THE South African Human Rights Commission (SAHRC) has added its voice to a coalition of civil society organisations calling for a revision of a presidential pardon process to address politically motivated crimes.
On the list of people who applied for presidential pardons are Ferdi Barnard (who murdered anti-apartheid activist David Webster), former apartheid police chief Johann van der Merwe and former law and order minister Adriaan Vlok.
The process was initiated by former President Thabo Mbeki to deal with the "unfinished business of the Truth and Reconciliation Commission" (TRC).
Mbeki established a parliamentary reference group, comprising representatives of all the political parties in Parliament, to consider and make recommendations for pardons in relation to "politically motivated offences before June 16 1999".
Tertius Delport, Democratic Alliance (DA) MP who chairs the reference group, says that out of 2300 applications, about 105 pardons for politically motivated crimes have already been recommended to President Kgalema Motlanthe.
The vast majority were rejected. He says there are about 250 applications that the committee must still consider.
Delport does not want to disclose who the reference group had recommended. He says he cannot even say which political parties they came from, because "that issue is so irrelevant".
The coalition, which includes the Centre For the Study of Violence and Reconciliation, the International Centre for Transitional Justice, the Khulumani Support Group and the Freedom of Expression Institute, has threatened legal action against Motlanthe should he grant presidential pardons for apartheid-era crimes.
It says the process is problematic because it does not allow for victims to make representations or require that applicants fully disclose all the facts regarding the offences related to their applications for pardon.
SAHRC chairman Jody Kollapen says that if a special mechanism is set up to complete the unfinished business of the TRC, "it should follow the philosophy and architecture of the TRC".
Kollapen says one of the big differences between the TRC and the pardons process is that "central to the TRC process was victim participation".
"It would have been inconceivable for the TRC to have happened without the participation of victims or their families. So, at the very least, victims should have been informed and given the opportunity to make representations."
Another big difference is that the TRC required that applicants for amnesty made "full disclosure" of all the facts related to their actions.
Delport has confirmed to Business Day that there was no such requirement for recommendation by the reference group.
In Vlok's case, National Director of Public Prosecutions (NDPP) Vusi Pikoli refused Vlok's request not to charge him for the attempted murder of Rev Frank Chikane because Vlok had not made full disclosure. Full disclosure was one of the requirements of the National Prosecuting Authority's prosecution policy.
In particular, Vlok did not disclose the contents of a list of high-profile anti-apartheid activists — of which Chikane was just one — also meant to be "acted against".
Vlok then entered into a plea bargain agreement. He pleaded guilty to the attempted murder of Chikane in return for the charges being dropped on conspiracy to commit murder of the "unknown persons" on the list.
Since there is no requirement for full disclosure, Vlok and others may be recommended for pardon without having to disclose anything, and the list may never be revealed.
The coalition is also concerned that the process happened behind closed doors. The TRC process was a public one and the prosecutions policy at least requires that the NDPP give reasons if it refused to prosecute.
But Delport says there is no requirement in Mbeki's terms of reference for full disclosure or victim participation.
Delport says that presidential pardons are entirely within the discretion of the president and had been found to be constitutional by the Constitutional Court.
Delport also says the process "was not the unfinished business of the TRC" because his group was "mandated to look at people who committed political crimes right up until 1999".
He says representations from victims were never taken into account in the pardon process and to do so would have been embarking on a "semi- judicial process".
Delport says that the committee is merely an advisory one — ultimately the president decides. But the coalition is convinced that the pardons process violates the rights of victims to just and fair administrative process, dignity, life and equality. They also say that there is a conflict of interest because the reference group is comprised entirely of representatives of political parties.
Delport was a deputy minister of provincial affairs in the apartheid government.
The coalition wrote to Motlanthe last month asking him not to give pardons until victims had been consulted. Motlanthe has replied that he was taking legal advice from Justice Minister Enver Surty and, until Surty makes a recommendation, nothing will be done.
The group now wants to meet urgently with Surty. But it says if the pardons go ahead, it will seek to interdict the president in court.
In Business Day, 22 January 2009.