, in material respects, demonstrated considerable lack of understanding of the law and of legal processes.

“In our view his evidence was certainly not becoming of a person holding the position of special director. He certainly did not come across as a man of credibility or integrity … In our view there are serious criticisms of Mr Mrwebi which must be acted upon.”

Yacoob on Mdluli

Turning to the Mdluli cases, the Yacoob report notes: “We are convinced, having looked at the dockets, that there was at the very least a prima facie case against Major General Mdluli on the fraud and corruption as well as the murder and related charges. The fact they were withdrawn … are both matters of grave concern.”

In a clear reference to the perjury allegations against Jiba, Mrwebi and Mzinyathi, the report noted: “In regard to certain criminal charges against senior NPA personnel: we confirm our view that there is a prima facie case in all of them.

“Mr Mrwebi has got a great deal to answer for … the courts have accused him, with justification, of not telling the truth, not being fully frank with the court …

“There is reason to believe he lied under oath and did not respect the court.

“Mzinyathi, too, lied under oath. Initially without qualification he stated that he had not agreed to the withdrawal of fraud and corruption charges. In his later affidavit he virtually (but not quite) said that he had agreed.

“Jiba said in the high court that she knew nothing about the withdrawal of these cases and the court found it difficult to believe her. We agree … we find it quite incredible that she did not know about these cases.”

Mrwebi told amaBhungane this week that it was the first time he had heard the allegations contained in the Yacoob report. “I have not seen that report, so I can’t comment on these allegations.”

Jiba said she could not comment on Yacoob’s findings because she had never seen the report and “I don’t even know under what mandate or legal prescripts Judge Yacoob acted”.

Asked why she refused to be interviewed by Yacoob, Jiba said: “I could not subject myself to something that is unlawful … you can’t just jump for people. People can’t just jump and say we are now investigating you. There are processes you have to follow.

“And in as much as people want to appear as if they are protecting the rule of law, the rule of law must then be applicable to everybody.”

Mzinyathi could not be reached for comment.

Source: mail & Guardian

Another delay in ‘Amigos’ trial

noreply@blogger.com (Barry Giesken) — Wed, 21 Jan 2015 12:41:00 +0000

A year since their last court appearance, the accused in the so-called “Amigos” R144 million provincial government racketeering, corruption and fraud trial are no closer to standing trial.

When they appeared briefly in the Durban High Court on Tuesday, their case was adjourned for another year – to February 8, 2016 – because the main accused, Cape Town billionaire Gaston Savoi, had launched another “interlocutory application”, this time for a permanent stay of prosecution.

Savoi, who also represents his company, Intaka Holdings, and his colleague, Fernando Praderi, were again absent from court – with the blessing of the State.

Their advocate, Jimmy Howse, placed on record that this was the arrangement with all adjournments and warrants of arrest that were issued but stayed.

Before Acting Judge Eric Nzimande were the former head of the provincial Treasury, Sipho Shabalala, his wife, Beatrice, former heads of health Busisiwe Nyembezi and Ronald Green-Thompson, former health officials Victor Ntshangase and Alson Buthelezi, and advocate Sandile Kuboni.

The reason for the case’s adjournment in February last year was that Savoi was waiting for the outcome of his Constitutional Court challenge to sections of the Prevention of Organised Crime Act. He argued that these were vague and open to “personal and political manipulation” – and used as an example the withdrawal of charges against his former co-accused, ANC politicians Mike Mabuyakhulu and Peggy Nkonyeni.

The Constitutional Court handed down judgment in March last year, dismissing his attacks and finding unanimously that the definition of a “pattern of racketeering activity” was clear.

On the issue he raised about the act allowing “hearsay evidence”, the court said this did not render the trial automatically unfair and the trial court was best placed to deal with this issue.

Savoi has now launched another application in the Pietermaritzburg High Court for a permanent stay of prosecution.

Legal sources said there had been several “skirmishes” around this, particularly about provision of documents from the State. While all the papers had now been filed – and it was hoped it would be argued in March – the dispute had not been finally resolved and it would not be heard until later in the year.

“Of course, depending on the outcome, one or other party may wish to take it to a higher court on appeal, which will push any trial date further in the future,” a source said. Next year’s date remains a provisional one.

Savoi is accused of paying sweeteners to officials – including an alleged R1m to the ANC – to score contracts for the supply of water purification and oxygen plants to the departments of health and local government.

Initially there were 23 accused facing 54 counts. But the new indictment now lists only 17 charges.

In documents in support of an asset forfeiture application, the State put up transcripts of text messages in which some of the accused referred to each other as “Amigo”.

Source: Iol

Marikana Commission: Riah Phiyega's impossibly hazy memory

noreply@blogger.com (Barry Giesken) — Thu, 11 Sep 2014 08:42:00 +0000

National Police Commissioner Riah Phiyega appeared at the Marikana Commission on Wednesday to clarify questions on how decisions were made from the top. Instead, she further tarnished the SAPS position in the inquiry, painting top officers as uninterested in operational matters and effectively laying the blame at the feet of ground commanders. By GREG NICOLSON.

Riah Phiyega listened to chairman Ian Farlam. “You swear that the further evidence you give to this Commission will be the truth, the whole truth and nothing but the truth?” In a floral skirt, teal blouse and blazer, with matching pearl earrings and necklace, Phiyega agreed.

The national police commissioner appeared in front of the Marikana Commission again on Wednesday for the last time before the inquiry wraps up. As the top cop in August 2012, when 34 mineworkers were killed in a single day and 10 people were killed in the preceding week, Phiyega's testimony is crucial to the Commission's goal of pursuing truth and restorative justice. She is ultimately responsible for the police operations. She's also the link between alleged political influence and SAPS actions.

On Wednesday, however, Phiyega stonewalled Farlam who for most of her appearance quizzed her on issues that either hadn't been resolved or had come to light since Phiyega's previous lengthy appearance. To most questions, she simply said she doesn't remember what happened over two years ago. In her silence, she painted a picture of a leader unwilling to cooperate with the inquiry, senior police officers who failed to perform their duties, and an SAPS that has tried to mislead the Commission.

Farlam wanted to talk about the extraordinary meeting of the police management forum on 15 August when top provincial and national officers discussed Marikana. It was in this meeting when the decision was taken to implement the disperse, disarm and arrest plan the next day, which ultimately led to the massacre. Incredibly, the police didn't hand over any evidence of the meeting nor mention it when they made their submissions to the Commission. It only came out later.

“You're now seriously stating we would be in error if we find SAPS didn't cooperate [with the Commission]?” Farlam put to Phiyega. Only after a third party pointed them towards the meeting did the Commission find out about it. There was nothing untoward, she claimed, and when requested, they admitted the meeting took place. “It certainly appeared to us to be a secret when it came out at a later stage,” said Farlam.

Phiyega agreed the Marikana strike was the most challenging public policing situation during the democratic era, but she could not remember details of the meeting which approved the plan to tackle it. In the hour-long session on 15 August 2012, North West Provincial Commissioner Zukiswa Mbombo made a presentation for 10 to 15 minutes and the SAPS from different provinces also discussed sharing the necessary resources for the operation. Beyond that, Phiyega said she didn’t have a “photographic memory” and could not remember “pedantic details” about what happened in the meeting.

“It's very important for us to know why the decision was taken to proceed on Thursday morning,” said Farlam. “It's important for us to find out was exactly was said.” Phiyega didn't help, but she was clear about what didn't happen in the meeting. While most of the country's provincial police commissioners were present, some of whom come from policing backgrounds, Phiyega said no specific details of the plan to confront the mineworkers were discussed before it was approved.

