On September 13, Panyaza Lesufi, the Premier of the Gauteng Province in South Africa, announced the terms of reference for a commission of inquiry to probe the mortal fire in the Usindiso building in Marshalltown, Johannesburg, that killed 77 people, and left others injured and homeless on August 31. Once a central “pass office” under Apartheid, it was used to regulate the movement of black people from the designated self-governing Bantustans (“Homelands”) into white South Africa. Images of the 77 burnt corpses lying partially covered on the streets of Egoli (“city of gold”) betrays the chilling state of decay of the city, which likes to market itself as a “world-class African city” (appallingly, a city official pinned the blame on the deceased, claiming they failed to be world-class African citizens). Reported the world over, it was revealed that No. 80 Albert Street housed around 200 families, mostly immigrants, among many who come to the country in search of better livelihoods.
The commission will be conducted in two phases: the first, is to investigate the causes of the fire and the “prevalence of buildings” abandoned by their “legitimate landlords or owners and taken over by criminal syndicates or other groups and leased out”—the “so-called hijacked buildings” in the Joburg inner city—and the second to address the findings regarding responsibility for the fire and deaths.
It is another episode in the long list of official commissions in recent years investigating the many crises and tragedies of post-Apartheid South Africa, most notably the commission into the Marikana Massacre in 2012 (where the South African police killed 34 mine workers on strike for a wage increase), and the more recent commission of inquiry investigating corruption and “state capture,” finding evidence of billions of dollars of public funds siphoned off to political figures and their business connections.
Attuned to the sense of commission fatigue in the country, Lesufi justified the commission as a “politically free” tool to probe the “tragedy… “without any undue political interference.” The commission will be chaired by Justice Sisi Khampepe, a former judge on South Africa’s Constitutional Court, and an experienced practitioner in investigative inquiries (having served as a Commissioner of the South African Truth and Reconciliation Commission, as well as the Chair of Stellenbosch University’s recent commission into allegations of racism). Already at its inception the specter of commissions past loom over the present. What we must learn from those commissions is that “politically-free” by no account means apolitical. Following legal procedure for “fact-finding” does not mean that a commission’s outcomes will not serve partial political ends.
The implicit argument advanced by Lesufi, that commissions of inquiry provide a platform from which to interrogate social problems free of political partisanship is consistent with those made to defend the use of official commissions as they boomed in 19th century Britain: that they produced objective findings that could soundly inform social policy. Under feudalism, they operated as an extension of monarchical power to channel issues deemed pertinent to the Crown. However, with the election of the Reform Parliament in 1833, propelled by the enthusiasm for an incipient liberalism imbued with Adam Smith’s laissez-faire, legal notions of natural rights and Jeremy Bentham’s utilitarianism, commissions became part of the emergent legal-rational modern state’s constitutive institutional forms. Unlike the medieval state, which knew little about its subjects, social pressure for reform merged with the trend towards rationalizing state power legitimated by claims to objective, scientific knowledge, which proponents maintained provided an objective yet participatory model for policy-making.
Praising the work of the Factories Commissions in Britain, which investigated the conditions of the English working class in powering British industrialization in the “dark satanic mills,” Karl Marx himself in Volume One of Capital yearned for the same in Germany, hoping they would be run by “men as competent, as free from partisanship.”
It is correct that between 1830 and 1870 commissions were instrumental in contributing to a range of social reforms in Britain. This is evident in the Factory Acts, which legislated reduced working hours, placing limits on age and labor time for children and censuring company owners who broke the law in these respects. Marx drew on data gathered from these in the writing of Capital and praised them for their ability to expose the dark underbelly of unfettered capitalism.
Official commissions’ claims to objectivity largely derive from their procedural aspects, which mimic legal modes of fact-finding such as employing legal practitioners and using cross-examination and forensic argumentation to verify “truth.” Within the context of a political and imperial project of territorial and administrative expansion, commissions were used to develop the appropriate content for new laws to aid imperial objectives and undermine indigenous laws and custom. While they employed “objective” modes of fact-finding they were far from apolitical. The 1883 Cape Colonial Commission upon Native Laws and Customs, for example, investigated all aspects related to the regulation of indigenous people’s movement, forms of social hierarchy, “native law” and custom. In this context, purportedly “objective” and “scientific” knowledge of the African “other” was, according to Mahmood Mamdani, derived from an approach to evidence that confirmed prejudices about African culture and life. Findings from such commissions in Africa—staffed with expert judges, anthropologists, and economists—functioned to legitimate British imperialism and systems of racial capitalism.
