Naadira Munshi & Bhavna Ramji
With President Zuma dithering in appointing a commission of inquiry into allegations of state capture, the Democratic Alliance have asked the High Court in Pretoria to declare that he has failed to comply with one of the prescripts of the Public Protector’s State of Capture report. The Quaker Peace Centre, the FW de Klerk Foundation and Afriforum have filed an urgent application at the Constitutional Court attempting to tackle matters from a different angle to that proposed by the Democratic Alliance in court last Tuesday. The group are applying for the court to order that Deputy President Ramaphosa appoint a judicial commission of inquiry to investigate “allegations of state capture and/or a silent coup in South Africa” on the basis of President Jacob Zuma’s conflict of interest in such a commission.
In the media, their representatives have made reference to the Marikana Commission as an example of the so-called ability of commissions of inquiry to “throw light on the darker corners of society and to advise government on the intricacies of any given situation or issue that may require the type of expert and detailed investigation that the judiciary has the capacity to deliver and those busy governing do not have the time to undertake”.
Now, the anti-worker and racist rhetoric that emerged through the Marikana Commission and its function of (in the final analysis) trying to quell popular discontent, may well suit the present purposes of the Quaker Peace Centre and its co-applicants. It may also suit the Democratic Alliance. But as a group of researchers have recently pointed out, public intellectuals, academics and progressive elements of civil society, have become preoccupied with the same discourse, in which the “previously corrupt [become] manifestly incorruptible.”
If we are interested in truly pro-poor progressive outcomes, then the Marikana Commission, and everything that it reveals about the risks of commissions of inquiry, the capacity of judicial officers to seek truth, and the integrity of the Deputy President Ramaphosa are part of the debate, not solutions to it. The debate should really be whether commissions of inquiry, as South Africans currently experience them, are forms of remedial action at all.
The failures of the Marikana Commission
In August 2012, thousands of platinum mineworkers downed tools in an unprotected strike at Lonmin mine, Marikana. After one week, on the afternoon of 16 August 2012, the police murdered 34 mineworkers — 17 killed on live television and the rest in the shadows of a second koppie, where they were hunted down. A day after the massacre, President Jacob Zuma announced he would be setting up a commission of inquiry on the basis that “it is clear there is something serious behind these happenings”.
Soon after, he released the terms of reference and appointed retired Judge Ian Farlam as the lead Commissioner. What emerged four years after the massacre was a report that failed to comment meaningfully on socio-economic conditions in mines, while exonerating Ramaphosa and other well-positioned political actors and scapegoating a newly-appointed Police Commissioner, silencing the voices of mineworkers and the families of the deceased mineworkers and ignoring glaring post-mortem evidence of high velocity bullets fired at close range in the heads and backs of mineworkers. It also recommended further inquiries to do what it failed to do: hold a single policeman accountable.
For those who participated on the side of mineworkers and their families, the outcome was devastatingly disappointing. But from the very outset, the Marikana Commission was compromised, and in establishing a commission of inquiry, the state managed to reproduce and maintain its own hegemony as well as that of the corporations it is intertwined with or captured by. The state achieved this result through a process of social and procedural exclusion.
At the outset, the powers of the Marikana Commission were determined by the drafters of its Terms of Reference. The Marikana Commission placed in the background workers who did not form part of large private, state or labour organisations. It is thus unsurprising that out of the 3,000 mineworkers who went on strike in August, independent of any trade union or any formal structure, only the 270 who were injured and arrested were ever formally represented at the commission. This enabled the mis-characterisation of the full extent of workers’ urgent need for and challenging means to attain living wages.
At the time that the Marikana Commission opened on 1 October 2012, none of the family members of the murdered mineworkers were present – not a surprise considering that, unlike the Truth and Reconciliation Commission, “restoration” was not mentioned in the Terms of Reference. It was only through their lawyers that the families learnt that a commission of inquiry had been established. What followed was a 22-month wait and many revisions to their evidence, before the families could directly address the commission. When they finally did testify, television stations and many lawyers did not bother to record or attend the hearings.
