State capture inquiry could lead nowhere - analysts

2018-01-25 16:47
Raymond Zondo (Herman Verwey, Gallo Images)

Raymond Zondo (Herman Verwey, Gallo Images)

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Cape Town - The terms of reference for the judicial commission of inquiry into state capture could lead to protracted investigations by the commission that result in no consequences for those implicated in state capture, experts say.

The terms of reference, published in the Government Gazette on Thursday, capture the remedial action recommended by former public protector Thuli Madonsela in the State of Capture report, but broadens the scope of the commission's mandate significantly to include investigations into government involvement in contract and tender corruption.

This leaves Deputy Chief Justice Raymond Zondo and his commission with a mammoth task to be completed in the allocated 180 days. It seems unlikely that the commission will be able to finish its work in 6 months.

Professor Pierre de Vos, constitutional law expert at the University of Cape Town, says, while the terms of reference are relatively specific, it is set out in a way that allows the person in charge to expand the investigations depending on where it might take him in terms of the SABC and other state entities.

"It leaves some leeway for the commission to follow the lead of what comes out in the commission but, as it stands, it's quite specific on what must be investigated."

According to political analyst Ralph Mathekga the fact that the terms of reference are so broad is reason enough for President Jacob Zuma and his supporters to smile as it might mean the commission's investigations could drag on for much longer.

"The problem with commissions of inquiry is that they are not like a court of law where you follow strict rules of leading evidence. Even if the scope wasn't broadened by the terms of reference, those testifying would have widened it anyway," he says.

"From a realistic point of view, we cannot ignore everything we've learnt about state capture since the [former] public protector's report came out. The state capture conspiracies have become much broader than what was originally thought. So, it would have been difficult to keep the commission's work strictly focused on the initial report."

According to the terms of reference, the commission must look specifically at whether the president had any role in the alleged offers of Cabinet positions to former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor.

It must also look into whether any member of the national executive "unlawfully or corruptly or improperly" intervened in the matter of the closing of banking facilities for Gupta-owned companies.

The commission of inquiry must further investigate whether any advisers in the Ministry of Finance were appointed without proper procedures, particularly by former finance minister Des van Rooyen.

However, the terms of reference also states that the nature of corrupt activities in government departments, agencies and entities have to be included, which significantly broadens the scope of the commission's investigations.

According to the published terms of reference, it may be "added to, varied or amended from time to time".

This, according to De Vos, may only be done by the president.

"This is one of the things that happens to many commissions of inquiry. It allows the person who appoints the commission a bit of leeway so that, if the commission starts investigating things he doesn't want them to, he can change the terms of reference. It will not be the first time, nor will it be the last time."

The terms of reference will now have to be agreed on in consultation with Zondo. Thereafter a budget must be allocated and investigators, administrative personal, etc. must be appointed before the commission can begin its work.

As with all commissions of inquiry, there are two things that we need to look out for, says De Vos.

"Firstly, are they actually actively looking for wrongdoing or are they performing? Are they going to subpoena bank statements and cellphone records and investigate properly? Because without it, nothing will happen.

"Secondly, if it makes good findings and recommendations the outcomes will depend on whether the other institutions of state, such as the executive, prosecuting authorities and the Hawks take this up. If they don't want to follow up what the commission finds, its recommendations will gather dust."

According to Mathekga, there is however no reason for criminal investigations into allegations of state capture not to continue parallel to the commission's inquiry.

"The criminal investigations must go on. We don't have to wait for the commission to make its findings," he says.

Read more on:    jacob zuma  |  state capture inquiry  |  state capture

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