By Nelvis Qekema
24 August 2018
Ordinarily, a Commission of Enquiry is a useful instrument in the hands of the State, or the Executive to be exact, in helping it “for the purpose of investigating matters of public concern, and to provide for matters incidental thereto”. In that regard, Commissions were designed within the context of the Commissions Act 8 of 1947 (as amended) to be investigatorial than accusatorial.
What that means is that a Commissions is merely interested in in finding out more about “matters of public concern”. That is not the same as wanting to see justice through a criminal or judicial process within the ambit of the courts of law. A Commission of Enquiry is not about justice. While a Court of Law may either find an accused guilty or not guilty, rule in favour of the plaintiff or defendant in terms of awarding damages; a Commission of Enquiry may be limited to Findings and Recommendations, which are subject to how the Executive decides to act on them.
Because a Commission of Enquiry is of lesser authority and power than a Court of Law, its Findings and Recommendations are not binding. The public should not be misled by the using of the services of a sitting or retired Judge to chair a Commission of Enquiry. As and when this happens, a misleading phrase is used to cas the process as a “Judicial Commission”. There is in fact nothing judicial about such Commissions of Enquiry beyond the isolated fact that a Judge may be approached to preside over them.
Once it is clear that Commissions of Enquiry are mere instruments to help the Executive to investigate “matters of public concern” to inform it in the space of policy making, we may then look at how the State or he Executive has often abused Commissions of Enquiry to:
- Buy time and mislead the public by making it believe that something is being done about a situation or event that has become a hot potato.
- Take a matter about which there is public outcry away from the criminal justice with the objective of evading justice.
A likely example about point 1 could be the State Capture Commission of Enquiry chaired by the Deputy Chief Justice Zondo. The Marikana Commission of Enquiry which was chaired by retired Judge Farlam is a fitting example for point 2. There were sufficient grounds or evidence for the police to do further investigations to pursue criminal justice on the Public Protector’s State of Capture Report and the available evidence on the Marikana Massacre. This could not be done because it directly affected the members of the Executive.
Millions of rands of the taxpayers are used to pay for the mass of lawyers employed over a period that could run up to 5 years. Meanwhile, the State already has institutions that are well equipped to deal with these matters. The NPA, Hawks and the Forfeiture Unit are some of them.
While the accusing fingers may be pointing at the Executive, the same Executive is the one that appoints, through the President, a Commission of Enquiry. The President sets the Terms of Reference with the power to amend them. In most cases, these Terms of reference are set in a manner that excludes the areas that could lend the Executive or connected politicians and friends in hot water. The Arms Deal Enquiry was used to exonerate members of the Executive in the same way that the Harms Commission was used by the white settler regime to exonerate its hit squad’s agents.