Constitutional Court upholds pardons decision

The Constitutional Court on Tuesday upheld a high court decision interdicting the president from granting pardons to perpetrators of political violence without first consulting victims.

Afrikaner Weerstandsbeweging (AWB) member Ryna Albutt appealed against the decision in the Constitutional Court after it was handed down in the North Gauteng High Court in Pretoria on April 29 2009. Albutt applied for pardon under a special dispensation introduced by former president Thabo Mbeki in 2007.

In a unanimous judgement, Chief Justice Sandile Ngcobo found that the exercise of the power to grant pardon had to be rationally related to its purpose. Mbeki had hoped the special dispensation would achieve national unity and national reconciliation and said he would be guided by the criteria, principles and spirit of the Truth and Reconciliation Commission (TRC) amnesty process, Ngcobo noted. He held that, given the country's history, victim participation was the only rational means of contributing to national reconciliation and national unity.

Victims had to be given an opportunity to participate to determine the facts on which the pardon was based. Ngcobo emphasised that the court's finding applied only to pardons brought under the special dispensation and not to any other categories. He dismissed the appeal with costs.

The Centre for the Study of Violence and Reconciliation approached the high court for relief after Mbeki established the special dispensation process for applications by people convicted of politically motivated crimes, but who did not take part in the TRC. Mbeki established a Pardons Reference Group (PRG) on which each political party in Parliament was represented. The PRG was formally constituted on January 18 2008. It considered 2 114 applications for pardons and made recommendations to the president. From February 2008 to March 2009, the Centre for the Study of Violence and Reconciliation and other non-governmental organisations unsuccessfully tried to ensure victim participation, greater transparency and public disclosure. They then brought the high court application, which was found in their favour.

Albutt, who was jailed for an attack on black residents in Kuruman in Northern Cape, was joined in his challenge of the high court decision by the president and the justice minister.

Source: Mail & Guardian