Constitutional Court rules in favour of NGOs

Posted on February 23, 2010. Filed under: Courts |

BRAD BROCKMAN

This morning, the Constitutional Court ruled in favour of the coalition of NGOs – made up of the Centre for the Study of Violence and Reconciliation, Khulumani Support Group, International Centre for Transitional Justice, Institute for Justice and Reconciliation, South African History Archives Trust, Human Rights Media Centre, and the Freedom of Expression Institute – that challenged government on its Special Dispensation for Presidential Pardons process.

It sought to grant presidential pardons to persons convicted of political offenses committed up until 16 June 1999, who had not applied to the Truth and Reconciliation Commission (TRC )for amnesty. The process, which does not include the Schabir Shaik and Eugene de Kock pardon applications reported widely in the media, was initiated by former President Thabo Mbeki in November 2007 as a way, he said, of finishing off some of the “unfinished business” of the TRC and promoting national reconciliation and nation-building.

The process did not include victims however, and was conducted largely in secret. This despite that when he announced the process, Mbeki said that the process should be conducted “in an open and transparent manner” and would be guided by the “principles, criteria and spirit of the TRC, particularly its amnesty process.” Consequently, the coalition of NGOs, represented by the Legal Resources Centre, challenged the legality of the Special Dispensation process. This challenge, which was preceded by a long period of fruitless requests to the government to reform the process, was first heard in the High Court in April of 2009,  and then the Constitutional Court in November.

Justice Ngcobo of the Constitutional Court ruled that victims have a right to be heard before the President makes a decision to grant a pardon under the Special Dispensation.

This, because the stated aim of the Special Dispensation was to promote national reconciliation and national unity, and given our history, victim participation according to the principles of the TRC, is the only rational way of achieving these aims in this instance.

While a massive victory for victims, Justice Ngcobo emphasized that this ruling applies only to the Special Dispensation process, and not to the exercise of presidential pardons more generally.

To view the full Constitutional Court judgment, click here.

To read the media summary released by the Court, click here.

To read the Coalition’s press release, click here.

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