OP-ED

Moerane Omission: Political expediency trumps justice once again

By Vanessa Burger 27 September 2018

The Moerane Commission of Inquiry visits the Glebelands Hostel in Umlazi to assess and gather evidence on political killings around KwaZulu-Natal on July 21, 2017 in Durban, South Africa. (Photo by Gallo Images / City Press / Siyanda Mayeza)

More than R15-million and two years down the line, with just 13 very broad, bland, inconclusive, non-enforceable recommendations, the Moerane Commission of Inquiry into KwaZulu-Natal’s so-called ‘political killings’ and its minder, Premier Willies Mchunu, have left the province in political limbo and witnesses’ lives hanging by a thread. The ANC has blown another opportunity at clawing back some degree of credibility.

Something is rotten in the State of Denmark’

The first page of the long-awaited report of the Moerane Commission of Inquiry into KwaZulu-Natal’s political killings kicks off with the above apposite quote from Shakespeare’s Hamlet.

South Africa – more especially KZN, which for some obscure reason has its own legislation governing these things – has a pretty rotten record when it comes to commissions of inquiry. For chairperson Advocate Morumo Moerane, who also led the Shobashobane inquiry into the 1995 massacre on KZN’s South Coast, there must have been more than an element of déjà vu. That report never saw the light of day. And while the most recent commission’s report has finally been made public, as illustrated by the abysmal outcomes of the Marikana Commission of Inquiry, government usually scores nil for the implementation of recommendations, even when they are coherent and workable.

Established in 2016 by KZN’s Premier, Willies Mchunu, the Moerane Commission’s terms of reference required that it make recommendations “to address the underlying causes giving rise to the murder of politicians in KZN… and in respect of the prevention of future incidents … ensure the successful investigation and prosecution of the perpetrators.”

During the six years of the Commission’s mandated probe, rough estimates place the number of murdered political office bearers at around 80. However, convicted hit man Khayelihle Mbuthuma recently told a Durban court that he was aware of approximately 180 Glebelands Hostel-related hits, suggesting the death toll may be closer to 300.

There has also been considerable controversy over what constitutes a “political killing” with police and politicians taking great pains to separate hostel and shack dwellers’ murders from the broader climate of political lawlessness that has allowed the culture of killing as the preferred day-to-day method of problem solving to assert a deadly grip on the province. However, in his closing arguments, evidence leader Advocate Bheki Manyathi submitted that “Glebelands is central to KZN’s violence”, due partly to the vast number of hit men housed there.

But whatever the number or demographics of the dead, it is far too high for a supposedly “stable” democracy. Murder is a crime and for crime to end there must be consequences for perpetrators.

Rising fears that the report would be suppressed or that those implicated would be airbrushed out of the political frame provided a yardstick by which to measure public perception of the ruling party’s bona fide commitment to accountability, justice and ending the bloodshed. These fears have not proved unfounded.

Months after the Commission concluded its work the Provincial Legislature finally tabled its report on 7 August – during a closed session. This unprecedented secrecy was, according to legislature spokesperson, Wonder Hlongwa, based on legal advice because “…there are serious allegations implicating a number of people who may face prosecution but have not yet had an opportunity to respond to these allegations.”

However, the day before the report was eventually released on 20 September, the Premier’s office announced that, “the Commission will not make any recommendations around the prosecution of any person”.

The more things change, it seems, the more they stay the same.

The ANC’s conundrum

Although the ANC credits itself with the establishment of the Commission, it clearly underestimated the outpouring of wrathful evidence. Even some of the province’s former political leaders such as Senzo Mchunu spoke harshly against the culture of “our turn to eat,” and of “succumb[ing] to these wrongs and becom[ing] the underlying cause of the violence yourself”.

According to witnesses’ testimonies, many of the province’s political leaders have blood on their hands – either in their alleged commission of criminal acts or their omission to act against them. And herein lies the rub.

For the Commission to have (or to have been allowed to have) made recommendations regarding specific prosecutions would have cast a long, dark shadow over much of KZN’s newly inaugurated but deeply compromised provincial leadership. All the jockeying for position and spent bullet casings over the past decade would have come to naught if most ended up in jail.

So, political expediency trumps justice – especially with an election just around the corner.

