Justice for Marikana: Farlam Commission Not Up to the Task

By David Bruce · 14 Sep 2012

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Picture: www.reinform.nl
Picture: www.reinform.nl

This article is written in collaboration with the African Policing Civilian Oversight Forum.President Zuma has appointed Judge Ian Farlam to head up a Commission of Inquiry into the massacre at Marikana. But is it the appropriate mechanism for dealing with the most pressing issue that needs to be addressed about Marikana: The fact that more than 34 people were killed by police on 16 August in circumstances that were, to put it in the mildest terms, highly questionable?

Commissions of Inquiry have been called by government a number of times in the past to investigate large scale atrocities by police, including the massacres in Uitenhague in 1985, and Sebokeng in 1990.  It may be argued that many of these were called as a form of ‘damage control’ by the Apartheid government to provide the impression of taking the events seriously. Commissions tend to frame the issue as being about the conduct of all parties to the event. But is it appropriate to rely primarily on such a Commission if it is clear that a major and complex crime has been committed by the police?

In at least one case a Commission of Inquiry, appointed under Apartheid, did result in charges being brought against police officers. In 1990, Judge Richard Goldstone headed up a Commission of Inquiry into the Sebokeng massacre of 26 March 1990 in which 13 protesters were killed. Goldstone recommended that the police officers involved in the massacre be prosecuted and they were in fact brought to trial. In August 1993 their trial was postponed indefinitely. No doubt related to the political circumstances of the time, no further action was taken against them.

There are points of comparison between the issues that faced the Goldstone inquiry and those faced by Judge Farlam. There were, for instance, allegations that the protestors in Sebokeng had thrown stones at police.

However, the issues of criminal responsibility in relation to Marikana are far more complex. They involve the examination of questions such as: Were the miners attacking the police when they first descended from the koppie? If they were not, did the police anyway believe that they were being attacked? If so, was the force that they used in defending themselves (against the imagined or actual attack) consistent with principles of legality? If it is true that the force used by the initial line of police officers was not in fact consistent with principles of legality, which police officers in the line should be charged? Did all of the police in the line discharge their firearms with the intention of shooting at the miners? Some police officers, for instance, stopped shooting after a few shots whilst others continued shooting until a ceasefire was called. Might some police in the line be regarded as having conformed to the law whilst others did not?

Evidence about the latter stage of the massacre, in which most of the victims were killed, also requires detailed scrutiny. Unless all of the police specialised unit members were under direct orders to execute miners, and mechanically carried out these orders, it is likely that many of the members of the specialised units were not involved. The investigation that is required needs to be meticulous in the extreme if it is to answer questions about who committed which killings, and whether or not these were justifiable by law.

It is unlikely that an investigation will be able to put together a comprehensive case for all cases of murder and attempted murder (including police who shot at fleeing miners but missed) that should theoretically be investigated. But at the very least it is necessary for the investigation to give very detailed attention to the circumstances in which individual victims were killed.

It should be obvious that the issues of criminal responsibility for the massacre do not end here. In his book, Shoot to Kill, an examination of the use of lethal force by police in the United Kingdom, Maurice Punch describes the trial of the police officer responsible for the killing of James Ashley in Sussex in 1998.  The case involved a drug raid during the dead of night. The police officer who entered the darkened apartment where Ashley had been sleeping said that he had thought that Ashley was about to attack him.  In fact Ashley was not only naked but also unarmed. Justice Anne Rafferty however instructed the jury to acquit the police officer saying that those who should have been held responsible for the killing were not present in her court. “Those having responsibility for implementing, seeing good compliance and monitoring good practise as to the use of firearms, bear a heavy responsibility for the death,” she said.

This is not, of course, to suggest that all of the police officers who killed miners at Marikana should be excused from criminal responsibility. But it is unavoidable that an investigation into questions of criminal responsibility for the massacre must look into matters of command and control in the Marikana operation. How did it happen that reliance was placed on police units armed with automatic weapons to carry out a disarmament operation against the miners? What instructions were given to them? What precautions, if any, were taken to try and ensure that the obvious potential for loss of life was minimised? Questions of responsibility are therefore not limited to who pulled the trigger.

There is already extensive evidence that police have gone to elaborate lengths to compromise the possibility of an effective investigation into the massacre. It therefore needs to be asked whether there is any chance of justice for the victims of the Marikana massacre? Even if the Commission of Inquiry is to be the initial vehicle for examining evidence about the massacre it will not be able to make any findings, other than of a very general nature, unless it is supported by a very thorough criminal investigation.

Neither the Independent Police Investigative Directorate, nor its predecessor the Independent Complaints Directorate,  has ever had to carry out a complex investigation of this kind on its own. In the one case where this agency has managed to make some progress on an investigation of this order of complexity, the investigation into the Cato Manor organised crime unit, this has involved working in partnership with the Hawks.

Meanwhile the Portfolio Committee on Justice is pre-occupied with raising queries about the proposed South African Human Rights Commission investigation into the massacre. But the key issue at this point, if justice is to be done, is to ensure that the inadequacies, of the current provisions for investigation, are rectified.

**This article is written in collaboration with the African Policing Civilian Oversight Forum.

Bruce is an independent researcher specialising in crime and policing.

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