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- Written by Mail & Guardian
The exercise of the presidential pardon promises to be a heavily contested political arena. For some time rumours have circulated about the possible pardon of Schabir Shaik and Eugene de Kock, whose very different crimes elicit great emotion, albeit from varying sides of the political divide.
Within this context, the recent judgment of the Constitutional Court in Albutt v Centre for the Study of Violence and Reconciliation and Others assumes considerable importance. The case concerned the power of the president to grant pardons in terms of the power granted to him under the Constitution to people who claim that they had a political motive for the crimes for which they were convicted. The essential question before the court was whether the victims of these crimes were entitled to be heard before the president exercised his power to so pardon.
Writing for the Court, Chief Justice Sandile Ngcobo posed the question thus: as the presidential pardon is derived from the Constitution, is a decision to pardon without affording victims an opportunity to be heard rationally related to "the achievements of the objectives of the process"?
The chief justice confirmed that the initial process designed to deal with the problem of political crimes committed during the apartheid decades, the Truth and Reconciliation Commission (TRC), placed victims of gross human rights violations at the centre of the inquiry. The Albutt case dealt with a special dispensation set up by former president Thabo Mbeki to deal with cases of amnesty applications of those who had not participated in the TRC process.
Because this initiative was designed to complete the "unfinished business" of the TRC, the chief justice held "the principles and the spirit that inspired and underpinned the TRC amnesty process must inform the special dispensation process whose twin objectives are nation-building and national reconciliation. As with the TRC process, the participation of victims and their dependants is fundamental to the special dispensation process."
On this basis, the chief justice found there could be no rational distinction between the TRC and special dispensation so as to justify the presence of victims in the former process but not in the latter.
The court held that before the president can grant a pardon, he must establish the facts in accordance with criteria set out in the special dispensation; that is, whether the crime was committed with a political motive. To so decide, the president was therefore obliged to hear both the applicant for pardon and the victim.
That finding will probably apply to De Kock and for this reason, in this controversial case, no quick decision can be pushed through the system. But the chief justice was quick to qualify this finding: "This case is concerned with applications for pardon under the special dispensation … What distinguishes this category from others not before us is that the crimes in respect of which pardons are sought are alleged to have been committed with a political motive ...
"Different considerations may well apply to other categories of pardon. This judgment does not therefore decide the question whether victims of other categories of applications are entitled to be heard. That question is left open."
The court was faced with a further argument that has a major bearing upon pardons for other categories of applicants. It was contended that a presidential pardon is a form of administrative action that would be reviewable under the Promotion of Administrative Justice Act and, even if not, the Act still applies to pardons. The court set out the difficulties inherent in a finding that this Act applies to pardons but said that it was unnecessary to decide these questions in the light of its decision that victims were entitled to be heard before a pardon was granted in cases before the court that were brought under the special dispensation.
This circumvention by the court of the Promotion of Administrative Justice Act question means that it is uncertain whether a pardon of Schabir Shaik would be reviewable under the Act, and if so on what basis. The court expressed the point delicately: "It may well be that the president is anxious to know whether the exercise of the power to grant pardon constitutes administrative action and whether [the Promotion of Administrative Justice Act] applies to applications for pardon." Reading between the lines, those opposing a Shaik-type pardon may have greater cause for anxiety than the president.
For watchers of the new Constitutional Court, a further curiosity was the short judgment of Justice Johann Froneman, who appeared at pains to inform us that victim participation was the norm in African society, a point in which the other two white judges concurred but which the balance of the court found unnecessary to mention.