Special Hearings — Chemical And Biological Warfare Hearings — 1998-06-08

MR HAYSOM: Mr Chairman what I would like to do is to indicate to you what areas the three of us will be covering. I would like to address you specifically on the proposal we want to put to you and what we believe is the really cast-iron logic which underlines that proposal. But that proposal rests on a particular concern, a particular concern of the proliferation of the weapons of mass destruction. And Mr Minty will speak as an expert of long-standing of many decades on this topic. He has had an enduring concern with the question of proliferation of weapons of mass destruction. And Advocate Gumbi will address you also on the question of the importance of our international relations and the obligation to maintain our international commitment in this regard.
 Perhaps I should start off by saying firstly that we appreciate the opportunity that has been given to us to make this particular proposal. But I also need to record our appreciation of the efforts that have prior to this application gone into attempting to meet one another on an appropriate process that would safe guard the Commission's interests and safeguard our own interests. And I need to indicate a little bit about that, of the history of those negotiations. And without going into any detail I might say that for some time members of the government have been meeting with members of the TRC. Particularly with a view to addressing certain concerns. Some of those concerns have dropped out of the picture. 
 But the pre-eminent concern has always been the danger that a hearing such as this would lead to the proliferation of the technologies of mass destruction. In the course of those discussions, although the proposal we are now going to advance was originally proposed, we had commenced work on examining a proposal which would allow for let us say certain documents, certain areas not relevant to the enquiry or not essential to the enquiry to be excluded. And that fundamentally relied on experts evaluating much of the documentary evidence and in the course of that classifying some of them as documents which would indeed constitute or might constitute a threat of proliferation of the technologies of mass destruction. Some which fell into an intermediate category and some which the experts felt because this is not a matter, I am afraid, in which many of us can address without a level of background in chemistry. 
 On evaluation of those proposals concerns were expressed to the government by the council and in person by Mr Minty that a mixed enquiry would not deal with deep flaws in that process. Particularly as regards the dangers of proliferation, of information which could be construed as proliferation of the technologies of mass destruction. What is evident is that the TRC were sensitive in those negotiations to the concerns that an enquiry such as this could not be as it were held in a cavalier fashion regardless of the concern over proliferation. Whether the mechanism eventually proposed would meet those obligations is why we are here to address you on what we believe is a process which will address those flaws.
 May I just start off in putting forward the proposal by emphasising that this is not a matter in which we are going through the motions to be seen to be dealing with an issue in respect of which we have an international obligation. It is a serious and well-founded fear about serious commitments which the country undertakes in regard to the question of proliferation. Mr Minty will address you in due course but I need to emphasise that the question of proliferation of weapons of mass destruction arise from the government's commitment to a panoply of international agreements, a set of agreements in which the many, many nations of the world have come together since 1930 and collectively known as humanitarian law and which deal pre-eminently with an attempt by mankind to deal with the technologies of mass destruction. And I they break down into two or three important categories. And quite frankly I think that the steps in regards to land mines falls within that broad category of humanitarian law and are obligations under those agreements also for similarly or thought to be treated in a similar way as our obligations not to proliferate chemical and biological weapons. These concerns are expressed seriously in South Africa, this commitment that it is found effect in legislation which established the council and which imposes obligations on citizens which Mr Minty will clarify. It is regarded as one of the most important commitments which South Africa has to prevent the proliferation. 
 Out of that concern comes the proposal that the hearing should be conducted in a way which places a sieve, as it were, on those hearings to prevent leakage or exposure of the technologies of mass destruction. South Africa is not unique. This is an obligation held throughout the world. And our proposal would run something like this, and this is that the enquiry, including the cross-examination of witnesses and the leading of witnesses and the production of documents, should be held in camera. We would ask you to use your powers in terms of Section 33 to do so. 
 What we are suggesting then is that the record of that enquiry, the verbatim record is released to the public. We are not asking in any way for the enquiry to be curtailed. In fact I am going to argue that our proposal will lead to a fuller enquiry than that proposed by the, in the TRC proposal. And all we are asking is that the information not be disclosed. 
 On the contrary our proposal is that the record of that enquiry be made public with one caveat. That the TRC, no other body, that the TRC makes a decision before the release of that record as to whether there is information contained in that record which would amount to a breach of our obligation not to proliferate the technologies of mass destruction. So we are not asking for a simple in camera hearing in order to keep matters out of the public eye. We need to emphasise that we want the fullest possible enquiry without limitation. We want that enquiry and the record of that enquiry to be made public and we want it to be made public not only in your report but as a record of this enquiry. 
 If there are no matters in that enquiry which would meet our obligation not to proliferate then the verbatim record goes out. If there is matters and either the council or another party is able to persuade you that there are certain matters which should be excised from that record then a considerable harm will have been averted.  
 In only a week or two ago if someone had put this proposal to me I would also have been relatively sceptical because the natural response is to see that what is being advanced possibly is an attempt to hold in camera an enquiry into very serious matters, and to do so in a way which may protect by failing to disclose those involved what took place. And I think that certainly in my case that view would have been largely shaped by the fact that I never properly understood and properly appreciated our commitment to the non-proliferation of the technologies of mass destruction. 
