In the remedial actions section of Advocate Thuli Madonsela, now Professor at Stellenbosch University, and former Public Protector's report on the State of Capture, she recommended the 'establishment of a Judicial Commission of Inquiry to investigate "alleged bridge of the Executive Members Ethics Code of 1998", "awarding of contracts by certain organs of state to entities linked to the Gupta Family". Pursuant to the report, a commission was established with expanded terms of reference and ultimately became known as the Judicial Commission of Inquiry into allegations of "State Capture, Corruption, and Fraud in the Public Sector including organs of State. Deputy Justice Raymond Zondo, who was appointed the Chairperson of the Commission was appointed, thus occasioning the popular naming of the Commission as the Zondo Commission.
In Part 1 of the report, now in the hands of the President, in whom the executive authority of the Republic vests, Deputy Chief Justice Zondo (DCJ) outlines the process that was followed to arrive at the report and its recommendations. He explains the process followed, just but not what the investigation was all about in respect of establishing at a conceptual level what is State Capture, unless of course if this is still forthcoming in other parts of the report. This rendition interrogates what is a Commission of Inquiry and what is State Capture from the prism of the report, and how its presentation is a reflection if not an echo of what was in the deeper chambers of the process to land at the structure and approach of reporting.
WHAT IS A COMMISSION OF INQUIRY
The concept commission of Inquiry is a combination of two concepts whose separate definitions or explanations are necessary before their recombined meaning is to be considered, that is if their elucidation as self-standing concepts is not sufficient enough to answer the question, what is a commission of inquiry. As an institution, it is established in terms of legislation whose execution vests in the President of the Republic as determined by Section 85 (1) of the Constitution read with 85(2), for its completeness and administration sake. In the broader architecture of government, a Commission of inquiry, and by virtue of it being an "institution exercising a public power or performing a public function in terms of the Commissions Act 8 of 1947 as amended", although it includes a Judicial officer, can arguably be designated an organ of state status, save for the extent to which it conducted itself within the domain wherein the judicial authority of the Republic vests. Notwithstanding its locus as an institution, its description might reconcile the structure and approach of its report from a pure meaning-based expectation of what it ought to have also addressed, if not dealt with, for posterity's sake.
Commission has several meanings whose sum thrust is about, and for the purpose of this rendition, it is "an instruction, command, or role given to a person or group of persons". In the case of the issue at hand it is "a group of persons entrusted by a government, an agency of the state, with authority to do something", and in the Zondo Commission case, "to inquire into allegations of State Capture, Corruption, and Fraud in the Public Sector including Organs of State". The DCJ was thus 'commissioned' by the Office of the Head of State, and pursuant to a State of Capture Report's Remedial Actions, to investigate allegations of State Capture, Corruption, and Fraud.
As logic would dictate, one of the very first witnesses or participants to be invited to the sittings of the Commission was ... who had to deal with the meaning and/or definitional issues relating to the mandate of the Commission, and that was to answer the question, what is State Capture. This rendition will reflect on this question later on. In the construct of the inquiry or investigation process the 'commissioned' has to 'commission' additional skills and knowledge with which the work of the Commission had to be based, including framing questions with which evidence could be led or extracted from witnesses or information volunteering participants. In. part 1 of the report these definitional issues, and this rendition argues, with which the understanding flow of the report would have followed, are either omitted or never existed.
Schoemanlaw Incorporated submits that "the 'purpose' of a 'commission' is to inquire, 'establish facts, and ultimately render advise to those who established it". They further submit that it "operates within specific parameters, and with 'specific terms of reference and powers". Whilst commissions are distinct from court proceedings because of their inquisitorial nature, it is interesting to note that they take on an active and involved role in the proceedings rather than being an objective arbiter, they are thus in pursuit of an investigative mandate or otherwise. Their status as a component of an independent judiciary is thus compromised and/or enhanced to the extent the officers involved, judicial or otherwise, conduct themselves towards a determined or otherwise outcome, depending on the structure and format of the terms of reference. The sieves within which any evidence could be admissible based on its usefulness to the inquiry created pockets of opportunities to invite evidence that may assist the Commission to stay its course or narrative, thus inquiring at the answer than inquiring to get or elicit answers. Their character of establishing facts might be inextricably linked to domineering perceptions of what the facts should be or what that actual facts are. It is at this point the posture and direction of those presiding will vary from litigation-driven inquisition to information unearthing inquisition.
