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SACTJ Highlights Potential Violations by the President of the Constitutional Court Ruling on the Special Dispensation for Presidential Pardons

Members of the South African Coalition for Transitional Justice call upon the President to reconsider the processes that he has announced are underway to resuscitate the Special Dispensation for Presidential Pardons for apartheid-era perpetrators of political crimes. The applications arise from the Special Dispensation on Political Pardons launched by former President Thabo Mbeki in 2007 in order to promote national reconciliation and unity andcomplete the unfinished business of the TRC.

In the regulations to provide this further opportunity for offenders who claim to have a political motivation for their crimes, President Mbeki extended the cut-off date for the committal of these crimes to 16 June 1999, significantly beyond the cut-off date for amnesty applications to the TRC, 10 May 1994. A Reference Group in Parliament, comprising political party representatives, was set up to consider applications for pardon and to make recommendations to the President. The process failed to make provision for l consultation with victims and survivors of these crimes and after a secret process, recommended 149 applicants for pardon.    .

            Amongst those recommended for pardons are persons responsible for killing an entire family including a five-month old baby; persons who were involved in serial killings of up to 21 murders; brutal racist assaults on black protesters; the bombing of a grocery store frequented by black people on Christmas eve in 1996 resulting in 4 deaths and 67 serious injuries; a cash-in-transit heist in 1998 claimed as a fund-raising operation; kidnapping, armed robbery, arson, housebreaking and theft.

            In a written response to a question raised in Parliament in August 2014, the President noted on 27 February 2015 that government is currently in the process of finalising the relevant documents for a Presidential decision to pardon over 900 applicants under the Dispensation for Special Pardons. But the actions of the Minister of Justice in resuscitating the Special Pardons Dispensation fails to comply with the ruling of the Constitutional Court.

            The 2007 Special Dispensation created by President Mbeki was halted by an interim restraining order issued by the Pretoria High Court (CSVR & Others v President of the Republic of South Africa & Others, Case no. 15320/09, North Gauteng High Court).  The interim order required the President to consult with victims, before making any decision to grant pardon under this dispensation. The President, together with an applicant for political pardon, (an AWB member named Mr Ryan Albutt), then applied to the Constitutional Court for a final decision. The Constitutional Court unanimously ruled (in Albutt v Centre For The Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC)) that the interim order was final in effect: in other words, that victims are constitutionally entitled to an opportunity to be heard before the President can grant special pardons.

            The initial attempt by the Department of Justice to consult victims was inadequate .. A period of some 13 months then passed before the DoJ attempted to resuscitate the program in 2012. The programme was then once again allowed to lapse. The SACTJ has asserted that in order to comply with the Constitutional Court ruling, the Department of Justice needs to go back to victims and survivors in a proper consultation process. Not to do so would constitute a violation of this ruling. No pardon may be lawfully issued on the back of the special pardons process which eschewed the TRC requirement of full disclosure by offenders  Furthermore, the fact that government has been consistently quick to provide special and lenient measures for perpetrators while failing to implement the TRCs recommendations for victims represents a gross injustice.

            If the political pardons process is to be resuscitated it must be done in a manner that is lawful and which avoids the shortcomings and flaws of the earlier process. This requires that any new process must be open, transparent and accessible; it should not include crimes committed during the new democratic and constitutional order; and it must remain faithful to the TRC process, standards and values.

            The failure to honour the ruling of the Constitutional Court in granting pardons under this Special Dispensation, threatens to deepen the cracks in access to justice for those who were brutally affected by the propagators of political violence in apartheid South Africa.

Issued by the South African Coalition for Transitional Justice (SACTJ), comprising the following organisations: Khulumani Support Group; Centre for the Study of Violence and Reconciliation; Institute for Justice and Reconciliation; South African History Archive; Human Rights Media Centre; Trauma Centre for Survivors of Torture and Trauma and Freedom of Expression Institute.

For comment, please contact:

  • Dr Marjorie Jobson                  082 268 0223              KSG
  • Mr Hugo van der Merwe          082 570 0744              CSVR
  • Ms Catherine Kennedy            072 682 6240              SAHA
  • Ms Valdi van Reenen-le Roux  082 821 2692              TCSVT
  • Ms Shirley Gunn                         082 450 9276                 HRMC
  • Dr Fanie du Toit                       083 266 1766              IJR

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