Past commissions of enquiry bode ill for Lonmin probe - Business Day, 22nd August 2012

Despite great outrage over the Marikana massacre, South Africans are not uniting to demand the resignation of the national police commissioner and the minister of police.

Instead, most commentators seem to have accepted the president’s promise of a commission of inquiry and are waiting patiently to be told who will head it and what its terms of reference will be.

But experience with the African National Congress (ANC) and commissions of inquiry shows this to be a grave mistake.

In the early 1990s, no fewer than four inquiries into the ANC’s camps in exile, including one by Amnesty International, painted a grim picture of murder, torture, and "other abuses of the most chilling kind" perpetrated on the hapless (and helpless) inmates. One spoke of "a litany of unbridled and sustained horror" marked by "tyranny, terror, brutality … and mass murder". All four reports urged that perpetrators be punished and their victims compensated.

But the ANC refused to take such action, calling instead for "a commission of truth to deal with the past" and probe human rights abuses by the apartheid government as well. This let it off the hook and led, in 1996, a good three to four years later, to the establishment of the Truth and Reconciliation Commission (TRC). The TRC’s mandate was thus to probe killings and other gross violations of human rights committed on all sides from 1960 to 1994. The statute establishing the TRC was sound, giving it extensive investigatory powers and instructions to compile an objective and comprehensive report into all political killings perpetrated in that period.

This, however, did not suffice to ensure a proper job. Instead, most of the commissioners appointed were ANC sympathisers. Archbishop Desmond Tutu, its chairman, though widely hailed as independent, was in fact a former patron of the United Democratic Front, the ANC’s clandestine internal wing during the 1980s.

Predictably, the TRC ignored its mandate to be even-handed and proceeded to write a report which glossed over the abuses in the camps (the original rationale for its establishment), closed its eyes to the brutal people’s war the ANC had unleashed from 1984 to weaken and destroy its black rivals, and wrongly blamed the bulk of political killings on Inkatha and the police.

This was a careful choice of culprits that ignored the copious evidence of ANC culpability in violence put before the TRC, and helped to build the ANC’s image while discrediting its key black rival.

In this instance, the commission helped the ANC get away with murder, torture, and an extraordinary level of violent abuse in its camps in exile. It also helped it gloss over the thousands upon thousands of black civilians who died in a people’s war aimed primarily at trouncing black rivals and giving the ANC the hegemony required to press on with its destructive revolution.

Fast forward to 2011 and the ANC faced embarrassment over the corruption accompanying the 1999 strategic arms acquisition, the cost of which has now risen to some R70bn. Faced with litigation demanding the appointment of a commission of inquiry — and mindful, perhaps, of the lessons from the TRC — President Jacob Zuma pre-empted a likely Constitutional Court order instructing him to do this by getting in first. He unexpectedly announced in September last year — a short while before the court was to give its ruling — that he was establishing a commission of inquiry to probe malfeasance in the arms deal. The court case fizzled out and the nation seemed appeased.

Since then, of course, very little has happened. Terms of reference have been published which leave it unclear how much of the inquiry will be held in public and whether its report will ever see the light of day. It is almost a year since the commission was announced — and it has yet to call its first witness or hold its first sitting.

In practice, little can be done to hurry it along, for litigation to this end could take another two years to wend its way through the courts. If the report that finally emerges is then kept confidential, it will take more years of court action to compel disclosure. At this pace, Zuma will be safe from embarrassment at Mangaung and could be well into his second term before anything comes of this commission.

Take the Marikana massacre. Once public outrage had compelled Zuma to return home and start paying attention to the 34 deaths at police hands, his first act was to announce a commission of inquiry. If the past is anything to go by, this could also be a tortuous process that drags on long enough to protect Zuma and his ministers at Mangaung (and well beyond) — and overlooks or downplays any evidence the ruling party or its allies might prefer suppressed.

A commission of inquiry should be accepted only if it is headed by a credible retired judge with comprehensive experience of criminal cases and no link whatsoever to the ruling party, the relevant trade unions, or the police. The commission must have comprehensive powers of subpoena and investigation. It must be compelled to hold all proceedings in public (with witness names protected if needs be). It must be obliged to complete its work within two months; and compelled to publish its report in full.

It must confine its focus to the key issues: the extent of the threat posed by the men on the hill, why the police were so determined to clear them off that day, why the police were armed with rifles and handguns instead of adequate riot control equipment, and why they fired so heavily into the crowd against all standard riot control procedures.

A shopping list of issues to probe, from the wages paid by Lonmin to the living conditions in surrounding informal settlements, will simply blur the issues and give the commission an excuse to drag its heels.

A brief, focused, public, and scrupulously independent inquiry is now required — and its report should be with Parliament within two months at most. All key evidence of wrongdoing by individuals should simultaneously be sent to the National Prosecuting Authority so that criminal charges can be brought.

The minister of police and national commissioner of police should immediately be fired for sending out policemen so poorly prepared and so evidently unfit to wield lethal power. If the culture of impunity that has dogged SA for three decades is ever to be broken, the minister and the commissioner must now be compelled to carry the can.

- Anthea Jeffery

This article was first published in Sunday Times: Business Times.