Farlam Commission Must Act Now to Salvage Its Credibility - By Paul Ngobeni; Legal Analyst and former special adviser to Minister of Defence.

All right thinking people must be perturbed by the Farlam Commission’s handling of the Marikana tragedy investigation.  Appointed by the President in terms of section 84(2)(f) of the Constitution, the Commission’s mandate is to investigate matters of “public, national and international concern” arising out of the tragic incidents at the Lonmin Mine which led to the deaths of approximately 44 people, more than 70 persons being injured, approximately 250 people being arrested.  Given its importance domestically and internationally, especially for investors in the ailing mining industry, one would expect that parties before it, particularly government, would conscientiously cooperate and avoid gamesmanship and shenanigans eviscerating the truth-seeking attributes of the Commission.  It's a crying shame that the Justice Department has repeatedly shirked its responsibility for the legal fees associated with the presentation of the version of the victims at the Commission.  It is equally damnable and disconcerting that the supposedly independent Legal Aid also refused funding.  Even more disgraceful is that the victims and their families with meager financial resources have been forced by the arrogance and insouciance of the officials to approach the Court for appropriate relief. This follows a familiar pattern of the government officials arrogantly acting in breach of constitutional imperatives and with impunity, and not being held accountable mostly because of inability, unwillingness or political reasons.

Sadly, Judge Farlam is squarely to blame for the proceedings being bogged down in litigation and procedural side-shows instead of being focused, speedy and efficient for the sake of our society, our judiciary and for benefit of all involved.  Farlam dropped the ball from the very onset when he appears to have swallowed, hook, line and sinker, the constitutionally disingenuous argument by the Department that it is permissible to treat the families as illegitimate step-children in a process investigating the murder of loved ones.  Justice spokesman Mhaga expressed this misguided attitude when he said there was no legal basis for paying the costs for families who wished to attend the commission hearings “on state expense”.  In Mhaga’s view, the victims’ families are mere free passengers and any expenses paid by government for them are mere gratuity and not an entitlement.  He claims: “The attendance of the first session of the commission was mainly based on humanitarian basis as it is important that they understand the primary purpose of the inquiry.” 

Without a firm rebuke from Judge Farlam, the state shamelessly engaged in evasive tactics, downright stalling and stonewalling to refuse paying legal expenses required for the victims and families to participate in the hearings.   Farlam has been reduced to functioning as a bloodless automaton throughout the process.  Under his watch, the state uses the public purse to finance the police officers implicated in the massacre and assure their witnesses of continued financial support while denying the victims similar benefits. 

Farlam appears not to have interrogated three pivotal issues: whether the state is constitutionally obligated to carry out an effective investigation into the death of persons killed as a result of lethal force by police; whether the victims’ families have any entrenched constitutional rights to participate in the proceedings before a commission appointed under section 84(2)(f); and assuming they have such rights, as opposed to unilateral expectation of a voluntary gratuity from the state, what are the exact contours of their entitlement to financial assistance given that the SA Police Service is getting state funding for legal representation.

The Concourt’s Makwanyane judgment, which drew from the capital punishment jurisprudence of the European Court of Human Rights (ECHR) and other democracies, outlawed the death penalty as inconsistent with the constitutional guarantees of right to life as well as the prohibition of cruel and unusual punishment.  Since that decision, the right to life has been interpreted by the ECHR to impose a procedural duty on the State to conduct an effective investigation into any death occurring in circumstances where the substantive obligations not to take life arbitrarily and to protect life have (or may have) been breached by state agents.  In McCann v. UK, the ECHR opined that failure to conduct an effective investigation constitutes a violation of the right to life, notwithstanding proof of compliance with the substantive obligations not to take life arbitrarily and to protect life. Without such an obligation, the prohibition on the unlawful or arbitrary taking of life is rendered largely meaningless. Importantly, courts have recognized that family of the deceased must be involved in the inquiry to the extent necessary to safeguard his or her legitimate interests. In the UK, the obligation to ensure proper family participation has been interpreted to mean that the family must be provided with legal representation where it is likely to be necessary to ensure an effective investigation.  In R (Amin) v. Secretary of State for the Home Department [2003] the court held that: “The duty to investigate is partly one owed to the next of kin of the deceased as representing the deceased: it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected. “ Further, it ruled that the family must also be provided with relevant material and given the opportunity to cross-examine witnesses.  It is not clear how Farlam intends to ensure that the duty to investigate owed to the next of kin of the deceased and the injured victims is enforced.

