Sitting of Parliament to Report on the Processing of some Presidential
Pardons
Cape Town
21 November 2007
Madam Speaker and Deputy Speaker of the National Assembly
Chairperson and Deputy Chairperson of the National Council of Provinces
Leaders of our political parties
Honourable Ministers, Deputy Ministers and Premiers
Honourable members
Distinguished guests
Ladies and gentlemen
I would like to thank the presiding officers of both Houses of Parliament
for acceding to my request to make this short address to this joint sitting so
as to make a particular announcement that I hope will contribute to our
continuing efforts towards national reconciliation and nation building.
It is indeed an indication of the deep scars inflicted by our painful past
that thirteen years after the attainment of our freedom we still have to
grapple with matters of persons who committed offences that might be
categorised as political, creating the possibility that we can be accused of
having political prisoners.
This day, the 21st of November, holds some special and tragic memories for a
number of families in our country, especially those of Mamelodi in the Tshwane
Metropolitan City. On this day in 1985, a protest demonstration of thousands of
local residents was brutally ended by police bullets and teargas, leaving 13
people dead and many others maimed for life.
We would like to assure the families who were so tragically affected that as
they remember their loved ones, the government and people of South Africa stand
together with them. Our abiding prayer is that as we engage in various
programmes to heal our nation, our efforts will also assuage the pain of those
families, throughout our country and region, which lost some of their kith and
kin as a result of apartheid repression and aggression.
Yesterday, one of our daily newspapers, the Johannesburg Star, carried a
chilling story of how four suspected African National Congress (ANC) guerrillas
were abducted in July 1987 by the then Northern Transvaal Security Branch. The
Security Police first took two of these suspects, Andrew Makupe and Jackson
Maake to a farm in Pienaars River. After beating them for hours, the apartheid
police unit made Makupe to phone his friend, Harold Sefolo, pretending he
wanted to see him.
They then picked up Sefolo and finding it difficult to extract information
from him, they wired Makupe to a portable generator and electrocuted him in
front of Sefolo. They did the same to Maake and told Sefolo that he was also
going to be electrocuted. He asked to make a final request and his torturers
agreed. He then gave a short speech and sang Nkosi Sikelel' iAfrica. When he
finished, he too was electrocuted to death.
The fourth victim, Justice Mbizana, was arrested and taken to a farm in
Hammanskraal where he was tortured and bludgeoned to death. The police then
tried to destroy the bodies of the deceased with explosives, to ensure that the
stories, the fate and identity of those who had been murdered would never be
known.
However, the critical work that the Truth and Reconciliation Commission
(TRC) did ensured that the nation got to know what happened to these and many
others who died so that we can enjoy the freedom for which we pride ourselves
today. Further, the sterling work of the Missing Persons Task Team of the
National Prosecuting Authority found the remains of the patriots featured in
the story in the Star in a grave in Winterveldt outside Tshwane and through
Deoxyribonucleic Acid Analysis (DNA) tests, was able to identify the
deceased.
As far as we know, their families and indeed the families of the many who
died in similarly horrible circumstances have not asked for vengeance, but have
insisted on a process of healing. They have not asked for retribution. Rather
they have requested that all of us should sustain the memory of the heroes and
heroines in everything we do.
Accordingly, when we speak of our continuing efforts towards national
reconciliation and nation building, and when we take additional steps in this
direction, as we are doing today, we do so with the memory of all these martyrs
fresh in our minds.
Honourable members,
Conscious of the horrors that were done to perpetuate white minority rule,
many have hailed South Africa's relatively smooth and peaceful transition as
one of the most outstanding achievements among modern political
transitions.
While our freedom and democracy represent the most profound and
indestructible reparation for all the people of South Africa, we recognised
that individuals and communities affected by specific acts of gross human
rights violations deserved and deserve specific attention.
We also all agreed that those who perpetrated acts of gross human rights
violation needed to come clean, to admit to their actions and apologise to
those who had been harmed. We also recognised that some of the acts perpetrated
by certain individuals were politically motivated and thus needed to be taken
into consideration by the Truth and Reconciliation Commission's amnesty
process.
The Post-amble of South Africa's Interim Constitution placed emphasis on
reconciliation and the reconstruction of a post-conflict South African
society.
It said: "In order to advance such reconciliation and reconstruction,
amnesty shall be granted in respect of acts, omissions and offences associated
with political objectives and committed in the course of the conflicts of the
past. To this end, Parliament under this Constitution shall adopt a law
determining a firm cut-off date which shall be a date after 8 October 1990 and
before 6 December 1993 providing for the mechanisms, criteria and procedures,
including tribunals, if any, through which such amnesty shall be dealt with at
any time after the law has been passed".
