Special Dispensation on Political Pardons
At a joint sitting of Parliament on 21 November 2007, President Thabo Mbeki announced a special process for the handling of pardon requests made by “people convicted for offences they claim were politically motivated, and who were not denied amnesty by the [Truth and Reconciliation Commission (TRC)].” According to President Mbeki the aim was to assist the nation in resolving the “unfinished business” of the TRC. He said:
“As a way forward and in the interest of nation-building, national reconciliation and the further enhancement of national cohesion, and in order to make a further break with matters which arise from the conflicts of the past, consideration has therefore been given to the use of the Presidential pardon to deal with this ‘unfinished business.’”
The pardon process was subsequently extended to those perpetrators who had committed crimes after apartheid up to 16 June 1999.
In 2008, President Mbeki formally established a Reference Group made of representatives from political parties to make recommendations to him. Mbeki pledged that his pardoning decisions would be guided by the values and principles enshrined in the Constitution, as well as the “principles, criteria, and spirit” of the TRC. Unlike the TRC however, the Reference Group was comprised only of politicians and it excluded any involvement of the victims. Moreover, all of its proceedings were conducted secretly and none of the applications for pardons have been disclosed to victims, interested parties, or the public.
On 16 January 2008, the Presidency released a press statement announcing the beginning of the period of applications for political pardons, which ran until May 2008. The press statement belied the real reason for the process, as it spoke of applicants being “considered for amnesty” rather than pardon.
The Reference Group, which was responsible for considering the pardon applications, refused to allow victims and the public access to their information (i.e., Terms of Reference and the list of persons who had applied for a political pardon), and did not permit victims to participate in the process or make representations to them. The Reference Group’s Terms of Reference were published months after the beginning of the process. The civil society groups have strongly opposed the pardon process in this form. In 2011, a coalition of these organisations became known as the South African Coalition of Transitional Justice.
The 2300-strong list of pardon applicants was only secured through a PAIA application towards the end of 2008. Among others, the list included apartheid-era police minister, Adriaan Vlok, and former apartheid police minister Adriaan Vlok, former police chief General Johann van der Merwe and the three co-accused in the attempted murder of Chikane.
The Reference Group ultimately recommended to President Motlanthe, who was Mbeki’s successor, that 150 persons be granted a political pardon, including the accused in the Chikane matter. The civil society organisations made multiple attempts to persuade the Reference Group and the President to change course and incorporate victims into the pardon process without success.
Eventually, in 2009 a group of human rights organisations approached the Pretoria High Court seeking to interdict President Motlanthe from issuing any pardons until victims and other interested parties fully participate in the pardon process. The civil society organisations submitted in their court papers that the special dispensation on political pardons amounted to an impermissible rerun of the TRC, unlawfully excluded the participation of victims, violated the rule of law, and infringed victims’ rights. On 28 April 2009, Seriti J handed down judgment in which he granted an interim interdict restraining the President from handing down any pardons under the special dispensation for political pardons.
Ryan Albutt, one of the right-wing AWB (Afrikaner-Weerstandsbeweging) members convicted for carrying out a campaign of violent terror against black people in Kurman, and President Jacob Zuma, took the High Court decision on appeal to the Constitutional Court.
The Constitutional Court in Albutt ruled that no political pardon could be issued without first affording the victims a hearing. Because these pardons were designed to complete the “unfinished business” of the TRC, Chief Justice Sandile Ngcobo held
“the principles and the spirit that inspired and underpinned the TRC amnesty process must inform the special dispensation process whose twin objectives are nation-building and national reconciliation. As with the TRC process, the participation of victims and their dependants is fundamental to the special dispensation process.”
As a result of the judgment by the Constitutional Court, the Department of Justice and Constitutional Development allowed the victims and their families to participate in the process by granting them 30 days to respond to the published list of applicants, without however, contacting them directly or providing further information on the process or applications.
All subsequent administrations, including President Zuma, have been trying to move the pardon process forward, but the process was eventually abandoned with no political pardons being granted.
The full court papers related to the Special Dispensation on Political Pardons can be accessed HERE.