Presidential enquiries usually change nothing (from 2013)

AN unfortunate misunderstanding prevails in South Africa’s public life: citizens labour under the false impression that a presidential commission of inquiry is meant to uncover the truth. The commission of inquiry, an institution found in most Commonwealth countries, is an ad hoc investigation initiated by a head of state. An inquiry is typically appointed for one of four reasons.

First, it can help a president evade responsibility for a tough decision. Typical inquiry subjects in Commonwealth countries include the treatment of ethnic minorities and the siting of airports or nuclear power stations. Political leaders who are unwilling to take electoral flak by defending hard policy choices can pass responsibility on to an allegedly “expert” and “neutral” body.

A commission also allows a leader to garner “objective support” and quasi-judicial credibility for a decision he has already taken.

Second, and here the Farlam Commission comes to mind, an inquiry can protect a government from popular outrage. As Anthony Downs observed in his 1972 study of the “issue-attention cycle”, human beings cannot sustain interest for long, not even in the most appalling human tragedies. Deferring judgment allows guilty parties time to get their stories straight. Findings can be couched in legal jargon and published in multivolume sets to render them inaccessible. By the time a report comes out, public emotion has invariably subsided.

A third motivation for appointing a commission is to dissipate blame. As Herbert Hart and Tony Honoré explained in their classic 1959 study, Causation in the Law, we ordinarily ascribe responsibility for a crime or disaster by imagining a chain of causes and effects that led to it. We do not select any old background conditions. Instead we search for those “free, informed, and voluntary actions” without which the event in question would not have occurred. (Sometimes, it is true, we also look for accidents.)

What citizens want to know about Marikana is fairly straightforward: who took the free, informed, and voluntary decisions that led to the massacre?

A commission of inquiry, however, is designed to bring general background conditions to the fore — to turn a hunt for culpable actors into a general sociological and historical investigation into all of the myriad circumstances that ultimately resulted in a “tragedy”. Should such an inquiry inadvertently stumble towards a guilty party, it can be brought rapidly to a close, on the grounds that it has already exceeded the duration of four months specified in its terms of reference.

The final motivation for an inquiry is to attack political enemies.

The Seriti Commission of Inquiry into Allegations of Fraud, Corruption, Impropriety or Irregularity in the Strategic Defence Procurement Packages could be just such an inquiry.

The terms of reference direct undue attention to relatively trivial matters: are the arms being used? have offsets been realised? The avowed search for “improper influence” in the award of contracts is likely to confirm only that the “consultants” who advised international arms companies benefited handsomely from doing so.

Someone who is safely in the grave and so cannot easily respond — perhaps former defence minister Joe Modise — could easily be painted with a broad brush of culpability.

More pertinent to the underlying political goals of the inquiry is the list of witnesses for the first round of questioning: it features former ministers such as Ronnie Kasrils and Mosiuoa Lekota, former president Thabo Mbeki, and officials from the National Treasury. It is a virtual roll call of President Jacob Zuma’s factional enemies and contemporary irritants.

This inquiry could perhaps be named the “Maharaj Commission” in honour of the president’s extraordinarily able political strategist, Mac Maharaj. When Judge Willie Seriti finally releases his “findings”, perhaps towards the end of the decade, it will be interesting to see whose fingerprints can be found on the covers of the multivolume published report.

• Butler teaches politics at the University of Cape Town.

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