15 February 2012

Flaws still plague the presidential pardons process

More than 12 months after its own deadline, the Department of Justice has written to SAHA regarding the proposed pardon of 149 criminal offenders. The documentation provided by the department reveals fundamental flaws in the consideration of pardon applications that, without correction, may result in the pardon of criminal acts unrelated to the fight for freedom and democracy.

In mid-October 2010 the department published a notice of 149 people that were intended to be recommended for presidential pardon on the basis of the political motive of their crimes. The purpose of the notice was to allow victims and other interested parties an opportunity to give their views in respect of the proposed pardons. This process of consultation was mandated by the court in 2009 after SAHA and other civil society organisations successfully obtained a court order to stop then President Mbeki from proceeding with the pardons before appropriate consultation was undertaken.

The notice published by the department set out a clear process for consultation. Victims and other interested parties were to write to the department notifying them of their interest in particular pardons matters within 30 days of the notice. The department was to thereafter respond to those communications within 30 days, at which point victims and interested parties would have a further 30 days in which to lodge detailed representations.

SAHA, together with other members of the South African Coalition for Transitional Justice, lodged notice of its interest with the department on 17 November 2010. After hearing nothing further from the department, SAHA assumed that the process had been abandoned. Yet, on 30 November, SAHA received a letter from the department acknowledging SAHA's expression of interest, providing some requested documentation and indicating SAHA had 30 days to submit detailed representations. The department made no reference to the more than 12 month long delay in responding to SAHA and its failure to comply with its own timelines.

The failure by the department to proceed in a timely manner and to continue to assert that victims must make submissions in accordance with the very short time frame originally established by the department suggests that the process of consultation is entirely superficial and that no real consideration will be given to submissions.

The documentation provided to SAHA reveals further cause for concern in respect of the pardon process. The process, initially established under former President Mbeki was, in his words, to ‘complete the unfinished business of the Truth and Reconciliation Commission'. However, in order to obtain amnesty from the TRC, an offender was required to make a full disclosure of their crime. Yet those now being recommended for pardon were not required to make full disclosure. In particular, pardon applicants did not have to disclose who gave them the command to undertake the criminal activity.

More astonishing still are the nature of some crimes committed by those now recommended for pardon. The perpetrators of crimes labeled as ‘fundraising' crimes, involving robberies, cash heists and bank fraud, that were committed as late as 1999 on behalf of the PAC have been recommended for pardon. Where such crimes were committed after the end of the armed struggle in 1994, it is impossible to identify a justifiable political motive for those crimes. Yet the recommendations for pardon have proceeded simply on the basis of the PAC's endorsement of the applications.

Perhaps the most concerning category of those recommended for pardon are those crimes labeled as ‘reactionary violence by AWB'. While it is claimed that offenders ‘driven by hatred or racism' were not recommended for pardon, it is impossible to sustain such a claim in the face of the recommended pardon of members of the AWB. The AWB was born of a belief in racial supremacy and its singular objective was to return South Africa to a regime of white domination. Those recommended for pardon perpetrated a wide range of violent crimes aimed at any black because they were black. For example, in the Worcester incident a supermarket was bombed because it was frequented by black persons. Such actions were clearly racially motivated and criminal in nature.

SAHA, together with the South African Coalition for Transitional Justice, will be making detailed submissions to the department about its handling of the process and the inappropriate nature of the recommendations made.