Monday morning is expected to see the first sitting of the Zondo Commission of Inquiry, which will probe the claims that parts of the state were victims of what we now call “State Capture”. It is obvious that it will be some time before this commission makes any official findings, and it will probably be held hostage to various technical and legal disputes. But its work also carries risks to the judiciary, should it be perceived as not actually getting to the nub of the issues. However, once it starts hearing witnesses, it may be not the findings but the political impact of the testimonies that matters.
In essence, the Zondo Commission is expected to hear and establish exactly what happened between the Gupta family, then President Jacob Zuma, and officials who worked as willing enablers – step forward Ben Ngubane, Brian Molefe, Lynne Brown, Matshela Koko, Mosebenzi Zwane, and hundreds more.
The commission, so far, has not had an auspicious start. It was the subject of an obvious dispute in the top ranks of the ANC in 2017, before the Nasrec conference. It was clear that Zuma was trying to stop it from being appointed, while most of the rest of the ANC’s Top Six at the time wanted it to go ahead.
In the end, following court action, political contestation and the usual drama our society throws up, Chief Justice Mogoeng Mogoeng appointed Deputy Chief Justice Raymond Zondo to chair it. This appointment in itself shows how important Mogoeng sees this commission as being – he could not appoint himself, so he appointed the next most senior person in our judicial system.
However, this also throws up a potential risk for the entire judiciary. While generally speaking our judiciary is seen as strong and independent, and one of the shock absorbers of our democracy that literally saved us from more potential turmoil during the Zuma years, the findings of the Arms Deal Commission have also provided the first indicator of danger.
Chaired by Judge Willie Seriti, the commission found that “not an iota of evidence” of wrongdoing had been placed before it. The problem with this finding is that it went completely against the general perception among the public that the Arms Deal was corrupt. Because of it, there is now scope to question the motives of a judge, particularly in other cases that involve politics and conflicts of interest. This is surely not good for the institution of the judiciary. It may also serve as a warning to Zondo that to some extent, the legitimacy the judiciary enjoys currently will be on the line through his conduct.
This may be unfair to him, but that is the way the cookie can crumble.
There will be intense speculation and interest in what the findings of the Zondo Commission may be. But, in fact, its impact may well be felt long before that. There are essentially two separate but completely interlinked fields in which commissions like this are held.
Technically, they are legal inquiries that come up with legal findings that then possibly have a legal impact. In other words, the findings and recommendations go to the president, who then decides what to do.
But this obviously all has a huge political impact at the same time. The politics does not wait for the findings, it happens right from the get-go.
This is exactly what happened during the inquiries in Parliament, first into the SABC, and then more explosively into Eskom. In those cases, no one really remembers the findings, or the impact of these findings. The importance, politically, came during the beginnings of the testimony, when certain people who had extensive knowledge of what happened gave testimony under oath. Despite the strange hours that the Eskom inquiry kept during its inquiry, those who were interested in politics and involved in their own way were riveted to the SABC’s live stream (take that, Dirk de Vos). Coming, as it did, just before the ANC’s Nasrec Conference, it was easy to see the impact that this inquiry had.
In this case, as the Zondo Commission begins, perhaps the most important step will be to ensure that the first moments of testimony are not stopped through some legal challenge or arcane technicality. If that happens, it will be seen as an attempt to duck the major political issues, no matter how important the lawyers may believe the legal technicalities are. This may then all come to rest on Judge Zondo. It may fall to him to decide whether to press ahead and deal with the technicalities later, or to allow the commission to be bogged down or delayed. The fact that the commission has already reportedly asked Zuma himself to testify suggests that they already know where this is going to end. This commission surely will be all about Zuma, and they are already preparing the ground for that.
The reason that the first moments of testimony are so important is that they will provide the case against Zuma and the Guptas. If that case is clearly stated, it could force Zuma and the Guptas to either respond, or to indulge in obvious obfuscation. If they respond, they face the prospect of having to go under oath and provide alternative versions of what happened. That is likely to be hard to do when you consider the evidence that is against them in the public domain.
In other words, the importance of the first testimony is that it will place Zuma and the Guptas on the back foot. This will have a big impact politically, and not just on them personally.
Still, amazingly, there is talk in the public domain of people who supported Zuma during the last 10 years mounting some sort of fightback in the ANC. They appear to believe that a 2020 National General Council of the ANC could be brought forward to try to remove President Cyril Ramaphosa from the leadership of the party. They still fail to appreciate how it is surely impossible for the ANC to elect a new leader coming out of the fracas that meeting will dissolve into. In other words, the risk of the party splitting will be even higher than it was at Nasrec. Never mind that all the opinion polls appear to indicate that the ANC is in a much stronger position electorally because of Ramaphosa’s leadership of the party.
Thus, the first testimony in this inquiry could lead to a real change in the balance of power within the ANC itself.
At the same time, there is also, as Luthuli House is no doubt aware, an election to consider. It is likely to be difficult to campaign during the backdrop of a huge amount of testimony showing exactly, and loudly, how people deployed by the ANC were so corrupt. Judge Zondo may well be advised to ensure that he does not make himself vulnerable to claims of political management in the timing of this inquiry. In other words, it may be convenient for many people to hear some testimony now, and then to hit the pause button until after the election. That could look suspicious in the minds of some.
Our society can be very quick to throw up intense issues of huge complexity, and then almost forget about them for a time. Just one year ago, the land issue was not nearly as intense as it is now; news stories came and went very quickly. But this inquiry is hugely important, perhaps one of the most important processes to follow since the Truth and Reconciliation Commission. This is because our state is still vulnerable to some new kind of “capture” happening once more. We need to ensure that it does not happen. For that, we need justice; we need those who did wrong to be held accountable and ultimately punished.
We also need to learn how to protect the state. Aside from our politics of the day, all of this must be done to protect us over the longer term. There is much riding on the shoulders of Judge Zondo and his team. Will they succeed? One way to find out. DM
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