By XOLANI SIMELANE
THE Department of Justice and Constitutional Development recently published a list of names of those who have been recommended for special political pardons.
The purpose of the publication of these names is to give victims of these crimes an opportunity to engage with the process.
This is an important step in the continuing process of lobbying and advocacy among political parties, perpetrators, victims and civil society organisations.
Ideally, such a process of consultation should bring joy to a number of South Africans, as it would suggest that we are making strides as a country with regards to healing and closure.
Instead, we are all holding our breath, wondering whether this will promote reconciliation or impunity, given the complexities of pardons in general and the history of pardons in South Africa in particular. This pardon process was initiated by former president Thabo Mbeki, who established a Pardons Reference Group consisting of 15 representatives from various political parties, to consider requests from those who claimed their crimes were politically motivated.
But the process was flawed in a number of instances. The process lacked transparency and the PRG refused to release information about the applications it had received or the recommendations it made.
Victims and other interest groups were actively excluded from the process by the PRG. It was only after the South African Coalition for Transitional Justice questioned the process and was forced to take the presidency to court that victim participation was entertained.
There are a number of unresolved issues that are still of serious concern: the political process that took place in negotiating between the various political parties; the morality of people being released who have committed many murders; and the reality that past beneficiaries of amnesties and pardons have gone on to commit further crimes, including murder.
Most of the incidents they have been convicted for took place during the mid-1990s in the KwaZulu-Natal Midlands. Political horsetrading in the reference group thus seems to have been between the ANC and IFP, who both stand to have numerous supporters released through this process. It also appears that the DA's representative went out to bat for his former apartheid colleagues (former minister Adriaan Vlok and his co-conspirators).
It would appear that none of the political party representatives stood up for the needs of victims. A process that merely represents a trade-off between various political demands for releasing perpetrators is hardly a recipe for reconciliation. A more politically balanced form of impunity does not provide a foundation for political stability.
It was only after the names were presented to the presidency that the interests of victims came to the fore, through the efforts of the coalition. The presidency was only forced to consider the interests of victims through litigation to the Constitutional Court, which then ordered that victims' interests must be included in the consideration of whether to grant pardons. The invitation for victim participation can now be viewed as a hoop that the presidency and perpetrators can jump through for the attainment of political goals. Victim participation is now merely an add-on.
The question that arises is whether victim objections to pardons will be taken seriously.
Some of these victims had their whole families wiped out. Surely a more sensitive approach is required. Another argument is whether victim participation or consultation is sufficient in granting a pardon. There might be reasons why victims chose not to object to a pardon being granted, including fear and trauma.
The reality is that when a contract killer who has killed numerous victims in a series of attacks is being considered for pardon, the victim will think hard about the consequences of objecting.
It mus be borne in mind that the list includes, for example, someone convicted of 21 murders and the killer of a nine-month-old baby. If rape had not been specifically excluded by the president's instructions, it would not have surprised us if the committee had considered (rapists) suitable for pardons as well.
The process can aid reconciliation. Whether benefits flow from the process is dependent on how serious the state is and whether political considerations are allowed to override concerns about victims' needs.
The writer is a researcher at the Centre for the Study of Violence and Reconciliation