The release of political prisoners and return of exiles, safe from prosecution, have been dominant questions in the moves towards negotiations in South Africa. Hopes were raised by President De Klerk's speech to parliament on 2 February and consolidated in May when the first talks between the ANC and the government were held at Cape Town and the Groote Schuur Minute was issued.
The Pretoria Minute of 6 August, following further ANC-government discussions, advanced the process with agreement on a broad definition of a political offence. On 8 October, after another meeting with the ANC, President De Klerk announced his intention to start the process of permanent indemnification. However, the procedures envisaged in the agreements are complex ones and will take some time to implement.
The Pretoria Minute accepted the report of a working group which had been set up by the Groote Schuur meeting to make recommendations on the definition of a political offence. This report outlined the 'principles and factors' that would form the basis of guidelines to meet the South African situation when considering the granting of pardon or indemnity.
Definition: The working group drew its principles from the field of extradition law as practised internationally. The question of whether or not an offence is political is to be approached on a case by case basis. Certain offences, of which just two examples were given, are regarded as 'purely' political: 'treason directed solely against the state and not involving a common or ordinary crime' and 'the dissemination of subversive literature'.
The principal factors which are to be used to decide whether a 'common crime', including a serious one such as murder, may be considered a political offence are: the motive of the offender; the context in which the offence took place; the nature of the political objective; the legal and factual nature of the offence; the object of the offence; the relationship between the offence and the political objective being pursued; and whether the act was committed under orders from or with the approval of an organisation. However, no recommendation was made by the working group as to the weighting of these factors in the South African situation.
An announcement about guidelines, relevant procedures and related matters was expected on 12 October but the Minister of Justice postponed it after disagreement between the ANC and the government.
Release and indemnity: The working group identified three categories of person affected by the definition: those already sentenced, whether serving a term of imprisonment or awaiting execution, subject to a suspended sentence or with a case under appeal or review; all those who may be liable to prosecution or who are awaiting or undergoing trial; and persons in detention.
It is recognised by the working group that the granting of pardon or indemnity is an 'executive governmental function'. The State President's power to pardon sentenced prisoners derives from the Constitution Act and the Prisons Act. With regard to indemnity, which covers both exiles and those on or awaiting trial, the power of the President is contained in the recently passed Indemnity Act while the Criminal Procedure Act allows the Attorneys-General to stop prosecutions.
The working group recommended that the executive should receive 'wise advice' from a specially constituted body or bodies. The working group would thenceforward confine itself to ANC interests while other groups could be set up to make representations on behalf of other prisoners. A government statement said that Pan-Africanist Congress (PAC) prisoners would not be released unless that organisation, like the ANC, suspended its armed struggle. Nevertheless, prisoners granted early release since February have included members of the PAC as well as those claiming allegiance to the Black Consciousness Movement.
The working group was reconvened after the Pretoria meeting and drew up a plan for the release of ANC-related prisoners and the granting of indemnity which was reportedly accepted by both the ANC and the government. Its recommendations were expected to form part of the Minister of Justice's October statement.
The most significant date envisaged by the working group was the cut off point, after which no new political offences could be considered for amnesty or pardon. This date was set as 12 noon on 8 October when De Klerk announced that the process of indemnification would begin. The announcement followed another meeting between the government and the ANC. Press reports indicated that some 3,000 ANC members, whose names had been submitted to the government, would initially return. However, it was made clear that the indemnity was not restricted to ANC-related individuals.
De Klerk's statement emphasised the role of procedures in the granting of indemnity, saying that it would not be granted automatically, nor would his statement result in the immediate suspension of trials. But it did advance both processes.
