Last week’s ruling on the presidential pardons process could have far-reaching implications and, some say, affect the president’s power to grant pardons in future.
In early 2008, former president Thabo Mbeki announced a special process to consider pardoning perpetrators of politically motivated apartheid-era crimes to deal with the “unfinished business of the TRC”.
About 2 300 prisoners applied for pardons under the dispensation. Of these, more than 100 have been recommended for pardons by a special reference group made up of political party representatives. The identities of those recommended for pardon have not been made public. Although Mbeki stated that the process would be conducted in an open and transparent manner according to the principles of the TRC, the process has been shrouded in mystery.
In the case, a coalition of NGOs argued that the president’s right to grant pardons was not an executive power that could not be challenged, while the state argued that the president had “unfettered discretion” in granting pardons.
The coalition, which includes the Khulumani Support Group, the Institute for Justice and Reconciliation, and the Freedom of Expression Institute, among others, called for greater transparency in the process and for the president to consider testimony from victims’ families in his decisions.
Judge Willie Seriti ruled in favour of the coalition, saying the granting of pardons was an “administrative action” that was subject to review.
Seriti issued an interim interdict preventing the president from issuing special pardons until the matter has been resolved. The president was also instructed to provide the coalition with a list of prisoners recommended for release.
Following the decision, Hugo van der Merwe, transitional justice programme manager at the Centre for the Study of Violence and Reconciliation, said the ruling could affect the way all pardons are dealt with in future, whether political or not.
Advocate Lwazi Kubukeli of the Legal Resources Centre, who has been managing the case on instruction from the coalition, concurred. He said Seriti’s ruling could apply outside the “special dispensation” context argued in the case. “It’s certainly open to that kind of interpretation,” said Kubukeli.
Legal opinion on the matter is divided. For Wits law professor Jonathan Klaaren the matter is “pretty straightforward”. He said while Seriti’s ruling could have implications beyond this particular case, the president’s lawyers could still counter it as the ruling hinged on the interpretation of a statute, the Promotion of Administrative Justice Act, and not the Constitution.
Pierre De Vos, a constitutional law lecturer at the University of the Western Cape, said he is uncertain of whether Seriti’s decision was the correct one in the first place. De Vos said although the coalition had a strong moral and political argument, the issue was not so clear-cut. “The law and morality don’t always go together,” he said.
Zolile Mqayi, spokesperson for the Minister of Justice, said the state was still considering Seriti’s judgement and that a decision on how to proceed could take some time in coming, due to the change in administration.
Denied leave to appeal
In a related matter, the National Director of Public Prosecutions and the Minister of Justice were on Monday denied leave to appeal in a case which sought to indemnify apartheid perpetrators against prosecution by the state. In terms of the ruling, prosecutors were now required to take up cases arising from past conflicts, particularly those in which amnesty was refused under the TRC.
Commenting on the cases, Van der Merwe said they were essentially “two separate ends of the justice system”; one prevents people from being prosecuted and the other allows them to be released from their sentence. Van der Merwe said this “marginalised the role of the judiciary”.