Rather than review cases on a case by case basis, President Mbeki established a Reference Group (RG) comprised of representatives from the 15 political parties in parliament, who were tasked with reviewing applications and making recommendations to the President. Applications for pardon were to be reviewed according to the principles of the TRC, meaning full disclosure and providing evidence of a political objective. The RG received 2150 applications, and in January 2009 presented its report supporting the applications of 149 candidates (120 of whom received unanimous support and 29 of whom received partial support). It is up to the President to use his discretion in making a final decision on each of these cases.
Major Concerns regarding the Process and Procedural Fairness
The pardons process was deeply flawed from the outset and the South African Coalition for Transitional Justice* sought through various channels to ensure the process was altered to facilitate victim participation, transparency and constitutional compliance.
1. Despite appeals from the SACTJ, the RG refused to provide any avenue for victim participation or transparency in its procedures for assessing individual applications. The SACTJ took the State to the High Court and won an urgent interdict to prevent the president from proceeding without input from victims. An appeal to the Constitutional Court resulted in a ruling in February 2010 confirming the rights of victims to participate in the pardons process. Chief Justice Ngcobo found that victim participation was "the only rational means" for the pardons process to contribute to reconciliation, and the President was ordered to give victims an opportunity to make an input before deciding on the applications. Consequently, the Department of Justice published the list of 149 recommended applications in the Government Gazette, and various media sources in October 2010. Victims and interested parties were given 30 days to respond.
2. In November 2010, the coalition and various individual victims submitted representations to the Department of Justice, raising concerns regarding certain individual pardon applicants, and requested further information in order to engage on a more informed basis. These submissions requested copies of information considered by the RG in reaching its recommendations and details about the actual recommendations made. The SACTJ members submitted requests relating to 65 of the 149 cases.
3. In January 2012, after more than 13 months, the DoJ provided a response to these submissions, including details regarding individual applications and the final report and recommendations of the RG. Some of the case information (such as court judgments) considered by the RG was however not disclosed. The DoJ again provided a 30 day deadline for the SACTJ to respond to these cases.
4. The information disclosed by the DoJ regarding the individual cases and the process followed by the RG raises very serious concerns about the nature of the process and the pardon decisions that might result if the President is to act on these recommendations:
- a. The RG or the DoJ have not made any serious efforts to contact affected victims and their families directly. Other than publishing the names of perpetrators, no efforts were made to identify victims and notify them that they have a right to participate in the pardon process. This is in direct violation of the constitutional court instructions.
- b. The RG's definition of political motive is so broad as to make a mockery of South African history and the struggle for liberation. Cases that were recommended by the RG include attacks based on pure racial hatred (where people were targeted purely because they were black), revenge attacks targeting non-political targets (such as the killing of an entire family, including a five-month old baby). The RG itself admits that one case appears to "exceed the parameters of political".
- c. The claims of political sponsorship from political party representatives for certain acts are highly doubtful, such as cash-in-transit heists to raise funds for the 1999 PAC election campaign, and contradict their public statements regarding these cases.
- d. While the TRC provided at least some limited reparations for those victims identified at the time, no provision for reparations have been made for victims whose perpetrators are now being considered for pardon even though they would in effect by classified victims of political human rights abuses.
- e. The RG appears to have accepted the accounts of perpetrators with minimal or no corroboration of the facts in many cases. In many cases they do not appear to have access even to the court judgment, the case docket or other forms of corroboration.
- f. The RG process appears haphazard (contradictions between the findings of the RG and the recommendation to the president) and careless (many decisions only show involvement by 9 of the 15 reference group members.
5. On the 15th of February, the Legal Resources Centre (LRC), representing the SACTJ, sent a letter to the DOJ raising concerns about the process and demanding full disclosure of the documents considered by the RG and assurances that additional measures would be taken to contact victims.
6. While there may be legitimate grounds for granting pardons to many of the applicants presently being considered, it is clear that the process followed by the RG in considering these cases, and the process used by the DoJ in soliciting victim input has not provided a sufficient basis for judging the merits of any of these cases. As presently constituted the process will deny victims their rights and undermine the process reconciliation started by the TRC.
*The South African Coalition for Transitional Justice (SACTJ) is a group of non-governmental organisations consisting of the Centre for the Study of Violence and Reconciliation, Khulumani Support Group, the Human Rights Media Centre, the Institute for Justice and Reconciliation, the International Centre for Transitional Justice and the South African History Archive.