Address of the President of South Africa, Thabo Mbeki, to the Joint 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 NCOP,
Leaders of our political parties,
Honourable Ministers, Deputy Ministers, and Premiers,
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 21 st 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 that 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 their 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 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 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 Winterveld outside Tshwane and through 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.
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.
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 6 th 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 April 15, 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.
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.
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 Hon 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 Hon 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 Hon 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.”
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 June 16, 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.
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 – 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, Hon 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.