Recommendations have therefore proved so bland and generalised they have been rendered meaningless and impossible to enforce in any quantifiable manner. And there are glaring anomalies. The report notes with concern the hand of the police in the violence. But despite the Commission highlighting the widespread loss of public confidence in the security establishment, and having in its possession evidence that a senior SAPS officer lied under oath during his testimony – seemingly to conceal his own serial negligence and a subordinate’s suspected involvement in a murder – the report rigorously urges everyone to report wrongdoing to the relevant authorities, i.e. the police.

Commission by omission

As is often the case, better insight can sometimes be gleaned from what is not said, than from what is said. And while the Commission’s report says a lot about cultivating political tolerance, peace, taking political responsibility, elevating moral values, democracy education and other positive goals, its deafening silence on many critical issues speaks volumes about the ruling party’s real priorities – particularly in KZN.

For example, the Commission made no recommendations on how to staunch the flood of state-issue guns used in so many of the killings across the province. It had nothing to say about private security companies’ employment of izinkabi as evidenced in charges brought against two of Glebelands’ alleged hit men who were working for Secureco METSU. Or the industry’s failure to properly vet guards and control company firearms. Or of ward councillors’ propensity to hire hit men bodyguards for their personal, political and business interests protection. The Commission was silent on taxi industry lawlessness and the deadly means by which associations contest lucrative routes. It was mute too on the Independent Police Investigative Directorate’s (IPID) incompetence, failure to vigorously uphold global anti-torture legislation and ensure justice for victims of seemingly politically motivated police brutality.

Ghosts from the past

The Commission also failed to pronounce on how to address unresolved apartheid state-sponsored conflicts orchestrated during our not-so-peaceful transition period. It turned a blind eye to the recovery of countless arms caches purportedly still hidden across the province and offered no solutions to concerns many comrades raised regarding the post-94 recruitment of IFP paramilitaries into the ANC’s ranks and how some were subsequently awarded profitable security contracts – often by local government or ANC politicians – while loyal veterans stood by empty-handed, confused and distrustful of these sudden new alliances.

The Commission failed to connect the dots between hotspots of the 1980s and ‘90s and areas that have re-emerged decades later as centres of political violence – Pietermaritzburg, Richmond, Umlazi and KZN’s South Coast, to name just a few. We are still reaping the rewards of a carefully cultivated destabilisation programme, so closure without consequences remains highly unlikely.

No clear road map was put forward for the unravelling of the patronage network that has infiltrated every corner of the public service, choked the life out of every poverty alleviation initiative, and drowned critically needed development in a quagmire of corruption.

Tellingly, it is virtually impossible to ascertain the justice system’s conviction rate from the inconclusive statistics provided in what appears to be the heavily edited police contribution to the report. Although the SAPS were given three days to respond to allegations made against it, limited detail – such as specific SAPS members alleged roles in the assassination of Sipho Ndovela – appears to have found its way into the final report. From the incomplete figures provided, however, an astounding number of Glebelands cases between 2009 and 2016 – the period corresponding with the tenure of a certain Deputy Provincial Commissioner against whom perjury and other complaints have since been made – appear to have been withdrawn or the accused acquitted.

Given its inconclusive and very general recommendations, combined with the determination not to seek prosecutions, many witnesses believe that the Commission was nothing but a fishing exercise to establish who knew what so that it may be better covered up.

What happens to witnesses who gave evidence in good faith and who may have implicated certain individuals in wrongdoing now that the Commission has declined to recommend further investigation or prosecution? How safe are these witnesses? What impact will this have on public participation in future commissions of inquiry?

A number of people who received death threats after they testified, or other forms of persecution, did not receive state protection or it wasn’t possible for them to go into a witness protection programme. They have been forced into hiding and some had to abandon their jobs, homes and families. Most of these brave souls acted in the public interest but have now become victims of Mchunu’s accountability allergy.

Release the transcripts to protect witnesses

Those who testified have a constitutional right to access personal information held by the state – their own transcripts. But witnesses’ requests – even via lawyer’s letters – for their transcripts have either been refused or ignored. The Premier, who exerts unilateral power over provincial commissions of inquiry, has cited sensitive information and concern for witnesses’ safety as justification of this constitutional contravention.

However, evidence received widespread media coverage and the Commission itself was hardly independent or secure, given the presence throughout of the SAPS. Those implicated know who they are and who pointed fingers. While certain names have been redacted from the report (which also warns that the disclosure of such identities may lead to imprisonment), other information contained in the report renders unnamed witnesses easily identifiable to anyone close to the cases. This, together with witnesses’ informed choice to testify in the presence of the media, nullifies any argument for the transcripts to be withheld for security reasons. As in the report, names and revealing information can be easily redacted.

