Do commissions of inquiry have teeth?

Kelly Kropman and Amanda Shivamba

There has been a recent proliferation of commissions of inquiry.

In 2014 there were at least five commissions running simultaneously at presidential, ministerial and provincial levels.

They are estimated to have collectively cost taxpayers approximately R300 million – roughly the equivalent of 3 100 RDP houses.

The Farlam Commission was established in September 2012 to uncover the truth about the events which had taken place in Marikana a month earlier, when 34 striking miners were killed and hundreds were injured.

The findings of this commission largely exonerated the high-level officials involved, including ministers and mining corporates.

Last year the Commission of Inquiry into Higher Education and Training (otherwise known as the Fees Commission) was established following nationwide student protests into the unaffordability of tertiary education.

The original terms of reference gave the commission 10 months to complete its task and produce a report, but extensions were requested and the final report was only sent to the president some 20 months after the initialisation of the commission.

The findings of the report were only released this week and its cost is not yet clear.

We need to ask what power commissions of inquiry have. How enforceable are they? And are they an adequate use of public money?

The state is not obligated to enact the recommendations of a commission of inquiry at all.

In fact, it is not obliged to even release the findings of them.

Once the reports are submitted to the president (or the premier, as the case may be), it is within his sole discretion as to how to proceed with them.

Ultimately, the choice to release a commission report and implement the findings is a political one.

It is clear from the above examples that commissions, although created to promote justice, do not seem to be serving their intended purpose.

Aside from being extremely political in nature, they tend to be expensive long-winded exercises with an end result that does not benefit the parties involved.

The fact that these commission recommendations are not legally enforceable makes them somewhat of a toothless dog, and they end up being more of a nice-to-have to redress past injustices, than a genuine, effective means for social relief.

In the context of the Seriti Commission of Inquiry into the arms deal, the controversies were many and the results were few.

Its terms of reference were narrow to the point that the possibility of the commission overlooking evidence was sufficiently foreseeable.

So much evidence was presented but not fully ventilated that there should be another bite at the cherry, as it were, to sufficiently enable South Africans to come to grips with whatever it is that did or did not happen.

Many have criticised the arms deal commission and some have claimed that its integrity was compromised.

Therefore the opportunity presents itself to take the next step on the path of examining the procedure that was conducted relating to it: the courts.

A review would provide for an open, transparent mechanism to see if Judge Willie Seriti and his commission did their utmost to uncover all the secrets buried in the deal.

The beauty of approaching the courts is that they have teeth where commissions do not – they can make binding orders against parties concerned.

What the courts cannot do is provide a platform for truth to be found regardless of who makes submissions, which is what commissions are supposed to be for.

The effect of the court review would be to establish whether the arms deal commission’s processes in coming to the conclusion they did were proper and, if not, to have the findings set aside.

Another potential achievement of this review would be to clarify the manner in which these commissions must be conducted – that is, of course, to be inquisitorial and find information as opposed to adjudicating a dispute.

If we as South Africans see so much of our taxpayers’ money spent and so much time and energy invested on commissions of inquiry, there should be a direct and substantial outcome when they are completed.

They should not simply be used as a tool to placate the masses.

Commissions of inquiry are as good as their terms of reference, the time it takes to complete them and the state’s response to the recommendations.

If the terms of reference are too narrow or too wide, commissions run the risk of losing efficacy and not really dealing with the issues at all.

If they take too long to conclude or their reports are not timeously forthcoming, their gravitas may be lost.

Finally, because the state does not need to adhere to the findings or even release the report, the whole process may be for nothing.

Kropman is an attorney and Shivamba is a legal researcher at Corruption Watch