By Prakash Naidoo
Though President Jacob Zuma maintains there is no timeframe within which he has to consider the applications for presidential pardons before him, it seems likely that he is waiting for the outcome of two constitutional court cases that will affect his decision.
The judgments from both cases will relate directly to the issue of presidential pardons, and are expected as early as next month, when the court begins its first session of 2010.
And this week the Democratic Alliance, with the expected support of some other opposition parties, is planning to introduce draft legislation that will set a more formal framework for pardons.
"While we accept that this is a presidential prerogative, we don't believe this is an entirely arbitrary process and it is something the president needs to apply his mind to," says the DA's James Selfe.
Presidential pardons, and the criteria used to grant them, are a political hot potato which Zuma inherited from his predecessor Thabo Mbeki, who managed to defer making any decision on the issue for almost eight years.
The matter has become even more sensitive since the presidency confirmed that among the more than 300 applications for pardons is one from Zuma's former financial adviser, convicted fraudster Schabir Shaik.
Adding to the political intrigue, it emerged this week that Zuma had met one of apartheid's most villainous police chiefs, Eugene de Kock, who is serving 212 years in prison for his crimes.
All of which has given rise to speculation that should Zuma pardon Shaik, who was released from prison last year on medical grounds, he could move to counter the expected public outcry by also pardoning De Kock and others, and then saying both pardons were granted in the spirit of national reconciliation.
But the move could set off a political backlash from human rights groups, victims of apartheid-era crimes and even Zuma's own alliance partners.
Observers say it would set a precedent that would almost certainly prompt a wave of applications for pardons from SA's most notorious criminals, including suspected apartheid-era spies and those convicted of "necklace" killings.
And there is little doubt that Janusz Walus and Clive Derby-Lewis, the killers of popular communist leader Chris Hani, would be back in line seeking pardons.
Both men were denied amnesty by the Truth & Reconciliation Commission (TRC ) and applied for a presidential pardon under Mbeki's presidency.
This application and those from 384 Inkatha Freedom Party members are among the more than 2 500 which are related to the two constitutional court cases.
In the IFP case, the party has been fighting government for almost eight years, demanding the release of IFP prisoners who it says qualify for presidential pardons. After persistently raising the matter in parliament, IFP chief whip Koos van der Merwe was told the applications had been sent to then justice minister Brigitte Mabandla to process.
Frustrated at every turn, Van der Merwe eventually took the matter to the high court in Pretoria about two years ago. At the time Mabandla argued that the 384 were among more than 1 000 applications, and the reason for the delay was that the ministry had no framework in place.
The court ruled that Mabandla had failed to exercise her constitutional duties, and gave her three months to process the IFP's applications. Mabandla appealed the judgment, and when the supreme court of appeal also ruled against her, the matter ended up in the constitutional court.
The constitutional principle in this case was whether the processing of pardon applications, prior to the final decision taken by the president, was an obligation vested in the president (as head of state) or an obligation of the minister.
In September last year, the constitutional court ruled that the legal action should in fact have been brought against the president, but ordered government to pay the legal costs on the grounds that unacceptable delays had occurred in processing the pardon applications.
Within days the IFP promptly lodged a new court challenge, this time against the president, and this is one of the two judgments expected from the constitutional court within the next few weeks.
"It is unbelievable that the president has taken almost eight years to consider our applications, and he still hasn't made a decision," says Van der Merwe.
Two years ago Mbeki set up a multiparty pardons reference group (PRG) – made up of one representative from each of the 15 political parties in parliament at the time – to advise him and give direction on a set of criteria to be used when granting pardons.
When Mbeki announced the move, he excluded applicants who had applied for amnesty and had been refused by the TRC, "to ensure that we do not undermine its work". The new process was open only to prisoners who had committed politically motivated crimes in the period up to June 16 1999. The cut-off date for the TRC was May 10 1994.
The date is significant, especially for the IFP and the ANC in KwaZulu Natal, where there have been sporadic political clashes since 1994.
By February last year it emerged that the PRG had considered 2 114 applications for pardons and made 121 recommendations to the president.
For several months a number of nongovernmental organisations, seeking greater victim participation in the process as well as transparency and public disclosure, attempted unsuccessfully to make submissions to the PRG.
Eventually the group, led by the Centre for the Study of Violence & Reconciliation, lodged an urgent application in the high court to prevent the president from issuing political pardons pending the final determination of the rights of victims.
The high court ruled that victims of crime had a right to be heard before the president exercised his pardon.
That decision was appealed by an Afrikaner Weerstandsbeweging (AWB) member, Ryna Albutt, who was among those who applied to Mbeki for a presidential pardon.
Bizarrely, government found itself on the same side as the AWB when both parties went to the constitutional court seeking to have the high court ruling overturned.
This is the second judgment pending on the issue.
However, government's suggestion that there is no framework in place to give direction on the granting of pardons may not be true.
Around 2005 the justice department presented a briefing paper to parliament which gave detailed guidelines on the criteria that should be applied when considering such applications.
But the process was never formalised and the paper never surfaced again.
However, it has been reliably learnt that the recommendations of this paper have been intermittently used by government, and Selfe has confirmed that the document is the basis of draft legislation the DA plans to file with parliament's speaker's office by the end of this week.
Some of the guidelines in the paper, entitled "The Power to Pardon" and which the FM has seen, are not dissimilar to some of the issues raised in the two court cases.
The paper notes that pardons are usually granted for less serious offences.
Where a more serious offence is concerned, it suggests that the matter be submitted to "the relevant director of public prosecutions for his or her comment and the relevant case records, if still available, are studied before a recommendation is made".
In view of the high level of crime in SA, it urges that "a very strict policy" be applied (see box).
"If these guidelines are applied, then none of the current crop of applicants [for presidential pardons] will actually qualify," says Selfe. "We are saying that the president can grant pardons, but he has to take other factors into consideration when making this decision."
A particularly striking point raised in the paper is that the power of the president to pardon offenders is, in principle, exercised only in highly exceptional cases. It warns that "a more relaxed approach in this regard will bring the administration of justice into disrepute".
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