A commission of inquiry is thus a conduit of reigning consensuses in society depending of how evidence is led or procured at the answer. It is a commissioned process, it has a demand and supply element within which a pecking order is established, the supply side is a dynamic of the questions asked or evidence led, the demand side is driven by a quest to find at what the commissioning is or was all about, that makes most processes doctrinal. The provision that its findings are not binding, save for the political will of those that procured for its findings and recommendations to do something, makes commissions the most potent of political tools to manage contexts within or through which interests as the currency of politics could be managed.
WHAT IS STATE CAPTURE: DID THE COMMISSION ANSWER THIS QUESTION
As a knowledge piece, the Commission report has not lived up to the standard knowledge workers or practitioners would or may have expected. As a list of facts, stories, or narratives including allegations collecting, the report has met the expectations of its terms of reference. The concept of State Capture has to date been extensively used in World Bank Circles, and in the main to interrogate the legitimacy of networks with which political economies that were perceived as having secured state procurement opportunities to those in or aligned to the network. It is worth noting that the 'developing world' and 'Eastern European countries were in the main target of the concept, with Mexico and South Africa being the latest optimized terrains within which this condition of corruption called state capture found occurrences.
To come to grips with the concept of state capture it would be prudent to understand what is the state as applied in the context of the Zondo Commission and the origins of its mandates, as the opening letter of the DCJ to the President on the report rightly identifies or locates as the Thuli-Madonsela-as-public-protector report. As a concept of general use, and in some instances misapplication, 'state capture' as a concept seems to have been craftily migrated from what the original Advocate-Thuli-Madonsela as-public-protector coined as the 'state of capture' that her seminal report found. In her submission, which was a report on 'conduct in state affairs or public administration ... that is alleged or suspected to be improper or to result in any impropriety or prejudice', she found an untoward relationship between the Gupta Family and others that her report cited with the office into whom the executive authority of the Republic vests. The Adv-Thuli-Madonsela-as-public-protector report finds this relationship to have been reminiscent of capture of the highest office and certain of the implicated offices, in essence, it was the Zuma Administration that might have been in a condition of being captured, whence her concern about the 'state of capture'. In titling the report she then angled on the state of capture, which would have been or is a condition of capture as it interrogated the state of the capture, and not that the state was captured.
The concept of 'state' as used in the Thuli-Madonsela-as-public-protector report has an unequivocal meaning of 'mode or condition of being' and not that of State as in the functions of the public protector 'state affairs'. Reference to the 'state' as an institution in her report relates to the extent to which the 'state (or condition) of capture' would have impacted on 'conduct in state affairs' by those implicated to have been captured as 'organs of state'. For ease of reference, and fortunately for South Africa, the drafters of our Constitution out of that cohort of visionary leaders who negotiated the settlement, organs of state are defined in the Constitution, potentially to neutralize, if not remove, ambiguities related to the use of the concept. Organ of State is thus defined as “any department of state or administration in the national, provincial, and local spheres; any functionary or institution-exercising a power or performing a function in terms of the Constitution or a Provincial Constitution-exercising a public power or performing a public function in terms of any legislation. This does not include a court or a judicial officer. A functionary includes persons acting in their capacity as agents of the government entities they represent and or work for"
The State as in 'organs of state' is explained as a form of human association distinguished from other social groups by its purpose, the establishment of order and security; its methods, the laws, and their enforcement; its territory, the area of jurisdiction or geographic boundaries; and finally by its sovereignty. It is in fact a construct of humanity that establishes sovereignties, authorities, and administrations. The Montevideo Convention of 1933, recognizes the following factors as the constituents of a state: A permanent population, a well-defined territory, government as an active agent of the state, and the capacity to enter into international relationships. The Montevideo Convention (now part of a recognized international jurisprudence and also serving as a legal instrument to mediate or intervene on matters of international relations including the observance of sovereignty), has most importantly assigned a juristic personality to a state for the purposes of international law. The above means that diminishing a country's population, territorial integrity, government, and capacity to enter into international relationships is tantamount to diminishing a state or statehood.