This Post-amble set the stage for the adoption of the Promotion of National
Unity and Reconciliation Act, (TRC Act) 1995. Among other things, the TRC Act
created the political and moral climate for the consolidation of our democracy
and fostering a culture of human rights.
It provided for the establishment of the Truth and Reconciliation Commission
(TRC), with the specific purpose of promoting national unity, reconciliation
and healing, in a spirit of forgiveness, compassion and understanding.
Undoubtedly, the TRC was an important process which, while confronting our
ugly past, sought to help us to advance beyond the very conflicts and divisions
that had brought pain and suffering among many of our compatriots.
The final act of the Commission as it concluded its important work was to
make recommendations to the President in respect of reparations to the victims
of gross human rights violations.
Honourable members,
The drafters of the Interim Constitution also saw amnesty as an essential
element of the quest to advance reconciliation and national unity. The amnesty
process of the TRC was therefore a massive undertaking in terms of building
bridges across the great divides caused by racial conflict and repression.
The cut-off date, relating to offences that could be considered by the TRC's
Amnesty Committee, was initially set by the Post-amble of our Interim
Constitution to be before the 6th of December 1993.
However, following requests from various political formations, especially
those organisations whose members were incarcerated for offences committed just
before the 1994 elections, and because of our relentless pursuit of the
objective of national reconciliation, we all agreed to an extension of the
cut-off date to 10 May 1994, the day of the inauguration of the new,
democratically-elected President of the Republic.
While this new date served to accommodate the concerns of various
individuals, members and supporters of various political organisations and thus
further promoted national reconciliation in the run-up to our country's first
ever democratic elections in 1994, this date did not take into consideration
that political violence in this country, especially in certain areas such as
KwaZulu-Natal, persisted well beyond that cut-off date.
Therefore, once the TRC had finished its business, we still had a number of
issues, such as the question of amnesty for many South Africans who had not
participated in the TRC process for a number of reasons, which had to be
finalised. It thus became clear that the so-called "unfinished business" of the
TRC would have to be finished in one way or another.
When I was privileged to address a Joint Sitting such as this one, on 15
April 2003, tabling the Final Report of the Truth and Reconciliation Committee,
I referred to one element of this "unfinished business". I said:
"Yet we also have to deal with the reality that many of the participants in
the conflict of the past did not take part in the TRC process. Among these are
individuals who were misled by their leadership to treat the process with
disdain. Others themselves calculated that they would not be found out, either
due to poor TRC investigations or what they believed and still believe is too
complex a web of concealment for anyone to unravel. Yet other operatives
expected the political leadership of the state institutions to which they
belonged to provide the overall context against which they could present their
cases: and this was not to be."
This reality cannot be avoided. Government is of the firm conviction that we
cannot resolve this matter by setting up yet another amnesty process, which in
effect would mean suspending constitutional rights of those who were at the
receiving end of gross human right violations.
We have therefore left this matter in the hands of the National Directorate
of Public Prosecutions, for it to pursue any cases that, as is normal practice,
it believes deserve prosecution and can be prosecuted. This work is
continuing.
However, as part of this process and in the national interest, the National
Directorate of Public Prosecutions, working with our intelligence agencies,
will leave its doors open for those who are prepared to divulge information at
their disposal and to co-operate in unearthing the truth, for them to enter
into arrangements that are standard in the normal execution of justice, and
which are accommodated in our legislation.
To facilitate this process, the authorised Ministerial Committee has since
this statement was made, developed the required guidelines to assist the
National Directorate of Public Prosecutions to do its work.
This means that those who committed offences of the kind that was considered
by the TRC Amnesty Committee, who did not apply for amnesty and have not been
convicted for any offences they may have committed, are free to approach the
National Director of Public Prosecutions and engage in the processes we have
described.
Honourable members,
For some time since the year 2000, government has been seized of the
challenge to bring to a close the vexing matter of those prisoners serving
sentences for what might be considered to be politically motivated crimes of
the kind that fell within the brief of the Amnesty Committee of the TRC. In
dealing with the challenges I have outlined, we have had to proceed with care,
sensitive to the legacy of the TRC.
With regard to these matters, it is important that our actions do not, in
any way, undermine or suggest that any attempt is being made to undermine the
TRC process and its outcomes.
From as early as the year 2000, after the mechanisms put in place by the TRC
Act had fulfilled their statutory mandates, we have with ever-increasing
regularity received requests for pardon from various political parties,
organisations and individuals, in respect of individuals who have been
sentenced by our courts for serious offences, both before and after the 10 May
1994 TRC cut-off date, allegedly in furtherance of political objectives or
aims, arising out of conflicts of the past.
