Certain commissions of inquiry should have more bite, to ensure their recommendations are followed up, says governance expert Lauren Kohn.
Kohn, a legal scholar, founder and director of the Law and Governance Academy of Southern Africa, believes commissions looking into public integrity and accountability, such as the Truth and Reconciliation Commission (TRC), should be able to make binding findings.
The presidency this week announced a judicial commission of inquiry to investigate alleged interference preventing the prosecution of apartheid-era crimes referred by the TRC.
The commission, established in 1995 and chaired by the late Archbishop Desmond Tutu, ran under the tagline “Healing Our Nation”. It referred more than 400 cases to the National Prosecuting Authority (NPA) for criminal prosecution, with many of them yet to take off.
Cases now before court were through the assistance of organisations such as the Foundation for Human Rights. There have been suggestions that political interference and lack of will have stalled prosecutions.
South Africa has had at least 20 commissions of inquiry since 1995, with the state capture commission, established in 2018 and headed by former chief justice Raymond Zondo, costing about R1bn. The TRC cost about R175m. Other lengthy commissions such as the Marikana commission and the Seriti commission cost R153m and R137m respectively.
Kohn will deliver a keynote address on the topic of commissions of inquiry at next week's 14th Regional Conference of Heads of Anti-Corruption Agencies in Commonwealth Africa. The event is being held in Accra, Ghana.
The Marikana commission, Seriti commission, Satchwell commission, health market inquiry and the Zondo commission — none [of the findings] were taken forward. At least the Nugent commission was effective
— Prof Alex van den Heever, chair of social security system administration and management studies at Wits University's School of Governance
“I read every page of the Zondo report, and while the Zondo commission was, in respects, unique ... I do believe that what I term ‘public integrity and accountability' commissions of inquiry should in appropriate instances be able to make binding findings, rather than mere proposals, which the history books show tend to get shelved and gather dust,” Kohn said.
For example, a recommendation by the state capture commission that a permanent anti-corruption commission be established had not been implemented, she said.
“This recommendation ... should be taken up by the legislature, particularly because the commission itself was an integrity and accountability commission of inquiry of the highest order.”
Kohn said the shelving of findings, which was common, gave commissions of inquiry “a bad reputation as whitewashing, tax-wasting mechanisms”.
“When a commission of inquiry falls under the Commissions Act and is not merely a matter of public concern but ... a matter of public concern that goes to the heart of the integral and accountable exercise of public power, then in certain cases the findings should be treated as binding.”
In such cases, ignoring the findings would be challengeable via judicial review, Kohn said.
Prof Alex van den Heever, chair of social security system administration and management studies at Wits University's School of Governance, said commissions of inquiry were “entirely creatures of the executive of government”.
“Therefore, it is the discretion of government as to what it does about [findings]. There's no way to make them more binding. The real question is why government completely ignores commissions of inquiry.”
He said there were dozens of commissions' findings that had been ignored, including the inquiry into the fire in the Johannesburg CBD in which 77 people were killed.
“The Marikana commission, Seriti commission, Satchwell commission, health market inquiry and the Zondo commission — none [of the findings] were taken forward. At least the Nugent commission was effective,” Van den Heever said.
Survivors of apartheid-era violations, the families of victims and the Foundation for Human Rights have welcomed President Cyril Ramaphosa's undertaking to establish the commission of inquiry into alleged political interference in TRC cases.
Some of the families had filed a court application against Ramaphosa and five other heads of departments seeking R167m in damages for the suppression of investigations into cases referred to the NPA by the TRC.
The foundation was already working on 22 apartheid-era criminal cases, with three of them already before court, in a bid to secure prosecutions.
However, the foundation said survivors and the families of victims of apartheid-era crimes had rejected the proposal for the commission to also deal with the declaration of their rights and the constitutional damages claim, as a commission had no power to determine rights and remedies.
“The [foundation] is very disappointed at the about-turn of the president. In February, the president stated in the media that he deeply appreciated the pain experienced by the families for the many years they had been denied justice. He stated firmly that they needed closure,” the foundation said in a statement.
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