By Rebecca Murdoch and Hugo van der Merwe
The High Court's ruling this week interdicting the President from granting pardons in terms of the special dispensation for political pardons raises important questions regarding the state of rule of law in South Africa. Apart from criticisms and direct attacks on the judiciary by politicians, the relevance of the judiciary is itself being eroded through the executive's attempts to tamper with both the prosecutions of suspects and the sentencing of convicted criminals.
In his ruling which temporarily blocks the president from granting political pardons, Judge Willie Seriti found that the president is obliged to act in accordance with the constitution and to respect the rights of victims of crime when making decisions about pardons.
He affirmed that, as with parole hearings, victims have a right to be heard before pardons are granted. The ruling comes after extensive lobbying efforts by a coalition of human rights and survivor groups to ensure a more transparent process with full participation of survivors.
Until last week, these demands were met by blunt rejections by the president and the reference group that was established to review applications from those claiming to be political prisoners.
In December, the courts made a similar finding with regard to prosecutions. The High Court found that the amended prosecution guidelines by the national director of public prosecutions (NDPP) were unconstitutional, and that, in effect, they amounted to a "copy or duplication" of the TRC amnesty process.
Judge J. Legodi found that this is unlawful because "when there is sufficient evidence to prosecute, the NDPP must comply with its obligation. Entitlement by the NDPP to refuse to prosecute where there is a strong case and adequate evidence to do so would in my view be unconstitutional."
Government interference in procedures for instituting criminal charges is preventing certain cases from reaching the courts.
At the other end of the legal process, the state is also second-guessing judicial decisions on appropriate punishment for criminal acts. Without these bookends of justice the substantive impartiality and credibility of the justice system is slowly being eroded as executive authority encroaches on the prosecution and sanction of criminal acts.
Two high-profile cases with which the government is accused of tampering are the cases of the non-prosecution of Jacob Zuma and the parole granted to Shabir Shaik. While these cases have received extensive coverage, similar meddling in judicial process by the executive have drawn less public attention in despite the fact that it directly affects thousands of apartheid-era victims.
Reluctance to prosecute politically sensitive cases runs deep in the new democratic dispensation.
Since the conclusion of the TRC's Amnesty Commission in 2001, there have only been four cases prosecuted by the NDPP, despite the TRC handing over 300 cases for further investigation and possible prosecution. These cases include both former liberation forces and apartheid state operatives.
Human rights organisations and, one would assume, the country as a whole, looked at the TRC process as one that heralded a new era of rights for victims – that it would be unimaginable for their voices to again be ignored in developing policies affecting their rights, or administrative actions directly affecting their lives. The principles of transparency, openness and inclusivity were indispensable in the endeavours of South Africa's Truth and Reconciliation Commissions.
The special dispensation for pardon blatantly reneged on these principles and indeed Judge Sereti ruled that Mbeki's public commitment when announcing the pardons process "accords with the basic values and principles enshrined in our Constitution. In order to act in accordance with this public commitment my view is that the President should allow the victims and/or their families and interested parties to be heard prior to releasing any prisoner on pardon."
Last week, the court also ordered that the president and the minister of justice provide the civil society coalition with a list of the prisoners recommended for pardon.
The right to justice is a fundamental principle in our democracy. While the cases of Zuma and Shaik provoke extensive public interest – and aggravation from many – the denial of justice is even more deeply felt by survivors as they are denied their right to justice and judicial redress from perpetrators who killed, tortured and otherwise seriously harmed them or their family members.
Whereas opposition parties have decried the handling of the Zuma and Shaik cases, they have remained strangely mute on the prosecution and pardons policies on human rights abuses. In parliament they welcomed the announcement of the new prosecutions policy which was subsequently judged unconstitutional. After they were co-opted into the President's Reference Group implementing the presidential pardons process they somehow became resistant to pleas to assist in bringing survivors' voices into the process. Political parties were at best silent spectators, and at worst collaborators in this process that has also been declared to be inconsistent with our constitution.
In both these cases, it has been civil society organisations and survivors themselves who have had to speak out, and eventually turn to the courts to curb the abuse of political power. It comes as great relief that the courts have thus far proven an effective protector of these rights.
While much public attention has been focused on the elections, we should perhaps keep in mind that a vibrant civil society remains a key pillar of democracy and guarantor of human rights protection.
Dr Hugo van der Merwe is the Transitional Justice Programme Manager at the Centre for the Study of Violence and Reconciliation; and Rebecca Murdoch is a research intern at the centre.
In Sunday Independent .
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
