11 November 2009

SAHA sees positive messages in Constitutional Court hearing

On 10 November 2009 SAHA, acting as the Fifth Respondent, was represented in the Constitutional Court in the case of Albutt v The Centre for the Study of Violence and Reconciliation and Others, CCT 54/09. SAHA, as part of a coalition of civil society organisations, appeared in court to oppose an application made by Mr Albutt, a former member of the AWB, in which he sought to restart the pardons process in which he had been recommended for pardon. This was following a previous victory in the High Court by SAHA and the coalition to halt the pardons process, on account of the fact that there had been no consultation with victims of the crimes in the process at all.

The Constitutional Court, with its newly constituted bench, sat until after 4 o'clock listening to counsel from both sides. SAHA, represented in court by Senior Counsel Geoff Budlender, appeared to be positively received by the Justices. Most important, though, were the attitudes which the court reconfirmed had to be considered in any application of this nature. Justice Cameron noted generally, for instance, that this particular pardons process was of a special dispensation which always had to fall broadly under national reconciliation concerns. Deputy Chief Justice Moseneke also went on to ask counsel for the applicant, in a pertinent question for all concerned, as to how it could ever be imagined that questions and fact finding could happen in a pardon process where only perpetrators were given a voice, but not victims?

Khulumani Support Group had organised for a number of their members to be present at the Constitutional Court and it is believed that the presence of these victims did much to refute the submission by the applicant's counsel that victims need not be consulted as they would probably all support the pardon of the perpetrators anyway.

While the case is still being decided, with judgement possibly being delayed as the justices wish to seek clarity on issues concerning the Promotion of Administrative Justice Act (PAJA) in the case, the day was a positive one where at the very least notions of justice, victim participation, and the true meaning of reconciliation and fact finding were brought to the fore by the Court itself, reconfirming the broad concerns of the coalition.

The coalition is made up of the following civil society organisations:

Centre for the Study of Violence and Reconciliation (CSVR)
Freedom of Expression Institute (FXI)
Human Rights Media Centre (HRMC)
International Centre for Transitional Justice (ICTJ)
Institute for Justice and Reconciliation (IJR)
Khulumani Support Group
Legal Resources Centre (Cape Town)
South African History Archive (SAHA)