Mere hours after a vulnerable Glebelands witness gave evidence, he received death threats from the very SAPS officer whom he alleged during his testimony was providing police guns to hostel hit men. Fears were expressed at the time that the leak appeared to come from within the Commission itself. A Deputy Provincial Commissioner later denied all knowledge of the use of R4 or similar high calibre state-issue rifles in Glebelands killings. By that time the said SAPS member and seven other alleged hit men had been arrested and charged with, among other things, the 2014 attack of a group of residents with an R4 rifle.

A provincial government with such tainted structures cannot be entrusted to protect those whose evidence wrests solely in its grubby hands. The suppression of the transcripts therefore removes any safeguards these unnamed witnesses may have left against reprisals of one form or another. There will be no official record of exactly what was said or who was implicated, which is likely to hamper subsequent investigation or legal processes should any of these witnesses disappear while in state custody, under witness protection or if they were assassinated. First prize would be for the transcripts to be removed immediately to the safekeeping of an impartial legal entity before they can be “lost” or perhaps “damaged”.

The decision to make no recommendations regarding prosecutions also denies those publicly implicated the means to clear their names. Combined with the simultaneous suppression of the transcripts, however, this actively endangers the lives of everyone who gave evidence. It is in the public interest to know exactly who is implicated and in what. Failure to ventilate these allegations in a transparent manner also makes a mockery of our future elective options.

While it is acknowledged that the report provides a summary of the evidence presented and overview of the issues traversed, in certain instances controversial evidence appears to have been omitted, or has been couched in more tactful terms. As it will clearly be up to civil society, individual witnesses and their families to ensure those implicated are brought to book, unfettered access to the unabridged transcripts will be critical to the pursuance of justice. Any form of obstruction must be viewed as defeating the ends of justice.

No justice without consequences

For almost 40 years KZN has been one giant crime scene and it seems the perpetrators may, yet again, get away with it. Will the slaughter end if the Commission’s blandishments are somehow accomplished?

Not likely.

One witness expressed – in the Commission’s opinion – “the surprising view” that the killings may end only if the ANC loses control of the province because then “there will be nothing to compete for”.

Responding to the report’s cautionary conclusion that the underlying causes for the murder of politicians – the culture and network of patronage and impunity – potentially spans all provinces, KZN Finance MEC, Belinda Scott, committed her department to educate municipalities about the tendering processes. Education, however, is not the key problem, it is the lack of political will to comply with and enforce procurement policy that is lacking. Ms Scott’s department would do well to step up to its responsibilities in this role.

A few months before his appointment as Police Minister, Bheki Cele voiced cynicism regarding the purpose of the Commission: “There is one thing that stops people from committing crimes, and that is finding the people who are committing the crimes. Once people see arrests, they will lose their appetite to commit those crimes because there are consequences.”

At more than R1-million a pop, the Moerane Commission’s 13 recommendations are very poor value for public money. We have been short changed. KZN’s many victims and their families have been swindled – not by the Commission, which is to be commended for its thorough appraisal of the situation and its open door policy to all who wished to contribute, but by the ruling party that, like its predecessors, seems destined to revisit the mistakes of the past. The lack of transparency following the handover of the Commission’s report, particularly the suppression of key evidence contained in the transcripts and its potential impact on witnesses and the pursuit of accountability, echoes the repressive and clandestine manoeuvering of the former regime.

Until accountability, transparency and justice is rated more highly than political expediency and there are real consequences for criminals, irrespective of their political or factional allegiance, the province will remain trapped in a cycle of violence. Corruption will continue to permeate our body politic, and power, position and the license to loot will be imposed by those whose enforcers empower them through the barrel of the gun.

Some optimists claim we are on the road to recovery after teetering on the edge of a Mafia state. The real question is: did we ever leave off being one?

In Shakespeare’s Hamlet, the scene ends as the main protagonists meet just before midnight below a castle’s battlements from whence emanate the sounds of the King and his courtiers’ drunken debauchery. Hamlet, venting disgust, claims that such excesses ruined the nation. He then follows his father’s ghost into the darkness. Reflecting the gloom of a populace neglected amid such corruption, Horatio voices his only hope left for Denmark’s political trajectory: “Heaven will direct it.”

Indeed. Heaven help us all. DM

Vanessa Burger is an independent community activist for human rights and social justice and was among the witnesses who gave evidence before the Moerane Commission of Inquiry

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