“Are you seriously suggesting that the meeting endorsed the proposal without knowing what the details of the response were?” asked Farlam. Phiyega's response was that police know how to conduct disarming operations and they're are essentially the same. She said this despite two officers being hacked to death when a disarming operation went wrong on 13 August. Incredibly, reflecting on the meeting on 15 August, Phiyega could not recall any of the country's top police officers raising the fear of further bloodshed while they decided to approve the plan.

While shocking, it also seems extremely unlikely given the volatile situation in Marikana at the time and widely publicised problems with policing protests. Yet if Phiyega acknowledged they knew and spoke about the dangers, the next question is, so why did they implement the plan, or why this plan, and why wasn't greater precaution taken?

Farlam, however, seemed shocked. “The fact that the proposal was endorsed by the meeting, the fact that the people there all agreed to make resources available as required, surely means that they cannot evade responsibility and say, 'We knew about the plan. Sure go ahead. We'll make resources available. And if it goes wrong because it's managed badly or defective planning, that's nothing to do with us.' Surely there comes a time when responsibility must rest with those people in that meeting as well.”

He was equally surprised that Phiyega had no recollection of a conversation with SAPS expert witness Cees de Rover about political influence on police decisions at Marikana. “My questions have been straightforward on the issue; the answers have not been,” De Rover said last week, claiming Phiyega was evasive. Farlam said surely she would remember being asked if political pressure played a part in the death of 34 people in a day. Phiyega said she couldn't remember and refused to engage the chairman's questions.

Already evasive and difficult, the national police commissioner's credibility was shot when Farlam brought up the review panel. When Phiyega had appeared at the Commission before, she was asked whether the SAPS had established a review on certain issues related broadly to Marikana and Phiyega said she had not. But when a police hard drive was analysed, it emerged a review panel had been established and Phiyega's signature was on the call up instructions. No evidence the panel existed was voluntary handed to the Commission by the police despite their commitment to do so with all relevant information at the start of the inquiry.

It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest.

While she plays the amnesia card and tries to distance the country's top officers from the details of the plan to confront the miners, she opens up herself and other officers to allegations of incompetence and dereliction of duty. But by doing so she shifts the greater responsibility to the commanders on the ground who she says the SAPS relied on.

Phiyega is also putting a wall between the police and the politicians who got involved in Marikana. Last week, De Rover, a policing expert who has worked in over 60 countries, said he couldn't fathom a situation where politicians were not involved.

If there was any doubt that Phiyega was untruthful, Advocate Dali Mpofu showed her the transcript between the SAPS's Mbombo and Lonmin's Bernard Mokoena on 14 August 2012. In relation to the police ending the strike, the two speak of Cyril Ramaphosa, Julius Malema, the pair's relationship in the ANC disciplinary committee, problems with Malema potentially ending the crisis, and nationalisation of the mines. Asked about the political nature of the discussion and whether it is legal for the SAPS to use policing operations to influence party politics, Phiyega responded, “What's political about this?”

“They could have used different words, but what I hear is people who are interested in ending a protest.”

Let us say it once more: It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest. DM

Source: Daily Maverick

South African court convicts men of murder attempt on Rwandan general

noreply@blogger.com (Barry Giesken) — Fri, 29 Aug 2014 09:13:00 +0000

A South African court found four men guilty on Friday of an attempt to murder an exiled former Rwandan general in front of his home in Johannesburg.

The general said the attack was ordered by Rwandan president Paul Kagame.

Two other suspects were acquitted for the shooting, which took place in 2010 and that injured Faustin Kayumba Nyamwasa, the court said.

Nyamwasa, a former top aide to Rwanda's president, fell out with him in 2010 and fled to South Africa where he was granted political asylum. Nyamwasa and others accuse Kagame of ordering two attempts on his life. They also accuse him of ordering the murder of another critic of the Rwandan government, colonel Patrick Karegeya, who was a former Rwandan spymaster. Karegeya was found strangled in a Johannesburg hotel in December last year. Karegeya, who was also exiled in South Africa, was Nyamwasa's friend and former colleague.

Rwanda's government has denied any involvement in the attacks.

Karegeya's nephew, David Batenga, said he was pleased the four men were found guilty but discouraged that the other two were not. Sentencing is set for 10 September.

Rwanda's government has been praised for making impressive progress in the delivery of public services since the 1994 genocide. However, Human Rights Watch says freedom of expression is tightly controlled and that the government has threatened critics, and obstructed opposition parties and independent civil society.

In Rwanda on Friday, two senior army officers were charged with inciting the public against the government. Brigadier general Frank Rusagara and colonel Tom Byabagamba were also charged in a military court with illegal possession of firearms and spreading falsehoods. The two were arrested last week.

Byabagamba once was the commander of the elite force in charge of Kagame's security. Rusagara, who retired from the army last year, had recently served as the defence attache at Rwanda's diplomatic mission in Britain. His driver, retired sergeant Francois Kabayiza, was also charged.

Source: The Guardian

NPA boss Nxasana wins battle against suspension - for now

noreply@blogger.com (Barry Giesken) — Fri, 15 Aug 2014 10:54:00 +0000

The National Prosecuting Authority boss Mxolisi Nxasana appears to have won round one in his battle against President Jacob Zuma to keep his job.

Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.

Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.

The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.

Anticipating Nxasana’s suspension

The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.

Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.

Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.

Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.

One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.

While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.

“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”

Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.

Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.

Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.

Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.

Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.

“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”

Source: Mail & Guardian

Criminal charges laid against senior NPA officials

noreply@blogger.com (Barry Giesken) — Sun, 10 Aug 2014 11:24:00 +0000

Criminal charges have been laid against three National Prosecuting Authority senior officials, the prosecuting authority confirmed on Sunday.

“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.

City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.

Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.

Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa

Source: Mail & Guardian

The NPA's reputation is in tatters: Our state institutions need to be rescued

noreply@blogger.com (Barry Giesken) — Wed, 16 Jul 2014 07:18:00 +0000

Speech by the DA's Shadow Minister of Justice, Glynnis Breytenbach MP during the budget vote debate on Justice, Parliament, July 15 2014:Our state institutions need to be rescued

South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all our citizens live in safety and security, and that everyone is equal before the law. It is these principles that should guide the criminal justice cluster in the performance of their duties, guided always by the prescripts of the Constitution and the principle of the Rule of Law.

However, this has not been done successfully or at all, and the web of terror that crime throws over South Africa is so strong and far-reaching that every South African has been constrained by it in some way. The lives of many committed and talented South Africans have been lost. Many are deeply traumatised. We have become suspicious of our fellow citizens and distrusting of the institutions that are supposed to keep us safe.

This has a negative effect on the fight against crime in general, and the fight against corruption in particular. This in turn has a disastrous effect on the economy and investment. International investors are hesitant to invest where they believe that they may have no recourse, where they have little faith in the ability of the legal framework to offer adequate protection. A knock-on effect is the high unemployment rate, and the inability to create jobs and employ particularly young people and young graduates.

The 2007 Cabinet adopted a so-called seven-point plan to review and revamp the Criminal Justice System. This, very briefly, was designed to address the most serious shortcomings of the Criminal Justice System, and was to create an effective and efficient so-called Integrated Criminal Justice System. We now find ourselves in mid-2014, and no closer to achieving even the most modest of the goals set out in that plan. Seven years of planning, budgeting and promises of implementation have left us nowhere. Billions have been spent by the Department of Justice and the Criminal Justice Cluster in pursuit of these goals, with very little or nothing to show for it.

