OPINION | Mkhwanazi's claims must be starting point of inquiry to try and restore public trust

Just as inevitable as President Cyril Ramaphosa’s announcement of a judicial commission of inquiry into the revelations emanating from Lt-Gen Nhlanhla Mkhwanazi’s media briefing on July 6 was the reaction from several political parties decrying his decision.

While it is understandable that the country has "commission fatigue", especially after the four-year long state capture commission, these parties have not proposed a realistic alternative.

They demand "decisive action", ignoring that we live in a democratic constitutional state in which due process and the rule of law must guide us. The president cannot instruct the law enforcement agencies to conduct investigations or institute prosecutions, let alone find anyone guilty of a crime based on untested allegations.

Yet political posturing by parties inside and outside the government of national unity has been the order of the day, with some even laying criminal charges at police stations. Do they really expect that a compromised SAPS can or will properly investigate their charges, or is it merely part of a theatrical performance to score cheap political points?

So, the only debate is whether a judicial commission of inquiry is the best option. An alternative may have been an investigative enquiry, perhaps headed by a policing expert to interrogate Mkhwanazi’s allegations. The problem here is finding that policing expert who is sufficiently credible and independent to oversee such a process.

Given the seemingly factional rivalries that permeate the upper echelons of the SAPS, coupled with Mkhwanazi’s assertions that other agencies within the criminal justice sector are similarly compromised, this would not easily be achieved.

A judicial commission, headed by a hugely respected justice of the Constitutional Court, Mbuyiseli Madlanga, provides the critical independence that is necessary to win public support.

The other two members of the commission, Sesi Baloyi and Sandile Khumalo, are seasoned advocates with senior counsel status, albeit not criminal law experts. That gap in expertise can be filled by specialist advisers that Madlanga can employ.

The next consideration must be the scope of the inquiry, and particularly its terms of reference. Ramaphosa, in his address to the nation on Sunday night, said: “The commission will investigate allegations relating to the infiltration of law enforcement, intelligence and associated institutions within the criminal justice system by criminal syndicates... the facilitation of organised crime; suppression or manipulation of investigations; inducement into criminal actions by law enforcement leadership ... the role of current or former senior officials in certain institutions who may have aided or abetted the alleged criminal activity ...

"The commission will also investigate whether any members of the national executive responsible for the criminal justice system were complicit, aided and abetted, or participated in the acts mentioned above ... to report on the effectiveness or failure of oversight mechanisms, and the adequacy of current legislation, policies and institutional arrangements ... will have the power to refer matters for immediate criminal investigation and urgent decisions on prosecution, taking into account the nature of the allegations and evidence the commission will uncover.”

This is a broad, if not intimidating mandate that is to be given to Madlanga. The final terms of reference will still need to be published in the Government Gazette, together with the formal establishment of the commission, hopefully in the coming days.

While Ramaphosa indicated that interim reports will be expected in three and six months from its inception, no deadline has been set for the final report. He did, however, say that the final report will be shared with the speaker of the National Assembly and the chief justice, an important issue as Mkhwanazi’s allegations implicate both these arms of the state.

How then should Madlanga approach this task? He needs to adopt a phased approach, starting with investigating the veracity of Mkhwanazi’s allegations. That will satisfy the nation’s quest for quick answers and provide the content for the first of his interim reports, hopefully delivered well within three months. The findings in that report may guide Madlanga as to his next lines on inquiry.

The one area in which it could be argued that the president has dithered is in not firing the embattled minister of police, Senzo Mchunu. He merely placed him on a special leave of absence. That decision sits firmly within the authority of the president.

Mchunu’s removal from cabinet would have indicated to the country that Ramaphosa takes the allegations seriously. It would also mean that if the commission finds that Mchunu is not implicated in colluding with criminal syndicates Ramaphosa could reinstate him as a cabinet minister.

Ramaphosa will not get away with such dithering and indecision when he receives findings and recommendation from Madlanga. The country will demand that he acts on them without delay. Anything less and he will stand accused of contributing to the erosion of respect for the rule of law.