Posted on August 2, 2012

President Zuma is currently considering applications for special pardons from 149 perpetrators of crimes committed in the dying days of apartheid or in the first five years of democracy. The applicants claim that the crimes were politically motivated, and the state suggests that the applications should be assessed broadly within the rubric of the Truth and Reconciliation Commission's (TRC's) amnesty process. If the President gets it wrong he risks violating the rights of victims and further damaging the legitimacy of a process fundamental to South Africa's negotiated transition to democracy.

The victims of gross human rights violations under apartheid were asked to accept a trade-off in order for the country to find reconciliation and a way forward into democracy. The trade-off was that amnesty would be given to perpetrators of such violations in return for a full disclosure from the perpetrators and reparation for the victims. Furthermore: perpetrators would have to demonstrate political motivation and 'proportionality'; only crimes committed before 10 May 1994 could be considered; and perpetrators failing to secure amnesty would be vulnerable to a systematic prosecution process. This trade-off was the 'social contract' underpinning South Africa's reconciliation project.

South Africa has found it difficult to honour the contract. In what could be regarded as failures of memory: relatively little 'full disclosure' has been forthcoming; reparations have been inadequate; prosecutions have been few and far between and certainly not systematic; and in 2002 President Mbeki pardoned over 30 members of the ANC and the PAC without reference to the TRC process - in fact, a number of the pardoned had applied to the TRC for amnesty and been rejected.

The current 'special pardons process' is grounded in the argument that, on the one hand, many perpetrators of gross human rights violations were not reached by the TRC amnesty process (for instance, because their political organisations rejected the TRC and refused to participate) and, on the other, that in certain parts of the country the political conflict that ravaged the transition period continued into the democratic era. The special pardons process, furthermore, has taken cognisance of the outcry from victim groupings and other civil society structures which followed the 2002 pardons.

When President Mbeki announced the process in 2007, he indicated that it would be consistent with 'what the nation sought to achieve through the TRC' and guided by inter alia 'the principles, criteria and spirit' of the TRC. Applications from perpetrators who had failed the TRC's amnesty test would not be considered. And a multi-party Pardons Reference Group (PRG) was put in place to consider applications for pardon and make recommendations to the President. The current set of 149 applications before the President are the ones recommended by the PRG for pardon.

Sadly the PRG failed to be guided by the TRC. It did not hold public hearings. Its deliberations were not transparent. Information about its routine working and decision-making had to be forced out through the South African History Archive's (SAHA's) use of the Promotion of Access to Information Act. It set a low bar for political motivation and required neither full disclosure nor proportionality. Crucially, it declined to consult with victims and victim groupings. In 2009 such groupings and other civil society structures, including SAHA, mounted a legal challenge to the work of the PRG. The High Court ruled that the PRG must consult with victims, and the Constitutional Court (in 2010) upheld the ruling. Subsequently information has been shared with victims and victim groupings, but the latter have expressed dissatisfaction with the process and have argued that information-sharing does not constitute consultation.

The special pardons process, it could be argued, is fatally flawed. Unless the President takes it back to the TRC drawing-board, it threatens to further unravel the underpinnings of the reconciliation project, undermine the rule of law, promote cultures of impunity, and alienate people from the political domain. Our pasts remind us just how ravaging such phenomena can be. South Africa cannot afford a memory failure of this magnitude.

Verne Harris is the Head: Memory Programming, Nelson Mandela Centre of Memory at the Nelson Mandela Foundation and a member of the Archival Platform Steering committee. He writes in his personal capacity.