Franny Rabkin
11 November 2009
Johannesburg — IF THE purpose of granting presidential pardons for political crimes was to promote national reconciliation, was it rational to exclude the voices of victims when the president made his decision?
This was the question posed by the Constitutional Court yesterday when a group of nongovernmental organisations (NGOs) argued that a process which denied victims' voices would have the opposite effect. Senior counsel Geoff Budlender for the NGOs said, "it would undermine rather than achieve reconciliation".
But senior counsel for the president, Vincent Maleka, said victim participation was not essential for reconciliation and that each application for pardon should be looked at individually.
The case will affect difficult policy choices on how to resolve crimes committed during and immediately after the apartheid era now that the Truth and Reconciliation Commission has run its course.
Depending on the outcome, pardons might be granted to those who pleaded guilty to the attempted murder of anti- apartheid activist Frank Chikane: former apartheid police chief Johann van der Merwe and former law and order minister Adriaan Vlok.
The case has its roots in a "special dispensation" established by former president Thabo Mbeki in 2007 to deal with a large number of applications for pardon for people who pleaded that their crimes were politically motivated.
Mbeki set up a "reference group" to recommend who should be pardoned. He told Parliament the intention was to complete the "unfinished business" of the commission.
After an application by the NGOs, the North Gauteng High Court temporarily interdicted the pardons. Judge Willie Seriti said Mbeki had "made a lawful public commitment" about how the process would work and victims should be heard "in accordance with his public commitment".
President Jacob Zuma is yet to decide whether to grant pardons to 121 people recommended by the reference group.
Maleka said Mbeki's statement was not specific enough to give rise to a claim in law or a legitimate expectation on the part of victims. Mbeki never specifically undertook that victims would be heard .
Budlender said victim participation was a "bedrock principle" of the truth commission and Mbeki had committed himself to following its principles.
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