South African president Jacob Zuma must consult with victims before issuing any pardons for prisoners convicted of politically motivated crimes during the apartheid era. That’s according to a ruling by the country’s constitutional court.

By Elles van Gelder, Johannesburg

Three years ago, former president Thabo Mbeki created the so-called special pardons process. The process was aimed at completing the work of the Truth and Reconciliation Commission (TRC) set up in 1995. Victims and perpetrators of gross human rights violations were invited to give statements before the TRC and perpetrators could request amnesty from both civil and criminal prosecution. The TRC ended its work in 1998 and as a follow up, Mbeki established the pardons committee - consisting of representatives of all political parties - to consider applications for pardon and make recommendations to the president.

The committee evaluated more than 2,000 applications for presidential pardons from political prisoners who did not participate in the TRC and who committed offences before June 16th, 1999.

People who applied for a pardon have been convicted of criminal offences including murder, bombings, kidnapping and acts of racial violence. But unlike the TRC, the pardons committee refused to allow the victims of these crimes to participate in the process, saying that consultation wasn’t part of their mandate.

President Mbeki and his successor, Kgalema Motlanthe, also refused to allow input from victims.
A network of South African civil society organizations fought for the inclusion of the victims and won their case before the high court in April of last year. But Ryna Albutt, a member of the extremist right-wing group Afrikaner Weerstandsbeweging – or Afrikaner Resistance Movement - who had applied for a pardon himself, appealed against the ruling. Albutt participated in a 1995 attack in Kuruman, Northern Cape, in which one person died and 200 were injured. The president, along with the justice and constitutional development ministers, supported Albutt’s application, but the fight ended with a win for civil society before the constitutional court on February 23rd.

The ruling means that, if President Zuma wants to grant a special pardon to Albutt or anybody else, he needs to hear from both perpetrators and victims.

Landmark decision
Comfort Ero, who directs the Cape Town office of the International Center for Transitional Justice and is a member of the coalition that fought for the victims, welcomed the verdict: “This landmark decision is a great moment for survivors and victims of the apartheid era,” he said.

Chief Justice Sandile Ngcobo noted in his ruling that, given the country’s history, victim participation was the only rational means of contributing to national reconciliation and national unity. Before the president can grant a pardon, the court said, he must establish the facts in accordance with criteria set out in the special dispensation; that is, whether the crime was committed with a political motive.

To reach a decision on this issue, the president needs to hear from both perpetrators and victims. Decisions based only on the perpetrator’s version of events, Ngcobo said, are likely to be arbitrary and were “entirely inconsistent with the principles and values that underlie our constitution”, such as the “principles of accountability, responsiveness and openness.”

Not a veto
Fanie Du Toit of the Institute for Justice and Reconciliation - part of the coalition that went to court - agrees and says the ruling has increased the transparency of the pardon process. “The problem is that nobody knows the criteria used to decide who is granted a pardon. The input of the victim is not a veto, the president still decides. But the victim can make his case heard and if the president decides against what the victim wishes, this can be discussed out in the open. This way there is less space for opportunism from the president in his decision who to hand a pardon.”

Moreover, adds Du Toit, the ruling will help victims find emotional closure. “It will restore their human dignity to have a voice.”

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