This year, again, in his overview of the proposed budget, Minister Masutha refers to these goals, how they will be pursued and achieved and how much will be spent in the pursuit thereof. And this year, again, there can be no realistic expectation of any success in this regard.

The National Prosecuting Authority (NPA) is an important player in the Criminal Justice Cluster, and the institution upon which the achievement of these goals largely rests, is in disarray. It has been without a permanent head for long periods, and the ensuing chaos is as a direct result of this. Acting heads, who by their very nature are directionless, and unsuitable appointments have wreaked havoc on a once strong and dependable institution. This is, of course, the direct result of unabashed and undisguised political meddling in the affairs of the National Prosecuting Authority, and the Criminal Justice Cluster as a whole.

The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public. Yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news, and never for the right reasons. The public at large has no faith in the organization to fulfill even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor or no reasons.

The hapless Koki Mpshe was appointed after the inexcusable firing of Vusi Pikoli, solely to facilitate the withdrawal of the corruption and other charges against the President. The appointment of the wholly unsuitable Menzi Simelane was defended to the doors of the Constitutional Court, the equally unsuitable Nomcgobo Jiba was rushed up the corporate ladder in order to be able to replace him, and to oversee the continued stonewalling surrounding the spy tapes saga and the protection of Richard Mdluli, astonishingly even in the face of various court judgements. Under pressure from various sources, the President, having had plenty of time to apply his mind, appointed Mxolisi Nxasana, only to institute an enquiry into his fitness to hold office ten months later, and only after he called for the spy tapes and related documents and re-instituted the charges against Richard Mdluli. It takes no great amount of intelligence to glean the golden thread in this sad tale.

The only sensible thing to do now is for the President to widen the still to be announced terms of reference of the Commission to include an enquiry into the behaviour of other senior managers, notably Adv Jiba and Adv Mrwebi. Both were severely criticized in judgements in the High Court and the Supreme Court of Appeal. The top structure of the National Prosecuting Authority needs to be cleaned out so that those who remain can get on with the core business of the organization.

The Special Investigating Unit (SIU) has not fared much better than the National Prosecuting Authority. Beset by leadership issues the Special Investigating Unit has largely failed to fulfill its proclaimed goals, despite a year on year increase in its budget. Many investigations have dragged on for years, and appear to be nowhere near completion. The Bosasa matter has been live for more than 5 years now, still with no end in sight, and the Head, Adv Soni, admitted last week before the Portfolio Committee that he could give no indication as to when the Nkandla investigation and report would be finalized and placed before the President.

Despite the importance of and public interest in the matter, the Special Investigating Unit only managed to gain access to the premises at Nkandla on 3 July 2014. Adv Soni declined to say who was responsible for the delay, despite the parties involved being legally obliged to co-operate with him. Given the profile of this matter, and the obvious importance and pressure to finalize it, no real progress could be demonstrated, and certainly no will to drive the matter was discernible.

The current presentation before the Portfolio Committee reveals an enormous decrease in cases expected to be finalized, but despite this the Special Investigating Unit felt comfortable to approach Parliament and request an increased budget in order to meet its significantly decreased goals. There can be very little confidence that even these modest goals will be met. Again we see an important component in the Criminal Justice Cluster being reduced to a somewhat embarrassing ineffectiveness due to overt political meddling.

The office of the public protector is a chapter 9 institution and an independent body reporting to Parliament, whose mandate is being followed and fulfilled, but is clearly under fire due to the independence being exhibited. The Public Protector herself is vilified, accused of overreaching her mandate, accused of playing politics and the target of severe personal criticism from certain limited sources, simply because she refuses to bow to political pressure and refuses to allow political interference in the institution, which derives its independence from the Constitution.

Again, the thread of political interference in these institutions is glaring, and the attack on the independence of the Criminal Justice Cluster is palpable.

No amount of budget increases will fix this. No amount of money is going to make these institutions effective in the face of such interference. The interference must stop. And it is our duty, the duty of this fifth Parliament, to all those citizens who voted for us to sit here, to make it stop, and to work towards making the Criminal Justice Cluster effective and efficient, in order to fulfill the role it is enjoined to fill by the Constitution. If we allow the Rule of Law to be eroded any further, we will find it impossible to regain the lost ground.

The great Russian author, Aleksandr Solzhenitsyn wrote: " in keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations."

We are tired. We want justice now. Sikathele manje. Sifuna ukulunga.

Issued by the DA, July 15 2014

Source: Politicsweb

BRICS establish $100bn bank and currency pool to cut out Western dominance

noreply@blogger.com (Barry Giesken) — Tue, 15 Jul 2014 08:53:00 +0000

The group of emerging economies signed the long-anticipated document to create the $100 bn BRICS Development Bank and a reserve currency pool worth over another $100 bn. Both will counter the influence of Western-based lending institutions and the dollar.

The new bank will provide money for infrastructure and development projects in BRICS countries, and unlike the IMF or World Bank, each nation has equal say, regardless of GDP size.

Each BRICS member is expected to put an equal share into establishing the startup capital of $50 billion with a goal to reach $100 billion. The BRICS bank will be headquartered in Shanghai, India will preside as president the first year, and Russia will be the chairman of the representatives.

“BRICS Bank will be one of the major multilateral development finance institutions in this world,” Russian President Vladimir Putin said on Tuesday at the 6th BRICS summit in Fortaleza, Brazil.

The big launch of the BRICS bank is seen as a first step to break the dominance of the US dollar in global trade, as well as dollar-backed institutions such as the International Monetary Fund (IMF) and the World Bank, both US-based institutions BRICS countries have little influence within.

“In terms of escalating international competition the task of activating the trade and investment cooperation between BRICS member states becomes important,” Putin said.

Russia, Brazil, India, China and South Africa account for 11 percent of global capital investment, and trade turnover almost doubled in the last 5 years, the president reminded.

Each country will send either their finance minister or Central Bank chair to the bank’s representative board.

Membership may not just be limited to just BRICS nations, either. Future members could include countries in other emerging markets blocs, such as Mexico, Indonesia, or Argentina, once it sorts out its debt burden.

BRICS represents 42 percent of the world’s population and roughly 20 percent of the world’s economy based on GDP, and 30 percent of the world’s GDP based on PPP, a more accurate reading of the real economy. Total trade between the countries is $6.14 trillion, or nearly 17 percent of the world’s total.

The $100 billion crisis lending fund, called the Contingent Reserve Arrangement (CRA), was also established. China will contribute the lion’s share, about $41 billion, Russia, Brazil and India will chip in $18 billion, and South Africa, the newest member of the economic bloc, will contribute $5 billion.

The idea is that the creation of the bank will lessen dependence on the West and create a more multi-polar world, at least financially.

“This mechanism creates the foundation for an effective protection of our national economies from a crisis in financial markets," Russian President Vladimir Putin said.

The group has already created the BRICS Stock Alliance an initiative to cross list derivatives to smooth the path for international investors interested in emerging markets.

Russia has also proposed the countries come together under an energy alliance that will include a fuel reserve, as well as an institute for energy policy

"We propose the establishment of the Energy Association of BRICS. Under this ‘umbrella’, a Fuel Reserve Bank and BRICS Energy Policy Institute could be set up,” Putin said.

Documents on cooperation between BRICS export credit agencies and an agreement of cooperation on innovation were also inked.

Bringing emerging economies closer has become vital at a time when the world is guttered by the financial crisis and BRICS countries can’t remain above international problems, said Brazil's President Dilma Rousseff.

She cautioned the world not to see BRICS deals as a desire to dominate.

“We want justice and equal rights,” she said.

