One thing President Jacob Zuma and his administration have done very adeptly is contain the fallout after the Marikana massacre. The fact that police officers in a democratic order fired live ammunition at striking workers, killing 34 of them and wounding 78 others could have led to a fall of the government. A government that upholds the Constitution, the Bill of Rights in particular, does not kill its own citizens. It should not be an issue open to interpretation or negotiations.

Yet two years and nine months later, nobody has been held responsible for the massacre and South African society has simply moved on with life. What the appointment of the commission of inquiry did was suspend anger and calls for justice until after its work was completed. So everyone involved was expected to go on with their lives as if nothing happened – including those who fired the shots and those who orchestrated the firing of the shots. Those who lost their loved ones or who were injured were expected to postpone their grief until the commission could determine whether their pain was justified.

The astounding thing is that everyone complied as the commission trundled on with its work. When Zuma announced the commission of inquiry, he said the process would be complete within a few months. That proved impossible, considering the number of parties involved, and the line-up of witnesses.

However, it is not as if the mineworkers died mysteriously or were shot by unknown gunmen. Everyone in the chain of command in the police operation is known and the massacre happened in broad daylight, with the media present and other mineworkers witnessing what amounts to deliberate executions. Yet nobody has been suspended pending the outcome of the inquiry.

On Sunday, the presidency released a statement in response to inquiries regarding the release of the Marikana report. The statement said the commission was appointed to investigate “matters of public, national and international concern arising out of the events in Marikana which led to the deaths of approximately 44 people, the injury of more than 70 persons and the arrest of more than 250 people”.

The presidency said Zuma was still “processing the report” and “would release it publicly in due course”. It said he had received a briefing from the commission chairman, Judge Ian Farlam.

On Thursday Zuma was responding to questions in the National Council of Provinces (NCOP), one of which was from the United Democratic Movement asking if and when he would make the Marikana report public. “This is an important report which needs careful consideration so that the findings and the recommendations can be used to ensure that such an incident does not happen again in our country,” Zuma said, repeating Sunday’s statement that he would release the report once he is done “processing” it.

It is not clear what “processing” the report means, but it is apparent that releasing the report as is would unleash a storm. The presidency obviously needs to take some preemptive measures in what could become of legal minefield of criminal and civil action.

When pressed in follow-up questions, Zuma would not commit to a date when he would release the report, or whether he would act on Judge Farlam’s recommendations. “I cannot give a date… As soon as I finish reading the report, looking at the recommendations, I will release the report and indicate what is my attitude to recommendations,” Zuma said.

Opposition MPs were unhappy with this response, with the EFF’s Vusiwana Mtileni charging that Zuma would ignore the recommendations like he did with Public Protector Thuli Madonsela’s report on the security upgrades at his home in Nkandla. “I think the president is dodging the question… like he is dilly-dallying on the Nkandla issue,” Mtileni said.

Earlier during the session, Mtileni and other EFF MPs had tried unsuccessfully to ask Zuma when he would be paying back the money for undue upgrades at Nkandla. They were ruled out of order by the NCOP chairwoman Thandi Modise.

When Mtileni compared the Marikana issue to Nkandla, Zuma seemed irritated and suggested that they take the matter outside as Mtileni seemed to “have something in his head about Nkandla”. He repeated the response he has given repeatedly to the Nkandla question, that the Minister of Police had to determine if and how much he should pay, and that the Public Protector’s recommendations were not binding like a court of law.

This sets off alarm bells as a commission of inquiry is also not a court of law, even though the Marikana Commission was chaired by a retired judge of the Supreme Court of Appeal. This means that it would be up to the president which recommendations he choses to act on, if any. While this was always known, it is significant that the president is pointing out the limitations of bodies making recommendations to him.

Also on Thursday, the Constitutional Court heard arguments regarding a Legal Aid SA application to overturn a high court ruling on funding the legal representation of the injured and arrested miners at the Marikana commission. Legal Aid SA was ordered to pay the miners’ legal costs, which they have done, but are challenging the ruling because of the precedent it sets. There is also concern about funding costs of future legal action arising from the commission report. Judgment was reserved.

Speaking outside the Constitutional Court after the case, EFF leader Julius Malema said if the Marikana Commission did not find Deputy President Cyril Ramaphosa responsible for the massacre, they would pursue private prosecution. “We don’t expect anything from Judge Farlam except to say that Cyril Ramaphosa is responsible for the murder of those workers,” Malema said, according to Eyewitness News.

He said Ramaphosa had instructed people to shoot the workers. “Everyone listened to Ramaphosa, he is the murderer.”

And so a new set of battle lines has been drawn. The ducking and diving on Nkandla brought relations in Parliament to an all time low, with repeated disruptions to normal course of business and a shocking show of force at this year’s State of the Nation Address. Clearly there should be a concerted effort to ensure such a situation is avoided in future.

The Marikana commission is much more than what happened on 16 August 2012. It deals with fundamental issues of our democratic order – the value of human life, the behavior of the state towards its citizens and the course of justice.

Like with Nkandla, many senior people in government are accused of playing a role in the events that led to the massacre. It remains to be seen whether the president will act differently to the way he responded to the Nkandla report and take action that is deemed to be appropriate and necessary.

If Zuma does not, Marikana will be a new stick with which to beat him. There is no doubt that the opposition parties will hound him, as they have done with Nkandla, and that it will become another source of shame for him.

But the matter is complicated. His deputy, Cyril Ramaphosa, is in line for the presidency of the ANC and South Africa, just as Zuma was when he was confronted with allegations of corruption a decade ago. He would want to avoid any action he does take on Marikana being perceived as having a political motive to destroy his successor’s career. That can backfire against him, like it did with his predecessor Thabo Mbeki, and make Ramaphosa a political victim.

If Ramaphosa is cleared by the commission, the EFF, the victims and families of the deceased might challenge the outcome. This will lead to protracted legal battles. Zuma might need to find someone high enough to take the fall for Marikana so that justice is seen to be done. If so, who would that be? And would such a person, say the National Police Commissioner Riah Phiyega for example, agree to be the fall person considering the implications of being responsible for mass murder?

It is no wonder therefore, that six weeks after receiving the report, Zuma is still “processing” it. The consequences are far reaching and how Zuma responds will probably be the ultimate test of his presidency. DM

Photo: South African President Jacob Zuma speaks to the leadership of striking Lonmin mineworkers during his visit to Marikana, South Africa, 22 August 2012. EPA/STR