Political parties are helping review applications for pardon from individuals who committed politically motivated crimes. In this de facto re-enactment of the TRC's amnesty process, the President has created a "Reference Group" to assess applications for pardon, a group that includes representatives of our 15 national political parties. This group has already started making recommendations to the President as to which wrongdoers may be regarded as political offenders. The group's recommendations could lead to the early release of these perpetrators and the erasure of their criminal records. But this time, the victims have no say in the process.
And this is a huge step backwards after the efforts made by the TRC to assert victims' rights.
In a bizarre twist of fate, those who were convicted of committing human rights abuses during apartheid and who thumbed their noses at the TRC are now having their cases reviewed by a political party panel. These cases are not being subjected to public exposure or formal legal hearings. Worst of all, victims are prohibited from participating. The victims, or relatives of those murdered are not given access to the information disclosed by the perpetrator. Victims are not given an opportunity to challenge the facts presented by the perpetrator, nor are victims permitted to state how such a pardon might affect them.
A pardon process is not itself a problem, but the potential political manipulation sets a dangerous precedent for our new democracy. Pardons are a part of our constitutional arrangement, and are designed to give the president final say in deciding the fate of those convicted in the courts. Generally such powers are used to relieve prison congestion or to grant mercy to those who have perhaps been harshly treated by the courts. In the case of politically motivated offences, it is an understandable response to those cases where individuals were not able to apply for amnesty through the TRC for various reasons. Both the IFP and PAC have argued that many of their members involved in the political struggle are still behind bars. Recognising this dilemma, President Mbeki announced the political pardons process to deal with this "unfinished business" of the TRC.
While the pardons Reference Group employ similar criteria to that used by the TRC's amnesty committee (full disclosure and political motivation), they have discarded what is arguably the most important and constitutionally entrenched requirements: the right of victims to be heard and to be given an opportunity to challenge the stories of perpetrators.
In contrast to the public hearings of the TRC, the Reference Group is meeting behind closed doors using undisclosed standards and principles. Requests for information about the names of pardon applicants and the group's rules and procedures have gone unanswered. As a result, no one outside of the Reference Group is in a position to challenge the alleged political motivation of the perpetrators
The Reference Group is under heavy pressure to deal with a huge caseload. They have reportedly received over 2300 applications and only have until 30 September to forward recommendations to the President. While the President is not obligated to act on these recommendations, the fact that they have been considered by all 15 political parties is likely to lend serious weight to the recommendations.
A network of NGOs approached the Reference Group to raise these concerns and to insist that it consult victims and make the process more transparent. The NGOs also offered to facilitate the involvement of victims in order to avoid long delays. The response from the Reference Group was a flat NO. They deny any obligation to consult with victims as part of the group's investigations or as a constitutional imperative. The huge gains made by the TRC in promoting a culture of victim empowerment, victim rights, public disclosure of the truth, and transparency of the process of justice are thus being undermined by a secret process endorsed by all political parties.
We strongly believe that political expediency is again threatening to trump our constitutional values of participation, openness and responsiveness. It appears that the human dignity of victims is not considered worthy of respect. It remains to be seen whether the President will rubberstamp this contaminated process, or whether he will insist that the rights of victims must be upheld.
On behalf of:
The Centre for the Study of Violence and Reconciliation
Khulumani Western Cape
The International Center for Transitional Justice
Human Rights Media Center
The Institute for Justice and Reconciliation
Friends of Khulumani
South African History Archive
In the Sunday Independent