Pardons for apartheid crimes: must the President hear the victims?

Who says South Africa’s political parties cannot all agree on something (apart from agreeing on the need for higher salaries for MP’s)? Responding yesterday to the decision of the North Gauteng High Court in the case of Centre for the Study of Violence and Reconciliation and Others v The President of the RSA and Another, the Centre’s Director, Hugo van der Merwe, said it was “astounding” and “bizarre” that all 15 political parties represented in the past Parliament were prepared to sanction a secret pardon process for supposedly politically motivated crimes committed after the cut-off date for amnesty granted by the TRC.

In the judgment Seriti J granted an interdict against the President prohibiting him from granting any pardon in terms of the “Special dispensation for Presidential pardons for political offences” until such time as the Applicants have been given access to the relevant application for a pardon and the proceedings and recommendations of the Pardons Reference Group and have been given an opportunity to make representations in that regard to the first respondent.”

The Pardons Reference Group – consisting of representatives of all political parties represented in the third Parliament – was set up by the President to advise him on the granting of these political pardons and agreed to do its work in secret and refused to hear representations from representatives of the victims of the crimes for which pardons were being sought. The President indicated that he would not be bound by the recommendations of this Group and that he would make an independent decision about the granting of each pardon in terms of section 84(2)(j) of the Constitution.

For constitutional law nerds like myself this is a facinating case. It is obvious that it would have been morally and politically more correct to give the victims an opportunity to make representations about the pardons. Granting political pardons is a highly emotive issue and has not always been dealt with in a consistent and morally tenable manner and giving the voiceless victims an opportunity to have their say might have helped to legitimise this process.

But having said that, I am conflicted about whether the judgment by Seriti J is correct.

He argued – quite plausibly – that the Promotion of Administrative Justice Act (PAJA) did apply to the decision of the President to pardon or reprieve offenders. This is because PAJA did not exclude such decisions (as well as decisions by the President to make appointments in terms of the Constitution and the law in terms of section 84(2)(e)) from the definition of administrative action. This meant that when the President pardoned or reprieved offenders he was engaging in administrative action and had a duty to hear representations from those affected by the decision.

This made sense, said Sereti, because even when a parole board makes a decision on granting parole to a prisoner the victims of the prisoner had a right to be heard before such a decision was made.

In my view, the President prior to releasing a prisoner on pardon, must have considered all the relevant information relating to the said prisoner. The said information should include, inter alia, the prisoner’s application, the inputs of victims and/or families of the victims of that particular crime and any other relevant information which might come from any interested party. The inputs from the other interested parties will enable the President to verify the facts stated by the applicant in the parole application form. This view accords with the basic values and principles enshrined in section 195 of the Constitution and give effect to the right contemplated in section 33 of the Constitution.

This reasoning seems sound – until one recalls the judgment of the Constitutional Court in President of the RSA v Hugo. In that case – dealing with similar provisions in the interim Constitution – the Constitutional Court stated that while the exercise of the head of state powers by the President would always be subject to the discipline of the Constitution and could therefore be reviewed by a court, it would only be in extraordinary circumstances that a court would be able to set aside a decision by the President to pardon individuals. Writing for the majority Goldstone J said:

In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power. Even the provisions of section 8 of the interim Constitution – the equality clause – would have only limited application. No prisoner has the right to be pardoned, to be reprieved or to have a sentence remitted. The interim Constitution places such matters within the power of the President. This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) [s 84(2)(j) in the 1996 Constitution] a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

The reason for this hands off approach was that the power to pardon was a head of state power (previously a prerogative power) and the president therefore had to have a wide discretion to exercise this power as he saw fit. If the president had to invite victims to make representations every time he was considering a pardon, it would make the job of granting pardons very cumbersome indeed.

But given the fact that one of the founding values of our Constitution is a system “of democratic government, to ensure accountability, responsiveness and openness”, and given the explicit provisions of PAJA, one may well argue – like Sereti did – that the president had a duty to listen to the victims before making a decision on pardoning any individual. Perhaps the Hugo case was too sweeping in the granting of powers to the president?

As I said, I am conflicted. It is curious though that Sereti did not mention the Hugo case in his judgment and this might give lawyers for the president scope to appeal the judgment to the Constitutional Court. Maybe the legal boffins out there has an enlightening take on this perplexing question?

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