Shortcomings of a mechanical approach to the question of parole

By Dr Sithembiso Bhengu

ON MONDAY, the Constitutional Court delivered a judgment on the parole case of Janusz Walus, the convicted assassin of Chris Hani, the former secretary-general of the SACP and a member of the ANC’s national executive and working committees.

We received the judgment order for the minister of Justice and the Correctional Services Department to place the convicted assassin on parole with shock and widespread disappointment. The Hani family, represented by his wife Limpho Hani, was not alone but received the support of freedom-loving people across the country and abroad.

While the Constitutional Court delivered the judgment within its powers and functions, the text of the ruling suggests a narrow, myopic and mechanical interpretation of the law, especially the notion of rights or their perceived violation.

It is oblivious to the broad scope of legal interpretation that is purposefully cognisant of the wider social and political impact and/or the broad scope of public good.

There are two major implications of the judgment that are disappointing and have the potential to misrepresent the great work of democratic judicial services.

First, the text of the judgment suggests a one-sided view that the Constitutional Court justices took in reviewing the case and in making the final decision.

While the submissions of the Hani family as well as those of the SACP, both of which opposed parole for the convicted assassin, were read out only as the background to the case.

The thrust of the judgment itself approached the case entirely from the perspective of the convicted assassin, a view of human rights, the assassin actually deprived Hani of his right to life, with far-reaching implications for the rights of his wife, children, the SACP, the working class and the entire movement that fought for democracy in South Africa.

The submissions made by the Hani family and the SACP underline with concern the refusal of the convicted assassin to disclose the entire truth and facts surrounding the assassination of Hani. This includes, but is not limited to, undisclosed information about the source of the weapon the assassin used.

The judgment ignores the fundamental component of “meeting the conditions for parole” – namely, satisfying the victims of the heinous crime that the perpetrator is remorseful and transparent, to enable the victims some closure.

The Hani family and freedom-loving South Africans still do not have closure on the assassination.

Conspiracies still abound. Walus failed in the course of 29 years to disclose any meaningful detail about this case. What, then, does “meeting parole conditions” mean, especially in a case where a family – Hani’s wife, their daughters and the extended family – were robbed of the precious life of Hani?

What does “parole” mean when the assassin refused to make any disclosure that would bring the family some closure while claiming to be remorseful and apologetic?

It would appear that the judgment went against the very institution, the Constitutional Court, tasked to resolve serious disputes in our society. By ignoring the submissions of victims of the assassination of Hani, the court neglected the serious conditions upon which parole is to be granted. In essence, the judgment by the justices produced injustice for the Hani family.

In effect, the judgment says the convicted assassin must be the one who determines what remorse-meeting parole conditions look like, even if that is diametrically opposed to the views and aspirations of the family the assassination brutalised. The judgment has subjected the family to a secondary trauma of loss as the ruling provides that the man who assassinated Hani must be released from prison and enjoy the rights and freedoms he intentionally opposed for everyone when he assassinated Hani.

The judgment has ostensibly introduced a troubling precedent and rewritten the law on correctional services and rights. It claims the convicted killer was “denied his rights for parole” when the departments of justice and correctional services opposed his parole. This suggests the Constitutional Court introduced a new law without democratic consultation, presenting parole as a right and making its granting a foregone conclusion on the day a convicted assassin, murderer, rapist, you name it, becomes eligible for consideration after pretending to be remorseful.

If, then, parole is a right which should not be denied, what is the role of the parole board and the entire parole adjudication process?

What are the implications of this judgment for the efficacy of the criminal justice and correctional services system? How does the correctional service system function as a deterrent to criminality if “parole” is now deemed a right for prison inmates?

How does the might of the law continue to deter citizens from criminality if parole is now supposed to be a right – that is, an obligatory mechanism when a prisoner has acquired "enough elapsed prison days for parole” and has sufficiently pretended to be remorseful to tick all the boxes for parole conditions? Quo vadis South Africa under this new law?

* Dr Sithembiso Bhengu is the director of the Chris Hani Institute.

** The views expressed here are not necessarily those of the DFA.