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Truth in the Time of Tumult 2016 Truth in the Time of Tumult Tracing the Role of Official ‘Truth-seeking’ Commissions of Inquiry in South Africa, from Sharpeville to Marikana CLAIRE-ANNE LESTER University of Cape Town The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or non- commercial research purposes only. Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University of Cape Town 1 A minor dissertation submitted in partial fulfilment of the degree Master of Philosophy in Justice and Transformation Faculty of the Humanities University of Cape Town 2016 COMPULSORY DECLARATION This work has not been previously submitted in whole, or in part, for the award of any degree. It is my own work. Each significant contribution to, and quotation in, this dissertation from the work, or works, of other people has been attributed, and has been cited and referenced. Signature: Date: 7 November 2016 Word Count: 26 928 (Excluding Cover, Acronyms, Abstract, Footnotes and Bibliography) 2 Acknowledgements: This thesis acknowledges, with great thanks, all of my teachers. A most special thanks is extended to my dedicated thesis supervisor, André du Toit; a true master academic and philosopher, whose patience and keen interest steered the thesis to the complete product it is. I truly have learnt a great deal about being a scholar through his tutelage and by his wisdom. Another special thanks to Andrew Nash, who allowed for creativity and confidence in thought. It is in his classes that I met my other greatest teachers – my then classmates and now truest friends. I also thank my parents Colleen and Terrence Lester, who by their own example taught me to always question social regimes of truth. 3 Abbreviations ANC African National Congress ANC-NEC African National Congress National Executive Council CCB Civil Co-operation Bureau IDASA Institute for a Democratic South Africa JRC Jamaica Royal Commission NEC Native Economic Commission NGO Non-Government Organisation UTP Unofficial Truth Project PAC Pan Africanist Congress PNUR Promotion of National Unity and Reconciliation SADF South African Defence Force SAPS South African Police Services TRC Truth and Reconciliation Commission 4 Abstract The Marikana Massacre of 16th August 2012 was a watershed moment for post- Apartheid South African politics. News headlines and images depicting an ANC-led South African police killing 44 unarmed miners, striking for a wage increase, ruptured the TRC’s official narrative that state violence of this proportion belonged to a bygone colonial, or Apartheid past. Following the massacre, the Marikana Commission of Inquiry was launched as an official inquiry into what was referred to as the ‘tragic incidents at Marikana’. However, as the Commission conducted its work its actual role became increasingly ambivalent and ambiguous to the public, as well as to witnesses who testified. Legally, it was a judicial commission of inquiry with a strict fact-finding mandate, yet the official discourse invoked suggests it had additional distinctive aims to achieve ‘truth, restoration, and justice’, which are functions traditionally associated with Truth Commissions, in the field of Transitional Justice, and more particularly with South Africa’s TRC. This ambiguity in the Marikana Commission’s function points to the larger issue that this thesis addresses – the ambiguity in the exact role and function of, as well as the relationship between, generic commissions of inquiry and Truth Commissions. The functions are interrogated using the concept of ‘tumult commissions’, introduced by Adam Sitze-- a subtype of commission of inquiry used by colonial administrations in lieu of criminal tribunals, to investigate political violence following the State’s violent suppression of some major insurgency. Over and above ‘fact-finding’, Sitze claims that ‘tumult commissions’ were political tools deployed to ‘whitewash’ and justify State 5 killings as unfortunate necessities in order to restore peace and order, and to legitimate the authority of the state. I anchor the current ambiguity in the role of the Marikana Commission, both in legal capacity, its method and official discourse, in a longer historical trajectory that extends from the Jamaica Royal Commission (1866) to the Sharpeville Commission (1960) and the TRC (1996-1998). The notion of official truth-seeking is problematised using an analytical framework that distinguishes between objective ‘fact-finding’, ‘truth-seeking’ and the various associated narrative genres of ‘tumult commissions’ and ‘truth commissions’. Through a critical analysis of canonic academic literature, official commission reports and legislation, the thesis highlights glaring contradictions and inconsistencies in claims to official ‘truth-seeking’ when combined with quasi-judicial aims to achieve accountability and ‘justice’. It concludes that the ‘truth’ of ‘official’ truth- seeking commissions is always constrained by the overall objectives of the government of the day. Although the TRC was able to promote a more open and inclusive institution to deal with the intractable issues of ‘truth’ and ‘accountability’ following state- sanctioned violence, the cases show that when broader social and economic issues are excluded from the ‘regime of truth’ of official commissions, it only creates fertile soil in which similar tragedies may reoccur in a post-colonial, and post-TRC South Africa. 6 Table of Contents Chapter 1: Official ‘Truth finding’ after State Violence ................................................................................ 8 1.1 Introduction ........................................................................................................................................ 8 1.2 Research Questions .......................................................................................................................... 19 1.3 Chapter Outline ................................................................................................................................. 20 Chapter 2: Official truth-seeking after (post-)colonial state violence: institutional formats, discursive phases and narrative functions -- an analytical framework ....................................................................... 22 2.1 Introduction ...................................................................................................................................... 22 2.2. Historical and Analytical Perspectives ............................................................................................. 24 2.2.1 Commissions of Inquiry in Historical Perspective ...................................................................... 24 2.2.2 Institutional formats: generic aspects, institutional and thematic sub-types ........................... 26 2.2.3 Official Truth-seeking and ‘Truth Commissions’. ....................................................................... 31 2.3 Discursive functions of Commissions of Inquiry ............................................................................... 36 2.3.1 The legitimating function of Official Discourse and the Problem of Legitimation .................... 36 2.3.2 Commissions of Inquiry as Schemes of Legitimation (Ashforth) ............................................... 38 2.3.3 The Legitimating Functions of the Phases of Discourse in Official Truth-seeking ..................... 40 2.4 Truth-seeking Commissions of Inquiry and their associated Narrative Genres ............................... 44 2.4.1 ‘Tumult Commissions’ and Tragic Discourse ............................................................................. 44 2.4.2 The Case of the Jamaica Royal Commission (JRC) ..................................................................... 47 2.5 Conclusion ......................................................................................................................................... 54 Chapter 3: Tumult Commissions in South Africa and the case of the Wessels Commission of Inquiry, following the Sharpeville Massacre. ........................................................................................................... 56 3.1 Introduction ...................................................................................................................................... 56 3.2 The Legal fetishism of Apartheid’s repressive order. ....................................................................... 59 3.3 The Powers of Commissions of Inquiry in Apartheid South Africa ................................................... 63 3.4 The Wessels Commission of Inquiry ................................................................................................. 65 3.4.1 Fact-Finding in the Wessels Commission ................................................................................... 65 7 3.4.2‘Truth-Seeking’ and ‘Truth-Telling’ After Sharpeville. ................................................................ 70 3.4.3 Narrative Function: ’Whitewashing Machines’ finding ‘No one to Blame’ ............................... 75 3.5 Conclusion ......................................................................................................................................... 78 Chapter 4: ‘Truth’ and the ‘official discourse’ of the Truth and Reconciliation Commission. .................... 81 4.1. Introduction.
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