Zupta commission: Devil’s in the detail

Such is our level of mistrust in the motives of President Jacob Zuma that, after a year of being called on to establish a commission of inquiry into state capture, when he finally did so we were immediately suspicious. It’s a political ploy to avoid being recalled, said political pundits. It’s kicking the state capture investigation into touch, said others. But it’s not as if the mistrust is unfounded. The timing of the announcement — on the eve of an ANC national executive committee meeting that was expected to decide Zuma’s fate — was a vintage move by a president whose ability to outmanoeuvre opponents should be the subject of an epic poem.

And the commission’s terms of reference are still to be set. There were hints in the president’s announcement that the scope of the commission’s task could be so broad, it could take years. “There should be no area of corruption and culprit that should be spared the extent of this commission of inquiry,” he said.

This echoes a leaked speech, never delivered but allegedly prepared in case Nkosazana Dlamini-Zuma (Zuma’s preferred candidate) was elected president of the ANC: “Comrades, I wish to announce that the commission of inquiry into the state capture will start immediately. The president of the republic will be drawing up terms of reference which will include spelling out that this investigation should date back to the apartheid government.”

The Mail & Guardian fully supports uncovering and holding accountable those guilty of apartheid-era corruption — any corruption. But if this is to be the work of the commission, it could take a very long time.

The current public protector, Busisiwe Mkhwebane, has added her voice in support of a broad-scope commission, saying the terms of reference should “not be limited to the issues investigated or identified in the State of Capture report” by her predecessor, Thuli Madonsela.

The State of Capture report does say the commission should investigate all the issues, using the record of the public protector’s investigation and her report as “a starting point”. The high court also found that the public protector’s stipulated remedial relief was broad enough to encompass the investigation of the leaked Gupta emails.

Madonsela insists her report set the scope of the investigation: “What has to be investigated is what my [probe] was investigating. There is no room to expand the commission to include what was never investigated … There is nothing under the sun stopping President Zuma or any president from initiating 20 judicial inquiries into state capture by white monopoly capital. But this one is specifically about the Gupta family, the president and his son.”

Another concern, if the commission’s mandate is a broad one, is the choice of Deputy Chief Justice Raymond Zondo to chair it. Zondo is South Africa’s second-most senior judge, with a long, solid track record. Choosing him was an affirmation of the gravity of this commission, but we question the wisdom of appointing a sitting justice of the Constitutional Court for this job instead of one of the many eminently qualified retired justices.

If the Marikana Commission of Inquiry into the massacre and the Seriti commission on the arms deal are anything to go by, Zondo could be pulled away from his court duties — and judicial leadership duties — for a considerable period of time. Moreover, there is already a vacancy in the highest court, Justice Bess Nkabinde having recently retired. The Judicial Service Commission has not yet advertised the post; in the past, it has left vacancies open for extended periods before interviewing for the Constitutional Court.

There are often two acting judges at any given time at the Constitutional Court. With another two acting judges in place of Nkabinde and Zondo, this could mean four acting judges, which is not ideal.