Currently, government is in possession of at least 1062 applications for
presidential pardons by people who have been found guilty of offences which
were allegedly committed with a political motive, arising from the conflicts of
the past.
Honourable members,
In the last few years, both prior to the commencement of the new
constitutional dispensation and thereafter, amnesty and indemnity laws were
enacted and utilised to extinguish criminal (and in some instances civil)
liability, and/or expunge criminal convictions and criminal records of persons
who committed offences with a political objective, during the conflicts of the
past.
The lifespan of all these pieces of legislation, namely the Indemnity Act
(Act 35 of 1990), the Further Indemnity Act (Act 15 of 1992) and the last being
the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of
1995)(the TRC Act), have expired and can no longer be utilised.
We have also considered other statutory provisions, such as Section 82 and
other measures in the Correctional Services Act, 1998 (Act 111 of 1998), and
those in the Criminal Procedure Act, 1977 (Act 51 of 1977). I have not found
any of the existing measures suitable to deal with the specific matters at
hand, to which I have referred, in a flexible, decisive and speedy manner.
As a way forward and in the interest of nation-building, national
reconciliation and the further enhancement of national cohesion, and in order
to make a further break with matters which arise from the conflicts of the
past, consideration has therefore been given to the use of the Presidential
pardon to deal with this "unfinished business."
As the honourable members know, our Constitution says that the President is
responsible for "pardoning or reprieving offenders and remitting any fines,
penalties or forfeitures." (Article 84(2) (j).)
The Honourable members will also remember the 1997 ruling of the
Constitutional Court in the matter of the President of the Republic of South
Africa v Hugo. The Court said:
"Pardoning a sentenced person is not a private act of grace in the sense
that the pardoning power in a monarchy may be. It is recognition in the Interim
Constitution that a power should be granted to the President to determine when,
in his view; the public welfare will be better served by granting a remission
of sentence or some other form of pardon."
The Constitutional Court also said, "No prisoner has a 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."
I believe that the sum total of all this is that the President has an
obligation to consider all requests made to him or her to pardon or reprieve
offenders and remit any fines, penalties or forfeitures.
At the same time, having thus applied his or her mind, the President is
under no obligation to accede to the requests made to him or her, provided that
she or he proceeds in a rational manner.
I requested the convening of this Joint Sitting to inform the honourable
members of Parliament that, considering what the nation sought to achieve
through the TRC process, I have decided to institute a special process to
assist me as I discharge my constitutional obligation to consider the requests
for pardon from people who have already been convicted for offences they claim
belong among the category of offences that were considered by the TRC Amnesty
Committee.
This process will cover the requests for pardon of those people convicted
for offences they claim were politically motivated, and who were not denied
amnesty by the TRC.
Further to entrench the practice the nation has sought to cultivate, of
acting in unity as it addresses the crimes of the past, I would like the
political parties represented in our Parliament to assist me properly to
discharge my constitutional responsibility to consider the requests made to the
President to pardon those who have been convicted in the context of the
circumstances I have mentioned.
I therefore take this opportunity to request the political parties
represented in this Parliament each to appoint a representative who would serve
on a Reference Group that would consider each of the requests for pardon which
the President would refer to the group, and then make its considered
recommendations to the President.
Needless to say, this will not in any way subtract from the obligation
placed by the Constitution on the President, and described by the
Constitutional Court, for the President to grant pardons, etc. In other words,
the constitutional task to grant pardons and so on will remain with the
President.
However, the President would seriously take into account the recommendations
made by the Reference Group, respecting the effort the nation has made to unite
behind the objective of responding to the conflicts of the past, in the
interest of promoting the critical objectives of national reconciliation and
nation-building.
The process we are proposing will be of limited duration. It will have to be
strictly managed in terms of the mechanisms and procedures which are to be put
in place to ensure that the requests for pardon for the category of persons we
have mentioned are dealt with in an open and transparent manner, uniformly and
in strict compliance with predetermined procedures and criteria.
In this regard, among other things, we will have to act in a manner that
respects the observation made in 1996 by the Constitutional Court in the matter
of The Azanian People's Organisation (AZAPO) et al versus The President of the
Republic of South Africa et al. I refer here to the following determination
made by the Court:
"The amnesty contemplated is not a blanket amnesty against criminal
prosecution for all and sundry, granted automatically as a uniform act of
compulsory statutory amnesia. It is specifically authorised for the purpose of
effecting a constructive transition towards a democratic order. It is only
available where there is a full disclosure of all facts to the Amnesty
Committee and where it is clear that the particular transgression was
perpetrated during the prescribed period and with a political objective
committed in the course of the conflicts of the past. That objective has to be
evaluated having regard to the careful criteria listed in Section 20(3) of the
Act, including the very important relationship which the act perpetrated bears
in proportion to the object pursued."