There would, therefore, never be a state to talk about in the absence of a permanent population, well-defined territory, government, and the capacity to enter into international relationships. All these elements must be treated as the constituents of the whole. In essence, the four factors define a state and would further give a state some form of tangible and intangible character. It is important to note that government or an administration in another jurisdiction is an active agent of the state and not the state. The government will come and go (often through elections in the case of a democratic state or overthrow and even ending its lifespan through any other means) whilst the state remains and is permanent.
To conceptualize state capture requires an ideational journey into this elaborate description of a state. The best manifestation of state capture in Africa might be found to have happened very long ago, centuries before now. There are few known instances where the state as defined in the Montevideo Convention was 'captured' and 'repurposed' to pursue the interests of those that captured it. Be it for 'refreshment station' purposes or 'mineral and other resources, including human, extraction purposes'. In fact, if we all agree that in Africa or anywhere else in the world where the treaty of Westphalia provincialized as not being sovereign, there were states as defined by the Montevideo Convention, the constructs of the state that emerged is a manifestation of the state capture as the entire state was captured and everything about it ceased to exist and was replaced. The South African State could not have been captured by a family that does not even come close to qualifying to be called an oligarchy, it was an administration under a head of state that could at the very beast of leasts be captured, whence Adv-Thuli-Madonsela-now-Stellenbosch-professor could only call it state-of-capture. In the Montevideo Convention parlance, organs of state included institutions created for the purposes of managing the entire gamut of state affairs; law-making, law execution, and adjudication of disputes arising out of the three activities. In this way, the separation of powers is respected without vitiating the central intent of what a state in its totality should achieve. In its captured form the state would cease to pursue objects according to the arrangements with which society has agreed to govern itself, otherwise also referred to as a democracy.
Through time the Montevideo Convention concept of state, whilst still intact, had had to negotiate the independence of the judiciary without seeing it as being outside the state management machinery if adjudication of disputes is a certainty that defines the stability of a democracy. To this end organs of state evolved into entities that possess public power conferred through legislation or the Constitution, albeit differently defined in respect of the involvement of judicial officers, as their involvement redefines how an organ of state is an entity.
As a consequence, the notion of state capture might require a scholarly review and revisit, if what has to date emerged as the Zondo Commission report thus far, is as authoritative as pundits have positioned it. The organs of state, including individuals who acted on the strength of the public power the offices they occupied commanded, defining the locus of the capture, are all indicating the capture of government at best, and at the very least the capture of an administration, or executive authority as vested in the President acting in concert with Cabinet. The epicenter of the capture, as the report seems to be suggesting or establishing as the overall departure point, is the Presidency, and more pointedly the President in all the definitions of the office during the time under review.
The Executive Members Code of Ethics of 1998, and the relationship proximity of the Gupta Family with the office within which the Executive Authority of the Republic vested at the time, including its use in covert with members of Cabinet, periodized the time and scope focus of the Zondo Commission. What the report has done, by not dedicating text to the description or definition of what is or is not state capture, has produced a list of allegations, facts, and arguments outside a conceptual framework within which all that is in the reports could be linked with either attribute of 'state capture' or the definitional coordinates which make up state capture. These questions will, and for a foreseeable and permitted future, always require a neutralizing and informal process of carrying into the democracy tendencies that would redefine a stable democratic order. CUT!!!
🤷🏿♂️A ndzo ti tsalela, mintirho ya meeta
🤷🏿♂️Be ngisho nje.
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