 What I need to emphasise is certain features of this proposal. It may be a little bit repetitive.  Firstly, we make this proposal in public. We do not make it in camera because we want it clearly understood that we are not looking to hide abuses. We are not looking to construct a procedure in which the public would not have the fullest access to the enquiry and the results of that enquiry. We do not want the media or the community to believe that this application rests on the manipulation of the three of us or government by those who would want to hide that enquiry. It is based on government's concerns independent of what took place in the programme. 
 And I need to say that we do not and cannot address you fully on what took place in the programme because we do not know. That is for you to decide. Nor can we address you fully on what are the issues that are going to come before you. Nor what matters will be the subject of cross-examination by your legal team. Because and I believe quite properly we have not sought to obtain information from the TRC as to where the enquiry is going. Our application is irrelevant to the actual issues which are going to come before the enquiry. Our application says keep this whole matter under camera until you have an opportunity to excise or at least examine what is in there and then produce it to the public. 
 The opposite proposal, let us say the one that along the lines of which we are beginning to find each other before a close examination revealed it was a flawed one would effectively bar certain documents from the enquiry in the interests of non-disclosure, those which would likely to lead to proliferation. Would either limit cross-examination if those issues were raised or allow the matter to move into camera to deal with it. And as an issue you have got to confront it because the witnesses themselves are going to raise those issues. They are also going to raise issues around Section 118 of the Defence Act or they may do. The greatest weapon you have to ensure a full and unshambled enquiry is to hold it in camera so that questions can be proceeded with and answered without reference to considerations of non-disclosure of the document for any other social purpose.
 So what we are suggesting is that the partial or mixed enquiry where people can raise issues and then the matter would move into camera would lead to a disjointed enquiry, it could lead to a partial enquiry. It would inevitably lead to certain documents not being led because they would lead to applications in camera. And quite frankly many of the documents that do constitute a danger are not material. But much more fundamentally, and quite frankly we have raised this in our discussions and have never had an adequate response to it, you are not in control of that process. You cannot say: "We will be vigilant." The witnesses themselves can rely on documents which constitute a danger, which threaten to proliferate, which threaten to reveal the technologies of mass destruction. 
 Even documents which on the face of it do not do that may require corroboration and explanation and we understand that may be the case by reference to documents which in passim or directly do reveal those technologies. So what we are suggesting is that the process that allows, which is mixed, which allows you to deal with matters of concern by moving into camera or moving out of camera or by excluding documentation is disruptive. It limits, it self-censors your own enquiry. It is not the best mechanism to get to the truth, which is your fundamental concern. 
 And the proposal we are putting to you is one which is more effective at getting to the truth, an unshambled investigation without witnesses being able to manipulate disclosure issues in order to move issues off the table or to move into camera. 
 There are other dangers in the proposal. You have no control over the cross-examination. Even the issues in respect of which we can agree to keep certain documents or that certain documents should be removed. In other words an agreement between, as it were, the council or government and your legal team, does not preclude the documents which the witnesses may lead. Documents of which you have not had sight of, of which you are unaware but which constitutes at least part of those documents which Mr Minty has indicated to him unquestionably would be a source of concern to the council. 
 If I could just dwell on at least one of those issues. It may be possible, let us hypothetically say that witnesses will want to introduce material which we call proliferatable material, material which leads to proliferation. They may want to manipulate this issue of proliferation either by increasing their own status or increasing the importance of what they are doing. Or else to suggest that the allegations made against them are untrue but reveal what they were involved in relate to issues which would not ordinarily be disclosed. So again I am just underlining a point that I believe the TRC cannot control a process which is held in open but which seeks to sieve out the dangerous technologies of mass destruction.
 We do not know exactly what is going to be traversed. What we do know is that a number of scientists are going to be questioned closely about their work in the manufacture of weapons of mass destruction and they will be questioned closely as to whether they were actually involved in that. What the purpose of it was and it appears from the documents they may be asked or to suggest to them if they were not working on this weapon but on another weapon. And it seems to us really obvious that there is a possibility that you will be traversing in the course of your enquiry the technical information which relates to the technologies of mass destruction.
 I want to just emphasise two aspects. It is government policy to support the work of the Truth Commission. You have before you three people who collectively spent several decades in uncovering human rights violations. But you have here pre-eminently Mr Abdul Minty who for decades was directly involved in uncovering collaboration with the Apartheid government in the fields of manufactured nuclear weapons in a chemical and biological. And he was head of the world campaign. He does not come here lightly to cover up abuses. He does not come here to cover up abuses at all. And for that reason I want to emphasise that the proposal we are putting before you is firstly designed to have a better and more thorough enquiry and we make no proposal which would limit your enquiry. In fact our proposal is one which is an improved model of enquiry delivery. 
 But secondly, the second aspect, the second leg of the TRC business is transparency, is reconciliation through publication. If you have a better enquiry and that enquiry is released to the public you also having a more transparent enquiry. So we would take offence at the suggestion that we are seeking to cover up because that is not so. We are simply providing an opportunity at the end of the enquiry, the only way in which you can have an effective mechanism to sieve out the dangerous material. It may well be that there will be allegations that some of the stuff should be sieved out but it is your decision. We are not asking in advance for any coverage. We asking only that there be an opportunity at the end to persuade you that there are elements which should be excised. 
 So the TRC is in control of the process both now in deciding if it goes into camera and eventually if it disregards the argument that there is dangerous and technical information which could lead to proliferation it itself will decide. It will make the decision to excise that material. And if it disregards it.