What is the Presidential Pardon process? –

The Special Pardons Process (also known as the Special Dispensation on Presidential Pardons) was established by President Mbeki to deal with the “unfinished business of the TRC”.? The essential aim was to permit those who did not apply for amnesty an opportunity to apply for a ‘political pardon’.

Like the TRC’s amnesty process it was based on disclosure and the showing of political objective, although the cut off date for offences was extended through to 1999.? It was launched at the beginning of last year with the creation of a Reference Group comprised only of political party representatives (chaired by former NP cabinet minister Tertius Delport).? Unlike the TRC’s Amnesty process, the Special Pardons Process operated under blanket secrecy.? None of the applications for pardons have been disclosed to victims, interested parties or the public.

The terms of reference of the Reference Group states specifically that because the TRC’s amnesty provisions had lapsed that the President was invoking his pardon powers.? The effect of a pardon, like an amnesty, is release from prison and any other sanction, together with the expunging of the criminal record of the offender.

How many political cases are currently in the application process for Presidential Pardons?

More than 2100

What say do the victims have in whether or not these people may or may not be pardoned?

None at all!? This was not a mere oversight on the part of the Reference Group and the President.? The Reference Group (RG) was specifically asked on several occasions (by a coalition of civil society groups) to permit victim inputs.? The RG specifically refused to do so.

The RG also refused an offer by the civil society coalition to facilitate victim inputs in those cases which the RG had recommended for pardon.? The RG declined to disclose which cases it recommended to the President.? (Press reports indicate that approximately 120 applications were recommended for pardon).

Both former President Mbeki and current President Motlanthe were asked to intervene and require the RG to do so.? Both ignored these requests.? This is despite the fact that President Mbeki had stated before a joint sitting of Parliament in November 2007 that the special pardons process would respect the “principles, values and criteria of the TRC” and particularly its amnesty process.

Pardon applicants include former Police Minister, Adriaan Vlok, former Commissioner of Police, Johan van der Merwe, and security force hit-man, Ferdi Barnard. Other applicants include AWB members who bombed a supermarket in Worcester on Christmas Eve of 1996 killing four, more than 2 years into South Africa’s constitutional democracy.? ? Among the victims was a 9 year old girl.? Those injured and permanently maimed, as well as the families of the 4 murdered, are denied a say in the pardon process.

The civil society coalition argued in court last Tuesday that since the President chose to impose specific criteria for the qualification for a pardon, namely disclosure and the showing of a political objective, he was obliged to ensure that a fair process properly determined that the criteria were satisfied.? A one sided process, in which only the views of perpetrators were heard, could never determine whether the criteria had been met.? This renders the process, and any subsequent Presidential decision, not only manifestly unfair but also arbitrary and unconstitutional.

What has the President said on this matter so far?

In December the President was specifically asked not to issue political pardons without victim inputs.? Although he undertook not to do so, pending an investigation into the question of victim participation, he withdrew this undertaking in March of this year, which forced the civil society to take urgent legal action.? His office claimed that the exclusion of victim participation was “regular”.

What is the importance of your court appearance in the coming week?

This week judgment will be handed down by the Pretoria High Court on the question of whether an interim restraining order should be made preventing the President from proceeding with pardons, pending the final determination of the application.

What is the significance of a loss or a win in court?

If the court refuses to grant an interim restraining order it is likely that the President will proceed to immediately issue pardons.? Although civil society can appeal it will very difficult if not impossible to reverse the release of the pardon applicants.? If the court grants the interim order the President will be restrained from proceeding until the matter is finally determined on the return day.

The civil society coalition which brought the urgent legal action includes Khulumani Support Group, the International Center for Transitional Justice, the Centre for the Study of Violence and Reconciliation, the South African History Archives, the Institute for Justice and Reconciliation, the Human Rights Media Centre and the Freedom of Expression Institute.

The application is supported by former Chairperson of the TRC, Archbishop Emeritus Desmond Tutu and the Director of the South African Human Rights Commission, Jody Kollapen.? Both filed affidavits in support of the application.

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