PRESS STATEMENT: Landmark Constitutional Court judgment on special pardons is a significant victory for victims' rights
23 February 2010
For immediate release
In a landmark judgment, the Constitutional Court affirmed today that victims have a right to be heard in the special pardons process.
The special dispensation process had been created by former President Thabo Mbeki in 2007 to deal with pardon applications from persons convicted for offences they claimed were politically motivated, but who did not participate in the Truth and Reconciliation Commission (TRC). Some 2000 convicted persons had applied for pardon under this special process. Former Minister Adriaan Vlok and former Police Commissioner Johan van der Merwe; as well as several far right wing prisoners convicted of racially motivated crimes had been recommended for pardon by the political party reference group established by President Mbeki to process the pardon applications.
The political party reference group, headed by former DA justice spokesperson Tertius Delport, refused to allow victim participation. President Mbeki and acting President Motlanthe also refused to allow victim inputs. This prompted a coalition of civil society organizations to urgently apply to the Pretoria High Court to protect the interests of victims. The High Court issued an interim interdict restraining the President from granting pardons under the special dispensation. Today, the appeal launched by the President (and a right wing prisoner) against this order was dismissed by the Constitutional Court.
The Constitutional Court, in a unanimous judgment, found that the decision to exclude the victims from participating in the special dispensation process was irrational and contrary to the rule of law. The Court also ruled that the historic and context-specific features of the special pardons process required the President to give victims a hearing. The Court found that it did not need to decide whether the Presidential pardon power was bound by administrative justice rules and left this question open.
Writing for the full court, Chief Justice Ngcobo noted that the exercise of the power to grant pardons must be rationally related to the purpose sought to be achieved by the power. The objectives that the special pardons process sought to achieve were "national unity and national reconciliation". President Mbeki had announced that these objectives were to be achieved through the application of the "principles, criteria and spirit that inspired and underpinned the process of the TRC, especially as they relate to the amnesty process" The Court confirmed that "as with the TRC process, the participation of victims and their dependants is fundamental to the special dispensation process."
Ngcobo CJ held that "given our history, victim participation in accordance with the principles and the values of the TRC was the only rational means to contribute towards national reconciliation and national unity. It follows therefore that the subsequent disregard of these principles and values without any explanation was irrational".
The Court also held that "before the President decides whether to grant pardon, he must establish the facts in accordance with the criteria set out in the special pardons process, namely, whether the offence was committed with a political motive. To do so the President must hear both the perpetrators and the victims". The Court was constrained to hold that it was "difficult to fathom how the President can establish the truth about the motive with which a crime was committed without hearing the victim of that crime". The Chief Justice found that decisions based only on the perpetrators' versions and their supporting political parties are likely to be arbitrary. He noted that such decision making was "entirely inconsistent with the principles and values that underlie our Constitution", such as the "principles of accountability, responsiveness and openness". The Court accordingly held that victims "are entitled to be given the opportunity to be heard before the President makes a decision to grant pardon under the special dispensation".
In an important concurring judgment Justice Froneman held that the President must always act in accordance with the rule of law, even when exercising executive functions. Justice Froneman noted that the rule of law in South Africa is rooted "in the context of our recent history - the political strife that preceded and accompanied the birth of our democracy" as well as in "pre-colonial history and in our own conception of democracy".
Justice Froneman noted that "the democracy our Constitution demands is not merely a representative one, but is also, importantly, a participatory democracy" which holds true for the nature of the power exercised by President in this case. He noted that while it may be necessary for this process of national unity "not to punish those who have flagrantly violated the law",5 it needs to be remembered that this flies in the face of what is conventionally associated with the rule of law" which highlighted the need for victim participation.
Justice Froneman noted that victim participation finds support in "the African legacy of participation of citizens in affairs of the society, a tradition that runs deep in the lives of many people in this country."
President Jacob Zuma is now required to consult with victims before granting any pardons under the special process for political pardons. The civil society coalition regards this judgment as a highly significant victory for the rights of victims.
- Marje Jobson, Khulumani Support Group, phone: 082 268 0223 email: firstname.lastname@example.org
- Shirley Gunn, Human Rights Media Centre, phone: 082 924 8268 email: email@example.com
- Melissa Moore, Freedom of Expression Institute, phone : 082 924 8268, email: firstname.lastname@example.org
- Comfort Ero, International Center for Transitional Justice, phone: 082 927 8203, email: email@example.com
- Fanie Du Toit, Institute for Justice and Reconciliation, phone: 083 266 1766, email: firstname.lastname@example.org
- Gabriella Razzano, South African History and Archives, phone: 011 717 1941, email: email@example.com
The Coalition was represented by the Legal Resources Centre, contact: Steve Kahanovitz, phone: 021-481-3000, email: firstname.lastname@example.org
It should be noted that the Constitutional Court judgment only applies to the pardons under the special dispensation for political pardons. The judgment will have however strong persuasive effect on other pardon applications. This is particularly the case in respect of those pardon applicants claiming that their offences were committed within a political context.
Those recommended for pardons under the special dispensation for political pardons include:
- an offender convicted for 21 murders and 15 attempted murders;
- an offender convicted for 19 murders and 14 attempted murders;
- at least 16 offenders each convicted for 4 or more murders;
- offenders convicted, in addition to murder and attempted murder, for crimes such as kidnapping, robbery with aggravated circumstances, arson, housebreaking, theft and unlawful possession of explosives, weapons and ammunition;".
- an offender (arrested for a bombing) who escaped from custody and then went on to commit another bombing killing 4;
- several offenders who committed senseless acts of racial violence well into South Africa's constitutional democracy.
Some of the perpetrators appear to be serial killers. Several have only served a fraction or small portions of their sentences. Some were also convicted for robbery with aggravated circumstances, arson, housebreaking and theft. This suggests that these offenders were not political offenders but rather straight forward criminals, even habitual criminals. This highly irrational outcome was not surprising given that nobody was allowed to
- confirm or rebut claims made by perpetrators that the crimes in question were politically motivated and not for some other criminal purpose;
- confirm or rebut the truthfulness of the disclosures made by perpetrators;
- highlight the possible egregious circumstances of the crimes.