This is not the way to Kafka’s ‘doubly illuminated’ truth

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The Arms Procurement Commission has a logo. It consists of a laurel wreath composed in part of crossed sabres and fighter jets.

In the centre is a shield on which are depicted a tank, a bullet and a swooping distorted triangle, which may be an avant-garde "A". If it were not the logo of a commission of inquiry, it would serve well as the shoulder patch of an elite Special Forces unit.

Beneath the logo stands its motto: "Transparency, Accountability and the Rule of Law". The logo and motto were proudly on display at the commission’s first session in the Sammy Marks conference centre in downtown Pretoria on Monday, a session that fizzled into a two-week postponement.

Fifteen minutes or so down the road at the Lyttelton municipal offices in Centurion is the new home of the Marikana Commission of Inquiry. It also has a logo, consisting of what appears to be a flower opening to reveal the rising sun with the word "Marikana" bent over the top of it. And it, too, has a motto: "Truth, Restoration and Justice".

Both commissions have websites which are "developed and maintained by the Department of Justice and Constitutional Development". They both have offices, secretaries, document managers and spokesmen. And both commissions are feeding grounds for dozens of advocates, attorneys, interns and advisers. It is a growth industry and I would not be surprised if the law firms are adding new divisions to tout for and execute this lucrative new line of work.

How have we come to this pass? How is it that the failings of the state are now the subject of months — perhaps even years — of interrogation by commissions of inquiry?

Perhaps it is the fact that the state’s mistakes in the case of both Marikana and the arms deal are so huge that they have burst the banks of the traditional streams of accountability.

The cold-blooded machine-gunning of strikers at Marikana was no ordinary policing error. It bore the hallmarks of a systemic failure in intelligence, command and decision-making. It suggested that what is needed is a radical overhaul of the police force following a thorough inquiry into the roots of the problem.

The arms deal represents democratic South Africa’s longest-running controversy. Its ramifications have been extraordinary. If you take into account that President Jacob Zuma was fired as deputy president following the finding of guilt against Schabir Shaik, then you could say that the arms deal has led to a change in who occupies the Union Buildings.

To deal with breaches of the public trust on this scale, you need more than a simple police investigation. You need a credible probe that will impartially seek out the truth and present it to the nation so that whatever institutional weaknesses are present may be addressed and criminals, if there are any, may be prosecuted.

You need to go beneath the surface. "The truth," wrote Franz Kafka, "is always an abyss. One must — as in a swimming pool — dare to dive from the quivering springboard of trivial everyday experience and sink into the depths, in order to later rise again — laughing and fighting for breath — to the now doubly illuminated surface of things."

Kafka was reflecting on the craft of a solitary writer. But what if you are standing in the glare of media attention and, instead of a springboard, you find yourself in an impossibly small Speedo on the edge of a seaside cliff staring down into shark-infested waters? So it has been with Judge Willie Seriti’s Arms Procurement Commission.

There can surely no longer be any doubt that it is operating under severe political pressure. How else do you account for the resignations, the postponements, and the threatened interdicts?

The commission’s senior investigator, advocate Norman Moabi, resigned in January. In his letter of resignation, he said: "I have gradually come to hold a firm view that the direction in which the commission is headed will not achieve the spirit of the founding/enabling Government Gazette No34731."

Moabi’s objections, which have been too lightly brushed aside, include that "unknown persons" were dictating what went into briefs, to the exclusion of professional staff and attorneys. These "unknown persons" were dictating which evidence leaders would deal with which witnesses.

In addition, "unknown criteria" were applied to the allocation of attorneys to evidence leaders. Moabi went on to object to "the unexplained reason why the evidence leaders are given strict instructions to contact only one person in respect of any queries".

Unknown persons, unknown criteria and unexplained reasons are hardly a foundation on which to construct the truth.

His was not the only resignation. The commission’s principal legal researcher, Kate Painter, also left, complaining of a "second agenda". She told the Mail & Guardian: "When the commission’s work commenced in earnest I was one of two legal professionals. We were virtually tasked with setting up the commission.

I went on fact-finding trips overseas and initially believed we would fulfil our mandate; another agenda soon emerged, as did an obsessive control of information, family relationships and incompetent administration…. Fear is a common theme at the commission and any noncompliance with the second agenda is met with hostility."

Then, on Thursday last week, four days before the commission’s first session, Judge Francis Legodi resigned, leaving the commission without a quorum. The day after, the commission’s evidence leader, Tayob Aboobaker, quit.

The Sunday Times revealed that, in his letter of resignation, which he later retracted, he said: "I cannot operate in an environment which is so suffocating." He said he would keep his reasons to himself, but "if I am pertinently faced with facts that impact upon my credibility or which impugn my character then I will have to respond".

To paraphrase Oscar Wilde, losing one commissioner may be regarded as a misfortune, but to lose three looks more like carelessness.

Looking at the commission’s order of business, as arranged by these "unknown persons", it is striking that the first 11 witnesses are to come from the navy and the air force. This means that for days, possibly weeks, the commission will become a public platform on which the top brass will pronounce on the sheer sparkling innocence of it all and how they have thoroughly enjoyed playing with their new toys.

It takes a tremendous leap of faith to conclude that these hearings are going to dive beneath the surface, let alone conclude with the truth "doubly illuminated".

Across town in less salubrious surroundings, Judge Ian Farlam’s probe into Marikana has problems of its own. Granted, they are of a different order. There can be no question that "unknown persons" are influencing Farlam. There have been no resignations and no threats over classified documents, but the commission has faced other challenges.

For one thing, its scope is so broad that it threatens to drag the commission’s hearings through the spring, perhaps into summer as extension after extension is granted. It has two phases: the first to establish the facts of what happened and the second to investigate the causes, socioeconomic and otherwise, of the events. Next week, it will be a year since the awful events unfolded with little sign that the commission can complete its work.

The lawyer representing the families of the deceased, Dali Mpofu, has no funding to continue, seriously threatening the credibility of the commission. This week, the chamber stood empty, the sheet bearing its hopeful logo standing forlornly in the foyer as a solution to the funding crisis was sought.

There is a danger that these inquiries may collapse under their own weight, an outcome that will please those who wish to stay in the shadows. Perhaps what is needed is a commission of inquiry into commissions. It is just a pity that Kafka is not around to write the terms of reference.

Picture Caption: Arms Procurement Commission chairman Judge Willie Seriti, right, and co-commissioner Free State Judge President Hendrick Musi, during proceedings in Pretoria on Monday. Picture by: PUXLEY MAKGATHO

BY RAY HARTLEY,

Hartley is editor at large. He is a Rhodes University graduate.

Article Source: Business Day

 

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