Moerane Commission: Will the truth become a casualty of political expediency?

“I hope you can take the pressure from politicians who might ask the commission not to release the report because they say it could disrupt the 2019 elections. They are under siege and under pressure and [will think that] releasing the report will affect votes.” These were the words of Thabiso Zulu, former ANC Youth League leader, to the Moerane Commission of Inquiry last year.

KwaZulu-Natal Premier, Willies Mchunu, established the Commission in 2016 to probe political killings in the province. Zulu, a close friend of slain councillor Sindiso Magaqa and fellow whistleblower on corruption in the Harry Gwala region, despite danger to his life, chose to testify publicly, believing he had a duty, both to his late friend, and to the nation, to expose evidence to which he was privy in the hope it may help end the carnage.

During their testimony, the Economic Freedom Fighters (EFF) also warned the Commission: “…Don’t allow yourselves to be used to support a false narrative… Don’t bury this as political and absolve the people and say a political solution is what is needed. Let crime be dealt with as crime. All lives matter.” Zulu expressed fears that the Commission was established because “politicians wanted to know how much we know about what’s happening.”

He likened the culture surrounding the province’s assassinations to the Mafia’s omerta (the code of silence about criminal activity). “The foot soldiers are exposed and if they are arrested they rarely provide information that will expose their handlers or the politicians behind these killings.”

Zulu was later warned that an attempt would be made his life. Requests for police protection were refused and the matter was referred to the State Security Agency. Zulu had repeatedly fingered the police in his evidence. This implies that sinister state interests could be served should an extended delay in the provision of witness protection prove fatal. Politically compromising evidence would then exist only in media reports (which can be denied) and the Commission’s records –that may, or may not, be made public.

During the Commission’s media launch, Mchunu announced that it should, among other things, investigate and report on “the perceptions of the public” and warned that, “…the pride of our respective political parties and personal ambition must not obscure the focus on the future of our province.” The preamble to the Commission’s gazetted proclamation reads: “The Provincial Government considers it in the public interest that the underlying issues giving rise to, and fuelling, the murder of politicians be inquired into and investigated” (author’s emphasis).

Throughout the hearings, Commission chairperson Advocate Marumo Moerane has stressed the need for transparency and findings-based action. Commission secretary Solo Mdledle, however, emphasized that the Premier had ultimate control over the report. When Mchunu’s spokesperson, Thami Ngidi told the Mail & Guardian last month that “the full report once finalised will not be made public,” it sparked an outcry from civil society and journalists.

Gerard Boyce, UKZN’s Centre for Civil Society (CCS) spokesperson, complained: “Whenever there is an issue that becomes a problem politically … we see government appointing a commission, with a subsequent lack of follow-up. These are matters of public interest and the state needs to be held accountable.”

KZN Violence Monitor, Mary de Haas stated this would be the latest in a long line of commission reports that are gathering dust, and also expressed doubt that there is sufficient political will to implement recommendations.

“In this case, it is the very same people who must take responsibility for the generally dysfunctional state of the criminal justice system, which has permitted the shadowy forces behind the violence to act with impunity. Thus far, the political will to deal effectively with them has been conspicuously absent.”

Then the Premier’s office backtracked and stated that the release of the report was “obligatory” after due process had been followed. However, it does not bode well that investigative journalists are now being denied access to the transcripts.

A brave man – whistleblower Thabiso Zulu testifies. (Picture courtesy of ANA)

Desiree Erasmus, a reporter from ANA and Noseweek, in her request to evidence leader Advocate Bheki Manyathi for access to the transcripts, stated they were vital “for accurate reporting and for those journalists who were unable to attend every hearing to access what they have missed. It is also essential for research purposes and transparency.”

Freelance reporter Niren Tolsi said transcripts were essential “to ensure the Commission’s record exists beyond news reports and the final report,” and “to ensure the public record remained as untainted as possible.”

Mdledle has cited concerns for witnesses’ safety. But, as Erasmus argued, the names of witnesses who testified in-camera can be redacted, as can any part of their testimony that may disclose their identity.

The Right2Know Campaign has stated there is no legal justification for the transcripts to be withheld and supports calls for their release.

Those – like Zulu – who chose freely to testify publicly, elevated the truth and the greater public good over their personal safety. It would be profoundly unjust to silence their voices.

Mdledle has since told journalists to “be patient and wait for the report.”

While a Promotion of Access to Information Act (PAIA) request may be made, the process is lengthy – during which time records could be lost, stolen, tampered with or destroyed. And most PAIA requests are refused.

Commissions of inquiry are undertaken in the public interest, using public funds and with public participation; all related information flowing from the process must therefore exist in the public domain.

The past decade has seen the rise of a parasitic shadow state where democratic principals, accountability and the rule of law has been undermined by political expediency, misuse of the state security apparatus and lethal levels of corruption. To stifle the Commission’s findings will be contrary to the ‘new deal’ we have been promised – state secrecy will merely hasten the rule of the gun.

When Zulu concluded his testimony he declared: “I only have my courage, documents and the truth. We came here [to testify], we risked our lives, I’m not even sure if I will get to 2019, but I’m proud that I stood for the truth.”

But if the Commission’s work is suppressed, the ‘truth’ will also become a casualty of KZN’s carnage and the powerful political interests state secrecy serves to protect.