/ 24 August 2012

Inquiry may paper over Marikana shooting

After visiting Marikana
After visiting Marikana

The commission of inquiry called to establish what happened at Marikana has been welcomed but civil society has warned that the terms of reference, while admirable, are not exhaustive.

On Thursday, President Jacob Zuma's disclosed the members of the commission and the terms of reference under which they would conduct their investigation.

Retired judge Ian Farlam, a former Supreme Court of Appeal judge, will head the commission. Farlam has been described as an experienced judge who would likely get buy-in from those investigated by the commission as he is not aligned to any political factions. He will be supported by Bantubonke Tokota, who has served as a labour court judge, and a high court judge, Pinga Hemraj.

It's unclear what kind of resources the commissioners will have in terms of support and investigative staff. Its relationship and access to the criminal investigation being conducted by the Independent Police Investigative Directorate is also unclear.

Presidential spokesperson Mac Maharaj told the Mail & Guardian that these details would be worked out between the commissioners and the department of justice.

Maharaj said that the commission of inquiry would be gazette within the next few days and that the commission's four-month deadline would then immediately begin.

Meanwhile, IPID spokesperson Moses Dlamini said that the directorate's investigation into possible criminal offences on the part of police during the incident is ongoing and would run concurrent to the commission's work.

Political management
Constitutional law expert Pierre de Vos said the terms of reference were impressive, describing them as "broad but not quite specific". This, together with the understanding that the terms of reference could be amended, would allow the commission to investigate issues that may not yet be apparent.

"It gives the commissioners more clout because if they get information about things that are important, then they can request that the president broaden the terms of reference," he said, adding that this would give the commission more leeway in their investigation.

De Vos said the commissioners would have to be "bold and fearless" in their investigation.

However, De Vos added that it would be important to follow not just the progress of the commission but the actions taken once its recommendations are made.

"Commissions of inquiry are often about political management of a very politically damaging situation. The big problem often is that there's no political will to follow up and implement recommendations," he said.

"Given our prosecuting service and the politicisation of the police service … the chance of a recommendation [for investigation and prosecution] being executed properly is slim."

'Trend of violence'
NUM secretary general Frans Baleni said the terms of reference were acceptable but that the union hoped they would be broadened in order to take into account a "trend of violence" that had emerged over time.  

"What we know is that at Impala we ended up with violence, there's a party associated with those incidents. [At Marikana] there were a number of violent incidents, there's a party associated with those incidents," he said.

Although he would not name the party, this was a clear reference to rival union Amcu.

A coalition of Marikana community members, striking miners and civil society movements announced this week that there would be an "independent, people's commission of inquiry" into the massacre that claimed the lives of 34 miners last week.

Vishwas Satgar, of the Democratic Left Front, said that at a meeting held at the University of Johannesburg on Wednesday there "had been deep scepticism about the government's proposed inquiry".

Former ANC Youth League spokesperson Floyd Shivambu, meanwhile, said that the renegade youth league leaders "do not completely trust the entire process".

Shivambu, together with expelled youth league leader Julius Malema and former secretary general Sindiso Magaqa, attended a memorial service for the slain miners in Marikana on Thursday.

The religious service – which was meant to be apolitical – quickly degenerated into a free-for-all. Armed workers stormed the venue, Malema proclaiming that the "democratically elected government has turned on its people" and ministers in attendance fled.

"We think there must still be a police case that is opened and a criminal procedure in a court of law where the people who have killed must be prosecuted," he said.

Shivambu said that government should have used commission as an opportunity to deal with the conditions of mineworkers, and to engage with the social and economic contexts in which they live and work.

He said what was needed was a new minimum wage for mine workers, and for mines to provide workers with decent shelter.

"If we're going to just focus on the incident itself it's not going to help the situation," he said. "When this ends, mineworkers will still be in the same situation."

No 'vacuum' at Marikana
Piers Pigou, project director of the International Crisis Group of Southern Africa, agreed that the contextual understanding of the social and economic condition in which the miners are living needs to be further developed.

"This doesn't happen in a vacuum," he said.

While generally pleased with the terms of reference, Pigou objected to the conspicuous absence of efforts to engage with the community around the mine.

The communities around Lonmin's Marikana mine live in abject poverty, with poor infrastructure and little in the way of social services.

"The perspectives of the community need to be taken into account. The judges need to hear what those perspectives are, however off the wall they may be, if they are to make recommendations regarding the specifics of this case or more generally to prevent any repetition [of this incident]," he said.

He also said that the commission should investigate what type of engagement there is between the community and all levels of government, and how this relates to the mine's social responsibility efforts.

'Everyone should have input'
A number of community members have said they mistrust the commission. Lazarus Diale, who lives in Segwaelane about five kilometres from Wonderkop, said he suspected that Lonmin, NUM, and the government would probably "manipulate everything so that the outcome could favour them.

"Maybe if the commission can come to talk to each and every structure that operates around the where the incident took place … everyone should have input."

Abbey Mafate is a member of the Bapo Ba Mogale Youth movement. Wonderkop lies on the land of the Bapo Ba Mogale community. He also raised concerns that the government could prevent a truthful outcome. "If Mr Zuma is involved, I don't think they're going to make it. If they want the truth, they must involve police, not politicians. They must involve people like professors, not unions and NUM."

Police investigation
Police Minister Nathi Mthethwa on Friday said he had asked the IPID to investigate claims of police brutality at Lonmin.

"[The] allegations of police brutality … have just been brought to the attention of the minister of police," his spokesperson Zweli Mnisi said.

"He immediately tasked the head of the IPID directorate, Francois Beukman, to investigate these allegations and give him a report urgently."

Mnisi said the allegations of brutality against mineworkers who were arrested were brought to Mthethwa's attention at an inter-ministerial meeting in Rustenburg in the North West.

"The minister would then make pronouncements based on these findings."

Last week Thursday, 260 miners were arrested during protests at Lonmin's platinum mine in Marikana, North West. They face charges of public violence.

Police shot and killed 34 people while trying to disperse protesters at the mine, while over 78 people were wounded. Ten people, including two police officers and two security guards, were killed in the week preceding the clash.

The mineworkers appeared in the Ga-Rankuwa Magistrate's Court on Monday, where the case was postponed to next week. – additional reporting by Sapa