NAME OF MECHANISM

Pardons and prosecutions

PERIOD

1994 – present

RESOURCES

South African National Prosecuting Authority official website
Constitutional Court of South Africa official website
Judgement: Ryan Albutt v. the Centre for the Study of Violence and Reconciliation and Others

RESULTS

In light of the South African government's inaction related to prosecutions, civil society groups and victims have been active in investigating and documenting a number of cases. Civil society has also been pressuring the state to develop and implement an appropriate and comprehensive prosecutions policy.

BACKGROUND

Pardons

2002 Pardons

In 2002, President Thabo Mbeki granted pardons to 33 members or supporters of political parties banned under apartheid who had been imprisoned for allegedly political crimes. Twenty of the 33 pardons had been denied amnesty by the TRC for failing to meet the condition of full disclosure or being unable to prove that their crimes were politically motivated [M&G | 1 Jan 2002].

Special Dispensation Pardons

In December 2007, President Mbeki initiated a special dispensation process to accept pardon applications from people convicted of crimes alleged to be politically motivated and committed before 16 June 1999 who had not participated in the TRC. More than 2,000 prisoners applied for pardon, which critics referred to as a second amnesty process [Sunday Independent  | 22 Jul 2007].

A Pardons Reference Group, made up of representatives of all political parties in parliament, was established by Mbeki to review applications and make recommendations for pardon. Applications for pardon were reviewed using criteria similar to the TRC’s, including full disclosure and evidence of a political objective. However, unlike with the TRC, victims were not allowed to give input.

The government’s refusal to allow victim participation in the new pardons process prompted the South African Coalition for Transitional Justice, a coalition of survivors and civil society organisations, to submit an urgent memo to the Pretoria High Court asking for the interests of victims to be protected. The coalition included the Centre for the Study of Violence and Reconciliation, Khulumani Support Group, the International Centre for Transitional Justice, the Institute for Justice and Reconciliation and others, represented by the Legal Resources Centre. The court issued a temporary interdict prohibiting the president from granting pardons under the special dispensation. In December 2008, the court ruled that this policy was unconstitutional as an infringement on victims' rights. The state requested to appeal the ruling.

The coalition's challenge to the pardons process concluded in a constitutional court case, with the Constitutional Court ruling  in February 2010 that the decision to exclude the victims from participating in the special dispensation process was irrational and contrary to the rule of law [SAPA  | 23 Feb 2010].

IFP Applications Regarding Presidential Pardons Delays

In September 2009, the Inkatha Freedom Party (IFP) brought legal action against President Jacob Zuma for failing to respond to 384 applications for political pardons made by IFP members. The Constitutional Court then ruled that the president should be held accountable for the six-year delay in response and failing to meet the constitutional requirement of responding within three months.

The IFP first took the Justice Ministry to the Constitutional Court but was told that it should have taken the president to court instead. The ministry has been ordered to pay the costs of some of the IFP’s applications. In February 2010, the president submitted an affidavit stating he had considered the 384 applications and rejected 230 [SAPA  | 8 Apr 2010]. The list of 149 individuals up for pardon released in October 2010 included IFP members [Business Day | 19 Oct 2010].

Prosecutions

Since 1994, a number of prosecutions have occurred related to the human rights abuses that took place during the apartheid regime and the period of transition to democracy. During the Truth and Reconciliation Commission  (TRC) process, some prosecutions led to amnesty applications, as the TRC had the power to grant conditional amnesty in cases of full disclosure. Upon closure of the TRC’s Amnesty Committee in 2001, the commission gave about 300 case files to South Africa's public prosecutor for further investigation. It also made recommendations for prosecutions.

In March 2003, South Africa's National Prosecuting Authority (NPA) established the Priority Crimes Litigation Unit (PCLU) to oversee the processing of TRC-related cases, as well as a Missing Persons Task Team to conduct exhumations of missing persons documented in the TRC report. While the task team is continuing its work, the NPA has gone ahead with very few prosecutions [Traces of Truth].

In December 2007, the NPA amended the prosecution policy in such a way that it was enabled to grant offenders immunity from prosecution if they met particular conditions. This policy was challenged in the Pretoria High Court by relatives of apartheid-era victims and human rights organisations. In December 2008, the court ruled that the policy was unconstitutional. A subsequent appeal was dismissed on 5 May 2009. The court ordered the NPA to fulfil its constitutional obligations to prosecute those cases with sufficient evidence [Khulumani  | 4 May 2009].

SOURCES

[Business Day | 19 Oct 2010]
[Centre for the Study of Violence and Reconciliation | 19 Oct 2010]
[Khulumani Support Group | 4 May 2009]
[Mail and Guardian | 1 Jan 2002]
[New Age | 1 Feb 2011]
[South African Press Association | 23 Feb 2010]
[South African Press Association | 8 Apr 2010]
[Sunday Independent | 22 July 2007]
[Traces of Truth]