Honourable members,
During a three-month "window of opportunity", covering the period 15 January
to 15 April 2008, persons who were convicted for offences they believe were of
the nature of the offences considered by the TRC during the period up to 16
June 1999, will have the opportunity to apply for a Presidential pardon in the
prescribed manner, if they have not already done so.
Applicants who were convicted for involvement in any offence of a sexual
nature, or any act of a domestic violence nature, or any offence referred to in
section 13 of the Drugs and Drug Trafficking Act, 1992, which relates to the
manufacture and supply of scheduled substances, the use and possession of drugs
and dealing in drugs, will not qualify for consideration.
In order to ensure that we do not undermine the work of the TRC, applicants
who had applied to the Amnesty Committee established under the TRC Act and
whose application for amnesty was refused, will not be considered for this
Presidential pardon process.
The President will make his decision whether to refuse or grant pardon on
each application placed before him, on an individual basis.
Further, the President will, with regard to each application placed before
him:
* seriously consider the recommendations made to him by the Reference
Group;
* form an independent opinion on the basis of the facts/information placed
before him, to arrive at a decision whether to grant or refuse pardon;
and,
* in so doing, the President:
* will be guided by the principles and values which underpin the
Constitution, including the principles and objectives of nation-building and
national reconciliation; and,
* uphold and be guided by the principles, criteria and spirit that inspired and
underpinned the process of the Truth and Reconciliation Commission, especially
as they relate to the amnesty process.
The Presidency and the Department of Justice and Constitutional Development
will announce further details about this process.
These will include a description of the support mechanisms we will need to
support the Reference Group, specific Terms of Reference for this Group, and
the time frames for the completion of its work, which, obviously, will in part
be determined by the number of applications for pardon that would be received
during the "window of opportunity" we have mentioned.
I trust that all the political parties represented in our Parliament will
respond positively to our invitation and request to them to appoint a
representative to serve on the Reference Group. Such representatives need not
be members of Parliament. And naturally, there is also no obligation on any
political party to agree to be represented on the Reference Group.
Perhaps only as a matter of detail, I request that those parties ready and
willing to serve in the Reference Group should communicate the names and
details of their nominees to the Director General in the Presidency, the Rev
Frank Chikane, by 10 December 2007.
This will enable us to constitute the Reference Group without unnecessary
delay and give us the possibility to consult it about all relevant matters,
prior to the opening of the "window of opportunity" on 15 January 2008.
As I said earlier, all of us have a responsibility to help our country to
advance further away from the conflicts of the past, to work together for a
shared future that is free of violence, free of bitterness, free of prejudice,
free of the albatross of the past â a future of harmony, of respect for the
Constitution and the law, of peace and prosperity for all our citizens.
When I had the privilege to address the 15 April 2003 Joint Sitting of our
Houses of Parliament to which I have referred, I said:
"In the larger sense, we were all victims of the system of apartheid, both
black and white. Some among us suffered because of oppression, exploitation,
repression and exclusion. Others among us suffered because we were imprisoned
behind prison walls of fear, paralysed by inhuman beliefs in our racial
superiority, and called upon to despise and abuse other human beings. Those who
do such things cannot but diminish their own humanity".
To be true to ourselves as human beings, demands that we act together to
overcome the legacy of this common and terrible past. It demands that we do
indeed enter into a people's contract for a better tomorrow.
Together we must confront the challenge of steering through a complex
transition that demands that we manage the historical fault-lines, without
papering over the cracks, moved by a new and common patriotism.
It says to all of us that we must honour those who shed their blood so that
we can sit together in this chamber by doing all the things that will make it
possible for us to say, this South Africa that we have rebuilt together, truly
belongs to all who live in it.
Once more, let me express my sincere thanks to you, the elected
representatives of our people, for convening in this Joint Sitting of the
Houses of Parliament to enable the President of the Republic communicate to
you, honourable members, the decisions I have taken to deal with a matter that
is of great concern to all of us as South Africans, who, I trust, are indeed
moved by a new and common patriotism.
Once again, as the late Nkosi Albert Luthuli, Africa's first Nobel Peace
Prize laureate once said in different circumstances, we continue to knock at
the door of all our compatriots, humbly requesting that we act in concert to
pursue what must clearly be a shared and noble goal.
Finally, let me wish all the honourable members and our guests a peaceful
and Merry Christmas and Happy New Year, as well as a well-deserved rest during
the period between the adjournment of Parliament this week, and the opening of
its next session early in 2008.
I thank you for your attention.
Issued by: The Presidency
21 November 2007
