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  • Written by  Sunday Independent
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NGOs in court bid to derail pardons for apartheid crimes

This week a group of South African non-governmental organisations filed papers in the Pretoria High Court to prevent President Kgalema Motlanthe from granting pardons to prisoners serving sentences for apartheid-era political crimes.? These individuals were all found guilty and sentenced by a court of law,? and did not apply for amnesty before the Truth and Reconciliation? Commission. Now the government wants to give those who thumbed their? noses at the TRC, or failed to qualify for amnesty, a second chance in? what is presented as an attempt to deal with the TRC's unfinished business.

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- Hugo van der Merwe, Fanie du Toit and Rebecca Murdoch

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This week a group of South African non-governmental organisations filed papers in the Pretoria High Court to prevent President Kgalema Motlanthe from granting pardons to prisoners serving sentences for apartheid-era political crimes.

These individuals were all found guilty and sentenced by a court of law, and did not apply for amnesty before the Truth and Reconciliation
Commission. Now the government wants to give those who thumbed their noses at the TRC, or failed to qualify for amnesty, a second chance in what is presented as an attempt to deal with the TRC's unfinished business.

The court challenge comes after the president turned down repeated requests for survivors to 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 fallen on deaf ears and left NGOs 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 International Centre for Transitional Justice, the Institute for Justice and Reconciliation, the Human Rights Media Centre, the Freedom of Expression Institute and the South African History Archives. The Legal Resource Centre is representing the coalition in taking this matter to court.

In November 2007, President Thabo 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 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, 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 the? president 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 among the group to potentially receive pardon. There is 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 is this unacceptable in terms of basic principles of law, but survivors are denied what was at 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 stand central. The pardon process follows on the heels of a similarly problematic revision by the government of the National Prosecuting Authority's revised prosecution guidelines, which also excluded survivors from 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 of 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, like Spain or Mozambique. Instead, it 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 dump this legacy now: it would also set a dire
precedent for our future as a transparent 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 and double-speak.

What is disturbing about this example is that all the political parties represented in Parliament have colluded in the process. They seemed to discard their obligation to uphold and abide by the principles and spirit of the constitution for the sake of political expediency.

# Dr Fanie du Toit is the executive director of the Institute for Justice and Reconciliation; Dr Hugo van der Merwe is the Transitional
Justice Programme Manager at the Centre for the Study of Violence and Reconciliation; and Rebecca Murdoch is a research intern at the centre.

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