Zuma’s failure to fire Phiyega for role in Marikana beggars belief
Claassen report into ex-police chief misconduct yet to be published
There can be no good reason for the failure to publish the report of the Claassen inquiry into Gen Riah Phiyega’s misconduct over Marikana. Copies of the report have been circulating for months now.
And there can be no good reason for President Jacob Zuma’s failure to sack her without further ado. There is something obscene about her continuing to collect a large salary more than four years after a massacre in which she played a pivotal part.
The inquiry, appointed by the president back in September 2015, concludes there are three grounds for dismissing Phiyega.
First, given all the information at her disposal, she was capable of foreseeing the tragic consequences of the decision to implement the tactical option against the striking Lonmin miners. Secondly, she misled the public about killings at Scene 2 by amending a police statement on what happened. Thirdly, her evidence to the Farlam commission was unsatisfactory, in particular because she refused to take responsibility for police action.
But Phiyega’s departure will not be the end of the matter. For more than a year, the director of public prosecutions (DPP) has been nursing a file from the Independent Police Investigative Directorate (Ipid) recommending that Phiyega be prosecuted. She may decide to appeal against her sacking, but the way is opening for the DPP to bring her to court.
IT SEEMS UNLIKELY THE GOVERNMENT HAS AN INTEREST IN GETTING TO THE BOTTOM OF THE STORY
Phiyega’s defence was that it was not she, but provincial commissioner Zukiswa Mbombo who was responsible for the decision to press ahead with the fatal tactical option. Judge Neels Claassen would have none of this. Referring to the special meeting, where the fateful decision was made, the report says that even if Phiyega "had simply sat and listened without saying a word, her presence … would have constituted formal approval".
So, blaming subordinates is unlikely to wash in a court of law. Phiyega might, though, try the alternative approach and blame her superior — Police Minister Nathi Mthethwa.
According to the Constitution, the national commissioner of police exercises control "in accordance … with the directions" of the minister. Mthethwa was intimately involved with discussions about the policing of Marikana and Cees de Rover, South African Police Service (SAPS) policing expert, told the Farlam commission that, based on vast international experience, decisions as important as the Marikana intervention would be taken by the executive (that is, at least a minister) rather than police management.
Unless Phiyega makes full disclosure of the executive’s role in the decision, judges should consider incarcerating her for many years. Winning justice for the Marikana victims is a slow process, but little by little headway is being made. Other members of the SAPS high command at Marikana are also facing serious charges.
According to Zuma’s December "update", Maj-Gen William Mpembe, the overall commander, will be charged with murder, for deaths that occurred on August 13 2012 — three days before the massacre. For more than a year now, the DPP has been sitting on files from Ipid recommending the prosecution of Mbombo and her deputy Maj-Gen Ganasen Naidoo. Why the delay, one wonders?
But there is a long way to go. As far as one knows, Ipid has had immense difficulty pursuing the investigation of events at Scene 1, where the first 17 deaths occurred. In consequence, neither Brig Adrian Calitz, the operational commander, nor Maj-Gen Charl Annandale, the de facto overall commander on August 16, are facing charges as yet. The actual shooters have also yet to be charged.
One problem for Ipid has been the lack of co-operation from the SAPS. Zuma has the power to alter this state of affairs. He could now appoint a national commissioner determined to ensure compliance and he could insist the police minister supports such a mandate. But is this likely?
The media has focused, rightly, on Deputy President Cyril Ramaphosa’s role in the massacre, but this has drawn attention away from the president. Not only did he appoint Phiyega, who had little experience of policing and had only been in office for two months at the time of the massacre, but he received the full version of the Marikana events, the one doctored by Phiyega, so collaborated in her attempt to mislead the public about Scene 2.
It seems unlikely that the government has an interest in getting to the bottom of the story. For them, avoidance is made easier by the Farlam commission’s utter failure seriously to investigate the part played by mining firm Lonmin.
Truth and justice are still a long way off and will doubtless require continued public pressure, but the Claassen report takes us one small step in the right direction.
• Prof Alexander is director of the Centre for Social Change at the University of Johannesburg and founder member of the Marikana Support Campaign.