“The IMF should urgently revise distribution of voting rights to reflect the importance of emerging economies globally,” Rousseff said.

Source RT

Zuma announces inquiry into NPA boss Nxasana

noreply@blogger.com (Barry Giesken) — Sat, 05 Jul 2014 11:46:00 +0000

President Jacob Zuma instituted an inquiry into NPA boss Mxolisi Nxasana, the presidency announced on Saturday.

“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.

Maharaj said details on whether Nxasana would be suspended will be announced in due course.

Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.

Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.

Circulating stories

In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”

A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.

Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.

NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.

Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.

“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.

NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.

Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.

Source: Mail & Guardian

Abahlali baseMjondolo Press Statement: The ANC Must be removed from Office

noreply@blogger.com (Barry Giesken) — Tue, 06 May 2014 13:39:00 +0000

For nine years our movement has boycotted elections. We have been clear that no political party represents the interests of the poor and that it was necessary for us to build our own power in order to present our own needs and demands to society. In these nine years we have won many victories but most of us remain in shacks. Twenty years of shack life is a disgrace in a democracy.

Corruption is also a disgrace. In Durban you get nothing without a membership card for the ANC. All development goes through the councillors and their ward committees and ANC branch executive committees. Development is there to make ANC leaders rich and to control the rest of us by only making it available to ANC members. Development is not for the people. This kind of corruption is a disgrace in a democracy.

But an even bigger disgrace is the repression that we have faced from the ANC, its members, its leaders and its assassins. They have banned our marches; attacked our marches; arrested us on trumped up charges; assaulted us in detention; used armed men to drive us from our homes with police support; used death threats, attacks in our homes and torture in police stations to intimidate people to manufacture evidence against us; detained us for months and months while we wait for a trial that gets thrown out of court because there is no evidence against us; used their anti-land invasion unit to evict us for political reasons and beaten and shot us in our communities. Senior members of the ANC and the Municipality have made public death threats against us. Two activists were assassinated in Cato Crest last year and another, an unarmed teenage girl, was executed by the police.

We cannot go on with this level of repression. As everyone knows we are not the only people who face this kind of repression. We all know about Andries Tatane and all the others murdered by the police on protests. We all know about the Marikana Massacre.

In Durban court orders are just ignored by the Municipality and so the courts cannot protect us. Mostly the media and civil society tend to agree that because we are poor and black we are automatically violent and criminal and too stupid to think our own politics and so we do not get that much protection from the media and civil society either. We have some valued comrades on the left among the middle classes but mostly this left just wants to bus us into its meetings so that it can look credible without having any interest at all in our struggles, our ideas or our safety. NUMSA asked us to support their march in Durban but they have not shown any concern to support us when we face repression. The EFF also asked us to support their march in Durban but, like NUMSA, they have not supported us when we face repression. So far our experience of both these organisations is that they are operating like the left NGOs – we are treated as if our only role is to provide the large numbers of people that they need to be bussed in to justify their politics.

Because we cannot carry on like this we took a decision to vote against the ANC. We did not want to split our vote. We decided to collectivise our vote in order to make it stronger. Our main priority was that the ANC must be removed from office. We knew that this will not happen in this election but we were still clear that if we can weaken the ANC then we must do that. Also we knew that if we collectivise our vote all the political parties will know that there is a large bloc of votes that will be available at the next election for the party that does the best job in opposing repression and takes the best position on shack settlements.

We decided that all political parties except the ANC would be invited to make a presentation to the movement. Some of our members did not want to invite the DA to make a presentation as they are known to represent the rich and, in Cape Town, they are no different to the ANC when it comes to illegal and violent evictions. However we debated this at length and decided to invite them to make a presentation on the grounds that the removal of the ANC was our first priority and the weakening of the ANC was our second priority.

The DA, EFF, NFP and WASP all accepted the invitation to make a presentation to our members at the Diakonia Centre on 25 April and they all came and made their presentations.

The delegates to that meeting then returned to their branches to discuss the presentations there. We met again on 2 May and held a general meeting. At this meeting the general leadership did not vote as their role was to facilitate the meeting. The rest of the delegates voted and the results were as follows:

2 - undecided
2 - WASP
16 - EFF
26 - NFP
146 – DA

The DA and the EFF returned to witness the voting. WASP did not return. The NFP arrived three hours late with lots of car, bodyguards and their senior people. But by that time we were already dispersing.

The whole meeting was recorded on video and this video can be made available. Even those who were very disappointed with the results agree that it was a highly democratic process. The collective discipline of a democratic organisation requires that we all accept this outcome. Of course this decision is only for this election and it does not bind our members in Cape Town. When the next election comes we will again decide whether or not to vote and, if so, which party to vote for.

The main reason why the majority of the delegates supported the DA was because they wanted to have the strongest possible opposition to the ANC to put the maximum pressure on the ANC and to prevent it from doing what it pleases – which includes murdering us. We negotiated a legal agreement with DA which commits them to support some of our more basic demands. We hope that they will stand up for these issues and that they, and all other parties, will realise that if they want the support of the shack dwellers they will have to support us rather than see us as a problem to be eradicated or forcibly removed from the cities and taken to the human dumping grounds.

We will vote, as one bloc, for the DA tomorrow. We will not take membership of the party, we do not endorse its policies and we will continue to insist that no one can hold a position as an elected leader in our movement if they join a political party. We do not love or trust the DA. Already they are telling lies about our choice and we are not surprised. We have made a purely tactical choice. We will certainly continue to organise against all and any attacks on the poor in Cape Town by the DA government there.

One of the lies that is being told is that the DA are saying that we have endorsed them for this election in the Western Cape. This is not true. Our Western Cape branch has endorsed our decision to make a tactical vote for the DA in KwaZulu-Natal. Our Western Cape branch has not decided to make any collective vote for any party in this election.

Over the last nine years we have protected our autonomy from NGOs very carefully even though we do work with some NGOs. Now that we feel that it is necessary for our safety and our ability to continue to organise to use our numbers to make deals with political parties we will protect our autonomy from political parties in the same way.

Our politics puts people first. We cannot do nothing but wait for socialism to come one day in the far distant future. Our children are dying from diarrhoea right now, our old people and disabled people are dying in shack fires right now, we are being evicted and disconnected right now and we are being beaten and shot during evictions and disconnections right now. We been repressed, and even murdered, right now. We have to act to do what we can to make our members’ lives better right now. We have to act to protect our ability to organise and to sustain our living politics right now. This does not mean that we have given up on our vision of a world where land, cities, wealth and power are shared fairly. We call this a living communism and we remain committed to it. But we also remain committed to the human beings that we are now and to our families, neighbours and comrades. We will make what deals we have to make to protect our politics and improve our members’ lives right now but we will not give up on our political vision. We represent thousands of people who live in shack settlements. Those people who sit in university offices and NGO offices only represent themselves. Their children are safe. Their lives are not at risk. They are free to put ideology before people because they are not accountable to oppressed people and because they are not themselves oppressed people. But the fact that we do not enjoy that freedom does not mean that we have given up our politics. It means that we are searching for a practical way forward in a difficult and dangerous struggle.

The new Abahlali electoral position has offered us a lot to learn about. There is a lot to learn about party politics and its dirty campaigning tactics. There is a lot to learn about the deeper politics of our time. And, yes, there is a lot to learn about who cares and doesn't care about the struggles of the poor and the working class.

Ideology and principle are vital but if they both fail to house the homeless and rescue the repressed and recognise the humanity of the inhumanized then the oppressed are not doing any harm to anyone in trying to emancipate ourselves by taking practical action now to keep people safe and to make their lives better while always keeping a bigger vision of freedom and justice in mind.

