An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Used well, the president or a premier can appoint a Commission of Inquiry with the aim of silencing – or getting back at – political opponents (remember the Hefer Commission?), of being seen to be concerned about and to be taking decisive action on a shocking event while hoping everybody would get bored with the details as the Commission drags on (did I hear Marikana anyone?), or of providing a reasonably credible mechanism through which to cover up wrongdoing by members of the government or the police (remember the Harms Commission on Vlakplaas hit squads?).
In order for a Commission of Inquiry properly to serve one of these (always unstated) goals, it is important for the Commission to be headed by someone whom the political and media establishment view as credible. The president or the premier needs to appoint (in the famous words of Margaret Thatcher) “one of us” – a person who is not a loose cannon or a maverick, somebody who is largely trusted by members of the establishment not to rock the boat, but “independent” or “impartial” enough to satisfy the angry, disappointed or upset public.
Enters the “sound” judge, one who is not too famous or controversial; not too conservative or too radical; not too closely aligned to the political party of the president or the relevant premier who appointed the judge to chair the Commission, but sympathetic to that political party nevertheless; not too hot-headed or too lackadaisical; diligent and clever enough to deliver a credible report, but not so conscientious and so burning with righteousness that he or she would go off message and would run the risk of eventually delivering a bombshell report that creates further political problems for the president or premier.
Appointing a “sound” judge to head up a Commission of Inquiry provides a Commission with the veneer of legal “objectivity”. The Head of the Executive can then hide behind the “objective” findings of a judge who – if everything went as planned – would have exonerated the executive of any wrongdoing, while making reasonably sounding recommendations about how to prevent the “entirely unpreventable” tragedy or calamitous failure of governance from happening again.
British prime ministers do this sort of thing all the time. Who remembers the 2003 judicial inquiry in the UK chaired by Lord Hutton, who was appointed by Tony Blair to investigate the circumstances surrounding the death of David Kelly, a biological warfare expert and former UN weapons inspector in Iraq? Hutton did a passable job of protecting the government from the fall-out of the disastrous “sexing up” of evidence to justify the invasion of Iraq. Although many newspapers accused Hutton of participating in an “establishment whitewash”, his Commission provided just enough drama and was just sober and “even-handed” enough to ensure Tony Blair’s short-term political survival.
In South Africa – as in the United Kingdom – it is not in all circumstances impermissible for a judge to head a Commission of Inquiry. As I have pointed out before, the Constitutional Court provided guarded permission for judges to serve on Commissions of Inquiry. In the South African Association of Personal Injury Lawyers v Heath and Others that Court stated that:
In dealing with the question of judges presiding over commissions of inquiry… much may depend on the subject matter of the commission…. In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions — independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information.
This is not an easy call to make. A judge might agree to head a Commission of Inquiry because the subject matter of the Commission at first looks “apolitical” – only to realise halfway through the process that the whole thing was being politically manipulated.
In such cases judges who agree to serve on Commissions of Inquiry appointed by the Executive have a special duty to protect their own credibility and that of the judiciary in which they serve. If they feel the Commission is pursuing an entirely dubious political agenda, they would have no choice but to resign from it. A good judge will also avoid getting entangled in political controversy swirling around a Commission of Inquiry to protect his or her own name and to protect the independence of the judiciary in which he or she serves.
In such matters, perceptions are almost just as important as facts. Once the perception takes hold that the judge chairing a Commission of Inquiry has taken sides, or is (knowingly or not) promoting the political agenda of the president who appointed him or her, the credibility of the judge as well as of the Commission he or she heads is fatally compromised.
Although Judge Louis Harms was an exceptionally clever man, I am not sure his credibility ever fully recovered from his disastrous chairmanship of the Harms Commission of Inquiry into the existence of police hits squads based at Vlakplaas. He refused to accept what was as clear as day for any reasonable observer – namely that the Apartheid police was staffed and being funded and given instructions by murderous thugs.
That is why the Seriti Commission of Inquiry into the Arms Deal is in such big trouble. Widely reported allegations that judge Seriti himself is promoting a secretive “second agenda”, coupled with several high profile resignations (including that of Judge Frans Legodi last week), have created a perception that the Commission will be part of a monumental and (from the perspective of President Zuma, even worse) an amateurish cover up.
These claims might all be untrue. All those who resigned from the Commission might have done so for reasons that have nothing to do with the allegations that judge Seriti is pushing a “second agenda” at the Commission. But the flood of resignations and the various accusations of secrecy, underhand dealings and the promotion of a “second agenda” by some of the people who were actually involved in the work of the Commission have created a strong perception that the Commission is working at covering up the truth – and making a hash of it, to boot.
That is why the public hearings of the Arms Deal Commission (which was again postponed this week) will make or break the Commission. The Commission will only be able to restore its credibility (which, to use the cliché, is in tatters) if it is seen to go aggressively after those against whom corruption allegations have been made to test the credibility of all these (as yet untested) allegations. If it fails to restore its credibility and if the strong perception that it has a “second agenda” is not dispelled, the Commission will not be able to do what it was appointed to do.
Whether President Zuma appointed the Commission to get to the truth about corruption around South Africa’s arms deal or to provide a credible means of covering up any corruption or unlawful activities related to the arms deal, his aims will not be served if the Commission is widely viewed as a participating in a whitewash.
And this might be the great irony here: no matter how you slice it, it is in the interest of Judge Seriti, President Zuma, the ANC and everyone else who was involved in the arms deal, that the Commission should rebuild its credibility. If it does not act decisively to establish its impartiality and is not seen to be eager to uncover the truth, its findings will have no credibility and will serve no purpose.BACK TO TOP