By Christelle Terreblanche
The furore over possible presidential pardons for both convicted murderer Eugene de Kock and fraudster Schabir Shaik is likely to rage on, as the chances of President Jacob Zuma announcing any decision this week appear to be slim.
Zuma will be abroad until February 2, two days before the second of two current court challenges relating to pardons will be argued before the Constitutional Court.
Judgment in the two cases is expected to provide clarity about the constitutional constraints Zuma will have to take into account if he wants to continue the practice, regarded by many as an outdated relic from the days when South Africa was a British colony.
The Young Communist League (YCL) on Monday slammed the possibility that "savages" like De Kock might be released, along with the killers of SACP leader Chris Hani. De Kock was granted amnesty for a range of political atrocities, but is serving a sentence of more than 200 years, mostly for ordinary crimes.
YCL spokesperson Gugu Ndima said their concern centred on the fact that "there were still many unanswered questions" around those clamouring for pardons.
"The YCL respects the president's executive powers to make presidential pardons," Ndima said. "However, we firmly believe that any attempt to release De Kock will be deemed as counter-revolutionary, and we will stand firm in opposing that decision, provided it is taken."
The fact that current political pardon processes made no explicit provision for further disclosures of the truth was one of the arguments raised by a consortium of civil society organisations in a high court bid to stop a special pardon regime announced by former president Thabo Mbeki in 2007.
The high court issued a temporary interdict against granting pardons to 121 candidates recommended by Mbeki's multiparty Pardons Reference Group. The group was set up after years of wrangling over whether the Truth and Reconciliation Commission amnesty cut-off date of 1996 was adequate. Mbeki extended the date for political pardons to 2004.
The civil society consortium, led by the Centre for the Study of Violence and Reconciliation (CSVR), argued that the Mbeki process constituted a rerun of the TRC amnesty process, but crucially excluded victims from making representations. Mbeki's plan also ignored the international practice of enacting an enabling law to govern pardons and amnesty.
Constitutional Court judges in November 2009 reserved judgment in a case brought by an Afrikaner Weerstandsbeweging member who appealed against the CSVR high court decision.
On February 4, lawyers for the IFP will ask the Constitutional Court to hold the Presidency accountable for a seven-year delay in processing the pardon applications of 384 "political prisoners".
The court ruled in September last year that the IFP should sue the Presidency because the justice minister – who the party had sued earlier – could not be held accountable for the delay.
CSVR researcher Hugo van der Merwe said on Monday Zuma was likely to wait for judgment in the two Concourt cases before making a decision, as his attempted "balancing act" in offsetting Shaik's pardon with that of De Kock had not been widely supported.
"We are essentially hoping that both judgments will set out basic principles for all cases of pardoning, such as that victims have to be consulted and that the perpetrators have to commit to some form of truth disclosure."
Both cases are focused on a narrow group of perpetrators, however, and were argued on individual merits.
Constitutional expert Loammi Wolf, of the global Democracy for Peace initiative, commenting on Zuma's intention to pardon both Shaik and De Kock, said: "It threatens to degenerate amnesties for political offences of the past into a 'tradeable object'. This is certainly not in the interest of reconciliation."