As a result of many serious procedural flaws the special pardons process has been irrevocably tainted. Initially the state blanketed the process in a veil of secrecy, which forced civil society groups to turn to the courts to impose openness. If the TRC’s criteria for amnesty had been consistently applied few of the pardon applicants would have qualified on the basis of full disclosure or the showing of a political objective.
South Africa’s TRC is considered internationally as an example of a successful transitional justice process. Yet the integrity of the difficult bargain that gave rise to the TRC has been repeatedly undermined and betrayed by strenuous efforts of the state to let perpetrators of human rights violations off the hook.
In the bargain that gave birth to the TRC, the apartheid government, the liberation movements (the ANC and PAC) and other parties agreed that those who had been responsible for ‘gross’ human rights violations would receive amnesty in exchange for truthfully revealing the details of their involvement. Only those who made a full disclosure of the specific and contextual details of the incidents, and who were politically motivated in committing the violations, were to qualify for amnesty.
For many anti-apartheid activists the bargain was bitter, not least because the actions of liberation movements were to be evaluated on the same basis as the actions of the apartheid state. But this social contract offered a way to move forward and, more importantly, it was believed that exchanging information for freedom from prosecution was the only way in which crucial details about the past would be revealed. A cut-off date of 6 December 1993 was agreed upon and extended to 10 May 1994. Any acts of violence committed after this date would not entitle the perpetrators to apply for amnesty.
There was logic behind the decision to set the cut-off date to shortly after South Africa’s first democratic election. The ANC, PAC and all other anti-apartheid organisations were unbanned in the early 1990s and the process to negotiate a democratic future began in earnest soon after. Moreover, there could be no justification for politically motivated acts of violence in a constitutional democracy that upholds the freedoms of assembly, association, expression and the right to campaign for a political cause.
Since the winding up of the TRC, the state has failed to live up its obligations in respect of victims. Reparations were never comprehensively made and few serious attempts have been made to prosecute perpetrators who either failed to apply for amnesty or who were refused amnesty.
Honouring the social contract that underpinned the TRC has not been at the top of the current government’s agenda or indeed that of any previous government. Since the closure of the TRC considerable efforts have been made to virtually guarantee impunity for apartheid-era offenders. The National Prosecuting Authority even amended its prosecution policy in 2005 to include the TRC’s amnesty criteria for purposes of declining to prosecute. This bizarre policy was struck down by the Pretoria High Court.
In the latest effort, presidential pardons for so-called political offenders may be secured without any need for full disclosure. Essentially all that is required is for an offender to secure the endorsement of a political party. This special pardons process even goes so far as to forgive apparent political crimes committed as late as July 1999. Most of the 149 cases recommended for pardon took place well after 1994.
The current situation is the culmination of a long process that started ten years ago.
In 2002 President Thabo Mbeki pardoned 33 prisoners who had allegedly committed acts of political violence on behalf of the ANC and PAC. According to the Department of Justice, a number of those pardoned were previously refused amnesty by the TRC. The victims (or their families) in these cases were not informed or given an opportunity to respond.
A year later, the IFP assisted 384 prisoners to apply for presidential pardon. These applications were ignored for several years and the IFP took their complaint to the courts. In an apparent attempt to deal with these developments the then Minister of Justice, Brigitte Mabandla, said that a solution was needed for those political offenders who may not have known about the TRC’s amnesty process, or whose political parties opposed the TRC (such as the IFP).
In 2007 Mbeki established a special reference group made up of representatives of all political parties to consider the applications for presidential pardon. The process was secret. The applicants included former Minister of Police Adriaan Vlok and former police Commissioner General Johan van der Merwe, as well as a large number of offenders whose crimes ranged from serial murder and armed robbery to race crimes.
Victim groups had to approach the High Court to stop the President from granting pardons without consulting victims and interested parties. Surprisingly, Zuma joined members of the far-right AWB, who were convicted of brutal race crimes, in an ultimately futile appeal to the Constitutional Court.
Following the ruling of the Constitutional Court in 2010 that victims had a right to be consulted, the Department of Justice at first refused to disclose the application forms of the pardon applicants. When the forms were disclosed in January this year it became clear why the government was so reluctant to release them: in key cases little or no truth was disclosed. In several other cases, such as those in the ‘fundraising category’, which includes robberies and cash heists, the claimed political objectives were clearly fabricated.
Victim groups have warned Zuma that any pardon issued on the back of such a flawed process would be irrational and in violation of the rule of law.