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No decision on pardons yet

2009-11-10 20:03

Johannesburg - Constitutional Court judges reserved judgement in a case involving an Afrikaner Weerstandsbeweging (AWB) member who wants to be pardoned for a political violence offence.

This follows lengthy discussions on Tuesday, which centred around striking a balance between the rights of political violence offenders and their victims.

AWB member Ryna Albutt wants the Constitutional Court to overturn a decision made by the South Gauteng High Court in March this year, which interdicted the president from granting pardons to perpetrators of political violence without first consulting the victims concerned.

Challenging the High Court decision along with Albutt was the president and the minister of justice.

His lawyer, Advocate Neil Tuchten, said the interdict hindered constitutional processes of reconciliation, while a lawyer representing the state, Advocate Vincent Maleka, said the High Court decision "was wrong".

"The main purpose of the pardon process is to achieve national reconciliation and [it] is without a doubt within the president's power to exercise it," said Tuchten.

Ignoring the victims

But Constitutional Court judges questioned this, asking Tuchten how national reconciliation could be achieved without the victim's participation in the process.

"How can he [the president] ignore the victims when his aim is national reconciliation?" asked Justice Edwin Cameron.

In response, Tuchten said the president was constitutionally empowered to decide on pardons without input from the victims and that there was no evidence that the victims will be traumatised as a result of the pardons.

"The job of the president is to uphold the Constitution... act in accordance with the Constitution," he said.

This discussion was taken further by lawyers representing civil rights organisations on behalf of the victims who said pardoning the perpetrators without involving the victims undermined reconciliation.

"Nothing will make the victims angrier than hearing that the perpetrators have been granted pardons without prior consultation.

"What we are faced with are people who made vicious racial attacks on the public. When the victim says, I want to be heard, they say no, their views are irrelevant," said Advocate Geoff Budlender.

Mbeki announcement on pardons

At the centre of this case is the November 21 2007 announcement by former President Thabo Mbeki on the handling of pardon requests.
The process was available to people convicted of offences they claimed were politically motivated and who were not denied amnesty by the Truth and Reconciliation Commission.

Mbeki established a Pardons Reference Group (PRG) on which each political party in Parliament was represented. The PRG was formally constituted in January 2008.

It considered 2 114 applications for pardons and made recommendations to the president.

Tried to influence PRG


From February 2008 to March 2009, the Centre for the Study of Violence and Reconciliation (CSVR) and other non-governmental organisations attempted unsuccessfully to influence the PRG, the president and the minister to ensure victim participation in the process.

They also sought greater transparency and public disclosure. After they failed to secure the participation of victims, they lodged an urgent High Court application to prevent the president from issuing political pardons pending the final determination of the rights of victims.

The court held that victims of crime had a right to be heard before the president exercised his pardon.