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Court challenge over presidential pardons

FXI LogoA court challenge over the issuing of presidential pardons will be brought this week by a coalition of victim and civil society organisations, the Freedom of Expression Institute (FXI) said on Wednesday.

This, after South African President Kgalema Motlanthe decided not to give victims or other interested parties the opportunity to participate in the process, the FXI said in a statement.

"The coalition asserts that such an approach is inconsistent with the spirit and purpose of South Africa's new constitutional order," it said.

The special pardons process for political crimes could result in more than 100 pardons for apartheid-era perpetrators who did not apply
for amnesty with the Truth and Reconciliation Commission (TRC), it added.The coalition consists of the Centre for the Study of Violence and Reconciliation, the International Centre for Transitional Justice, the Khulumani Support Group, the Institute for Justice and Reconciliation, the Human Rights Media Centre, the FXI, the South African History Archives and the Legal Resources Centre.

The FXI said the pardons were being issued under the special pardonsprocess established by former president Thabo Mbeki in 2008 to complete "the
unfinished business of the TRC".

Mbeki created a reference group of political party representatives tasked with recommending to him which convicted offenders be pardoned.

At the time, he promised that the process would comply with the "principles, criteria, and spirit" of the TRC, the FXI said.

However, while the group did continue the work of the TRC's erstwhile amnesty committee, it did not adhere to the basic principles and norms established by that process, it said.

"Since February 2008, the coalition has engaged in extensive efforts to persuade the pardons reference group to involve victims in the recommendations process and to allow the public access to the process and the information collected by the reference group.

"When the reference group refused to permit the participation of victims and public access to the proceedings, the coalition and its lawyers then approached the minister of justice and the president."

The FXI said that on March 13, the Office of the President confirmed that he would consider pardon applications exclusively on the basis of representations made by perpetrators and political parties.

"It appears that the president will very shortly make decisions on which offenders will be granted pardons.

"The president has not disclosed and will not disclose what applications he is considering. He has refused to give the victims of or other persons affected by the offences in question, an opportunity
to make representations as to whether a pardon should be granted, and if so, on what terms," the FXI said.

"The coalition is disappointed that President Motlanthe appears to take the view that since the Constitution provides him with the power to grant pardons, it does not matter what process is adopted for purposes of processing and recommending pardons; even if such a process?
is manifestly unfair and constitutionally unsound," it said.

It had been left with no choice but to bring an urgent court application to interdict Motlanthe from issuing political pardons, it said.

It had also asked, via its lawyers, that he not issue any political pardons pending the final determination of the rights of victims by a
court.

Responding on Wednesday, presidential spokesperson Thabo Masebe maintained that the government had not "acted wrongly", but added that the coalition had a right to go to court and it respected this.

"We will await the decision of the court in this regard," he said.?

The family of slain South African Communist Party leader Chris Hani said on Wednesday that it would continue to do everything in its power to ensure his killer served his full sentence, and that justice ran its full course.

They were reacting to a ruling by the High Court in Pretoria dismissing a bid for parole by his murderer Clive Derby-Lewis.?

Derby-Lewis and Janusz Walus were initially sentenced to death for the murder, but when capital punishment was abolished, this was
commuted to a life sentence.

Derby-Lewis applied for parole on the basis that he was over 65 and had served 15 years of the sentence. Walus does not qualify to make a parole application.?

It was submitted in the parole hearing that victims had rights to participate in all criminal justice proceedings, and this included parole hearings.

"Mrs [Limpho] Hani is a victim. The loss of her husband has made hera victim. By participating, there is some comfort to the victim," advocate George Bizos, SC, argued on behalf of the Hani family.

He held that it was Mrs Hani's common-law right to make representation. -- Sapa

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