The factual context surrounding the Marikana massacre has been discussed before on this blog by Judge Dennis Davis. This post is the second of a two part series on the Marikana Report. In my last post I discussed the significance of the main findings and recommendations made in the Report. In this post, I focus on identifying the gaps in what was said.
How does one judge the final 645-page report against the objectives of truth and justice? In my first post, I identified a number of significant findings and recommendations. A complete assessment needs to take into account not just the findings and recommendations that the Commission made, but also those that the Commission did not make, whether by silence or by explicit rejection of what was argued before it.
Where, then, are the gaps in the Commission’s report? Where did it fail or fear to tread?
The three main gaps in my view (and there are others) relate to executive responsibility, compensation for victims and individual police responsibility.
- The Commission notably absolved the Executive entirely, from the Minister of Police to the Deputy President. However, the nature of these findings may be telling. While the Commission found that allegations that Deputy President (and Lonmin director), Cyril Ramaphosa, were “groundless”, by contrast the Commission only went so far as to say it could not make any findings against the Minister of Police, Nathi Mthethwa (p 453 para 75), and the Minister of Mineral Resources, Susan Shabangu (p 453 para 77).
- The Commission made no recommendations regarding compensation for the victims of the police shootings. While the Commission found that the killings were prima facie unlawful and remarked that it would be “desirable” for any civil claims to be resolved without the need for further extensive and expensive legal proceedings, it decided that it did not have the power even to recommend that the State set up a compensation scheme (p 520 paras 7-8). This means that the victims now need to launch civil actions and are in no better legal position than they were almost three years ago when the shootings took place.
- The Commission generally did not identify individual police members who are likely to have shot individual protesters (see, for example, p 258 para 42). In recommending investigation by the prosecuting authority, the Commission simply referred to “members” and “senior officers” of the police.
These three gaps in the report are hugely significant. If justice was hoped to be done by compensating the victims and punishing the individuals responsible for their injuries and deaths, the report leaves much still to be done.
The Commission has left victims of the shootings to make their own claims for compensation, without any recommendation that the State and Lonmin compensate them, despite making prima facie findings of responsibility against the police and Lonmin. While the Commission has recommended the prosecuting authority investigate the police shooters and leadership, with a few exceptions, the Commission has failed to identify specific police members to be investigated for each incident, in spite of receiving evidence and argument on this issue. Finally, the Commission’s absolution of the Executive means that no politician is held accountable for the deaths and injuries. In South Africa’s political culture of Teflon-coated public office-bearers, even an authoritative finding of Executive responsibility is usually not enough to force resignations. The Marikana Commission’s report ensures that no politician will consider it necessary to account for what happened.