However, resistance by subjugated populations was a common feature of colonial empire-building. And while colonial powers responded brutally to those who challenged their rule, they also needed legal—if not moral—rationale for repression. This was the demand of the liberal milieu, which settled into European consciousness in the context of the Enlightenment. In many cases, commissions were established when the colonial state used excessive force to quell a riot or uprising.
In South Africa, the list of commissions established after state massacres is extensive and crosses temporal boundaries between colonialism, Apartheid, and democracy. Some of the more prominent include those that followed police killings at Bulhoek (1921), Bondelswarts (1923), Witsieshoek (1951), Sharpeville (1960), Soweto (1976), and Marikana (2012). Official discourse around these matters would often frame them as tragedies, comparable to a natural disaster or aberration, eliciting the sense that no one was to blame. In principle, these commissions could lead to prosecutions. Yet in colonial and Apartheid contexts they were often used in lieu of criminal investigation to diminish public debate and discussion. They were also used to legitimize the suspension of legality when Marshall law or a state of emergency was declared. Like other (post)-colonies, the Apartheid state used commissions of inquiry and the legal sphere to authorize predatory practices and criminalize political opposition. All too often, the official discourse of the commission reports would present the actions of protestors as responsible for disturbing the public peace, prompting the unfortunate necessity of the strong-handed state security to restore order.
Already we see this discourse of tragedy enfolding the Marshalltown fire, both in the title of the commission and in South Africa’s President Cyril Ramaphosa’s limp public response when he stated “We are not standing here to shift blame and pass blame anyone”, nearly echoing verbatim former then-President Zuma’s response to Marikana.
Despite the overarching discourse of tragedy, the proposed commission’s terms of reference prompt it to investigate responsibility for the event, a task which the Premier assures will be accomplished under the auspices of an impartial commission driven by a trusted legal practitioner. However, a commission following an “objective,” legal approach to fact-finding does not mean that its outcomes will not serve particular political agendas.
Indeed, as I have argued elsewhere in my research, official commissions were (and continue to be) legal institutions that are deployed when the regular legal institutions of the state (the courts, the police, and regulatory laws in general) are under pressure, are stretched to breaking point, or have lost legitimacy. These ostensibly objective, legal institutions have been key features of the partisan development of globalized capitalism, a global system in which South Africa remains the most unequal country.
It is likely that we will see legalism used through this inquiry in the way that is already saturating public discourse. The reference to “hijacked buildings” in the commission’s official terms of reference, and as used by high-ranking political officials, frames public imaginaries of the building’s inhabitants as hijackers—who are all too well-known by Johannesburg residents as violent criminals who take what is not rightfully theirs by force and at gunpoint. Minister in the Presidency Khumbudzo Ntshavheni claimed, “The majority of the people who stay or reside in hijacked buildings are not South African and they are not in this country legally. The government cannot provide housing to illegal immigrants.” Similar words were used by the City of Johannesburg Transport MMC Kenny Kunene and Speaker Colleen Makhubele, echoing anti-immigrant sentiment and blaming NGOs for the disaster.
Despite claims of objectivity, commissions of inquiry are influenced by political agendas, even if not explicitly. Central to legalist ideology is that the law can be neatly sealed off from social history, politics, and morality. Legal objectivity, in this case, can operate to criminalize those who died in the fire, including undocumented refugees, families, and children. We must not forget that it was legal objectivity in the Farlam Commission that effectively criminalized the Lonmin workers for engaging in a so-called “illegal” wildcat strike outside of the legally circumscribed collective bargaining frameworks.
This is not to say that our laws and constitution should be dispensed with; rather, that we should recognize the legal sphere as a historical site of social and political contestation. The legal sphere does not float above the social, ideological, and material relations that define the distribution of power in post-Apartheid society. On the contrary, the latter phenomena must be viewed as interrelated processes, shaping each other in accordance with the tempo and slant of social struggle.
Seventy-seven people died in this fire. Rather than fetishize legal objectivity, or rejoice at the claim of a politically-free commission, it may be time to call for a partial commission. I want a politically-full commission, imbued with a politics that places human well-being and social justice at the center. I want a commission that is not bridled by the task of discerning who broke this-or-that law, but one that exposes and anathematizes endemic forms of structural violence that leaves families neglected to live in inhumane conditions.
The continued presence of commissions of inquiry is neither good nor bad, viewed abstractly. What we can learn from the Factory Commissions in Britain is that the ultimate and decisive factor that determines whether they serve a progressive agenda depends on the balance of power in society. Commissions can lead to vast improvements in living conditions. But only if they are subject to the real democratic control of the most disenfranchised in our society, ensuring that the process is not appropriated by a “white-washing” or any other narrow political agenda in the interests of the elite.