Justice and commissions of inquiry: a tenuous link?


Within nine months of becoming president of South Africa, Cyril Ramaphosa established three commissions of inquiry. These have come on the back of several other inquiries into high-profile problems facing the country, few of which have led to arrests and prosecutions.

Public scepticism about this approach is growing, and the obvious question is why does South Africa need so many commissions of inquiry and what purpose do they serve?  In the absence of accountability for those found to have committed wrongdoing, are these inquiries little more than expensive efforts for the president to buy time?

Ramaphosa set up the Nugent inquiry into tax administration and governance to investigate why the South African Revenue Service’s ability to collect revenue had deteriorated. The PIC Commission of Inquiry is examining allegations of impropriety at the Public Investment Corporation after its chief executive officer Dan Matjila was accused of making a series of questionable investments.

And the Mokgoro Commission of Inquiry was established after a series of damning court findings raised doubts about whether senior National Prosecuting Authority officials Nomgcobo Jiba and Lawrence Mrwebi were fit to hold their positions.

The police cannot arrest people based purely on the evidence presented before an inquiry

Former president Jacob Zuma reluctantly established the Judicial Commission of Inquiry into Allegations of State Capture tasked with investigating high-level abuse of power, corruption and fraud in the public sector allegedly involving himself and members of his executive. Although the true cost of state capture is unknown, estimates range from R500 billion to more than R1.5 trillion.

Ideally, commissions should be established to produce an official and factual account of a matter of profound public interest and concern. Typically, they can be tasked to investigate highly complex failings or allegations of such, and develop recommendations to prevent a reccurance. Where commissions uncover misconduct, criminal or otherwise, this can be used to hold people accountable for their actions.

Contrary to public expectations, commissions don’t necessarily result in criminal or civil action against those found to have committed a crime or some other wrong doing. If sufficient evidence exists, such findings should trigger appropriate interventions or sanctions. For example, soon after receiving an interim report from the Nugent commission, Ramaphosa fired former South Africa Revenue Service boss Tom Moyane.

Similarly, negative findings by the Mokgoro inquiry resulted in the president firing the NPA’s Jiba and Mrwebi. When inquiries unearth evidence of potential criminal conduct, these matters need to be independently investigated by the police and can take years before they are finalised in the courts.

It is in Ramaphosa’s political interests to have sensitive matters dealt with independently

Another reason that inquiries are viewed with suspicion is that some have been misused or their findings ignored by the relevant authorities. The Farlam Commission for example found that as many as 278 people were shot and 34 miners killed on 16 August 2012 in Marikana. But no police officers have been directly held accountable four years since the final report was handed to Zuma.

The Seriti Commission of Inquiry established by Zuma to investigate allegations of corruption related to the 1999 arms deal is another example of a commission that was discredited. Despite mountains of hard evidence being available, Judge Willie Seriti found no corruption whatsoever.

Civil society organisation Right2Know had to go to court to ensure legal recognition that this commission ‘had failed to carry out the task assigned to it under the constitution and within the framework of the principles of legality.’ It is now clear in fact and law that Zuma established this commission not to find the truth but to conceal it.

The most recent inquiries were established to deal with allegations of wrongdoing involving complex governance, legal and financial issues. Existing institutions, criminal justice and otherwise, were seemingly unable to process these allegations satisfactorily.

The state capture commission is reported to have already cost over R356 million

In the case of the state capture inquiry, despite years of publicly available evidence that key politicians, government officials and business people had broken numerous laws to steal billions of rands of public funds, no one to date has been prosecuted. An Institute for Security Studies report submitted to the state capture commission detailed the extent to which the criminal justice system had been deliberately weakened to enable grand corruption.

Under these circumstances, the need for an inquiry to establish the truth becomes more understandable. It is also in Ramaphosa’s interests to have the matters dealt with independently, providing political cover within his own political party for the difficult decisions he might need to make based on their findings.

Given the exorbitant price tag that accompanies these commissions, it is crucial that their recommendations are carefully considered and acted on. The Seriti Commission cost the taxpayer nearly R140 million. The state capture commission is reported to have already cost over R356 million and still has a year before it concludes its work.

Ramaphosa has argued that these inquiries are a necessary cost that the country has to pay to get to the truth. He has also publicly stated that he will act on the recommendations of his inquiries even though he is not legally obligated to implement them.

For their part, the police cannot make arrests based purely on the evidence presented before an inquiry. But they can, and should, conduct criminal investigations as a result of these revelations.

Both the head of the police’s Directorate for Priority Crime Investigation (the Hawks) Godfrey Lebeya and National Director of Public Prosecutions Shamila Batohi have stated that evidence emerging from various commissions is being followed. Batohi has also made it clear that prosecutions will only be instituted when cases are watertight.

If Ramaphosa’s New Dawn is to become a reality, the recommendations of the recent commissions need to be followed by decisive action. His administration will be judged by its ability to hold to account those implicated in the wrongdoing before the various commissions of inquiry.

Themba Masuku, Consultant, Justice and Violence Prevention, ISS Pretoria

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Picture: Amelia Broodryk/ISS

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