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Comment: Commissions of Inquiry as part of a ‘Just Institutional Approach’ in pursuit of Integrity and Accountability – A South African Perspective

 

* Published as part of the 2023 CoI conference: 'Towards just insitutional approaches to conflict prevention and resolution' * 

 


What is a just institutional approach to help navigate a nation through the crisis of corruption and ensure the necessary reconciliation and redress? The South African case study of the Judicial Commission of Inquiry into State Capture (the so-called ‘Zondo Commission’) provides food for thought in addressing this difficult question. In particular, it reveals the value of such commissions as fourth-branch bodies within the contemporary separation of powers. Related to this, their findings must be given appropriate remedial weight to ensure the effectiveness of these commissions in the pursuit of integral and accountable public power.

 

The crisis of corruption as an impediment to peace 


Globally, corruption is an egregious and endemic challenge facing society today. Transparency International has highlighted that it has been both a key cause and a result of the deterioration in global peace over the last 15 years. The state capture that has gripped the South African nation is an epochal and devastating illustration of the havoc wrecked upon society when corruption reigns. This capture entailed the flagrant pillaging of the public purse for the self-serving benefit of those with access to the levers of state power. It was driven, in the main, by former President Jacob Zuma and the Gupta brothers. The cost of state capture is estimated to be in the region of R500 billion.

 

This cautionary-tale is not, however, all doom and gloom. It also provides some positive insights on a ‘just institutional approach’ to help navigate a nation from a place of deep-seated corruption – with the state-societal conflict that lies at the heart of it – to one of possible peace and justice. 


In particular, the work of the Judicial Commission of Inquiry into State Capture in South Africa, chaired by Chief Justice Raymond Zondo – and thus colloquially known as, the ‘Zondo Commission’ – provides a timely illustration of the value of such commissions in the quest for integrity and accountability as antidotes to corruption. More generally, the Zondo Commission case-study reveals how certain commissions of inquiry can facilitate meaningful conflict resolution in the spirit of truth and reconciliation. 


Reflection upon the work of this Commission raises two key interrelated points worthy of further scholarly analysis and practical follow-up. In this post, I aim to whet the reader’s appetite by highlighting my observations in this regard. 


The fourth branch of state and the role of commissions of inquiry in the pursuit of integrity & accountability


My first, more ‘macro’ observation is made through the lens of the separation of powers. It is that commissions of inquiry that seek to address matters of public concern – and in particular, those concerns pertaining to public-sector integrity and accountability – are not mere adjuncts of the executive. To think as much is an errant over-simplification. In fact, as the Zondo case-study so powerfully reveals, such commissions of inquiry (be they ad hoc or permanent), should properly be appreciated as falling under the fourth branch of state authority. 


Globally, separation-of-powers theory, (institutional) design, and practice are evolving given the contemporary shifts in the exercise and, importantly, the ‘checking and balancing’, of proliferating public power. The fourth-branch movement is garnering momentum and rightly so: for one thing, we should surely call things what they are. 


Law is of course context-specific and in the South African context, the fourth branch is best understood as the ‘Integrity and Accountability’ (I&A) Branch. Fundamentally, the raison d’être of the bodies falling under this rubric is that they each seek to ensure, in their distinctive ways, that the twin democratic pillars of integrity and accountability remain firmly in place. 


The South African Constitution’s celebrated Chapter 9, ‘state institutions supporting constitutional democracy’ houses a number of these I&A bodies, but it is incorrect to consider this chapter a numerus clausus in this regard. In fact, the Constitution contains scattered provisions for several other I&A bodies that fall outside the traditional triad of state authority but which similarly exercise important public powers beyond the remit of administrative action. These bodies include, for example, the judicial services commission; the national prosecuting authority; the public service commission; and – as I seek to illustrate in my forthcoming article for Utrecht Law Review – certain commissions of inquiry; as so poignantly revealed by the work of the Zondo Commission. 


When done right, and with public support and confidence in their mission and outputs, such commissions can be powerful accountability tools given their unmatched investigatory and advisory functions, and concomitant curative properties as speakers of truth to power. Big-picture: they can make significant contributions to the restoration of public faith in constitutionalism and democracy. 


More immediately, such commissions can facilitate restorative justice and lay solid foundations for follow-up retributive justice. In short, they can play a vital role in the resolution of serious state-society conflicts, thereby going some way to restoring public confidence and trust in government, and fostering peace. Acknowledging and respecting such commissions’ roles as fourth-branch bastions of integrity and accountability will make this peace-pursuit all the more fruitful.


