Victory in Pardons Process

South Africa: Victory in Pardons Process, Serious Follow Up Needed

CAPE TOWN, October 19, 2010—In the culmination of a long struggle by victims and civil society groups, the Department of Justice yesterday published the names of 149 convicted persons who have been recommended for a presidential pardon in terms of the Special Dispensation created by former President Mbeki in 2007, and invited victims to make written representations on whether or not a pardon ought to be granted to a particular applicant.  

“Victims can now participate in the pardons process, and that’s a big step forward. We urge the Department of Justice to individually contact victims to inform them of this process, and also initiative a major media campaign,” said the South African Coalition for Transitional Justice today.

Yesterday was the culmination of a long struggle by victims and civil society groups to force the President and his government to consult with victims before proceeding with the granting of political pardons.  

The applications for special pardons were handled by a reference group, established in 2007, comprised only of political party representatives who met behind closed doors. Victims and other interested parties were not allowed to make representations. The reference group refused initially to release the names of those who applied for the special pardon, but this information was eventually disclosed through a Promotion of Access to Information Act application.

The exclusion of victims in the decision-making process forced the Coalition to go to court in early 2009 to interdict the President from issuing any pardons until victims had been properly consulted. The President then joined members of the AWB in taking that judgment on appeal to the Constitutional Court, which ruled on February 23, 2010 that victims had to be consulted.

Since that judgment, the Coalition tried to liaise with the President’s lawyers to propose a suitable process through which victims could participate effectively in the process in line with the order of the Constitutional Court. The publication of the notice yesterday was the result of a long process of engagement to force the President and the Department of Justice to give consideration to the views of the victims of these “political offences.”

While yesterday’s news is a significant development, much remains to be done. The organizations comprising the Coalition stand ready to assist victims to make their representations. We hope that the government will make a serious effort to contact victims through an all encompassing media campaign, involving the press, radio and TV. We hope that the Department of Justice will contact victims individually and not simply rely on adverts in the media. The coalition encourages government wherever possible to contact victims directly by post, telephone or email to inform them of this process. The Department of Justice should also notify victims of their right to legal assistance through Legal Aid South Africa.

We are disturbed that the Government’s notice to victims does not indicate whether victims will have access to the written application for pardon made by each offender. The notice also does not state whether victims will be supplied with the reasons provided by the Reference Group for each recommendation for a special pardon. Victims naturally need such essential information in order to be able to properly make representations on whether a pardon should be granted or not. We call on government to facilitate access to this information in each case.

We note with surprise that there are several individuals on the list of offenders recommended for pardon who are serial killers and who have engaged in crime such as theft and robbery with aggravating circumstances. Such crime can hardly be described as political. Many of these individuals still represent a serious threat to society. Some have served only a fraction of their sentences.

The list of those recommended for pardon discloses that there was something seriously wrong with the Special Dispensation on Political Pardons. Those recommended for pardon include:

• two offenders convicted for 21 murders each and 28 attempted murders between them;

• an offender convicted for 19 murders and 14 attempted murders;

• thirty offenders each convicted for 4 or more murders;

• offenders convicted, in addition to murder, for crimes such as robbery with aggravated circumstances and theft;

• an offender (arrested for a bombing) who escaped from custody and then went on to commit another bombing killing 4; and

• 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.

We regret that we have had to compel our government to consult with victims. The fact that the government was quick to provide special and lenient measures for perpetrators while failing to implement the TRC’s recommendations for victims represents a gross injustice. The conduct of government in the Special Dispensation on pardons has not advanced social reconciliation in South Africa.