Though the focus of this project is explicitly on state-initiated investigations, the issue of credibility necessitates a brief consideration of the ANC’s own internal inquiries. This also illustrates the entrenchment of the system of the commission of inquiry. When considering why a commission of inquiry would be the vehicle of choice in the transition despite South Africa’s history of oppression, it is worth noting that investigatory commissions could also be carried out, and were, without presidential authorization.72 They could be used by non- governmental actors. Such commissions also played an important role in information gathering and considerations into violence. Commissions created by non-government bodies, had “no greater power or protection than that enjoyed by a private individual in the conduct of his affairs and must rely on the voluntary cooperation of witnesses.”73 This is particularly relevant in situating the ANC commissions of inquiry that preceded the democratic transition. The ANC established the Skweyiya and Motsuenyane commissions of inquiry in 1991 and 1993, respectively, to investigate complaints internal to the ANC
71 There were other investigation efforts beyond the Goldstone Commission, another investigation into
security force involvement in hit squads was appointed through the Attorney-General’s office. See: Piers Pigou, "False Promises and Wasted Opportunties? Inside South Africa’s Truth and Reconciliation Commission," in Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (Johannesburg: Witwatersrand University Press, 2002), 54-56. See also Goldstone, For Humanity: Reflections of a War Crimes Prosecutor, 57.
72 A.J. Middleton, "Notes on the Nature and Conduct of Commission of Inquiry: South Africa," no. 19
(1986): 253.
structures, particularly in military camps operated by the ANC.74 The ANC’s initiative in undertaking internal investigations has been praised, despite the criticisms levied by external observers to the process.75 While these commissions identified instances of significant rights violations and made recommendations, the processes, outcomes, and implementation of recommendations were entirely dependent on the ANC organization itself.
It is notable that the opposition forces viewed the inquiries or investigations as a mechanism that could shed light on the issues that were under investigation. While it has been noted that the ANC demonstrated a certain initiative in investigating human rights in this way, the chosen approach for the process has received less attention. Without the constraints of state-led investigations or challenges of governance, the ANC could, theoretically, have chosen any sort of investigation. In some senses, the ANC’s reliance on this type of investigation re-articulated the continuing utility or legitimacy of this type of institution. In the South African context, one indicator of the degree to which the institutionalization of commissions of inquiry had become entrenched as an appropriate means of investigation is its use even by non-state actors. This is significant because it illustrates a sense of legitimacy in the process of the commission of inquiry, which helps to demonstrate the degree to which it was entrenched.
Though the circumstances of their implementation and operation are remarkably different from a state-led and state-financed inquiry, the value of this kind of unofficial
74 Truth and Reconciliation Commission of South Africa Report: Volume Two, Chapter 4, 350-351. 75 Priscilla B. Hayner, "Fifteen Truth Commissions —1974 to 1994: A Comparative Study," Human Rights
investigation and reporting is still an important consideration. Key illustrations of both continuity and change suggest the ANC-led inquiries follow similar patterns in implementing successive inquiries. For example, as Ellis notes, the ANC established the Motsuenyane Commission after the Skweyiya Commission based on continuing pressures, “partly because of the limits to its terms of reference.”76 The Skweyiya Commission report identifies in its introduction that Mandela wanted the commission to investigate complaints and to “establish whether or not they are correct, and if they are, what action it should take in consequence thereof.”77 The investigation’s proceedings were not made public, though a public report was to be released with names removed at the discretion of the commission.78 According to an ANC circular, Mayibuye, the purpose of this was to ensure that the organization adequately addressed people’s complaints.79
The implementation of successive internal investigations, with panels of lawyers investigating allegations of abuse, has an important implication for this study. The use this type of investigative body suggests it had some legitimacy among members of the organization and sufficient credibility to satisfy external pressures to do something about the issue of potential human rights abuses against people in detention at the ANC camps. Though compelling, the influence of these commissions is beyond the scope of this project. They are mentioned here only to acknowledge the degree to which the commission of
76 Stephen Ellis, "Mbokodo: Security in ANC Camps, 1961-1990," African Affairs 93, no. 371 (1994): 281. 77 Report of the Commission of Enquiry into Complaints by Former African National Congress Prisoners
and Detainees, August 1992, 6. Community Agency for Social Enquiry Records 1990-1996, AG2838, Wits Historical Papers, William Cullen Library, Johannesburg, South Africa.
78 Ibid., 7,8.
79 “Commission of inquiry into detentions,” Mayibuye, October 1991, 22. South African Institute of Race
Relations, Press Cuttings, Part A, 1928-1998, AD1912, Folder GC 22, M.170.1 Multi-Party Conference 1991, Wits Historical Papers, William Cullen Library, Johannesburg, South Africa.
inquiry was entrenched in the political landscape in South Africa. The inescapable discussions about the moral non-equivalence of forces struggling to end Apartheid and those operating to enforce Apartheid suggest that disentangling this influence will be difficult, though it is necessary.80
Neither the ANC’s internal commissions, nor the Commission of Inquiry for the Prevention of Public Violence and Intimidation, nor the Truth and Reconciliation Commission, appear to be tools of acquiescence to the status quo despite similar institutional frameworks. However, government-initiated commissions had to be augmented for the transitional purposes for which they were intended, in order to avoid the legacies of government partiality. The next chapter demonstrates how the Commission achieved this credibility. Including the operating structure and mandate of the Commission of Inquiry for the Prevention of Public Violence and Intimidation in the National Peace Accord, 1991, suggests that there was consensus on the utility of such an institution to investigate violence during the transition. Furthermore, the Goldstone Commission became operational within weeks of agreement to the National Peace Accord. This suggests that the Government furnished the Commission with the necessary resources to support the peace initiatives.81 The relative readiness of the Commission’s mandate and operational
80 See TRC report for consideration of the moral dimension, Truth and Reconciliation Commission of South
Africa Report: Volume One, Chapter 1, 12-13.
81 The National Peace Accord was signed on 21 September 1991. The first hearings of the Goldstone
Commission started on November 15, 1991 according to Section 3 of the Commission of Inquiry for the Prevention of Public Violence and Intimidation, “Report on the Violence at Tokoza.” Pretoria, 17 November 1992.
capacity can be understood as a result of the familiarity with the process and available legislation.82
Conclusion
South Africa’s previous experience with commissions of inquiry was problematic. Used by the state to entrench the Apartheid system and maintain order, the use of another commission of inquiry to facilitate negotiations could have suffered the same institutional problems, supporting the status-quo for the regime rather than acting as an agent of change. This chapter has demonstrated that the commission of inquiry persisted during the Apartheid regime because it served the interests of those in power. The institution had some consensus as a means to investigate, as is illustrated by their use by non-governmental actors. The next chapter investigates how this institutional foundation underwent a process of gradual change, as illustrated in the operation of the Commission of Inquiry for the Prevention of Public Violence and Intimidation.
82 Acknowledging that the legislation itself had been passed months earlier, discussed in more detail in the