Just trust the president

Duma Kumalo was sentenced to death for participating in the murder of an apartheid-era Sharpeville councillor. Duma Kumalo was innocent. He was not even present when the murder took place. Duma was convicted on the basis of testimony of another Sharpeville resident, elicited through torture. This was revealed at the Truth and Reconciliation Commission (TRC). Duma and his fellow-accused became known as the “Sharpeville Six” and spent seven years in jail, three of them on death row. The death sentence was nearly carried out. A last-minute reprieve saved him and his co-accused — some of whom may also have been innocent.

Years later Duma applied for a presidential pardon. Having a criminal record was proving detrimental in many ways. But there was a catch: in order to qualify he was required to confess to his crime. A crime that he did not commit. He refused to lie, and his request was denied by then president Mbeki. It was made clear to Duma that it was entirely the president’s prerogative as to who could be pardoned or not. He was not given an opportunity to address the president. There’s no evidence that the president actually applied his mind to Duma’s case. It’s entirely possible that Duma’s application never got beyond the legal advisers in the presidency.

Duma Kumalo died with a criminal record. Attempts to have his record expunged posthumously have so far failed.

Mbeki instituted a process in November 2007 to pardon certain individuals who had been convicted of crimes in furtherance of political objectives committed up to June 1999. Roughly put — a kind of back door amnesty for those who had excluded themselves from the TRC. It extended the time frame of crimes covered by the TRC. Persons already denied amnesty by the TRC were not eligible to apply. Mbeki set up a reference group (RG) incorporating members of different political parties to manage the process of handling applications. This was not to be a judicial process. The RG was not given powers to subpoena individuals to testify before it. It worked with the person’s application, the court judgement and records of behaviour in jail, if relevant. No victims of these perpetrators were invited to participate or make representations. It seems there has been no requirement of the applicants to make full disclosure of their crimes, unlike the requirement in the TRC processes for amnesty. The RG screened about 2 000 applications and apparently have made recommendations that about 100 of these should receive a pardon. There is no obligation on the part of the president to follow the recommendations of the RG.

Of concern is that no one yet knows who has applied for a pardon, who the RG has recommended be pardoned, or for what crimes. And it appears that this information is unlikely to be made public until the pardons are announced. There is no place in this process for the president (now Motlanthe) to hear what the victims or survivors of any such crimes have to say about a crime or about the convicted criminal applying for pardon. This is in stark contrast to the recent Clive Derby-Lewis parole hearing where assassinated Chris Hani’s family were given an opportunity to provide their perspective.

The message is clear — victims have no place in the process of presidential pardons. They have to trust that the president will apply his mind fairly and objectively (and rigorously evaluate the advice of his advisers as well as the recommendations of the RG).

In essence, persons convicted of crimes of a political nature up to mid-1999, have received yet another opportunity for an equivalent of amnesty. But this time in secret, and seemingly without having to make full disclosure. No extension has been created for victims to either testify or seek compensation for violations suffered during this extended time. Khulumani Support Group (KSG) is South Africa’s national membership organisation of victims and survivors of apartheid-related gross human rights abuses and violations. It has about 55 000 members — more than double the number of “identified” victims of the TRC (although this number does include many of those “identified” victims). Duma Kumalo was a founder member of the KSG.

If any of the persons who’ve applied for presidential pardon are perpetrators in any of the criminal activities to which Khulumani members were subject, there should surely, in the interests of justice, be an opportunity for these victims and survivors to explain to the president what the effects of these crimes were on them and their lives, and the lives of their children and dependants. Surely a just and humane president would want to know this before deciding who to pardon and what for?

Is there any possibility that some of those who’ve applied for a presidential pardon appear on the election lists of the governing party? Is this why the possibility of presidential pardons has become imminent? Was the plan perhaps that the names of the pardoned be announced on National Human Rights Day — just in time for confirmation of those affected to retain their positions as election candidates? In the meantime a group of interested parties, including the KSG, has served papers in the North Gauteng High Court for an urgent interdict to stop the president from granting the pardons.

Looking ahead
On becoming president of South Africa, how would the incumbent president of the African National Congress (ANC), Jacob Zuma, use his constitutional right to grant pardons and expunge criminal records? Would his former financial adviser Schabir Shaik (if he is still alive at that time!) be top of the list?

What about other parties’ presidential candidates? Who would they pardon? Would former apartheid minister Adriaan Vlok and apartheid era General van der Merwe be pardoned? Remember that they reached a plea bargain that specifically excluded implicating Dr Wouter Basson, although they had that option. The victim in Vlok’s case, the Reverend Frank Chikane, was given the opportunity to indicate whether or not he accepted their plea bargain, and he signed court papers indicating that he did. Did he knowingly shy away from accepting the plea bargain that implicated Basson?

Unfortunately it’s all too late for Duma Kumalo. Even the president seemingly does not have the power to reverse an erroneous judgement convicting an innocent man.