A court challenge to halt the extension of presidential pardons to apartheid-era perpetrators goes to the heart of reconciliation in democratic South Africa, write FANIE DU TOIT, HUGO VAN DER MERWE, and REBECCA MURDOCH.
On 14 April a judgement was handed down in the North Gauteng High Court interdicting the president from granting any presidential pardon in terms of ‘the special dispensation for political offences’ until such time as the legal proceedings have been finalised.
This ruling came after a group of South African victim and nongovernmental organisations filed papers in the Pretoria High Court earlier this year to prevent the presidency from granting pardons to prisoners serving sentences for alleged political crimes committed during the apartheid-era and up until 16 June 1999. These individuals were all found guilty and sentenced by a court of law, and had not applied for amnesty before the Truth and Reconciliation Commission (TRC). The Court however upheld the rights of victims, with Judge Seriti stating that the president may not grant pardons under the special dispensation for presidential pardons until the rights of victims to be consulted had been determined.
The court challenge followed in the wake of repeated requests that survivors be consulted before a final decision is made on who qualifies for these pardons. Attempts to convince the government of its constitutional obligation to include survivors have, however, fallen on deaf ears and left the relevant bodies with little choice but to have the matter heard in court. Pardons for as many as 120 apartheid-era offenders may well be imminent. This possibility has necessitated the urgent interdict to ensure that a court will determine the rights of survivors in this process. The coalition challenging the pardons process include the Khulumani Support Group, the Centre for the Study of Violence and Reconciliation, the Institute for Justice and Reconciliation, the International Centre for Transitional Justice, the Human Rights Media Centre, the Freedom of Expression Institute and the South African History Archives.
In November 2007, President Mbeki set up a Reference Group to review political applications for presidential pardons. The aim was to bring an end to the ‘unfinished business of the TRC’. The Reference Group, comprising of representatives of the 15 political parties represented in Parliament, was mandated to assess applications for pardon from those claiming a political motive for their acts and then to forward those they considered deserving of such pardon to the president. Significantly, President Mbeki promised that the process would comply with the ‘principles, criteria, and spirit’ of the TRC.
The Reference Group, which handed its final recommendations to then President Mothlanthe at the end of February 2009, has reportedly recommended approximately 120 prisoners for pardon out of the roughly 2 300 applications received. Given the Reference Group’s secrecy, there is no knowing who is amongst this group. In the light of this, there is therefore a real risk that perpetrators may be walking the streets before a survivor is made aware that the perpetrator in their case had been pardoned.
Not only would this be unacceptable in terms of the basic principles of law, but survivors are likely to be denied that which has been the heart of the TRC’s ‘principles, criteria and spirit’, namely the opportunity to participate and make their voices heard. Not only does the current process undermine the principles and spirit of the TRC, but it also denies
survivors their rights as guaranteed in the Constitution and the Victims Charter. Moreover, an important opportunity to reveal more truth about these crimes has been undermined by the insistence of the Reference Group that information revealed by applicants is kept secret. The TRC’s principles of transparency and public accountability have thus also been directly contradicted.
Although the president has the power to grant pardons, he is bound by the Constitution in how he does this – and here the rights of survivors are central. The pardons process follows on the heels of a similarly problematic revision by the government of the National Prosecutions Authority’s revised prosecution guidelines, which also excluded survivors from effective participation. The high court ruled the guidelines to be an unconstitutional rerun of the amnesty process after it was challenged by NGOs last year. While the government seems willing to engage in secretive deals to avoid justice for politically connected perpetrators, and appears, to some extent, unapproachable when challenged on
these matters, the courts continue to serve as a safeguard of survivors’ rights.
It is important to understand the wider implications of these pardons. Post-apartheid South Africa opted for ‘truth recovery’ and ‘restoring the dignity of survivors’ as central tenets of its political transition. The relative success of the TRC has been debated, but the merits of the original aims are fundamental to our sense of democratic citizenship.
The TRC wanted to confirm the dignity of victims through public acknowledgement of their suffering. It also aimed to establish ‘as accurate as possible’ a picture of the human rights abuses of the past, and thereby bequeath the fledgling democracy a history lesson on what to avoid in the future. Importantly too, the TRC was meant as an exercise in transparency and accountability, creating a precedent for meaningful public engagement when dealing with issues of public importance.
South Africa could have simply drawn a line under its apartheid past in the name of reconciliation and moved on, a la Spain or Mozambique. Alternatively, it could have prosecuted thousands of potential culprits and risked a backlash from those opposing the transition to democracy. Instead, South Africa opted for an exercise in truth-telling and public accountability.
The TRC added significantly to the international understanding of the options for justice beyond political transition. It would be a travesty to rubbish this legacy now – it would also set a dire precedent for our future as a transparent and accountable democracy.
South Africans should not take this remarkable turnaround from the cloak-and-dagger days of apartheid for granted. In the post-Mandela era, political leaders have shown an increasing propensity for secrecy, obfuscation and double-speak. What is particularly disturbing about this example is that all the political parties represented in parliament have colluded in the process. NGO appeals to each of the parties were ignored as they seemed, for the sake of political expediency, to discard their obligation to uphold and abide by the principles and spirit of the Constitution. The opposition parties did not stand up to the ANC when they were invited to join the back-room dealings which excluded those most affected – the survivors.
This NGO court challenge to the presidential pardons process does not aim to prevent the president from considering pardons or to deny apartheid-era perpetrators the possibility of release from jail. It simply seeks to put to stop a process it sees as deeply unfair, intrinsically exclusionary and dangerous – and to compel the government to take the South African public into its confidence on such a significant matter.
At the end of May the state launched an appeal against the 14 April judgement.
Fanie du Toit is Executive Director of the Institute for Justice and Reconciliation. Hugo van der Merwe is Transitional Justice Programme Manager at the Centre for the Study of Violence and Reconciliation (CSVR). Rebecca Murdoch is a research intern at the CSVR. An earlier version of this article appeared in the Sunday Independent on 22 March 2009.