03 February 2010

PRESS STATEMENT: Civil Society Coalition calls on DA to apologise to victims for lack of transparency in special pardons process

3 February 2010

For immediate release

Dene Smuts, Democratic Alliance (DA) Member of Parliament and shadow Minister of Justice, wrote in a Sunday newspaper that "the special pardon process ... is destroying the moral basis on which we tried to place amnesty when we legislated the TRC into existence." She also condemned the blanket secrecy under which special pardon process operated stating that "it is not only the victims who are disadvantaged by the lack of transparency that has marked this process; it is all of the people of South Africa."

The Special Dispensation on Political Pardons was established by former President Mbeki "to complete the unfinished business of the TRC". President Mbeki appointed a Reference Group comprised solely of political party representatives to process applications by convicted persons who claimed that they had committed politically motivated offences. This Reference Group (RG) was required to make recommendations to the President as to which persons to pardon or not. The RG was supposed to employ similar criteria to those used by the TRC's Amnesty Committee in making its recommendations; but unlike the TRC process, the RG process was secret and closed to the public. More specifically victims were not allowed to make representations or contest the claims made by perpetrators. The RG conducted no independent investigation or verification process to test the allegations made in the applications. The RG was chaired by Dr. Tertius Delport, then a senior MP of the DA and the party's spokesperson on justice.

Civil society organisations made numerous attempts during 2008 to persuade the Reference Group, and Dr. Delport in particular, to open up the special pardon process to public scrutiny and to permit the participation of victims. Dr. Delport, on behalf of the RG, steadfastly refused to do so. Moreover, Dr. Delport wrote to then President Mbeki advising him not to accede to the requests of the civil society coalition.

In August and September 2008, the civil society coalition sent letters to all political parties, including the DA, to register its concerns over the complete lack of transparency and victim involvement in the RG process. No response was received from the DA but Dr. Delport replied in his capacity as chairperson of the RG. He confirmed that the RG would not permit victim participation and nor would the RG lift its veil of secrecy. Since the DA did not contradict Dr. Delport and since he officially represented the DA on the RG we can safely assume that the DA formally approved the exclusion of victims as well as the blanket secrecy.

The uncompromising position of Dr. Delport and the RG (and subsequently that of interim President Motlanthe) ultimately forced the coalition to apply urgently to court for an interdict to restrain the President from granting any pardons under the special pardon process. The Pretoria High Court granted this order in April 2008 on the eve of the last general election. President Jacob Zuma then joined a member of the extreme right wing Afrikaner Weerstandsbeweging (AWB), who had been convicted of serious race crimes, in appealing the court order to the Constitutional Court. Judgment is awaited.

The civil society coalition calls upon the DA to withdraw its support for the flawed Special Dispensation on Political Pardons and its RG process. In particular the DA ought to repudiate Dr. Delport's insistence on maintaining secrecy as well as his refusal to permit victim participation. Moreover the coalition calls on the DA to offer a formal apology to victims for the role the party played in denying them a voice in the political pardons process.

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 and Piers Pigou -083 381 7150
• Khulumani Support Group: Marje Jobson - 082 268 0223
• 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): Gabriella Razzano - 011 717 1941

Background on those recommended by the Reference Group for a special pardon:

The papers filed before the Constitutional Court have revealed that amongst those recommended for a "political pardon" are serial killers, individuals who have also been convicted of armed robbery and housebreaking; perpetrators responsible for race crimes and who have only served a fraction of their sentences; together with well known figures such as Apartheid Police Minister Adriaan Vlok and Apartheid Police Commissioner Johan van der Merwe, who received suspended sentences for attempted murder.

It should be noted that the applications for presidential pardon by Eugene de Kock and Schabir Shaik were not made in terms of the Special Dispensation for Political Pardons. Their pardon applications will be considered by the President separately.

Those recommended for pardon under the Special Dispensation for Political Pardons include:

• an offender convicted for 21 murders and 15 attempted murders;
• an offender convicted for 19 murders and 14 attempted murders
• at least 16 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.