Mbeki embarks on perilous course

The presidential pardon: an extension of the amnesty process or an attempt to correct perceived imbalances?

By using his presidential prerogative to pardon 33 prisoners convicted of serious crimes, including multiple murder, Thabo Mbeki has rekindled the controversy over who should - and who should not - be exonerated for politically motivated offences committed during the apartheid era. The Ministry of Justice has sought to downplay the significance of the release. It has stressed that Mbeki exercised powers conferred on him by the Constitution and freed the men on the recommendation of Justice Minister Penuell Maduna. It has emphasised, too, that each petition for pardon was assessed on its merits. But for cogent reasons it has failed to either forestall or defuse the controversy.

The surreptitious release of the prisoners without an explanatory statement, still less debate in Parliament, is one reason for the widespread dismay and anxiety that greeted news of the pardons. Another is the apparent political favouritism shown by Mbeki. Judging by the names of the prisoners, they are all members of the majority black community. White right-wingers are conspicuously absent. Beyond that, however, those with known political identities are all members of either the African National Congress or the Pan Africanist Congress. Narrowing the apparent selective favouritism further is another factor: most of the freed men appear to have hailed from the Eastern Cape, a traditional stronghold of the ANC. But, worse still, the 33 include men who were refused amnesty by the Truth & Reconciliation Commission (TRC) for common law murders which they sought unsuccessfully to present as politically-motivated killings.

Mbeki and Maduna find themselves buffeted by criticism from people occupying widely different positions on the ideological continuum. The most prominent of these critics is Archbishop Desmond Tutu, who, as chairman of the TRC, handed over the TRC's five volume report to former President Nelson Mandela in October 1998. Tutu speaks forthrightly of the pardons making "a mockery of the TRC". There is no evidence that Mbeki seeks that result. But there are suspicions that he may be striving to rectify what he sees as the fundamental error of the TRC findings. His quarrel is the TRC conclusion that the ANC, while fighting a "just war", did not always pursue its laudable aims through "just means". In the TRC's judgment, the ANC's moral transgressions include: its targeting of civilians; its assassination of suspected "collaborators"; its torture and execution of prisoners in detention camps. It should be noted en passant that the term "collaborator" was used loosely and often hung around the necks of conservative black politicians who opposed the ANC's "people's war" and its advocacy of economic sanctions.

The bitter exchanges between Mbeki and Tutu still ring in the ears. Mbeki's declamation that "no member of my organisation, the ANC, can ever concur with the scurrilous attempts to criminalise the liberation struggle" jostles for attention with Tutu's rejoinder, "We can't assume that yesterday's oppressed will not become tomorrow's oppressors". But the TRC, for all the moral authority of its chairman, has not produced a sacred text that cannot be changed one iota. Mbeki, in assessing the situation nearly four years on, is entitled to reflect on whether further steps should be taken to advance reconciliation.

If, however, Mbeki has embarked on an undeclared exercise to correct a perceived imbalance in the TRC findings, and, more to the point, in the work of its Amnesty Committee, by using his presidential prerogative partially, he is almost certain to annoy more people than he appeases. When he pardons prisoners he does so in the name of all South Africans, not only those who support the ANC and the PAC (which, incidentally, detects an ANC bias in the release of the 33). If, in contrast, the releases are merely the first tranche in a politically balanced and finely calibrated extension of the amnesty process started by the TRC, some good may result. But a difficult and potentially perilous process lies ahead.

The journey is made even more hazardous by another consideration. The need to address the TRC's recommendation that reparations, in the form of financial assistance, should be made to properly identified victims of human rights abuse. So far the ANC-led government has done little or nothing beyond making an urgent interim payment of between R2000 and R5000 to selected victims. The TRC proposal that recognised victims should be paid between R17 000 and R22 000 a year for six years has been studiously ignored. Concern for the fate of prisoners should not blind the Mbeki administration to the rights of the victims of past brutality.