“De Kock’s repugnant crimes make a pardon unthinkable. Many Khulumani members whose loved ones were killed or disappeared through Eugene de Kock’s activities on behalf of the illegitimate apartheid regime would not sleep at night if De Kock were to be freed.”
The Big Read: Khulumani Support Group recognises the constitutional right of the president to grant pardons to persons convicted of criminal offences.
We understand that the purpose of granting such pardons is for the president to have particular individuals released from prison after having served only part of the punishment imposed on them by a court of law, and/or to expunge their criminal records.
But the implementation of the president’s right to pardon certain individuals raises critical and sensitive questions because it removes from the decision-making process the mediating role of the justice system and it opens decisions to a range of influences.
What considerations will guide the president in making his decisions? Will the granting of pardons undermine the legitimacy of the justice system, which imposed the sentences?
These are pertinent questions, given the aberrant use of the law in our recent past to support and validate the unjust apartheid system over so many decades, and given the need now to build confidence that the law will be applied equally to all offenders, regardless of social status, power, wealth or influence.
For Khulumani Support Group, the critical question is how to avoid the president’s decision appearing to be arbitrary.
Any decision that is, or that appears to be, arbitrary would undermine the foundation of our country’s Constitution. And the president must uphold the Constitution.
We believe that, if the president is to be adequately and appropriately informed, and is to rigorously apply his mind to the granting of pardons, he would need to take into account the views of the victims and survivors of the crimes for which pardons are being considered.
These views should be current and not simply those that might or might not have been expressed during the criminal’s trial or at the time of sentencing.
Consideration of the perspectives of victims was a requirement of the amnesty process set up by the Truth and Reconciliation Commission.
We demand no less of the pardon process, in which former president Thabo Mbeki previously invoked the TRC, advocating that the special dispensation on pardons was necessary to take forward the TRC’s “unfinished business”.
We respectfully suggest that, before the president considers any application for a presidential pardon, he awaits the Constitutional Court judgment on the Albutt application: AWB member Ryan Albutt wants the Constitutional Court to overturn a decision of the Johannesburg High Court in March that interdicted the president from granting pardons to perpetrators of political violence without first consulting the victims of that violence.
Challenging the high court decision, along with Albutt, was the president and the minister of justice.
A network of civil society organisations, including Khulumani Support Group, opposed Albutt’s application.
Of particular concern was that Khulumani and its associates were able to discover the names of the criminals recommended for special pardons only through the papers filed by Albutt’s counsel when they applied to the Constitutional Court.
This was despite the high court having ordered the department of justice to provide our network with the list of convicted offenders who had been recommended for a pardon.
The National Prosecuting Authority and the government argued in the Constitutional Court that the president’s decision was his prerogative alone.
Though we acknowledge the right of the president to exercise his discretion in these matters, we do not believe that the current process is helpful, because it might create an opportunity for political deal-making.
We want a dispensation that is principled, that is impartial in its application and that takes account of the expectations of ordinary people that justice will be seen to be done.
As to the rumours relating to the possibility of a pardon for Eugene de Kock, the extent and repugnance of his crimes could surely not ever make him eligible for a pardon.
Many Khulumani members whose loved ones were killed or disappeared through Eugene de Kock’s activities on behalf of the illegitimate apartheid regime would not sleep at night if De Kock were to be freed.
- Jobson is national director of Khulumani Support Group, a national organisation for the survivors of apartheid atrocities and their families