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South Africa’s trademark: Commissions

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Picture: Leon Muller – Truth and Reconciliation Commission chairperson Archbishop Desmond Tutu with co-chairperson Alex Boraine during the last meeting of TRC commissioners, during the 1970s. While some commisions such as the TRC have been justifiable in the broader context, others are unnecessary, the writer says.

By Bheki Mngomezulu

African countries are either famous or notorious for various reasons. Each country is known for one thing or another. From October 1960 to 1999, Nigeria was known for coups whereby political power was usurped through the barrel of the gun. Some of these military regimes had a short lifespan.

Other countries have their own historical identities. These include Ethiopia’s survival of colonialism, famine, and political instability. Countries such as Central African Republic (CAR), Côte d’Ivoire, Democratic Republic of Congo (DRC), Sudan, and many others have become infamous for intra-state squabbles. Kenya and Zimbabwe are notorious for post-election violence.

Against this backdrop, South Africa earned its place in global politics for managing a smooth political transition from apartheid to a democratic dispensation. Secondly, since the historic 1994 political breakthrough, the country has been the main contributor in assisting African countries with their negotiations resulting in political stability. This is something that other countries are envious about.

But while South Africa has made a significant contribution in the global arena, among the defining features of the country are commissions! It is true that some these commissions were justifiable in the broader context, others are unnecessary; they amount to the waste of money which could have been used to address many of the country’s challenges.

Soon after the first democratic election in 1994, in July 1995 the new Parliament of South Africa passed a law called Promotion of National Unity and Reconciliation Act (No. 34 of 1995). This Act authorised the establishment of the Truth and Reconciliation Commission (TRC). President Nelson Mandela appointed the TRC in December 1995 to be chaired by Archbishop Desmond Tutu. His Deputy was Dr. Alex Boraine.

The aim of the TRC was to investigate gross human rights violations that were perpetuated during the period of the apartheid regime, which included abductions, killings, and torture. However, instead of starting from 1948 when apartheid was adopted as government’s policy, the TRC was mandated to start from 1960 up to 1994.

The original mandate of the TRC was that it was going to end in 1998 but it was extended to 2002.

By all accounts, this Commission was necessary. South Africa was a bruised nation. There was a need to heal the country and enable families to find closure regarding the lives of their loved ones who perished during apartheid. The fact that not all the recommendations of the TRC were implemented is regrettable. But this does not remove the fact that the TRC was a defensible decision that was taken by the country’s law makers under the First Administration.

On 24 October 2011, President Jacob Zuma reluctantly announced the appointment of another Commission which was called the Commission of Inquiry into Allegations of Fraud, Corruption, Impropriety, or Irregularity in the Strategic Defence Procurement Package (SDPP). This Commission has since been referred to as the Arms Deal or the Seriti Commission since it was chaired by Judge Willie Seriti.

When this Commission submitted its report on April 21, 2016, it was full of inaccuracies. It did not come as a surprise that some of those implicated in it challenged the report in court. On August 21, 2019, the North Gauteng High Court ruled that the report be set aside on the grounds that the Commission had failed to conduct full, fair, and meaningful investigation. As expected, Judge Seriti disagreed with that judgement.

Until today, over a decade later, some of these people who were mentioned in the Commission as being among those who acted outside of the law – including Former President Jacob Zuma and the French arms company Thales are going in and out of court defending themselves against the findings of this questionable Commission report.

Given the time lapse and the fact that many potential witnesses have since passed on, it remains unclear if the issue is worth pursuing. One of the reverberating questions is: What benefit will the pursuit bring to the country?

On August 21, 2018, President Cyril Ramaphosa appointed a Commission of Inquiry into State Capture (commonly known as the Zondo Commission since he was its chairperson). After several extensions, the Commission concluded its work on 15 June 2022.

A lot went wrong during this Commission which was characterised by irregularities and inconsistences. The 2021 unrests which claimed the lives of many people, led to the destruction of the infrastructure, saw many businesses closing down and resulted in the loss of jobs are directly linked to reckless decisions taken during the sitting of the Zondo Commission.

When comparing the amount of money which the country lost during the 2021 riots with the estimated R1 billion budgeted for the Zondo Commission, one wonders if it was worth it to appoint the Commission in the first place. The two justifications could be that the events referred to above happened while the Commission was already underway and the fact that some monies that were lost during the so-called “State Capture” have been recovered – assuming that they will not be stollen again!

What is concerning is that South Africa continues to pin her trust on Commissions even at the time when the country’s economy is in bad shape. Moreover, some of these Commissions and panels are appointed only to have their recommendations rejected by the same politicians who appointed them in the first place.

The three-member Section 89 panel led by former Chief Justice Sandile Ngcobo is a case in point. Following President Ramaphosa’s Phala Phala Farm saga, a decision was taken by Parliament to appoint this panel. Intriguingly, when the panel tabled its report, Parliament rejected it. On his part, President Ramaphosa rushed straight to the Constitutional Court asking the court to set the report aside.

The Court was right to rule that Ramaphosa had no reason to approach it directly. What remains a mystery is why Parliament rejected the report. The correct thing to do would have been to adopt the report and activate the Section 89 process. If parliamentarians wanted to defend the President, they would still have done so during the debate and subsequent voting on the matter. Their decision to appoint the panel and then reject its report led to the conclusion that they wanted the panel to arrive at a conclusion that would clear the President. This was even though there are several questions which remain unanswered on the Phala Phala matter.

When the country was still digesting this incident, American Ambassador Reuben Brigety added salt to the blistering wound. Out of the blue, he made unfounded claims that South Africa sold arms to Russia in December 2022. Although he is said to have later rescinded his statement, he had already caused enough damage and gave President Ramaphosa enough reason to institute yet another investigation.

First, Ramaphosa sent envoys to America – led by Prof. Sidney Mufamadi to seek audience with President Biden. The team returned home and reported to him.

Believing that he had not done enough, Ramaphosa appointed a three-member panel to investigate the veracity of the claims made by Ambassador Brigety. This panel is chaired by Judge Phineas Mojapelo. The other two members are Advocate Leah Gcabashe SC and Enver Surty who is former Deputy Minister of Education.

Three questions arise. The first question is: what is there to investigate which people in the intelligence, and the Minister of Defence as well as Minister of International Relations and Co-operation cannot answer? The second question becomes: given that Ambassador Brigety rescinded his claim and apologised for having been economical with the truth, does the country still need an investigation? The third and most important question is the following: at the time when the country faces economic challenges, would it not be better to save the money allocated to the panel and use it to address the pressing issues?

The thrust of my argument in this article is that South Africa has become accustomed to appointing panels and commissions even when there is no clear reason to do so. It is true that Commissions like the TRC were justifiable and necessary. But this should not be misconstrued to mean that we should appoint panels and commissions even on issues which can easily be dealt with by people who are employed in those departments or institutions.

The recent crime statistics released by minister Bheki Cele are shocking. The back-to-back increase of the repo rate has dented the pockets of many South Africans. Lack of service delivery across the country and more so in rural areas is disappointing. The loadshedding menace is disrupting everyone’s life. These are just some of the challenges that the country must contend with.

Given this situation, is it justifiable to constantly appoint panels and commissions even on issues that can easily be dealt with by people already on the ground? Are we not wasting money that could benefit the country better? The time has come for us to get our priorities right. Failure to do so would render the country irredeemable.

Prof Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy (CANRAD) at Nelson Mandela University

This article is original to The African. To republish, see terms and conditions.