Pardons are hard to come by

The government has let the applications for presidential pardons for over 1 000 people imprisoned for what they believe are political ‘crimes” pile up, arguing that it has no policy on how to address this ‘complex” matter.

But it is unclear why the government is dragging its feet now when four years ago President Thabo Mbeki justified his release of 33 prisoners imprisoned for committing ‘politically-motivated crimes” in the absence of such a policy. Many of the prisoners pardoned by Mbeki had been denied amnesty by the Truth and Reconciliation Commission (TRC).

Some observers suggest the fall-out from these pardons has made the relevant government departments hesitant to process political applications. The presidency and the justice department have rejected such suggestions.

At the time, Archbishop Desmond Tutu called Mbeki’s pardons a ‘mockery” of the TRC. Some reports also said that the pardoning process had been inconsistent. Both Monwabisi Khundulu and Nzimeni Danster were sentenced to death for murder, but Mbeki only pardoned Khundulu.

Two weeks after his release in 2002, one pardoned prisoner, Dumisani Ncamazana, committed a murder and armed robbery in the Eastern Cape. The police later probed opposition claims that the subsequent murder investigation was bungled in an attempt to shield Mbeki from embarrassment.

Eastern Cape DA leader Athol Trollip was vocal about Ncamazana’s case at the time, saying that the murder may have made the presidency more cautious about releasing people.

In 2003 Parliament considered legislation that sought to increase the transparency of the president’s decision-making on pardons. The legislation failed, however, and, based on recommendations from the department of justice, pardons remain the president’s prerogative.

The current backlog dates back several years. In September 2005, President Mbeki told Parliament that the department of justice had received over 1 000 politically-motivated applications.

Last week, the Human Rights Commission made a non-binding recommendation that the justice department process politically motivated applications within 90 days.

But the department lacks a policy to address the applications of prisoners who believe their crimes are of a political nature and are still in custody, said justice spokesperson Zolile Nqayi.

All prisoners who had, by 2005, applied for a pardon for crimes they categorised as ‘politically-motivated”, were found to have submitted insufficient information in their applications to support their claims. As a result, the department has put them aside because of their ‘complexity”.

Nqayi said that the minister had approached Cabinet on this ‘urgent” matter. However, the department has been able to process applications from former prisoners who have served their sentences for political crimes and who want to clear their records for employment purposes. The department also processes the large number of applications for pardons they receive in regular criminal cases, although the process is slow.

The issue of applications for political pardon is partially a legacy of the TRC, which received over 7 000 amnesty applications, of which 65% were from prisoners, and only granted about 1 600 full amnesties. Roughly 5 000 applications were rejected because they did not satisfy administrative requirements.

Former TRC commissioner Yasmin Sooka said that amnesty applications might have been turned down because they were poorly drafted. She said that in many instances prisoners drafted them without any legal assistance.

Meanwhile, some prisoners might not have applied for amnesty from the TRC because they came from political parties, such as the Inkatha Freedom Party, that did not support the TRC process.

‘It is an issue that needs some discussion because those cases really need to be looked at,” she said, adding that the mechanism to do this, be it a parole board or pardon system, had not been sufficiently debated.

Sooka says that a pardon system could be based on elements of the TRC process such as transparency and openness and the involvement of victims.

Some of the applicants

Most applicants applying for presidential pardons for crimes they believe were politically-motivated are murder convicts, according to department spokesperson Zolile Nqayi. Other crimes include robbery, housebreaking, theft and rape, he said, adding that many of the crimes had been committed after the Truth and Reconciliation Commission’s cut-off date.

The Inkatha Freedom Party is supporting 384 applicants and the Pan Africanist Congress 122.

The applicants include:

• Ashley Masilo (PAC) who was imprisoned in 1994 with his co-accused, Zweli Mhlongo. He is serving 32 years for abduction and murder and was denied TRC amnesty.
• Oscar Thando Moss (ANC Youth League) who is imprisoned at St Albans in Port Elizabeth. He is one of at least five ANCYL members who are seeking pardons. His mother applied with the help of an attorney in March 2003 and later approached the Human Rights Commission for assistance.
• Vontjie Mzimkhulu Moti (PAC) was sentenced to death in 1990 for several armed robberies, in which one person was killed. This sentence was later commuted to two life sentences plus 155 years. The TRC denied him amnesty for nine robberies, calling him a poor witness and saying the robberies were not clearly committed for political reasons. The PAC said community members from Orlando East had written letters of support.