We share a sadness that we have had to make this decision. Very few people outside the movement have been witness to what we’ve been going through in the hands of the ANC. We do not have words to explain the pain many of us have gone through. We do not have words to explain our pain of twenty years of shack life and all the state repression that has come to us when we stood up for our humanity. Last year we came to the ceiling of hopelessness. It was clear that we are people that can be freely killed. The stress that this created led to some intense internal conflicts. We knew that we could not carry on with our old politics. Our new position has enabled us to rethink our struggle. It may not be the perfect way but it brought a robust discussion about us that was seriously trying to find ways of creating a new hope from no hope.

We are not surprised at the way some people on the so called left have reacted on our position. We are not surprised at the usual lies from the usual people on the internet. Many people and organisations on the left do not accept that we have the right to think our own struggle and to make our own decisions. They think that because they are on the left they have the right to tell us what to do. We do not accept this. These people see our decision as stupid and as a sell-out while they are nowhere to be seen in our times of great difficulty. It makes us to think that such people enjoy our suffering or even benefit from it. Why will people who claim to be in our support judge us instead of contacting us to first understand our decision? It may be a wrong decision but the reality is that we cannot deceive ourselves purposefully on our pain. Why should we be made to struggle in a way that is only designed to try and impress other people simple because they say that they are on the left? We will never do this. Our members must live in shacks and they must try and survive repression. Their organisation is theirs and it will be directed by their decisions. We have never compromised on this and for this we have always been attacked by the regressive left that only want us to take their money so that in exchange we can arrange for people to be bussed into their meetings. This is not emancipation. It is another kind of oppression.

Is the left doing enough to care about our struggle? Or do they see our struggles as projects from which they can prove and debate their findings and analysis rather than as a struggle to genuinely confront the forces of darkness? Our decision aims at trying to keep the space open for us to liberate ourselves by making a tactical move. We do not love the DA or agree with its policies. Why do people who failed to condemn the ANC attacks on us get so angry with us when we try to punish the ANC by making a tactical vote for its enemy? Maybe for these people it is better for us to be oppressed by the ANC than the DA. For us it is better not to be oppressed. Some of the left is just like some of the development NGOs and some of the state. They want to experiment on us, to use us for their own projects. We say no. On this there is no compromise. We continue to say ‘talk to us, not for us’ and ‘think with us not for us’.

Our position remains honouring those who have supported and who continue to support us. Since we all don't know the answers in this struggle to humanise the world we will keep hunting and trying. Sometimes we will make wrong decisions but at least we offer debate and learning for ourselves and all our friends and comrades.

The ANC are a serious threat to society and to right of the poor to organise freely in this society. They must be removed from office and until we can remove them we must do all that we can to weaken them.

For further information and comment please contact:

Mnikelo Ndabankulu on 081 263 3462
Zodwa Nsibande on 082 902 2960
Thembani Ngongoma on 084 613 9772
Nono Majola on 074 803 1986

Source: Abahlali baseMjondolo

Why Only One Top Banker Went to Jail for the Financial Crisis

noreply@blogger.com (Barry Giesken) — Wed, 30 Apr 2014 10:52:00 +0000

On the evening of Jan. 27, Kareem Serageldin walked out of his Times Square apartment with his brother and an old Yale roommate and took off on the four-hour drive to Philipsburg, a small town smack in the middle of Pennsylvania. Despite once earning nearly $7 million a year as an executive at Credit Suisse, Serageldin, who is 41, had always lived fairly modestly. A previous apartment, overlooking Victoria Station in London, struck his friends as a grown-up dorm room; Serageldin lived with bachelor-pad furniture and little of it — his central piece was a night stand overflowing with economics books, prospectuses and earnings reports. In the years since, his apartments served as places where he would log five or six hours of sleep before going back to work, creating and trading complex financial instruments. One friend called him an “investment-banking monk.”

Serageldin’s life was about to become more ascetic. Two months earlier, he sat in a Lower Manhattan courtroom adjusting and readjusting his tie as he waited for a judge to deliver his prison sentence. During the worst of the financial crisis, according to prosecutors, Serageldin had approved the concealment of hundreds of millions in losses in Credit Suisse’s mortgage-backed securities portfolio. But on that November morning, the judge seemed almost torn. Serageldin lied about the value of his bank’s securities — that was a crime, of course — but other bankers behaved far worse. Serageldin’s former employer, for one, had revised its past financial statements to account for $2.7 billion that should have been reported. Lehman Brothers, AIG, Citigroup, Countrywide and many others had also admitted that they were in much worse shape than they initially allowed. Merrill Lynch, in particular, announced a loss of nearly $8 billion three weeks after claiming it was $4.5 billion. Serageldin’s conduct was, in the judge’s words, “a small piece of an overall evil climate within the bank and with many other banks.” Nevertheless, after a brief pause, he eased down his gavel and sentenced Serageldin, an Egyptian-born trader who grew up in the barren pinelands of Michigan’s Upper Peninsula, to 30 months in jail. Serageldin would begin serving his time at Moshannon Valley Correctional Center, in Philipsburg, where he would earn the distinction of being the only Wall Street executive sent to jail for his part in the financial crisis.
Photo

American financial history has generally unfolded as a series of booms followed by busts followed by crackdowns. After the crash of 1929, the Pecora Hearings seized upon public outrage, and the head of the New York Stock Exchange landed in prison. After the savings-and-loan scandals of the 1980s, 1,100 people were prosecuted, including top executives at many of the largest failed banks. In the ’90s and early aughts, when the bursting of the Nasdaq bubble revealed widespread corporate accounting scandals, top executives from WorldCom, Enron, Qwest and Tyco, among others, went to prison.

The credit crisis of 2008 dwarfed those busts, and it was only to be expected that a similar round of crackdowns would ensue. In 2009, the Obama administration appointed Lanny Breuer to lead the Justice Department’s criminal division. Breuer quickly focused on professionalizing the operation, introducing the rigor of a prestigious firm like Covington & Burling, where he had spent much of his career. He recruited elite lawyers from corporate firms and the Breu Crew, as they would later be known, were repeatedly urged by Breuer to “take it to the next level.”

But the crackdown never happened. Over the past year, I’ve interviewed Wall Street traders, bank executives, defense lawyers and dozens of current and former prosecutors to understand why the largest man-made economic catastrophe since the Depression resulted in the jailing of a single investment banker — one who happened to be several rungs from the corporate suite at a second-tier financial institution. Many assume that the federal authorities simply lacked the guts to go after powerful Wall Street bankers, but that obscures a far more complicated dynamic. During the past decade, the Justice Department suffered a series of corporate prosecutorial fiascos, which led to critical changes in how it approached white-collar crime. The department began to focus on reaching settlements rather than seeking prison sentences, which over time unintentionally deprived its ranks of the experience needed to win trials against the most formidable law firms. By the time Serageldin committed his crime, Justice Department leadership, as well as prosecutors in integral United States attorney’s offices, were de-emphasizing complicated financial cases — even neglecting clues that suggested that Lehman executives knew more than they were letting on about their bank’s liquidity problem. In the mid-’90s, white-collar prosecutions represented an average of 17.6 percent of all federal cases. In the three years ending in 2012, the share was 9.4 percent.

