Guest Column

Capture inquiry: Don't hold your breath

2017-06-04 06:02
Lawson Naidoo

Lawson Naidoo

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Lawson Naidoo

Amid the flurry of leaked emails, the past week has seen a deluge of apparent support for an inquiry into state capture from the president, deputy president, the ANC national executive committee (NEC), the ANC Women’s League and various Cabinet ministers. Yet we may be no closer to getting the judicial commission of inquiry that was the essence of the remedial action in the Public Protector’s State of Capture report last year.

The president told Parliament on Wednesday that he and government were not opposed to an inquiry, and that he only objected to the chief justice appointing the judicial commission. But this is not what the Public Protector said. The remedial action stated that the chief justice should nominate the judge to head the commission but the formal appointment would be conducted by the president in terms of his constitutional powers.

In view of the fact that the president is implicated in the State of Capture report, the risk of a conflict between the president’s official role and his private interests as outlined in section 96(2) of the Constitution must be managed. The Public Protector believed it best to leave it to the chief justice to nominate the judge – it may have been better if she proposed that the judge be appointed by the president “in consultation with” the chief justice.

This would require the concurrence of the chief justice and temper the likelihood that the president would appoint someone who would be sympathetic to him and do his bidding.

But the review application brought by the president goes further than merely objecting to the manner of appointing the judge; the notice of motion seeks an order that the investigation be pursued by the Public Protector and therefore not a judicial commission of inquiry – a case of the president being economical with the truth before Parliament.

If the president’s support for the judicial commission were unequivocal, would it have been necessary for the ANC NEC in its statement last week to support the establishment of a commission, and the removal of obstacles to its speedy “establishment”? Were they aware that it is the president’s counsel in the review application that has refused to sign confidentiality undertakings in respect of documents or evidence given to the Public Protector in strict confidence?

These confidentiality arrangements were agreed in principle with Deputy Chief Justice Aubrey Ledwaba in January, but, four months later, the president is still employing his famed delay tactics. This prevents the Public Protector from releasing documents relating to the record of decision. Although the review application has been set down for hearing on October 25 and 26, this delay places that in jeopardy.

If the president were serious about instituting a judicial commission, he would make urgent efforts to find common ground with the chief justice on who to appoint. Failing this, and in order to heed the sentiments of the ANC NEC, he should amend the notice of motion in the review application to remove the request that further investigation be undertaken by the Public Protector, and ensure his counsel abides by the confidentiality undertakings.

The Public Protector was aware of the urgency of the judicial investigation and required that the president appoint the commission within 30 days of her report, and the commission to present its report within six months. Had that time frame been adhered to, we would be on the cusp of receiving the commission’s report. Now the review application will at best be heard a year after the Public Protector’s report was published.

Regrettably, the ANC NEC has muddied the waters by implying that the terms of reference should be broader than those provided in the State of Capture report, which was “to investigate all the issues using the record of this investigation and the report as a starting point”. Secretary-general Gwede Mantashe did not define the scope of the inquiry supported by the NEC, but said that some NEC members had suggested that it consider the influence of business on the state since 1994. If this were to be the basis for a commission established by the president, it would firstly be tantamount to undermining the remedial action of the Public Protector. The Nkandla judgment of the Constitutional Court provides clear direction that “substantial disregard for the remedial action … by the Public Protector” equates to a failure to uphold, defend and respect the Constitution.

Secondly, such a broadening of the terms of reference would allow those opposed to an investigation into state capture as envisaged by the Public Protector to sabotage and filibuster such a process to their hearts’ content. The forces against “white monopoly capital” would relish the opportunity to grandstand and pontificate about the ills of our country to no end. The matter would drag on for years and effectively evade the accountability that is required now. Commissions of inquiry have a notorious history here and globally of sweeping matters under a thick carpet pile. We cannot afford to let this happen again.

Naidoo is the executive secretary of the Council for the Advancement of the SA Constitution


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Read more on:    anc  |  state capture


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