OPINION: In the shadow of Marikana, a lost opportunity for justice
President Jacob Zuma's response to the Marikana Report is underwhelming, to say the least. He was allowed to avoid being forced to act in a more pointed way following what happened at Marikana because Judge Ian Farlam's recommendations are legally and socially conservative, and morally weak. The recommendations that essentially pass the buck to other state agencies to re-investigate will have left most the victims and families of victims of the killing spree in August of 2012 feeling cheated.
The president's statement on the Marikana Commission's report was marked by a complete lack of emotion or compassion. The president did not dwell on the negative, and instead chose a bland path that concentrated on the technical aspects of Farlam's report. Most of these were calls for prosecution teams to investigate miners and certain cops, and inquiries to be made into the national and North West provincial commissioners' fitness to hold office. And contrary to speculation, Deputy President Cyril Ramaphosa was not found to have been the instigator of the massacre.
The report's recommendations are a great disappointment to the families of victims, as well as to anyone who believes that accountability goes hand in hand with power. There are, startlingly, no clear findings in the report.
The apparent lack of finding more individuals directly responsible was frustrating to a lawyer with one of the legal teams at the Commission, whose identity is known to Daily Maverick but who preferred not to be named publicly. According to this lawyer, the commission "seems to have thought it was not its job to decide on the culpability of individuals, but instead to push the question on to other agencies. If that was the case, why spend two years considering all the facts and details?"
The director of the Centre Applied Legal Studies (CALS) at Wits, Professor Bonita Meyersfeld, says, "The report does no justice to the pain and scarring that is the legacy of Marikana. Farlam could and should have gone much further. He lost an opportunity to leave a legacy of justice regarding Marikana."
As dry as the findings are, the detail and evidentiary discoveries of the report are nowhere near as bland as they might seem. Three hundred days of actual hearings over two and half years paint a clear picture of many of the events, and of the attitudes of those involved.
It is clear that among the thousands of striking miners, there was a small group prepared to take other's lives to achieve higher wages, including some of the leadership. Some should face murder charges.
It is clear that Lonmin's executives had no interest in finding common ground with their workers, whom they knew were underpaid. Management's only interests were company profits and the shareholders' financial well-being, and so they exposed many workers to danger, some fatally: "Lonmin's reckless actions in urging employees to come to work in circumstances where they were aware of the potential dangers to them and in the full knowledge that they could not protect them, falls to be condemned in the strongest terms. Lonmin must, in the Commission's view, bear a measure of responsibility for the injuries and deaths of its employees and those of its sub-contractors."
It is clear that Lonmin has failed to fulfil its legal obligation to the government to provide decent housing, clean water and dignified toilets for the communities around their operation. They must do so or lose their license.
It is clear Ramaphosa used his political power to bully two government ministers to act in the narrow interests of Lonmin, in which he had a 9% shareholding. Despite this, Farlam found little fault in his behaviour.
It is clear organs of state favoured the interests of the capitalist elite over that of the workers.
It is clear NUM had no interest in promoting the interests of the rock drill operators at Lonmin; they preferred to keep their cushy relationship with management intact: "Very much like Lonmin, NUM encouraged employees to report to work with the full knowledge of the intimidation and violence that prevailed during that period… Their actions, were, in the circumstances, reckless and ill considered."
It is clear Amcu was desperate to displace NUM as the dominant mining union, yet despite their president, Joseph Mathunjwa, playing a role in trying to save lives in the last hour before the massacre, he cynically exploited the opportunity offered by the strike to incite the workers against NUM, and get his union's foot in the door at Lonmin.
It is clear, and irrefutably demonstrated by various parties to the commission, that there was no attack by the miners on the police before the fusillade of gunfire left the first 17 men dead and dying at scene one. There was no need for the police to open fire with assault rifles.
It is clear that R5 assault rifles should not be standard police issue. "One of those who died was shot hundreds of metres from where the police TRT opened fire on running miners. Mr Gwelani, who was unemployed, was not a striker… he went onto the koppie on 16 August to take food to his uncle, who was a striker. His body was found on the path to Nkaneng, north of the koppie, more than 250 metres away from the TRT line, but within the funnel of fire… He was shot through the back right hand side of the head and would have been immediately incapacitated and dead almost immediately after he was shot… Mr Gwelani's case provides the clearest illustration (if any are needed) of why the use of military assault rifles should be banned in public order situations."
It is clear that the police had no intention of fulfilling their constitutional obligation to protect the lives of citizens above all else when they embarked on a ridiculously improbable 'plan'.
