THERE must be a way to discover the truth and give victims a voice that does not channel large sums of money to lawyers.
The government’s refusal to pay for lawyers to represent mineworkers at the commission investigating the Marikana killings has been portrayed, like so much else, as a simple question of government insensitivity.
That certainly is part of the story. It is hard to understand why there is no money in a substantial government budget to make payments that would tell Marikana’s victims that the government agrees that they must be heard at the commission. Its insistence that the commission’s evidence leaders can ensure that everyone is heard is patronising.
They work for the commission, not the mineworkers. People are entitled to a representative who speaks for, and is responsible to, only them. The government’s response seemed to signal that it does not care whether everyone has a voice at the commission.
But more is at stake. Once again, blaming only the government prevents us looking at the root of a problem — the assumption that, where an inquiry is needed into government actions, we can find the truth and give everyone a say only through a judicial inquiry, which uses most of the trappings of a court case and so is dependent on lawyers.
As the Marikana commission shows, this ensures a long-winded and expensive process. It invites technical argument and requires elaborate methods of gathering, presenting and testing evidence. This takes time — in recent years, no commission has come close to meeting its deadlines.
People who want to be heard must have a lawyer and so there is no way of ensuring a voice for all that does not entail beefing up the bank accounts of lawyers or legal aid centres.
This tarnishes eloquent arguments insisting that those who suffered at Marikana must be heard: they lose some of their moral force when we realise that those who make them are often lawyers or legal aid organisations whose finances would benefit substantially from an injection of public funds. They lose even more moral force when we learn that one lawyer has already received R2.5m from an aid donor for representing the victims.
The arguments always assume that the only way everyone can be heard is if lawyers are paid to speak for them. But why should this be so? Instead of simply demanding that the government pay the lawyers, should we not consider how we can ensure that inquiries do what they are meant to do without diverting large chunks of public money to the legal profession?
Commissions of inquiry have two aims — to discover the truth and give voice to those who feel they have been victims of power abuse. It is not clear why that can be achieved only by appointing judicial commissions and ensuring they follow legal procedure.
Inquiries need to be independent, but that does not automatically mean they must be headed by judges. As the controversy over the arms deal commission shows, appointing judges to run commissions is no guarantee that the public will accept their fairness. Nor are judges the only possible sources of independence: clergy or academics or arbitrators may be just as able to inspire public confidence and get at the truth. And, if judges are chosen, they could be required to use procedures that are less formal and legalistic.
We could also frame rules that would make the process depend less on lawyers. Insisting that people not be represented by lawyers is one option. If that is rejected as an infringement of people’s rights, it should be possible to devise procedures that ensure that people can be heard without a lawyer.
One model may be company disciplinary hearings, in which fairness can often be achieved if people are represented by a friend or family member or union representative.
If we are serious about allowing everyone to be heard at inquiries, we should be prepared to spend money to ensure that people are represented properly. But that does not need to be used to pay lawyers.
With a little imagination, it should be possible to find publicly funded representation for people who cannot afford lawyers — articulate and competent representatives who would not present ever-growing bills but would accept a fee set by Parliament. We tend to assume this means poor people would be more poorly represented. But this is not necessarily so — is it really clear that having a lawyer to speak for people at a commission is the best way of being heard?
Would the victims be less likely to be heard if their case was presented by a community or human rights activist who believes passionately in ensuring that the poor have a voice? Might this not give victims a clearer and more authentic voice?
Judges and lawyers are essential to legal proceedings. But that does not mean that they are necessary to public inquiries. Should we not debate whether legalistic commissions are the best way to discover truth and give voice to the voiceless?
BY STEVEN FRIEDMAN
Friedman is director of the Centre for the Study of Democracy.
Article Source: Business Day