After the evening drive to Philipsburg, Serageldin checked into a motel. He didn’t need to report to Moshannon Valley until 2 p.m. the next day, but he was advised to show up early to get a head start on his processing. Moshannon is a low-security facility, with controlled prisoner movements, a bit tougher than the one portrayed on “Orange Is the New Black.” Friends of Serageldin’s worried about the violence; he was counseled to keep his head down and never change the channel on the TV no matter who seemed to be watching. Serageldin, who is tall and thin with a regal bearing, was largely preoccupied with how, after a decade of 18-hour trading days, he would pass the time. He was planning on doing math-problem sets and studying economics. He had delayed marrying his longtime girlfriend, a private-equity executive in London, but the plan was for her to visit him frequently.

Other bankers have spoken out about feeling unfairly maligned by the financial crisis, pegged as “banksters” by politicians and commentators. But Serageldin was contrite. “I don’t feel angry,” he told me in early winter. “I made a mistake. I take responsibility. I’m ready to pay my debt to society.” Still, the fact that the only top banker to go to jail for his role in the crisis was neither a mortgage executive (who created toxic products) nor the C.E.O. of a bank (who peddled them) is something of a paradox, but it’s one that reflects the many paradoxes that got us here in the first place.

Part of the Justice Department’s futility can be traced to the rise of its own ambition. Until the 1980s, government prosecutors generally focused on going after individual corporate criminals. But after watching their fellow prosecutors successfully take down entire mafia families, like the Gambino and Bonanno clans, many felt that they should also be going after more high-profile convictions and that the best way to root out corruption was to take on the whole organization. A long-ignored Supreme Court ruling, from 1909, conveniently opened the door for criminal charges against entire corporations. And in 2001, Michael Chertoff, George W. Bush’s new criminal division chief, arrived at the Justice Department ready to put it to use.

Chertoff, who worked at the U.S. Attorney’s office under Rudolph W. Giuliani, the godfather of the Wall Street perp walk, seemed like just the guy to jump-start the initiative — and he arrived at an opportune moment. Prosecutors were beginning their investigation of Enron and probe into Arthur Andersen, the accounting firm that had blessed the energy-trading giant’s phony balance sheets and shredded documents shortly after it detonated. Early in his tenure, Chertoff found himself sitting in a conference room at Justice Department headquarters on Pennsylvania Avenue, listening with growing irritation as lawyers for Arthur Andersen tried to dispose of the Enron case with yet another settlement. The company previously oversaw the fraudulent books of Waste Management and Sunbeam, and it dealt with those previous scrapes by reaching settlements and a consent decree with regulators, vowing never to commit such a crime again. For its Waste Management infractions, the firm paid $7 million. Then, it was the largest civil penalty ever paid.

Andersen was expecting the same kind of wrist-slap. As Chertoff recalls, one high-ranking executive noted brazenly that such settlements were merely “a cost of doing business” — the routine surcharges applied to the nation’s largest corporations. That comment enraged Chertoff, and soon after, his prosecutors indicted the firm. “Destroy documents?” he told me. “It’s hard to view that as a stumble outside of its core business.” In June 2002, Arthur Andersen was convicted by a jury, and within months, the firm closed down, costing tens of thousands of people their jobs.

The Andersen case was supposed to embolden the Justice Department, but it quickly backfired. Chertoff’s chutzpah shocked much of the corporate world and even many prosecutors, who thought the department had abused its powers at the cost of thousands of innocent workers. Almost immediately, the Andersen verdict resulted not in more boldness but in more caution on the part of federal prosecutors, including Chertoff himself. In 2003, his investigators were digging into questionable off-balance-sheet deals between the Pittsburgh-based PNC Bank and AIG Financial Products. They contemplated indicting the bank, which spurred Herbert Biern, at the time a top banking-supervision official at the Fed, to demand a meeting with Chertoff to warn him against it. Chertoff told Biern, according to attendees, that if the Justice Department “can’t bring these cases because it may bring harm, then maybe these banks are too big.” In the end, though, Chertoff and the Justice Department blinked. They didn’t indict, and PNC entered into a deferred prosecution agreement. No bank executives were prosecuted. Two years later, the Supreme Court overturned the Arthur Andersen conviction.

From 2004 to 2012, the Justice Department reached 242 deferred and nonprosecution agreements with corporations, compared with 26 in the previous 12 years, according to a study by David M. Uhlmann, a former prosecutor and law professor at the University of Michigan. And while companies paid large sums in the settlements — the days of $7 million cost-of-doing-business fees were over — several veteran Justice Department officials told me that these settlements emboldened defense lawyers. More crucial, they allowed the Justice Department’s lawyers to “succeed” without learning how to develop important prosecutorial skills. Investigations of individuals are more time-consuming and require a different approach than those of a corporation. Indeed, the department now effectively outsources many of its investigations of corporate executives to outside firms, which invariably produce reports that exculpate those at the top. Jed Rakoff, the U.S. District Court judge and former federal prosecutor who has become the most prominent legal critic of the Justice Department, explained the process to me this way: “The report says: ‘Mistakes were made. We are here to take our lumps’ ” — in other words, settlements and, if the transgressions are particularly bad, further oversight. “Lost in that whole thing,” Rakoff said, “was anyone trying to investigate whether the individuals did something wrong.”

The Bush administration may have earned a reputation as being friendly to business interests, but it wasn’t always that way. Around the time of the Andersen investigation, Larry Thompson, the deputy attorney general, was summoned to the White House to defend his department. He and Robert Mueller, the director of the F.B.I., met with the president in the Roosevelt Room of the White House, where they decided not to present legal theory but to show evidence that prosecutors had amassed in matters like the Enron case, demonstrating that executives had made up numbers and lied to the public. Bush seemed stunned. He turned to Mueller and Thompson and said, “Bobby and L.T., continue what you are doing.”

If Chertoff had signaled a green light for going after entire companies, Thompson drafted a memo in 2003 that offered a post-Andersen playbook that went right at the heart of how large corporations protected themselves. For years, big businesses, like tobacco companies, shielded questionable conduct by invoking attorney-client privilege, which could render details of troubling executive dealings inadmissible in court. If a company came under federal scrutiny, it typically paid its executives’ legal bills, hiring some of the nation’s best firms, those who could slow or derail any inquiries. And when multiple executives fell under suspicion, their lawyers would often sign joint defense agreements allowing them to share with one another what they learned about the feds’ case.

Thompson’s memo declared that prosecutors could, in essence, offer a deal, but it wasn’t a very generous one. Companies could win Brownie points for being cooperative only if they eschewed privileges like joint defense agreements. Almost immediately, members of the white-collar bar asserted that this overreach eroded a fundamental right, but they didn’t have to argue incessantly; once again, the Justice Department’s ambition backfired. In the summer of 2006, the government’s once-promising prosecution of executives from KPMG, an accounting and consulting firm suspected of selling illegal tax shelters to wealthy clients, started going bad. (The U.S. attorney’s office in Manhattan felt so confident that it indicted 17 KPMG executives.) The case fell apart when the judge ruled that those prosecutors had violated constitutional rights by pressuring the firm to waive attorney-client privilege and stop paying employees’ legal fees; the government’s zeal, he noted, had gotten “in the way of its judgment.” With the “greatest reluctance,” he threw out the cases against 13 of the executives. (Two others were convicted.)

Soon after, the counteroffensive to the Justice Department’s overreach peaked, led by the white-collar bar and corporate lobbies and aided by The Wall Street Journal’s editorial page, the U.S. Chamber of Commerce and even the American Civil Liberties Union. Senator Patrick Leahy, Democrat of Vermont, contended that the department was abusing corporations; his colleague Arlen Specter, then a Republican from Pennsylvania, readied a bill to prevent the Justice Department from receiving attorney-client privilege waivers. To cut that off, Paul McNulty, the deputy attorney general, released a revised set of rules stating, among other things, that no federal prosecutor could ask a company to waive attorney-client privilege without permission from higher-ups.

