By Franny Rabkin
BEFORE President Jacob Zuma can consider whether to pardon people convicted of "politically motivated" crimes , he would have to hear from the victims of the crimes, the Constitutional Court said yesterday.
Chief Justice Sandile Ngcobo's ruling was a victory for the victims of political crimes, said Tsepho Madlingozi, of the civil society organisation the Khulumani Support Group, yesterday.
The judgment applies only to those who sought presidential pardons under a "special dispensation". The dispensation was established by former president Thabo Mbeki in 2007 to deal with the "unfinished business of the Truth and Reconciliation Commission ".
A coalition of civil society organisations, including Khulumani and the Centre for the Study of Violence and Reconciliation, had tried, to no avail, to get the process to include victim participation. It eventually launched a court battle.
Ngcobo said not allowing victim participation was unconstitutional because it was not rationally connected to the purpose of the special dispensation. It therefore violated the rule of law.
He said Mbeki was clear that the purpose of the special dispensation was national reconciliation and to deal with the Truth and Reconciliation Commission's unfinished business.
"Excluding victims from participation keeps victims and their dependants ignorant about precisely what happened to their loved ones; it leaves their yearning for truth effectively unassuaged; and perpetuates their legitimate sense of resentment and grief. These results are not conducive to nation-building and national reconciliation," Ngcobo said.
He said that before Zuma could decide whether to grant a pardon, he had to establish whether the offence was committed with a political motive.
"To do so, the president must hear (from) both the perpetrators and the victims," he said.
The Constitutional Court left open the question of whether presidential pardons amounted to administrative action — which would make them reviewable under the Promotion of Administrative Justice Act.
Ngcobo said it was unnecessary to deal with this question in this case as the court had already made a finding of unconstitutionality on the basis of rationality.
He said "judicial wisdom" required courts to develop law incrementally and only confront issues when a specific case required it.