Of pardons and the legacy of the TRC
In October of this year, the Department of Justice and Constitutional Development (DOJCD) released the names of 149 convicted criminals recommended for pardons through the ‘Special Dispensation for Presidential Pardons for Political Offences’ established by former president Thabo Mbeki.
This is the first list of recommended pardons released since the Constitutional Court found in favour of a coalition of civil society organisations challenging the lack of victim participation and inclusion in the government-led Special Dispensations process earlier this year. This group, now referred to as the South African Coalition for Transitional Justice (SACTJ), includes the IJR, as well as the Centre for the Study of Violence and Reconciliation (CSVR), Human Rights Media Centre, Khulumani Support Group, the South African History Archives, the Freedom of Expression Institute and the International Centre for Transitional Justice (ICTJ).
The SACTJ’s Constitutional Court case followed on seven years of dedicated advocacy work since the formal conclusion of the Truth and Reconciliation Commission (TRC), with a particular focus on protecting the central role of apartheid victims in ongoing justice, prosecutions and pardons processes, as mandated by the TRC. Early prosecution efforts based on secret plea bargains between perpetrators and the state were also successfully challenged by victims.
RL: Why was it important for the IJR to get involved in the Constitutional Court case?
In my opinion, this case was about two groundbreaking aspects of the TRC’s work: public transparency and victim participation. Apartheid’s crimes were so veiled in secrecy that it was important for people to come clean about the past so that society could move forward.
In the spirit of the TRC, the Mbeki government formed a parliamentary committee, which produced a list of pardons nominees. However, the committee acted behind closed doors and did not disclose the selection criteria it used. Civil society’s input was repeatedly brushed off. In 2008, the ANC’s recalling of Mbeki created such political confusion that we feared the process would be rushed, and formed a coalition to demand more transparency.
The case to include victims first went to the High Court, but government appealed. When it reached the Constitutional Court, the whole bench found in our favour. As a result, the president now has to consult with victims on any future presidential pardons in cases of political crimes.
RL: What was your response to the recent release of a new list of nominees for presidential pardons?
I think there are several issues. The list includes the names of 149 convicted perpetrators and their crimes, but as we have seen previously, does not provide any explanation or justification for why they have been nominated.
Secondly, the list includes people, in my view, who are certainly not in any way eligible for a pardon. Some have committed multiple crimes; others still have cases pending against them. Some of these crimes were committed as recently as 1998, and therefore according to the recommendations of the TRC such pardons are not justified. Mbeki unilaterally released 33 political prisoners in the Eastern Cape: one committed a murder and was back in prison within a week. In my opinion, these nominees should not be released back into society.
Finally, victims were only given 30 days to register their interest in responding to the list. We contend that outreach to victims, many of whom are in rural areas, was wholly inadequate. We offered to help government locate victims, so they would have the opportunity to respond to the recommendations.
RL: Do civil society organisations have an advantage over government in reaching victims?
We do, because we work with communities on a daily basis. It is very difficult to explain the wall of silence from government when you look the victims in the eye. Very little has been done in terms of reparations: some homes were built and there were a few scholarships, but nothing comprehensive or systematic, or even public and well-communicated. However, we recently had a meeting in which government agreed to participate in a workshop to brainstorm with us on a policy for community reparations.
RL: What are the potential implications for national reconciliation?
Some may think that the justice process started through the TRC is antiquated, and has been overtaken by other events. I think transitional justice has a way of catching up with a society if these processes are not concluded efficiently and with dignity.
Reconciliation is enshrined in our constitution. The TRC was an international landmark and did a reasonable job given the circumstances. However, it is now criticised retrospectively for a lack of impact: this through no fault of the Commission, but rather from government’s lack of efficient follow-through. Why has government either failed, or proven to have a lack of political will, to implement the TRC’s recommendations? This is an important next chapter that will ultimately either validate or discredit the work of the TRC.
RL: And the implications for civil society?
Civil society needs to be an intermediary between government and the public. It is important that we engage government, but in constructive ways that help build state capacity. South Africa is among the strongest states on the continent, but still faces massive challenges. Civil society has to be selective in our interventions but I believe it was the appropriate moment to do so because we could have slipped into impunity.
RL: Given current circumstances, does South Africa need a new national consensus on reconciliation?
At the moment, we lack consensus on our economic direction, and this is debilitating. We need to agree on the roles of the various institutions, from trade unions to the reserve bank and government. Importantly, we cannot neglect and marginalise the poor. Many people have decided to side-step the issue and move on with their lives, including young middle-class South Africans of all races.
Although our most urgent call at present is to address the socioeconomic divide, there are also levels of racial reconciliation we have not touched as yet. The issue of race is still with us, and unless it is addressed, new forms of racism may emerge. We now have an interesting balance between a politically empowered black majority and a powerful white minority, but this can create a unique opportunity for progress through the give-and-take between these groups, perhaps more so than in other contexts.
Rorisang Lekalake is currently completing her master’s degree in political studies at the University of Cape Town, and is a research intern in the IJR political analysis programme.