Over the years, the KPMG debacle and the corporate revolt would lead the Justice Department to roll back the Thompson memo to nearly the point of reversal. Today prosecutors are prohibited from even asking companies to waive their attorney-client privilege. They are also prohibited from pushing a company to cut off the legal fees for indicted executives or pressuring it to forgo joint defense agreements. “It was very much a game-changer in the business of investigating and defending in those cases,” says Michael Bromwich, a top white-collar lawyer and former inspector general of the Department of Justice.

In the decade since, the courts dulled other prosecutorial tools. A Supreme Court ruling allowed sentences to be set below previously determined mandatory minimums (which made executives less likely to “flip”). Another narrowed an often-used legal theory that said employees were guilty of fraud if they deprived their companies of “honest services” (which helped nab Enron’s former C.E.O., Jeffrey Skilling, among others). No change was momentous on its own — and some may have legitimately restored the rights of defendants — but taken together they marked a significant, if almost unnoted, shift toward the defense. After Lanny Breuer entered the Department of Justice, he testified in front of Congress to restore the honest-services charge for corrupt government officials. But he didn’t even try to broach the topic of a private-sector fix.
Photo

Life on Wall Street is often portrayed as hours of kinetic fury with billions on the line, but the work is more often suited to wonks who are comfortable digesting Excel spreadsheets. Serageldin, who joined Credit Suisse’s information-technology department right out of Yale in 1994, was assigned the late-night job of “cracking tapes” — transferring magnetic tape reels of data, decoding them and running analyses. Senior bankers quickly identified his talent and brought him over to the moneymaking side, where he was soon working in the bank’s catastrophe-bonds business, or securities that transfer the risk of earthquakes and hurricanes from seller to investor. It required mastering geology, fault lines and property-damage projections. In order to achieve the kind of informational advantages that Wall Street requires to make money, Serageldin had to put the statistical runs on a personal computer, waking up in the middle of the night for days at a time to reset it. By 2007, he oversaw about 70 people and generated $1.3 billion in trading revenue.

Serageldin’s group made so much money that some colleagues believed his bosses gave him a pass on risk controls. But by disposition, and by practice, he was anything but a swashbuckler. When the value of mortgage securities began to crater, on what became known as the Valentine’s Day Massacre of February 2007, most traders kept trading, pumping out securities, boosting their personal earnings while endangering — and in some cases destroying — their institutions. Serageldin, however, began ordering his traders to get out of their riskiest positions. The bank’s head of fixed income at the time, James Healy, would later note that Serageldin’s decisions “took courage and personal conviction, in the face of immense pressure” from the sales force.

Yet Serageldin’s caution failed him in one crucial moment. Later that summer, traders in one of his portfolios began to avoid taking the necessary losses on their mortgage-backed securities. Traders are required to hold securities at their current value, known as marking to market, determining how much the portfolio made or lost that day. At one desperate point, one of Serageldin’s traders approached a friend at a small regional bank to give him a so-called independent price that happened to be nearly identical to the prices in the portfolio, enabling them to conceal the size of the losses. In early December, that spreadsheet tallying the losses made its way to Serageldin, who would later admit to recognizing that the prices should have been lower. He had assumed the positions were hedged, a friend of his told me, but instead of saying anything, he tried to protect his reputation. By early 2008, he was out at Credit Suisse. The bank reported him to the U.S. attorney’s office in the Southern District of New York.

In a matter of months, the markets plummeted in a financial crisis that made Enron look like small-time pilfering. And as tens of millions of Americans lost their jobs or homes, an inchoate but palpable demand for justice — for a crackdown — emerged. Breuer may have come with the right pedigree, but he now faced troubles that hurt as much as the debacles of Arthur Andersen and KPMG, or the retreat from the Thompson memo: austerity. The department faced periodic hiring freezes. The F.B.I., which assigned dozens of agents to Enron, had shifted resources to terrorism. The Postal Service wound down an elite unit that had specialized in complex financial investigations. President Obama’s Fraud Enforcement and Recovery Act, which was designed to give hundreds of millions to prosecute financial criminals, was able to deliver only $65 million in 2010 and 2011. Prosecutors reporting to Breuer proposed setting up a mortgage-fraud initiative, a “Prosecutorial Strike Force,” as one July 2009 memo put it, but the Justice Department dithered. Finally it set up the Financial Fraud Enforcement Task Force, an enormous coordinating committee with essentially no investigative operation. One former Justice Department official derided it as “the turtle.”

Resources aside, the erosion of the department’s actual trial skills would soon become apparent. In November 2009, the U.S. attorney’s office in Brooklyn lost the first criminal case of the crisis against two Bear Stearns executives accused of misleading investors. The prosecutors rushed into trial, failing to prepare for the exculpatory emails uncovered by the defense team. After two days, the jury acquitted the two money managers. “For sure,” one former federal prosecutor told me, “it put a chill” on investigations. “Politicos care about winning and losing.”

The fear first wrought by the Andersen case, meanwhile, ossified around financial firms. In early 2009, the Obama administration deliberated over serious tax misconduct by UBS, the Swiss bank, but top Treasury and Justice department officials worried about the effects criminal charges could have on the financial system. UBS settled with the government. Breuer had another shot, in 2012, when the department was moving toward a resolution of a six-year investigation into HSBC, which had become the preferred bank for Mexican and Colombian drug cartels and conducted transactions with countries under American sanctions, including Iran and Libya. Breuer surveyed Washington and London regulators and policy hands and sought assurance that the system could weather an indictment. A top Treasury Department official told Breuer, in carefully couched language, that an indictment could cause broader problems in the financial system. Breuer even went as far as discussing whether banks were too big to indict with H. Rodgin Cohen, a partner at Sullivan & Cromwell, who was representing HSBC in his very own case. Cohen told Breuer that while the Justice Department can’t have a rule not to indict a large bank, prosecutors should, well, take into account how the target has cooperated and what changes it has made to fix the problems. Of course, HSBC happened to have taken those very measures. The Justice Department blinked again. That December, the bank was fined $650 million and forfeited almost $1.3 billion in profits. No one went to jail.

It would be easy to blame the Justice Department’s ineptitude on past mistakes alone. But again, the very ambitions of its prosecutors played a prominent role. Top governmental lawyers generally don’t want to spend their entire careers in the public sector. Many want to score marquee victories and avoid mistakes and eventually leave for prominent corporate firms with starting salaries at 10 times what they make at the Department of Justice. According to numerous former criminal-division employees, Breuer almost immediately signaled his interest in bigger things. In October 2009, Steven Fagell, his deputy chief of staff and former Covington colleague, sent an email to the division. “Do you like giving toasts? Do you think it should have been you accepting the writing Emmy for ‘30 Rock?’ ” Fagell wrote. “If so, we need your wit, smarts and gift for the written word! We’re putting together a speechwriting team for the assistant attorney general.” Prosecutors developing cases against Mexican drug cartels and Al Qaeda members found it more than a little tone deaf. (Fagell says the email request was intended “both to foster internal morale and to send a message of deterrence to the public.”)

