Reject commissions of inquiry, the poisoned colonial chalices that do not deliver justice

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Why is “the commission of inquiry” so ubiquitous in the terrain of post-1994 South African history?  How do we make sense of the plethora of commissions and panels of experts? Do we begin to understand their function in society when we see their lineages and antecedents in apartheid and colonial jurisprudence?

One of the first post-1994 commissions was the Truth and Reconciliation Commission (TRC), much-maligned today in South African public discourses for its failure to become a springboard for deep reparation, restitution, prosecution and transformation. From the perspective of today, it seems as if the TRC was designed to fail.

In his 2013 book The Impossible Machine, Adam Sitze argues that TRC mythology, and the discourses influenced by it, neglect the longer historical contexts out of which the TRC emerged. And he suggests that understanding them is fundamental to understanding the TRC’s effect. Or lack thereof. 

He focuses on the two colonial traditions which he believes shaped the TRC indelibly. First, the colonial “commission of inquiry”, in terms of which the state goes out into the far reaches of a polity, listening closely to the voices of the disaffected and the aggrieved. Recording their stories, whatever their station, archiving them and analysing them. 

This is done not to understand need and implement measures to meet that need, but rather to determine risk and to understand the nature of the challenge to the state’s authority. So that “adjustment” can be effected. So that fundamental structural change can be averted.

Second, the well-established colonial tradition of indemnity for officials guilty of crimes. Without the requirement for disclosure, without accountability, and most often without process beyond a rubber stamp. South Africa’s TRC required perpetrators to make full disclosure and a demonstration of both political motive/mandate and proportionality (the act was proportional to the political objective) before amnesty could be given. 

But relatively few perpetrators used the TRC’s mechanism. And given the post-apartheid state’s reluctance to prosecute those failing to secure amnesty, an effective blanket amnesty not far-removed from colonial indemnity has been implemented.

Sitze’s conclusion is troubling for transitional justice discourse: “The TRC’s unprecedented character, as well as the significance of its concrete function as a transitional mechanism and the measure of its success or failure, are most illuminatingly named once we understand its operation with reference to the reiteration of its precedents in colonial and imperial jurisprudence.”

And, Sitze might have said, in apartheid jurisprudence, for the apartheid state almost perfected the arts of indemnity and the commission of inquiry. For Sitze the TRC was not unique, special, nor unprecedented. In a fundamental sense, it was “more of the same”. And, therefore, its effect has been far from surprising. Beyond the intentions or the wishes of its founders and functionaries, it had inherited a poisoned chalice.

And, I would argue, it is the same figure of the poisoned chalice that helps us make sense of the plethora of commissions and panels of experts that have followed the TRC. Most recently we’ve seen the Zondo commission of inquiry into corruption related to what is called state capture. 

After years of controversy about the 1990s arms deal, the Seriti commission was appointed to investigate. The failures of our land reform programme have been referred to two panels of experts. When striking miners at Marikana were massacred in 2012, a commission of inquiry was appointed. Former deputy chief justice Dikgang Moseneke headed a commission tasked with investigating the deaths of people with special needs supposedly in the care of the state. 

When a wave of public violence rocked South Africa in 2021, a panel of experts was appointed to investigate the causes. I could go on and on and on. South Africa has had more commissions in the democratic era than it did throughout the colonial and apartheid 20th century.

What these commissions and other instruments of inquiry all have in common is the extent to which their findings and recommendations are filed away rather than acted on. Whatever the intentions of those working in them, no matter the quality of the work they do, they are designed to create a simulacrum of accountability, of justice. They appease the public. Distract. Delay. Enable the state, at best, to make minor adjustments.

The TRC, in retrospect, was a perfect template for the commissions to follow. The latter are worthy descendants of the TRC, and of both colonial and apartheid jurisprudence. In fact, it could be argued that, to use Sitze’s phrase, they are most illuminatingly named within referencing “the colonial”.

Right now in South Africa, we are worried about the archive of the Zondo commission, which concluded its work this year. We talk about ownership of it and access to it. But if my analysis is accurate, then even a secure, complete and accessible archive will not translate into the intersecting tasks of prosecution and transformation. 

Also, the question of archive is imbricated within broader societal questions of ownership and access. And there, tragically, we find resilient imprints of colonial relations of power. There are long lineages informing and determining who has access to property, to opportunity, to services; and who owns capital in all its forms, from the material to the social. 

The work of decolonisation still remains before us. And part of that work will involve rejecting instruments (such as the commission of inquiry) that are designed to preserve colonial imprints.

Verne Harris heads the Nelson Mandela Foundation’s leadership and knowledge development processes. He was Mandela’s archivist from 2004 to 2013, is an adjunct professor at Nelson Mandela University, and participated in the Truth and Reconciliation Commission.  He has authored or co-authored six books, the most recent one being Ghosts of Archive. 

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.