Once the parties that mattered were established, the Marikana Commission proceeded with an adversarial, quasi-legal framework that relies on judges as independent arbiters of truth.
Judicial involvement and unnecessarily judicialised processes
Michel Foucault explained that “[w]ith Plato there began a great Western myth: that there is an antinomy between knowledge and power.” The case of Judge Farlam, in his role of heading the Marikana Commission, reveals that the pursuit of truth is never objective, and even less likely to be so when the political stakes are high and the participants are products of power struggles.
At the Marikana Commission, Judge Farlam enforced several processes that contributed to the version of truth that emerged from it. First, all evidence was mediated through lawyers, mostly white members of expensive attorneys firms, elite NGOs or other privileged actors of the advocate profession, which resulted in limited direct contact between the lawyers and their clients.
Second, representation was impossible without access to funding. While this did not affect fully funded government departments (including the South African Police Service), Lonmin and established unions or the Association of Mineworkers and Construction Union that secured funding through private donors mediated through an NGO, the families of the murdered mineworkers received only limited funding from Legal Aid South Africa (LASA). Legal representatives of the injured and arrested miners eventually had to stop the commission proceedings to argue instead for increased LASA funding. Even worse is the case of Mrs Mary Langa whose husband, Julius, a mine worker, was killed on 13 August 2012, allegedly by other mineworkers. For more than a year, Mrs Langa had no legal representation at the commission until evidence leaders were finally tasked with the responsibility.
A third consequence of the decision to run an adversarial quasi-legal procedure was that it allowed evidence to be excluded on the basis of relevance and admissibility, meaning that facts were resolved through lawyers’ submissions and documents. For example, the Marikana Commission, investigating at least 34 killings involving police weapons, never heard from a single ordinary ranking policeman who fired a rifle at the original killing scene. It also stripped the Commission’s evidence leaders of their powers to request and even subpoena documents, as they spent the first year engaged in legal arguments to secure information from Lonmin and the SAPS. Lonmin, for example, revealed key documents regarding its failure to provide housing for workers only five months before the commission closed when its witnesses were called to the stand.
Importantly, evidence that emerged takes us directly to Ramaphosa, South Africa’s deputy president, where the anti-Zuma machine attempts to wash off the blood on his hands.
A most unsuitable arbiter
On the basis that he is not conflicted on the issue, Ramaphosa is now being called upon to appoint a commission of inquiry into state capture. But this view of him depends on how one characterises conflicts and state capture. This is the very same man who built his political career on the backs of mineworkers and then proceeded to build his economic empire on the political capital he had gained. This is also the very Deputy President who fused his political power and commercial interest in Lonmin where he was director and shareholder, who wrote to Lonmin officials describing the actions of striking mineworkers as “plainly dastardly criminal” and calling for “concomitant action to address this situation”—that same week when 34 striking mineworkers were shot dead.
By the time the Marikana Commission was required to close, it had taken a conscious decision not to look into the socio-economic conditions of mines. This was the result of procedural flaws and inexperience on the part of the commissioners.
The Marikana Commission was a political process, made by political actors and designed to protect their interests. And so, arising from a complex moment in the intersection of labour relations, law, commodification and industrialisation in a specifically post-colonial context, the Marikana Commission’s proceedings were designed to produce a knowledge that would reproduce and reinforce the existing power structures, and suppress not simply the voices but the very relevance of these structures’ subjects.
Such hegemony is what commissions of inquiry, judicial involvement and Ramaphosa should evoke. Rather than enlightening us, the uncritical assumptions about politics and political processes resulted in a quite untrue truth.
Main Photo: The Marikana Commission’s grey-washing of a massacre, its suppression of the experiences of miners hunted down by police, its disregard for the families of those who were killed and its extension of state hegemony are warnings of how not to conduct any future inquiry into state capture — Photo by Madelene Cronje