Understanding the two Commissions of Inquiry into the police

One inquiry has just been suspended in Khayelitsha. The other is the Marikana Commission in Rustenberg.

While the Khayelitsha Commission has attracted local and mainly provincial coverage with some national news exposure, the Marikana Commission has dominated national news and featured in international media coverage and analysis. That is until the last few days, when City Press, the Mail & Guardian, the Cape Times and the Daily Maverick ran stories of a damning internal inquiry into the Khayelitsha police.

Both Commissions were established on the basis of provisions and powers contained in the Constitution.

The former was prompted by complaints lodged by Cape Town civil society organisations during 2011. The complainants are led by the Social Justice Coalition (SJC), a mass movement of people based in Khayelitsha, who, since its inception in 2008, are campaigning for safe, clean, secure and non-corrupt communities. The SJC and its partners invoked Section 206 of the Constitution which obliges a Provincial Government and its Premier to establish a Commission of Inquiry should ‘’any complaints of police inefficiency or a breakdown in relations between the police and any Community” be received.

The SJC and its partners have stated in their submission to the Provincial Government that police in Khayelitsha are immune from criminal scrutiny themselves, that crimes are not being properly investigated or take very long to be investigated and prosecuted, that crime is increasing due to understaffing and under-resourcing, and that the community there is living in unsafe conditions with increasing vigilantism.

In response to the formal complaint by these organisations, the Premier Zille eventually established a Commission of Inquiry, as she is obliged to do in terms of the Constitution. A ‘’Provincial Proclamation’’ setting out the terms of reference of the Commission was issued.

The Marikana Commission in Rustenberg was established by President Zuma in terms of his Constitutional prerogative and in direct response to the deaths of mine workers and others during August 2012 at the Marikana mine and surrounding areas, and associated industrial relations strife there.

The “Presidential Proclamation” was issued in September 2012 to interrogate the version of events that various role players and their lawyers wish for us to believe, from the SAPS, government departments, unions, mine workers, mine communities and Lonmin Plc mining company. Despite fatal labour strife in other mining communities for some years now, Marikana will have its own commission.

While the Presidential establishment of the Marikana Commission may have been motivated by political expedience to quell further industrial and other unrest, including controlling growing public outrage and international investment angst, it is nevertheless proceeding, and it is not at this stage subject to any legal challenges. Of course, it is subject to varying criticism (narrow terms of reference, minimal support for victims families, etc) but it is well under way, with government and the SAPS fully participating (albeit, as alleged by various analysts and journalists, untruthfully).

What is common in both the Khayelitsha and Marikana Commissions is the questioning and examination of the role, relevance and function of the SAPS, an organ of state whose establishment functions and powers are governed by Chapter 10 of the Constitution.

While executive control of the SAPS falls under the Minister of Police, Mr Nathi Mthetwa, the President has appointed Ms Riah Phiyega as the National Commissioner of Police, who must “exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing”. In both Commissions, the unprecedented, recorded public scrutiny of the SAPS is potentially possible.

The Khayelitsha Commission is headed by retired former Constitutional Court Justice O’Regan, and the Marikana Commission is headed by retired former Supreme Court of Appeal Justice Farlam - both former judges are supported by additional capable advocates and a secretariat. Both are highly respected in the legal professional arena, and are independent of party political interests.

As the Marikana Commission unfolds, several worrying developments have taken place in the last few weeks. The terms of reference are crafted very narrowly. So the commission will not look into a range of socio-economic issues that led to industrial action at Lonmin Plc and surrounding mines in the area. There is now worrying evidence that the SAPS tampered with the crime scene, and new evidence that suggests that SAPS officials may have strategically placed weapons on the bodies of some dead workers, after the fact, to falsely suggest that imminent harm existed on that day to justify the ‘order’ authorising the use of live ammunition on striking workers, resulting in their deaths.

More recent serious allegations of the arrests and torture of worker witnesses by the SAPS in the Rustenberg area have now emerged – designed to prevent them from testifying or participating in the hearings.

Finally, there is a suggestion that there has been an improper collusive relationship between Lonmin Plc management and its shareholders, government and the SAPS —resulting in an exaggerated SAPS presence and excessive force being used to quell the gathering of workers and several strike actions - but to protect Lonmin Plc and its shareholder interests, not the public interest.

Meanwhile in Khayelitsha, the Commission of Inquiry into Policing in Khayelitsha, properly and duly constituted, commenced a few weeks ago. Present on the first day of the hearings were all relevant parties and their lawyers, but conspicuously absent was the SAPS, the Commissioner and the Minister of Police, and their legal teams. Public hearings were due to commence this week, but this has now been halted.

The Minister of Police has hired lawyers using public money, to seek an urgent interdict to prevent the Khayelitsha Commission from continuing and proceeding any further. He is suing the Commission, Provincial government, Premier, and the SJC and its partners. On Monday this week the SJC hosted a “People’s Commission of Inquiry” on the steps of the Cape High Court after the interdict application was argued.

Why is the Minister keen on halting the Khayelitsha Commission? He alleges that the Commission is a “political witch hunt”’ and politically motivated. And that the Commission is “unconstitutional” because the sections relating to the requirement of “inter-governmental co-operation”’ in the Constitution have not been observed by the Premier of the Western Cape. Yet, by all accounts, the co-operation and views of the Minister was allegedly sought by the Premier for several months.

As a result of the legal action by the Minister, the Commission and its deliberations are temporarily suspended. The SJC and its members are now embroiled in litigation with a Minister who has, presumably with Cabinet approval, decided to spend public resources to resist an inquiry into the Khayelitsha police and probe the reasons why vigilantism has increased in that community.

The Minister has yet to explain to Parliament the full basis of his legal case and why this action and course of conduct is not improper and / or wasteful. Ironically, it is the Minister who is undermining the co-operative governance Constitutional provisions that he has invoked by seeking an adversarial interdict, instead of supporting the Commission and the community, or engaging constructively, decently and positively.

Meanwhile, the Marikana Commission is proceeding, but with the likelihood that the truth will not fully emerge. To what extent the SAPS will be held responsible is anyone’s guess. Yet, by all accounts, the Marikana Commission, and its proceedings have become an embarrassing indictment on the SAPS, the Commissioner and the Minister of Police, with allegations of torture; falsification of evidence; deliberate and sinister crime scene tampering and the improper, undue interference and pressure exerted by Lonmin Plc.

And, on the other side of the country, in another province, we have the same Commissioner and Minister of Police on the defensive, effectively shutting down a Commission that envisaged public scrutiny of the police. And, until the final interdict is heard in December, it remains suspended. Sadly, this is a missed opportunity for building and improving relations between the SAPS and the Khayelitsha community.

In both Commissions, we have seen the sinister tentacles of the security apparatus and the SAPS at work, effectively trying to shut down scrutiny and dissent about its role and functions in various communities through intimidation and interference with key witnesses, a disregard for the spirit of the Constitution, and an indefensible deference to business or party political interests.

This is why, in Khayelitsha, the Minister of Police should withdraw his legal action against the Khayelitsha Commission and others, and instead support the inquiry and public hearings. In Rustenberg, the Minister and Commissioner should come clean about the lies and falsities perpetuated by their subordinates, who are trying to escape culpability for the deaths of workers, and their subsequent attempts to deliberately mislead a Commission set up by their own President. If need be, they may also have to resign.

Hassan is a Human rights lawyer and activist. She is currently the Tom and Andi Bernstein Distinguished Human Rights Fellow at Yale University.