The Farlam Commission of Inquiry is taking time to get to the key issues surrounding the police massacre of miners at Marikana on August 16 last year. (Madelene Cronjé, M&G)
It is hard to resist the conclusion that, as two vital judicial commissions of inquiry falter, the search for truth founders – and that this is very convenient for those in power.
As the inquiry into the tragic events at Marikana, led by retired judge Ian Farlam, is eclipsed by the unedifying spectacle of lawyers fighting for their fees, the inquiry into the arms deal led by Judge Willie Seriti crawls along at a snail's pace and threatens to run out of money even before it has got going.
This suits the establishment all too well. To see what is going on and why, it is worth pausing to recall the genealogy of the two commissions, and their progress – or lack of it – so far.
In the case of the Farlam commission into the events at Marikana, President Jacob Zuma had no option but to appoint a judicial inquiry: had he not done so, it would have suggested that he was not taking the murderous events of August 16 last year seriously enough. The commission began its work six weeks later, on October 1, when a vast squabble of lawyers turned up in Rustenburg.
After an initial burst out of the starting gates, the Farlam commission seems to have become bogged down, and not just as far as lawyers' fees are concerned. Farlam has shown a determination to be inclusive, to allow every possible party a say; he has given lawyers the opportunity to ask pretty much any question they like of witnesses. But this has meant that some of the more seasoned advocates and attorneys have begun to worry that the commission is failing to home in on the key issues as it lingers unnecessarily on peripheral matters.
Moreover, the sequence of witnesses has surprised many. Instead of beginning at the beginning, as it were, with the people who were actually present when the shooting happened, the commission has spent a lot of time hearing from people who were not present and can offer no direct evidence of what took place.
The hapless police commissioner, Riah Phiyega, spent a good deal of time in the witness box, saying: "I don't know, I wasn't there," and "You will have to ask the people that were there." Since the primary "defence" of the police is self-defence – that they felt that they had no alternative but to use live ammunition – hearing from the officers who actually pulled the triggers "in self-defence" is essential. Otherwise, it's hard to see how the commission will be able to make credible findings on this.
At which point, Phiyega is likely to be the primary scapegoat. Indeed, there may not be many, or even any, alternatives for Farlam, unless he succeeds in getting the commission back on track and pushes for the cross-examination of witnesses with greater direct knowledge of what transpired at the Lonmin mines.
Which may, as I say, suit the establishment very nicely. After a suitable mid-career gap, Phiyega can return to the corporate sector that clearly she should never have left, and everyone can get on with business as usual. Farlam would, however, be well advised to take a leaf out of the book of the Scott inquiry into the illegal sale of arms to Iraq by Britain in the early 1990s.
The Scott report is a useful and highly regarded reference point for understanding the distinction between ministerial accountability and ministerial responsibility. As the then head of the British civil service, Sir Robin Butler, told Scott: "Ministerial 'accountability' is a constitutional burden that rests on the shoulders of ministers and cannot be set aside. It does not necessarily … require blame to be accepted."
Butler had a deeply held bias and instinct for the establishment. He was also trying to argue that you should not be held accountable if you were not responsible, even though ministerial accountability could never be evaded.
Scott took a firmer line: whereas it was true that often politicians could not be held responsible, because it is unreasonable to expect them to be "all-knowing", that could not be used by them to evade accountability – either because they should have known or should have put in place the requisite policy framework or checks and balances to maintain sufficient control.
In the case of the Seriti commission, Zuma had to be dragged to court to make him appoint it. Just weeks before the Constitutional Court was to hear a judicial-review application on his refusal to do so, he announced the terms of reference of the commission in October 2011.
Zuma had earlier approached former chief justice Sandile Ngcobo, perhaps feeling guilty about his failure to secure a lawful extension for Ngcobo's term as chief justice. Ngcobo is meticulous in all he does, and was unable to secure the necessary assurances about the terms of reference, the calibre of "wing men" and, most importantly, resources to be committed to the commission. Whereupon Ngcobo wisely declined the appointment.
Judge Seriti's approach has been to prepare carefully. The pace has been languid, which suits Zuma and the ANC well. What's that old African saying: "To go faster you have to slow down"? Seriti appears to be applying the aphorism with great deliberation.
Until such time as the commission begins its work in earnest, there are grave doubts about whether it will have been sufficiently able to master the voluminous paper trail in the arms deal. This would need to be done if the "A-list" witnesses now being lined up are to be subjected to forensic scrutiny.
And further lawyer trouble lies ahead. Is former president Thabo Mbeki really going to turn up to give evidence without legal representation? And who will pay? Has it been budgeted for?
Like the Farlam commission, Seriti's is already running short of money. Which, in turn, raises questions about the seriousness of the government's desire to find the truth. It is outrageous that there should be any doubt that those directly and adversely affected by the state's conduct last year – the victims' families and those arrested in the aftermath, probably unlawfully – should have their legal representation paid for by the government.
The public interest in finding out what happened at Marikana and what took place in the arms deal – at the root of the culture of corruption and impunity that now threatens the sustainability of the post-1994 democratic project – is of overwhelming importance, despite the lack of proper coverage of either commission from the mainstream media.
A wiser leader than Zuma would recognise the cleansing potential – both for government and the ruling party – of two well-run, well-resourced commissions of inquiry with which the government co-operates fully. But, once again, his own personal interests (in both matters) have clouded his judgment and undermined the pursuit of public accountability.
Who knew what, when? And who should have known what, when? These are key questions for both Farlam and Seriti. Both will have to grapple with the distinction between accountability and responsibility – and ensure that the establishment does not get away with murder.
Richard Calland's new book, The Zuma Years: The Changing Face of Power, will be published by Zebra on August 15