A question of remedy


Now for the second, and more ‘micro’, related observation I wish to convey in this blog post. If we take their place in the contemporary four-branched conceptualisation of the separation of powers to its logical conclusion and accept that I&A Commissions are not mere manifestations of presidential (executive) discretion, where does this leave us with their outputs; their recommendations? 


The answer must surely be that these findings cannot just be kicked to touch. Rather, if we are indeed committed to a culture of justification, the recommendations must carry appropriate remedial weight in, amongst others, the executive response. And while these commissions of inquiry do not make findings of fault in the civil- and criminal-justice sense, they can bring to light blameworthy conduct and make findings on matters of constitutional responsibility. In this regard, contextual considerations may be such that (certain) recommendations of these I&A Commissions should be binding unless or until set aside by a court on legality-cum-rationality review grounds


A discussion of these considerations is beyond the scope of this blog post and best saved for the forthcoming article. But in short, as the South African Constitutional Court remarked (albeit in relation to the Public Protector’s remedial powers) in the landmark ‘Nkandla judgment’: ‘[e]very complaint requires a practical or effective remedy that is in sync with its own peculiarities and merits.’ This brings me to the peculiarities of the Zondo Commission.

 

The Zondo Commission – where from and where to?


This Commission had a noteworthy genesis and operated as part of a distinctive accountability ‘feedback loop’. Its establishment was in fact recommended as part of the remedial action set out in the ‘Secure in Comfort Report’ prepared by South Africa’s erstwhile Public Protector, Thuli Madonsela. In the Nkandla judgment, the Constitutional Court endorsed these recommendations, and held that the orders of the Public Protector – and ‘sister institutions’ –  are legally binding where ‘appropriate’. The investigation into the state capture spearheaded by former president Zuma was such an appropriate case. A commission of inquiry thus had to be established to pick up where Madonsela’s office left off and Zuma had to comply and ensure its establishment. Chief Justice Mogoeng gave Zuma the name of Raymond Zondo to chair the Commission. And so, this monumental commission came into being. Paul Holden, who led evidence before the Commission, described it as ‘an epic endeavour’ that is ‘globally unique’ with ‘no comparable attempt, anywhere in the world, to dig so deeply and so thoroughly into state corruption over such a long period’. This renders the Commission’s findings equally ‘profound’. 


The pressing question South Africans now face is, where to from here? For the Report is not simply a product of present (corrupt) times, nor just an incredible product for posterity – it is a product to further a corruption-free future and in so doing, enhance peace and restore civic dignity. The story of the Commission is not yet over, and it’s a story that should interest not only South Africans, but fellow nations struggling with endemic corruption.


In October 2022, and as part of the accountability feedback loop, President Ramaphosa submitted to parliament a 76-page Response to the Commission’s recommendations, coupled with an Address to society on the way forward. In the Response, the Commission’s recommendations are categorised and responded to with ‘considerations’ and proposed ‘actions’. In some instances, the latter are a salutary justificatory effort. In others, they fall flat. However, what the President does accept is that ‘this was no ordinary commission’. He also calls on ‘all sections of society… to be engaged and involved in the implementation of the actions to give effect to the recommendations of the Commission’ – an invitation that should be taken up. 

 

So, let me conclude by coming full circle in this high-level analysis. Properly considered, the Zondo Commission is an I&A body of the highest order and hence part of the fourth-branch of state. As such, it is not enough just to ensure the dignity and effectiveness of the office during its lifespan. In addition, ensuring the effectiveness of the Commission’s recommendations is essential. This means that these findings should be treated as binding where appropriate, based on (amongst others) their language, nature, context and importance, in light of the issues they seek to address. In turn, a response that is, for example, a deflection, or a failure to take decisive action against corrupt (sitting) Ministers (as revealed in the Report), should be challenged with recourse to judicial review. This approach will give such commissions teeth and so ensure real accountability and enhanced integrity in governance. It will help turn the tide on corruption and in so doing, ensure restoration, redress and reconciliation. This would be a ‘just institutional approach to conflict prevention and resolution’ in the circumstances – an approach that is sorely needed in South Africa and perhaps further afield too.


Lauren Kohn is an Attorney of the High Court of South Africa and Public-Law Specialist. She is a Young Research Fellow (UCT) and lectures in Administrative and Constitutional law (Public Law Department, UCT).  Lauren is a recipient of the Oppenheimer Memorial Trust Scholarship for her Doctoral Project (through Leiden University) on the Fourth Branch in South Africa. She founded the access to justice platform: SA Legal Advice and is a Top 200 Mail & Guardian Young South African (Law & Justice). Lauren is deeply committed to strengthening the rule of law and social justice in South Africa.