The abovementioned lawyer, as a member of one of the legal teams, commented, "Many of the findings are positive and support the clear conclusion that the police are culpable for 34 deaths on 16 August 2012. [The report] places responsibility on those who were in charge of the decision-making at the highest level of the SAPS. And contrary to the president's statement last night - it concluded that the Executive may have been involved in the key decisions."
For many others, that there was obviously, but not explicitly, untoward and covert interference by Cabinet members in policing decisions. Advocate Dali Mpofu, representing over 300 surviving miners, says, "Although I welcome some of the findings which we proposed, such as the Section 9 inquiry against General Phiyega, we share the initial view of our clients that the Commission did not go high up enough in the chain of command in finding accountability. The biggest problem with Phiyega and Mbombo was their proven succumbing to political pressure and their taking into account political considerations in determining the rushed timing of the operation. If indeed the politicians are absolved, it should follow that Phiyega and Mbombo did nothing wrong. These findings are incongruous."
Further down the police hierarchy, it is clear that all the responsible commanders, and especially Brig. Adriaan Calitz, who was the field commander, were wilfully blind and deaf to the killings as they happened. What does this mean? They either covertly conspired that many miners be killed, or were content to let the operation continue, knowing full well that the policemen were spiralling out of control on a shooting spree.
While the commission's disappointing report does not go that far, it does excoriate Major General Ganasen Naidoo, who "participated in a chaotic free-for-all which cost sixteen people their lives, without exercising any command and control and without taking any steps to stop the shooting and isolate the problems". In particular, Farlam agreed with the evidence leaders that "firing from the K9 members under the command of Major General Naidoo and the NIU members from the east is most likely to have caused the death of those strikers killed in the area among the crevices and rocks."
Among these was Henry Mvuyisi Pato, initially known as Body N, the miner Daily Maverick contended back in 2012 was executed by police. The commission's evidence shows that Pato was among several men police killed, most likely in "an unlawful manner". We called those murders; we still do. The commission has recommended that Naidoo be investigated by the Director of Public Prosecution. The sheer number of police who fired their weapons means that other than Naidoo, not a single person suspected of shooting a miner was cross-examined.
It is clear most, if not all, police written statements in the aftermath were false or couched to obfuscate their role.
It is clear there were concerted and consistent efforts by the upper levels of police management to obliterate any footprints that might lead from the massacre back to the ministers or the president. That began the day after the shootings, when the police released a purposefully misleading statement, "The Commission agrees with the evidence leaders' submission that the most reasonable conclusion is that the report which had been prepared for the president and the Minister was deliberately amended when it was reformulated into a media statement in order to obscure the fact that there had been two shooting incidents, separate in time and space. This resulted in a deliberate misleading of the public, who were brought under the impression that all of the deaths had been caused at the confrontation at Scene 1 which they had seen on television."
In spite of what the commission's work uncovered, the CALS' Bonita Meyersfeld says, "The report is disappointing in its lack of any findings. The referral to 'investigation' makes a mockery of the last two years of investigation. It seems a robust position as taken vis-a-vis the police but it appears that the top police and political officials - all of whose actions do warrant investigation - will remain insulated from any inquiry, with the exception of Phiyega."
The commission, under Farlam's chairmanship, has been negligently timid in its most crucial finding, as the lawyer intimate with the commission states. "The Commissioners ducked most of the difficult questions they were asked. [The Commission] seems to have thought that it was not relevant to decide whether the strikers at Scene 1 were intending to attack the police. Given that all the evidence suggests that the strikers were not intending to attack, one suspects the families of the victims feel differently. It seems to have thought it was not its job to decide on the culpability of individuals, but instead to push the question on to other agencies. If that was the case, why spend two years considering all the facts and details? And it decided it was not in its remit to make recommendations on compensation, thus forcing the families of the victims to endure many more years of legal processes to secure the justice they deserve."
Much as all interested parties tuned in to watch the president release the report, those with the most at stake - the widows and families of the dead miners - were given just a few hours' notice of the release. In Marikana, the power outage ran until just after 7pm, as the speech was broadcast. Thapelo Lekgowa, a researcher and activist, was with them. "We ended up listening to the president on a cellphone radio. The widows and miners there missed almost everything and spoke very little during the president's speech," he said.
Let it not be forgotten that little has changed in her attitude since National Commissioner Riah Phiyega addressed a police parade on 17 August, telling those who had just the day before killed 34 men: "Whatever happened represents the best of responsible policing. You did what you did because you were being responsible."