The Commission can only have legitimacy if it takes these admonitions to heart and, in actuality and in appearance, meets the test of independence.  In Edwards v United Kingdom, the Court stated that absolute independence of persons responsible for and carrying out the investigation from those implicated in the events is crucial for independence. This means not only a lack of hierarchical or institutional connection but also a practical independence.   The adoption of an over-deferential attitude to the executive or members of the security forces invariably constitutes a serious if not fatal shortcoming in any Commission. 

Lest we forget, the President’s power to appoint the Commission is an original constitutional power he exercises alone as a head of state rather than as head of the executive.  Typically, the purpose behind most Commissions is the restoration of public confidence and Commissions achieve that by educating the public on why a particular tragedy or social problem occurred and by making recommendations to improve the situation or to prevent a future occurrence. Unlike the typical judicial role, the functions of commissions of inquiry are to determine facts and to advise the president through recommendations.  But, as the Concourt stated in SARFU, the "President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations."   It is no exaggeration to state that the credibility of the Commission and its report and their acceptance by the generality of the public are indispensable for restoration of investor confidence in our mining industry which is the mainstay of our economy.   

Imporatntly, the Bill of Rights has added another twist to Commissions that Farlam fails to appreciate.  In light of the constitutional obligation to investigate a massacre involving real victims, a presidentially appointed commission operating under an apartheid-era statute can never suffice.   Had Farlam been alert, he would have proactively prevented the Commission’s processes from being used in a manner that results in unconstitutional and unequal treatment between the police officers and victims who are parties to the dispute.  Another principle overlooked by the Commission is “equality of arms.” It requires each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Farlam, who has been given wide latitude to manage the hearings, has failed to ensure adherence to this principle.  Instead of using the Commission’s vast and expansive powers to avoid discrimination, disenfranchisement and unlawful treatment of the victims, Farlam proved powerless.  Under his watch the state has severely eviscerated the truth-seeking attributes of the Commission.  In the final analysis, the credibility and integrity of the Commission rests squarely on Farlam’s shoulders, something he is not free to fob off to a seemingly unembarassable executive. 

I am supremely confident that Farlam has the wisdom and courage to make amends.  He can adopt panoply of prophylactic measures designed to ensure fairness, efficiency and transparency of the propceedings.  Managing the inquiry into this massacre requires going far beyond the desultory debate about privilege versus right when it comes to funding victims’ legal teams.  At the behest of the justice ministry, criminal prosecutions were placed on hold and the public was told the Commission was designated as the vehicle for unearthing the truth.  Properly utilized, it will set in motion the wheels of justice both in terms of criminal prosecutions and civil damages claims.  When it comes to investigating a massacre, we must jettison the simplistic pre-constitutional view of commissions as nothing more than an adjunct to the policy formation responsibility of the President.   With the stakes so high, a discredited report may revive the titanic violent battles between the unions for dominance in the mining sector.  Victims who reposed their confidence in the Commission may walk away with an abiding sense of betrayal and may forever rue their excruciating patience and decision to give government a chance.  The extant lack of financial resources to mount further legal battles may also give way to exasperation and total loss of confidence in our judiciary, an outcome too ghastly to contemplate.  Without confidence in the judicial system, people may resort to self-help remedies and meet at high noon in the streets to do battle.  Farlam’s failure will definitely have a huge impact on the outcome of the seemingly dormant debate within the jurisprudential community about whether judges accepting executive appointments on commission compromise judicial independence by cozying up to the executive or legitimizing farcical processes.