Issue addressed:
As political organizations were negotiating the end of apartheid in South Africa in the early 1990s, the government recognized the urgent need to reestablish a system and culture of human rights in the nation. A key to this culture shift was the mitigation of political violence and intimidation. The government had long used violence as a tool against its citizens to control and prevent protests and backlash. As apartheid was coming to an end, the government under President F.W. De Klerk was repealing many old laws and attempting to address its troubling history. The government was attempting to distance itself from its nationalism and instead focus on political neutrality and scientific objectivity. It needed an instrument with adequate powers to evaluate government actions and test the impartiality of decisions by the security forces.
Summary of Act:
The Prevention of Public Violence and Intimidation Act (“the Act”) established the Commission of Inquiry Regarding the Prevention of Violence and Intimidation (“the Commission”) under the chairmanship of Judge Richard Goldstone. Section 3 provides that the Commission shall be appointed by the President and consist of a judge or former judge of the Supreme Court of South Africa; a former member of law enforcement; someone who has tenure as judicial officer, an attorney, or a professor or lecturer at a South African institution; and three other people based on their qualifications. The Commission also has the power to create committees or institutes to effectively exercise its powers, duties, and functions.
The Commission is tasked with researching the nature and causes of public violence in South Africa, and potential solutions. The Commission was tasked with making recommendations to the President about the policy and steps that should be taken to prevent this violence and intimidation. The Commission is empowered to engage in inquiries surrounding information about public violence and intimidation including hearing evidence, gathering information, calling for witnesses, and any other procedures it determines to be necessary to ensure an adequate investigation. Witnesses must provide the answers and information that the Commission requests, but the Commission must compensate any witness who is not part of the public service with witness fees for their appearance.
The Commission may sit to hear evidence or deliberate in any place in the Republic as long as the Commission has a quorum. The Commission must present a report to the President after the completion of an inquiry. The President must make information from the inquiry public that they deem necessary to the public interest.
Section 13 provides for offences and penalties, and states that anyone who fails to comply with the inquiry or obstructs, insults, or attempts to influence the Commission shall face conviction and potential liability with a punishment of imprisonment not exceeding more than one year.
Although on paper this Commission was mainly concerned with fact finding, it ended up involved with much greater policy issues like mediating large political disputes that could lead to political violence. One initiative was implementing recommendations regarding control of public demonstrations. The Commission worked closely with African police and the major political movements organizing large protests in order to create an effective system of control and to ensure that participants, organizers, authorities and police were all safe and accounted for. These proposals were eventually codified in legislation (the Regulation of Gatherings Act 205 of 1993), which was passed (but did not come into force until October 1996).
Analysis:
The Act enables the Commission to call witnesses and demand information from them. However, it does not offer any protections or rights for these witnesses, other than providing that they will possibly be compensated for their time as a witness. It vests the Commission with the power to “enter upon and inspect any premises and demand and seize any document on or kept on such premises” at any time for the purposes of the inquiry. This seems like a very broad and intrusive grant of power without many limitations. Similarly, there are punishments listed for those who obstruct the Commission’s investigation, but no such punishments for a Commission member who undertakes an improper inquiry. There is, however, a provision regarding the protection of witnesses who may be threatened by their participation in the inquiry.
In this same vein, it would be helpful for the Act to include more procedure regarding how this Commission should undertake its inquiries. It gives the Commission a broad grant to “determine the nature and extent of any inquiry”. Some sort of limiting provisions or listed causes of actions might be beneficial for those who believe their rights were violated by an inquiry.
The Act also sets out specific guidelines for how Commission members will be appointed. However, the Act gives the Commission power to establish committees that it deems necessary to help exercise its functions. Aside from noting that the Chairman of any committee will be a member of the Commission, there is no other requirement for how those members are appointed. It seems counterintuitive to set up elaborate appointment requirements for the Commission only to then allow it to appoint committee members however they like. If the government wanted to ensure an impartial, balanced and educated Commission, it is interesting to consider why they would allow that Commission to delegate its work to a committee that will not necessarily be balanced, educated and impartial.