Commissions first gained attention in post-apartheid South Africa through the Truth & Reconciliation Commission. Since then, they have faced justified critique. The balance between public opinion and justice is limited. It defaults to “orange overall, jail”.
Legal processes are slow because political expediency dictates pace. Yet the legal fraternity must balance the scales of blind Lady Justice, often amid public backlash. Mudslingers forget they need to be in mud to sling it.
The populist drumbeat misses the value commissions add. South Africa’s justice trajectory rests on constitutional democracy and constitutional supremacy, not parliamentary supremacy. Politicians who miss this principle sit in parliament but misunderstand lawmakers’ limits.
Commissions have evolved. The Zondo commission on state capture unpacked policy limitations and systemic corruption. The Madlanga commission focuses on the criminal justice system’s internal defects. Its mandate draws from previous commissions and improves the model.
The correct lens is inquisitorial. Commissioners probe leakages in policy and practice. They examine faultlines in bureaucracy, legislation and governance at the intersection of policy and practitioners.
My concern is systemic change. I look for improvements in policy architecture underpinned by constitutional democracy. The Madlanga commission offers insights into criminal justice policy and extends to other departments and governance.
The value of a commission is not measured in convictions. It is measured by whether the state can fix the pipe after the leak is found. The Zondo commission showed us the plumbing of state capture. It mapped how procurement committees were rigged, board appointments traded, and money moved through Gupta networks. The public wanted arrests. The state needed to be redesigned.
The Madlanga commission faces the same tension. The public wants police generals in orange overalls. The criminal justice system needs faster case processing, whistleblower protection and to stop dockets disappearing. One is spectacle. The other is state capacity.
Commissions work when they force lawmakers to confront design flaws. Section 217 of the constitution demands fairness, equity, transparency, competitiveness and cost-effectiveness in procurement. Yet the Preferential Procurement Policy Framework Act incentivises fronting and overpricing. The law contradicts itself. A commission can name that. Parliament must resolve it.
The Madlanga commission faces the same tension. The public wants police generals in orange overalls. The criminal justice system needs faster case processing, whistleblower protection and to stop dockets disappearing. One is spectacle. The other is state capacity.
The same applies to policing. The Independent Police Investigative Directorate cannot cope with the case load. The National Prosecuting Authority (NPA) lacks forensic accountants. Courts take years to enrol complex fraud. These are capacity failings, not moral ones. The Madlanga commission can quantify them. Only budgets and appointments can solve them.
Public opinion will judge the commission by arrests. History will judge it by whether the next Special Investigating Unit referral lands in a court with a functional case management system. Whether the next whistleblower lives. Whether the next tender is awarded on price and quality, not political connection.
Constitutional supremacy means the law binds everyone, including the majority party. Parliamentary supremacy means the majority can change the law when inconvenient. South Africa chose the former in 1996. Commissions remind politicians of that choice. They are inquisitorial, not adversarial. They do not jail people. They explain why jail is full of petty offenders while procurement fraudsters retire comfortably.
If we want justice we must separate vengeance from reform. Vengeance gives us orange overalls and a broken system. Reform gives us a system where crime is hard and prosecution likely.
The Madlanga commission is not theatre. It is a diagnostic tool. The patient is the criminal justice system. The doctors are lawmakers and administrators. The public is the family in the waiting room. We can shout at the doctors, or ask for the scan results and demand surgery.
There is a hard sequence here. First, diagnose. Then, legislate. Then, budget. Then, appoint. Then, prosecute. Skip a step and the pipe leaks again. Commissions handle step one. They cannot do step five. Expecting them to is a category error.
We confuse exposure with execution. The Zondo commission exposed. The NPA must execute. The Madlanga commission will expose. The South African Police Service, NPA and National Treasury must execute. The orange overalls are step five. We are on step one. I am here for the scan results. The orange overalls can wait.
- Maseko is an independent political economy researcher.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.