Snail’s pace hampers Marikana commission
Proceedings must be curtailed to produce an authoritative report that outlines police liability, write Jackie Dugard and Kate Tissington
THE Marikana commission of inquiry has now sat for 110 days. The media coverage of the commission has died down and public fatigue appears to have set in.
So far, the evidence of strikers, union leaders and senior police officers has at least narrowed the scope of the issue to be determined.
It seems the issue is now not whether the police were culpable for the deaths of 34 miners on August 16 2012, but what degree of culpability ought to be ascribed to them. One option for the commission is a finding of a sort of gross negligence.
The police believed Lonmin’s exaggerated claims about the threat posed by the strikers to public order. They deployed heavily armed officers where they were not needed. They sought to box in and make arrests from a crowd that probably would have dispersed on its own had it been left to its own devices for a few more hours, or had Lonmin management made the purely symbolic concession of speaking to the strikers and promising to engage with their grievances.
And, critically, using tear gas and rubber bullets, they drove a small crowd of the strikers quickly towards trigger-happy, highly militarised police officers, many with no experience in public-order policing and armed to the teeth with semiautomatic rifles.
Findings of this nature should spur a far-reaching re-examination of the structure and operation of the police force and the way in which it responds to political gatherings through its public-order policing units.
Another complementary finding could also emerge. This is that, once the first strikers were killed in front of the TV cameras at what has become known at the commission as “scene one”, the remaining strikers were killed intentionally at a small koppie a few hundred metres behind “scene one”.
The police have already admitted in their opening statement before the commission that “the evidence may reveal that the response of some of the police officers may have been disproportionate to the danger they faced”.
The police will also have to deal with claims made by legal representatives of the families of the deceased miners that a number of the strikers were shot in the back. This claim is based on postmortem evidence that is yet to be led. Any finding of intentional killings should trigger immediate criminal investigations and the prosecution of the individual officers responsible.
These potential findings were all predictable in August last year. No one who saw the footage of the massacre and read the agonising accounts of what happened at the “killing koppie”, ably researched and written by Greg Marinovich, could seriously have doubted that the police were, on some level, culpable. The question was always going to be: How culpable were they?
That accepted, the question becomes: Why were the police officers involved not simply put on trial in the aftermath of the massacre? Many pointed out the Presidency’s supposed anxiety to defer adverse findings for as long as possible, to buy time to close ranks around the police minister and the national commissioner and to neutralise Marikana as an immediate political issue with the aesthetic balm of a drawn-out judicial commission of inquiry.
But other considerations ought to have weighed as well. As shown by the astonishing failure to convict any police officer of any offence relating to the death of Andries Tatane during a service-delivery protest in Ficksburg in 2011, the National Prosecuting Authority, and perhaps the judicial system itself, cannot always be relied on to ensure that responsibility — whether for murder or some wrong short of that horrible crime — is apportioned where it is due.
If the president was seeking to sink Marikana into a quagmire of forgetting, his task is surely already half done. The commission has yet to hear from any police officer who saw a single shot being fired. It has heard no postmortem evidence. Lonmin has not yet led any witnesses.
At a conservative estimate, there are at least two dozen witnesses to come. What is more, the commis- sion is proceeding at an extremely slow pace, hearing barely one witness a month, and must complete its work by the end of October.
The commission is also costing an extraordinary amount of money. This is obviously of little concern to the state and corporate parties to it, but it is a huge problem for the families of the victims, the injured strikers and newer unions such as the Association of Mineworkers and Construction Union that are represented by NGOs or pro-bono attorneys. The injured parties’ attorneys have no money left. They have gone to court to obtain state funding, failing which they may withdraw. Other NGOs are operating on a shoestring budget.
There is a real risk that unless the commission wraps up its work by
It has yet to hear from any police officer who saw a single shot being fired and heard no postmortem evidence
October or, at best, the end of the year, the president — surely not willing to run the risk of a critical report in the run-up to the 2014 election — will postpone the final report, declare the commission a failure and shut it down.
Or, worse, the victims of the massacre will no longer be able to participate. The commission would then hobble on with virtually no legitimacy.
Although the decision by the commission to adopt procedural rules and set time limits for the remaining witnesses is to be welcomed, it is unclear whether this is enough to save its efficacy.
The commissioners and its evidence leaders are fine lawyers of great integrity.
But unless some serious action is taken now to curtail the commission’s proceedings, cut to the core of the events at Marikana and produce a report that authoritatively determines the contours of police liability, the lessons of that horrific day may be lost to us all.
Dugard and Tissington are senior researchers at the Socioeconomic Rights Institute of South Africa. These are their own views