According to numerous sources from the Justice Department, the Breu Crew instilled a careerist culture that was fearful of sullying its reputation by losing cases. Kathy Ruemmler, who worked on the Enron task force and later became Obama’s counsel, would needle Breuer: “How many cases are you dismissing this week?” Later Ruemmler was upset when the Justice Department decided against retrying a case against Merrill Lynch executives who helped Enron boost its earnings with an infamous transaction involving a Nigerian barge. (Breuer was recused from the barge case.) A former prosecutor at the Justice Department in Washington concurred that Breuer’s staff didn’t “want to pursue cases where they feel the person is 100 percent guilty but they are only 70 percent sure they can win at trial.” Prosecutors contrasted that with previous eras, some fondly recalling a line favored by James Comey, who served as one of George W. Bush’s deputy attorneys general and emphasized the need for “real-time” white-collar prosecutions. “We have a name for prosecutors who have never lost — the ‘Chicken(expletive) Club.’ ” (In a statement, Breuer said he had a strong record of white-collar enforcement: “Where there were cases to bring, we brought them, and where there were not, we took a pass.”)

But given that Washington rejected a unified national task force, these career motivations would prove particularly relevant. When Preet Bharara, former chief counsel for Senator Charles E. Schumer, arrived in the Southern District of New York in 2009, he had a decision to make. There were cases arising from the financial crisis, which could take years to investigate and, after all that, never make it to a jury. Or there were insider-trading cases, which were far more straightforward. Someone improperly learns nonpublic details about a company and makes a killing on the stock market. “You do have a tough choice,” one former Southern District prosecutor says. “Am I going to chase after crimes I don’t know were committed and don’t know who by, or do we go after crimes we do know were committed and by whom?”

Bharara focused on insider trading, and his office has amassed a stunning 80-0 record of prosecutions, locking up the hedge-fund titan Raj Rajaratnam and Rajat Gupta, the former managing director of McKinsey & Company and a director at Goldman Sachs. They took down eight former employees of Steven A. Cohen’s notorious SAC Capital hedge fund. (Notably, however, they haven’t been able to bring charges against the man himself.) Time magazine put Bharara on its cover, with the bold headline: “This Man Is Busting Wall Street.” Yet Bharara didn’t touch Wall Street’s real players — top bankers. The former prosecutor was almost sheepish about the insider-trading cases when I spoke to him: “They made our careers, but they don’t change the world.” In fact, several former prosecutors in the office told me that going after bankers was never a real priority. “The government failed,” another former prosecutor said. “We didn’t do what we needed to do.”

As a result, Bharara and his team neglected seemingly winnable cases in their own backyard, including one particularly big one. After Lehman imploded, the Justice Department’s Washington headquarters split responsibility investigating what the bank’s executives knew among three U.S. attorney’s offices: the Southern and Eastern districts of New York and the New Jersey operation. But for all of that manpower, to those closest to the Lehman probe, the government’s case was seemingly conducted by one lawyer, Bonnie Jonas, an assistant U.S. attorney for the Southern District. She would make pilgrimages to the offices of Jenner & Block, a prestigious law firm that had been assigned to investigate the Lehman bankruptcy. Jonas would pore over the 40 million-odd pages of Lehman documents the firm assembled. (The Southern District says it devoted multiple people and ample resources to the investigation.)

Nonetheless, the Justice Department never aggressively pursued what may have been the most promising angle. On Sept. 10, 2008, the chief financial officer of Lehman Brothers, Ian Lowitt, told shareholders and the public that the bank had $42 billion of available cash, or liquidity. The bank’s position, Lowitt reassured, “remains very strong.” Lehman would file for bankruptcy five days later. “What they were saying was not just wrong but materially wrong,” Robert Byman, a Jenner & Block partner, told me.

Over 14 months, Jenner & Block would put about 130 lawyers on the case to prepare a report on the collapse. At one point, recalls Stephen Ascher, a partner, one of them discovered “this wonderful chart” breaking down the liquidity figure into three categories: high, moderate and low. Of those billions, $15 billion was in the “low” category, generally because it had been pledged as collateral to other banks. One former Lehman executive told me that several other company managers understood that they could not tap much, if any, of that encumbered money. And at least two executives objected to how the bank was representing its liquidity, including its international treasurer, Carlo Pellerani, according to the Jenner & Block report. The law firm found that regulators, credit-rating agencies and Lehman’s outside lawyer had no idea that the liquidity pool wasn’t, in fact, all that liquid. When Lowitt came to talk to Jenner & Block, he explained that he had not fully understood the issues when he assured investors of its liquid assets. That may be a reasonable defense, but it does not appear that prosecutors and federal investigators made a serious attempt to test how much Lehman’s chief financial officer knew about his own books. Three Lehman executives and one regulator at the Federal Reserve, all of whom were involved in the bank’s desperate attempts to keep itself liquid, told me they were never even interviewed by any federal-government officials.

When Wall Street bankers are arrested, they often do what is known in finance as an expected-value analysis: They weigh the cost of fighting, how long it would take and the chances of the best and worst outcomes. Serageldin was a Wall Street banker with a foreign name who helped make securities that played a role in blowing up the global economy. He seemed to reach a logical conclusion: Plead guilty and take his chances with a judge’s sentence. Other bankers made the opposite choice. After ignoring the risks of the housing and credit bubbles, they took the high-risk-high-reward gamble again, hiring top lawyers and claiming that they never intended to deceive. As it turned out, they benefited from a decade of subtle changes that favored corporate executives under investigation. Serageldin took the sucker’s bet. Prosecutors simply got their man by default.

In his first months in prison, Serageldin has tried to remain upbeat. The investment-banking monk is now spending his nights in a basketball-court-size room with about 70 others. If the problem sets don’t occupy him, he is allowed five books at a time. After explaining that he had lived abroad, Serageldin became known as London. The extent of his crime, meanwhile, has been revised. Initially prosecutors implied that the trader had been part of a conspiracy to hide $540 million worth of losses. By the time he was sentenced, the government was down to accusing him of conspiring to hide about $100 million. An internal Credit Suisse analysis put the misstatement at $37 million. “There’s not a moment’s doubt on my part” that such mismarking happened elsewhere during the crisis, Fiachra O’Driscoll, a friend and former colleague of Serageldin’s, who has been an expert witness in private litigation, told me. “I have seen evidence along the way that similar things happened dozens of times.”

Federal prosecutors have their own explanation for how only one Wall Street executive landed in jail in the wake of the financial crisis. The cases were complex to investigate and would have been infernally difficult to explain to juries, some told me. Much of the crisis and banker transgressions stemmed from recklessness, not criminality. They also suggest that deferred prosecutions — with their billions in settlements and additional oversights — can be stricter punishments than indictments. Still, while the Department of Justice has not been without its successes — it won a guilty plea from BP in the Deepwater Horizon spill, and it’s currently going after traders in the wake of the JPMorgan Chase London Whale trading loss — these remain exceptions even beyond the financial sector. Federal prosecutors almost never bring criminal charges against top executives of large corporations, from banking to pharmaceuticals to technology. In March, the Justice Department entered into a deferred prosecution against Toyota but did not indict the company or any top executives. As the economy limps back from the Great Recession, compensation has recovered, corporate profits are at record levels and executives see that few, if any, of their peers ever go to prison anymore. Perhaps one reason Americans have come to begrudge the wealthy is a resentment of their culture of impunity.

Larry Thompson became known for his memo, but back in the Clinton administration, the deputy attorney general Eric Holder laid out his own memo for strengthening corporate prosecutions. But he undermined his own words by also explaining that prosecutors needed to take into account the collateral economic consequences. In testimony in front of the Senate in March, Holder, who is now the U.S. attorney general, seemed to lament the position government enforcers had found themselves in. “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute — if we do bring a criminal charge — it will have a negative impact on the national economy, perhaps even the world economy.” Holder quickly walked back the remarks. Soon after, Lanny Breuer returned to Covington & Burling as a vice chairman.

Source: New York Times