In the remedial actions section of Advocate Thuli Madonsela, now Professor at Stellenbosch University, and former Public Protector, 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 became known as the Judicial Commission of Inquiry into allegations of "State Capture, Corruption and Fraud in the Public Sector including organs of State. Then Deputy Justice Raymond Zondo, was appointed the Chairperson of the Commission, 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 but not what the investigation was all about regarding establishing at a conceptual level what state capture is unless this is still forthcoming in other parts of the report. Notwithstanding, this rendition interrogates the report style, 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 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 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 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 under 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 supposed to have been a person 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 inquiry or investigation process, the 'commissioned' has to 'commission' additional skills and knowledge on 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 news 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 therefore 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 creates pockets of opportunities to invite proof that may assist the Commission to stay its course or narrative, thus inquiring at the answer rather than getting or eliciting responses. Their character in establishing facts might be inextricably linked to domineering perceptions of what the facts should be or what the actual facts are. 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 on how evidence is led or procured at or towards 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, and the demand side is driven by a quest to find 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 its findings and recommendations to do something, makes commissions the most potent political tools to manage contexts within or through which interests are the currency of politics could be collected. True to this trait of the commission, President Ramaphosa in response to the report prefaces his 'family meeting' speech by declaring, "the findings are not binding".
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 collected, the report has met the expectations of its terms of reference expectations. 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 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 targets of the concept, with Mexico and South Africa being the latest optimised terrains within which this condition of corruption called state capture found occurrences.
The 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 recognises 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 recognised international jurisprudence and also serving as a legal instrument to mediate or intervenes 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 reducing 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 condition remains and is permanent.
To conceptualise state capture requires an ideational journey into this detailed 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 the Montevideo Convention parlance, organs of state included institutions created to manage 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 main 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 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 epicentre of the capture, as the report suggests or establishes 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, periodised 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. These questions will, and for a foreseeable and permitted future, always require a neutralising and informal process of carrying into the democracy tendencies that would redefine the stable democratic order. CUT!!!
🤷🏿♂️A ndzo ti tsalela, mintirho ya meeta
🤷🏿♂️Be ngisho nje.
Comments
Post a Comment