The Civil Society Coalition on the Special Dispensation on Presidential Pardons notes the statement released on 10 June 2009 by the Presidency on the special dispensation for political pardons. The statement refers to an article that appeared in Sowetan newspaper on Tuesday, June 9, 2009 which reported that but for the court interdict granted to the civil society coalition, former President Motlanthe would have granted so-called political pardons under the special dispensation.
The Presidency's statement is contradicted by former President Motlanthe's sworn affidavit before the Pretoria High Court. The former President stated in his affidavit that "but for the present application" he would already have finalised the special pardon process. This concession confirmed the very real fears of the coalition that if the court application was not brought on an urgent basis, former President Motlanthe would have issued political pardons on the back of an unfair and constitutionally invalid process.
The Presidency states further in its press release that the President "is not bound to agree with the recommendations of the reference group" and so he would not necessarily have pardoned all those recommended for pardon. Included on the list of those recommended for pardon by the Pardons Reference Group are several perpetrators convicted for racist attacks and killings. While the President is not bound by the recommendations of the Reference Group, the fact remains that such recommendations are the only recommendations before him. Accordingly, such recommendations are likely to carry considerable weight in his decision making.
In exercising his discretion to pardon, the President is expected to formulate an independent and objective opinion on the basis of the facts and information placed before him. However, he is in no position to do so since the facts and information before him constitute only one side of the story. Given that the only representations before him are from perpetrators, political parties and the reference group (comprising only of political party representatives), there are no facts and information from any other affected parties that may:
• confirm or rebut claims made by perpetrators that the crimes in question were politically motivated and not for some other criminal purpose;
• confirm or rebut the truthfulness of the disclosures made by perpetrators;
• highlight the possible egregious circumstances of the crimes;
• present a first-hand account of the harm caused by the crime; and
• highlight the implications and impact of the grant of a pardon on identified individuals and communities.
The coalition is particularly disturbed that the President and his predecessors chose specifically to exclude the views and representations of victims and other interested persons from the political pardons process. The coalition engaged in extensive communications with the reference group and with former Presidents Mbeki and Motlanthe in an effort to persuade them to open up the process to victims. All these requests were refused. Indeed former President Motlanthe, in declining to do so, described the special pardons process as "regular".
It was open to current President Zuma to start afresh and introduce a fair process, which includes the views of victims and those with a direct interest. So far he has chosen not to. Instead he has opted to launch an appeal against the interim order granted by the High Court (even though the appeal is manifestly not appealable as it is not a final order).
The list of those recommended for pardons discloses that there is something seriously wrong with the Special Dispensation on Political Pardons. Those recommended for pardon include:
• an offender convicted for 21 murders and 15 attempted murders;
• an offender convicted for 19 murders and 14 attempted murders
• at least twenty offenders each convicted for 4 or more murders;
• offenders convicted, in addition to murder and attempted murder, for crimes such as kidnapping, robbery with aggravated circumstances, arson, housebreaking, theft and unlawful possession of explosives, weapons and ammunition;".
• an offender (arrested for a bombing) who escaped from custody and then went on to commit another bombing killing 4;
• several offenders who committed senseless acts of racial violence well into South Africa's constitutional democracy.
Such recommendations for pardon induce a sense of real shock and outrage in the wider community. They speak to how defective and inappropriate the special pardons process was. The coalition calls upon President Zuma to abandon the special pardons process. Should he wish to pursue with such political pardons he must abide by South Africa's cherished constitutional values of openness and responsiveness
On behalf of:
• Centre for the Study of Violence and Reconciliation (CSVR): Hugo van der Merwe, - 082 570 0744
• International Centre for Transitional Justice (ICTJ): Comfort Ero - 082 927 8203
• Khulumani Support Group: Marje Jobson - 082 268 0223; Tshepo Madlingozi 082 496 9914
• Institute for Justice and Reconciliation (IJR): Fanie du Toit - 083 266 1766
• Human Rights Media Centre (HRMC): Shirley Gunn - 082 450 9276
• Freedom of Expression Institute (FXI): Melissa Moore - 082 924 8268
• South African History Archives (SAHA): Fritz Schoon - 074 306 7327
• Legal Resources Centre (Cape Town): Lwazi Kubukeli - 084 742 4932