Success for SAHA and Pardons' Coalition in the Constitutional Court

In 2009 SAHA were involved as the Fifth Respondents in a case heard before the Constitutional Court: Albutt v the Centre for the Study of Violence and Reconciliation and Others. Today, on 23 February 2010, the Constitutional Court handed down judgment of the case in favour of SAHA and its Coalition partners, dismissing Albutt's attempts to override the earlier interdict gained by the Coalition in the Gauteng High Court.

The Constitutional Court's judgment expressly held that victims participation was a necessary aspect of the Special Dispensation pardons process, as the process was founded on the same principles of national reconcialltion and nation building as had underscored the Truth and Reconciliation Commission. As such, because the President and his decision makers had refused victims the right to be heard, the President was said to have acted irrationally. This means that the interim order administered by the Gauteng High Court previously against the process, will stand. Victims are now required to be included in the process as their right.

Though the judgment was expressly limited to the Special Dispensation pardons process, some general principles may affect other forms of pardons processes in the future. The President will always have to make pardon's decisions in a manner which is rational, in good faith, and in line with the principle of legality. His acts are necessarily, and expressly, limited by the Constitution. It is therefore difficult to imagine future types of pardons processes which could be held to be rational without victims participation, given the typical aims of such processes.

As SAHA noted in the subsequent Press Conference, victim participation is intrinsic to redressing past injustices in a fair and inclusive manner and this judgment has confirmed the fact that access to information is a vital tool not only in victim healing, but also in promoting transparent decision making at all levels in South Africa.

SAHA would like to extend its support to the victims, and their communities, and we hope that this judgment goes some way to alleviating the pain and suffering they have experienced due to South Africa's turbulent past.