The South African Commission of Inquiry into State Capture (called the “Zondo Commission” after its chairperson) was a remarkable institution. From 2018 to 2022, it investigated corruption and state capture involving former President Jacob Zuma, the Gupta family, and many others. It made damning findings against a wide range of powerful people, organisations, and companies, and its recommendations have been the basis for a slate of anti-corruption reforms (see a brief but comprehensive summary of its work here). It is also remarkable that the Commission was established in the first place. How could a state mired in systemic corruption, state capture, and political crisis establish a truth-finding commission and mandate it to investigate some of the most powerful people in the country? Marianne Camerer, Liz Dávid-Barrett, and I discussed some of this in a recent episode of the Kickback podcast. In this blog, I discuss in more detail the conditions – political, legal, historic – that allowed for the Commission to be created, protected, and even championed.
In 2016, following a series of exposés by investigative journalists, Thuli Madonsela, the then-Public Protector (a Constitutional body that operates like an ombudsman) conducted an investigation into Zuma and the Guptas, culminating in a report laying out evidence of widespread corruption. She could not take the investigation very far – her term was about to end, and she was facing vicious political attacks and attempts to obstruct her work. She therefore recommended the establishment of a commission of inquiry to take up the thread. President Zuma attempted to challenge this in court, but failed, and was eventually forced to establish the Commission a year later. Throughout this period, civil society groups mobilised on a large scale, rallying behind the PP and embracing her recommendations, especially the call for a commission.
Why a commission and not some other accountability mechanism? A commission of inquiry is a quasi-judicial fact-finding body that can be established by the President (or a Premier of a province). They have substantial investigative powers, but no enforcement powers: they can only make non-binding recommendations based on their findings. With lower evidential standards, commission findings and witness testimony cannot be used as evidence in prosecutions – although the evidence collected by a commission can be handed over to law enforcement authorities. They are frequently criticized as toothless (at best) or for white-washing wrongdoing and criminal conduct (at worst).
Commissions also have a troubling history in South Africa. They are a legacy of colonialism, with their origins in the long history of British royal and state commissions. They were used by colonial and Apartheid governments particularly in the service of legitimating white minority rule and state repression. They have also been used extensively in democratic South Africa, usually appointed to respond to corruption crises or serious incidents of state violence. They have not been without controversy. For example, the Truth and Reconciliation Commission, established in 1996 to investigate human rights abuses under apartheid, has left a complicated and difficult legacy despite our best hopes. Many subsequent commissions have similarly failed to meaningfully deliver truth, justice, or both.
Despite these complexities, the idea of a commission into state capture was embraced by a wide range of actors, including activist organisations, different (and opposing) political parties, business organisations, media groups, and others. One reason was the dearth of any other options for a state-led intervention. Zuma and his allies still clung to power. Law enforcement institutions were widely known to be critically dysfunctional and compromised, themselves deeply affected by state capture. Parliament failed to use any of its oversight or investigative powers to look into the allegations. Despite pressure from the public and opposition parties, the ANC used its powerful majority to protect Zuma and the party itself to great effect.
The state needed to take action, but only a body that was not itself a part of the “captured” executive and legislative branches could do so with any credibility. The courts still held a great deal of legitimacy in the eyes of the public and had not been implicated in systemic corruption, state capture, or party politics; in fact they had previously protected and empowered the Public Protector in corruption-related cases. This is particularly true of the Constitutional Court, the Deputy Chief Justice of which was later appointed to chair the Commission. This legitimacy was extended to a potential commission of inquiry. Commissions in South Africa operate as and are seen as legal institutions; they are almost always chaired by retired or sitting judges, and in many ways imitate court procedures and settings, even where they are not mandated to. The courts were also able to protect the Commission as it carried out its work.
The changing political conditions also supported the establishment of a commission. A few months after the Public Protector’s report was published, the ANC called for the “speedy establishment” of a commission “without delay”. Up to this point, the ANC had consistently protected Zuma, and Zuma and his faction still held considerable power within the party. Many ANC members and leaders were involved in state capture and benefitted from corruption, even outside of the Gupta network. The party itself received funding from the Guptas and other corrupt actors; the ANC has long been sustained – at the local, provincial, and national levels – by deeply embedded patronage systems. Some party members and factions tried to call for accountability within the ANC, but they were unable to sway the party leadership, who stubbornly resisted taking action. The ANC was paralysed.
So what changed? Pressure had been building internally for years, but now prominent ANC members – who commanded a great deal of respect within the party and among South Africans in general – were beginning to go public. Developments over the course of 2017 – the release of the Gupta Leaks and the firing of the finance minister, for example – prompted widespread mobilisation and protest by a wide range of civil society groups and political allies, including the ANC’s key alliance partners, the Communist Party and the trade union congress, COSATU. Critically, there had been a serious and unexpected decline in electoral support for the ANC in the 2016 local government elections, which the party understood to be largely due to corruption concerns. State capture had become an existential threat – but the party remained unable to actually do anything, paralysed by competing interests and the leadership’s unwillingness to weaken and divide the party.
By supporting the call for a commission, the ANC could externalise its deep crisis to an independent institution that could investigate and adjudicate the issues from a legal framework without directly empowering the party’s political opponents or specific factions. A commission would ultimately report to an ANC president, whether or not Zuma remained in his position, who would have the discretion to act on its findings. So the ANC adopted the demand for a commission – its Secretary-General calling for the commission to be supported and protected at all costs* – and publicly put pressure on its own President to establish it when he tried to have the Public Protector’s recommendation dismissed. Zuma and others continued to attack and obstruct the Commission as it worked – in the courts, in the media, and in other spheres – but it was still able to deliver a very important, if imperfect, report.
Those of us involved in anti-corruption work must consider the essential preconditions and support factors necessary to achieve change in the contexts in which we are working. In this case, without the activation of civil society, the power, independence, and legitimacy of the judiciary, and the change in political conditions, the Commission may not have been created. Ultimately, Zuma was forced to appoint the Commission, and the Commission was able to do its work, implicating the President, members of his family, the Guptas, and other powerful people and organisations, and setting in motion a nationwide reform process. In many ways, this is a positive story about the power of democratic institutions and civil society – but it is only a small part of the story. How the Commission actually conducted its work, its findings, its limitations, and its legacy are all complicated and contentious issues deserving further exploration. There is plenty to learn from the Commission – not just about corruption and state capture, but about democratic institutions, accountability mechanisms, and the social, historical, and political conditions in which they operate.
* He did change his tune somewhat after being named in the Commission’s final report.
Devi Pillay is a research fellow at GI ACE and a research associate at the Public Affairs Research Institute (PARI) in South Africa. She was previously a researcher and analyst for the Zondo Commission, and has worked extensively on corruption and state capture in South Africa.
