Victims must have a say in pardons
Albutt v Centre for the Study of Violence and Reconciliation and Others (2010)
Can the President pardon perpetrators of apartheid crime without hearing the victims of such crime?
The Truth and Reconciliation Commission (TRC) was established in 1996 by the Government of National Unity to help deal with the atrocities and human rights violations committed under apartheid. Perpetrators of apartheid-era crimes were asked to tell the truth in exchange for an opportunity to be granted amnesty for such crimes. The scope of the TRC was limited, leading many to describe it as a good start but ultimately incomplete as a process.
In 2007, in an attempt to deal with the unfinished business of the TRC, President Thabo Mbeki announced that there would be a special dispensation for applicants seeking pardon who had been convicted of politically-motivated offences. Persons who qualified for pardon under this special dispensation were those who had been convicted and sentenced solely on account of allegedly having committed politically-motivated offences before 16 June 1999, and who had not applied for amnesty by the TRC.
When a President decides to grant a pardon to a convict, they are exercising their powers under section 84(2)(j) of the Constitution, which states that the President is responsible for pardoning or reprieving offenders and remitting any fines, penalties, or forfeitures.
The President announced the establishment of a multi-party Pardons Reference Group (PRG) which would assist him in the discharge of his constitutional responsibility of granting pardons under this special dispensation.
One of the applicants for pardon under this dispensation was Ryan Albutt. He was a member of the Afrikaner Weerstandsbeweging (AWB), and described in newspapers as “the man who went on a rampage attacking black people and killing one in the process” in Kuruman, Northern Cape and serving a sentence of imprisonment in the Upington Prison. He was now seeking a pardon.
A number of non-governmental organisations (NGOs), including the Centre for the Study of Violence and Reconciliation, the International Centre for Transitional Justice, and the Khulumani Support Group, challenged the pardon process. They argued that it failed to consult the victims of the crimes, and that the victim’s exclusion from participating in the pardon process was inconsistent with the Constitution.
The Coalition is disappointed that the President appears to take the view that since the Constitution provides him with the power to grant pardons, it does not matter what process is adopted for purposes of processing and recommending pardons; even if such a process is manifestly unfair and constitutionally unsound.
Path to the Constitutional Court
The High Court ruling on the case held that victims of the crimes committed by those on the President’s recommended pardon list had a right to be heard before the President exercised his pardon power under section 84(2)(j) of the Constitution.
It held that the inputs from the other interested parties would have enabled the President to verify the facts stated by the applicant in the pardon application form. The state appealed this ruling directly to the Constitutional Court.
Some of the Arguments
President of the Republic of South Africa
Then President Thabo Mbeki insisted that these pardons were part of the process of reconciliation:
“As a way forward and in the interest of nation-building, national reconciliation and the further enhancement of national cohesion, and in order to make a further break with matters which arise from the conflicts of the past, consideration has therefore been given to the use of the Presidential pardon to deal with this ‘unfinished business’.”
-Thabo Mbeki, then President
Coalition of NGOs
The Coalition, on the other hand, believed that political pardons would damage the legacy of the TRC, and would severely undermine the rights of the victims. The Centre for the Study of Violence and Reconciliation stated that, “Backroom deals with apartheid perpetrators undermine TRC rationale.”
What did the Constitutional Court decide?
The Court found that the non-inclusion of victims and their families in the pardon process was unconstitutional, and ordered that they must be included. It held that, given our history, victim participation in accordance with the principles of the TRC was the only rational means to contribute towards national reconciliation and national unity – the President’s stated objective with this pardoning process.
The Court found further that victims must be given the opportunity to be heard in order to determine the facts on which pardons are based, namely, whether the offence was committed with a political motive.
For all these reasons, I conclude that the decision to exclude victims of the crimes in respect of which pardons were sought under the special dispensation process was irrational. The victims of these crimes are entitled to be given the opportunity to be heard before the President makes a decision to grant pardon under the special dispensation.
Impact and Significance
Chief Justice Sandile Ngcobo’s judgment on behalf of a unanimous court is rooted directly in the TRC process through which South Africa sought unity and reconciliation after the conflicts of the past. It will therefore resonate deeply with South Africans. Judge Ngcobo and the court ruled that pardons must be rationally related to the purpose sought to be achieved.
Following the Court’s ruling, the Department of Justice at first refused to disclose the application forms of the pardon applicants as ordered by the Constitutional Court. When the forms were eventually disclosed, it became clear why the government was so reluctant to release them. In key cases, little or no truth was disclosed by those seeking pardons.
When President Jacob Zuma took office in 2009, he considered the applications of 149 perpetrators who were recommended for ‘special pardon’ under this deeply flawed process that began under President Mbeki.
It was reported that in this latest effort, presidential pardons for so-called political offenders may be secured without any need for full disclosure. Essentially all that was required was for an offender to secure the endorsement of a political party. This special pardon process even went so far as to forgive apparent political crimes committed as late as July 1999.
Victim groups once again warned Zuma, as they did Mbeki, that any pardon issued on the back of such a flawed process would be irrational and in violation of the rule of law. They said that the special pardons process undermines the TRC process, entrenches impunity, and is enormously disrespectful of victims and the people of South Africa. They also said that it raises serious questions as to why South Africa’s political leaders seem so intent on serving the interests of the perpetrators of political violence well into our constitutional democracy.