(PLEASE NOTE: Khulumani is a member of the Coalition for Transitional Justice referred to in this article.)
The Worcester bombers who killed three children and two adults, and injured 67 others in a Christmas Eve attack at a supermarket in 1996, could be exonerated along with a range of high-profile SA criminals in terms of newly proposed presidential pardons.
Also set to be pardoned, if efforts by NGOs fail to halt the government move, are apartheid-era police heads Adriaan Vlok and Johann van der Merwe, implicated in the attempted murder of churchman and UDF activist Frank Chikane – by impregnating clothing destined for Chikane with organo-phosphate poison.
Challenging the proposed pardons is NGO umbrella body the Coalition for Transitional Justice, which has effectively put President Jacob Zuma on terms; in a letter dated April 19, a copy of which is in the possession of Weekend Argus, they threaten legal action if the “fatally flawed”, “irrational and arbitrary” pardons go ahead.
Tertius Delport, the head of the inter-political party Reference Group which arrived at the list of 149 recommended pardons, admitted that all they were required to do was consider the applications before them, and “determine whether there was a political motivation” – “and even here the motivation didn’t have to be directly connected to the programme of any political party”.
At issue is the final granting of pardons under the Special Dispensation for Presidential Pardons for Alleged Political Offences, which the Justice Department confirmed could be effected by the end of next month.
All that remained, they said, was for representations received from victims to be submitted to the perpetrators of crimes for which pardon was being sought, and for them to respond.
This would bring to a close a Special Pardons process initiated by former President Thabo Mbeki in 2007 as a mechanism to complete the “unfinished business” of the Truth and Reconciliation Commission.
In November 2010 it, went into abeyance after then-acting president Kgalema Motlanthe was interdicted from signing off on the 149 pardons recommended.
But in January this year the Special Pardons process kicked into gear again, with calls made for final representations from victims of the crimes for which amnesty was being sought.
This was in order to comply with the High Court and Constitutional Court injunctions, before finalising the process.
However, extracting documentation piecemeal under the Protection of Access to Information Act, coalition members concluded that the process of recommending applicants for amnesty had been far more flawed than was immediately apparent. In the April 19 letter they effectively put Zuma, as the inheritor of Mbeki’s pardons process, on terms.
At the heart of the objection lay what the letter argued was a systematic failure on the part of the Reference Group to observe the principles guiding the TRC in arriving at that list of recommended pardons.
The coalition argued that the group failed to do this on several levels; by not requiring full disclosure from applicants; by not demanding that political parties took responsibility for crimes committed in their name; and by declining to consider whether the crimes committed were proportional to, or commensurate with, the political motive.
Instead, what emerges from the documentation accessed by the coalition was little more than apparent “horsetrading” among the political parties.
Approached for comment, Delport said the Reference Group had “no power to subpoena witnesses or to hold public hearings”.
“All we were required to do was consider applications before us, and determine whether there was a political motivation,” Delport said, “and even here the motivation didn’t have to be directly connected to the programme of any political party.”
He also cited the constraints imposed by available time and resources, noting that some 3 000 applications were sifted to arrive at 149 recommendations.
It also appears that the TRC’s burden of full disclosure as a prerequisite for amnesty was abandoned more or less at the outset.
In the case of apartheid-era police minister Vlok and his police commissioner Van der Merwe, the explanation was offered that Chikane was “perceived as a threat” in a political climate characterised by necklacings and other unlawful actions linked to the struggle.
This argument was apparently accepted despite the fact that Chikane was vocally opposed to necklacings and other violent activities in pursuit of political goals.
In particular, Vlok (who famously washed Chikane’s feet in a public show of contrition) was allowed to present himself as a “messenger” in instructing Van der Merwe to order the operation – without specifying whose message he was conveying.
In other cases, the group required nothing more than confirmation that a particular perpetrator had been “affiliated” with a particular political party in determining whether crimes were politically motivated.
No burden was placed on the parties to demonstrate that the actions were connected with the goals of the party.
This apparently opened the door for a group of PAC-affiliated criminals to be recommended for pardon in respect of cash-in-transit heists and robberies.
Heists from as late as 1996 – after the struggle was suspended – were written off by the group as “fundraising” crimes – aimed to fill PAC coffers ahead of the 1999 elections.
* 1998: The TRC submits its final report to President Nelson Mandela.
* 2005: Legislative amendments are introduced into National Prosecuting policy to give the national director of Public Prosecutions discretionary powers in respect of crimes involving “political indoctrination”. While removing the burden of deciding on the basis of available evidence in these matters, the amendments still require that full disclosure is made, and that remorse is shown. Among the unsuccessful applicants are apartheid-era Police minister Adriaan Vlok and one time Police commissioner Johann van der Merwe. They are rejected by NDPP Vusi Pikoli for failure to disclose who gave the orders to kill churchman Frank Chikane.
* 2007: The Legal Resources Centre, acting for a group of NGOs, successfully challenges the legality of the NPA legislation.
President Thabo Mbeki announces a Special Dispensation for Presidential Pardon for Alleged Political Offences as a measure to address the “unfinished business” of the TRC. The Special Dispensation will give consideration to cases falling outside of the timeframes established by the TRC.
* 2009: The Reference Group established to make recommendations for Special Pardons submits its final report.
* October 2010: A government gazette publishes a list of 149 recommendations submitted by the RG for special pardon. This was to have been for final representations to be made within 30 days.
* November 2010: The Coalition for Transitional Justice wins a High Court order interdicting then Acting President Kgalema Motlanthe from granting pardons until the victims of crimes for which pardon is sought have been in a position to make representations. Until this point, the process has been conducted in secret.
White right wing pardon applicants approach the Constitutional Court to challenge the High Court ruling. They are unsuccessful and the Constitutional Court reaffirms the continuing relevance of TRC principles in the Special Pardons process.
* January 2012: The Coalition for Transitional Justice receives documentation relating to the RG in response to PAIA applications.
The Department of Justice calls for final submissions from victims in order to expedite a closure of the Special Pardons process.