By Mametlwe Sebei
The unanimous Constitutional Court decision to free Polish right-winger Janusz Waluś convicted for killing former general-secretary of the SACP and MK commander Chris Hani in 1993, has been met with outrage and widely condemned by the ANC government, its alliance partners and the left.
For many, Hani was a heroic figure of the national liberation Struggle, as signified by his popularity second only to Nelson Mandela. For the working class people, Hani, as the general secretary of the SACP during this heroic age, personified its red banner and sickle, an insignia of communism.
As Clive Derby-Lewis pointed out, he “had a radicalised youth”, aspiring for a profound social transformation entailing an end of working class exploitation, poverty and every vice built on it, including racial and gender oppressions.
The decision was also remarkable for its cold, legalistic language focused entirely on Waluś, absolutely devoid of empathy and solidarity with the political sentiments of the black working class. Anyone reading the judgment would think Waluś is the real victim of his heinous crime.
The meaning of Zondo’s attack on the Minister’s decision.
As Chief Justice Raymond Zondo correctly points out, Waluś was competent to be considered for parole as far back as 2005 due to the correctional policy on paroles and presidential pardons. The decision, however, fails to adequately highlight that parole, by definition, is a privilege, granted at the discretion of the parole authority within the correctional system. The right to a just administrative decision only requires that this discretion must be exercised lawfully, in line with the legal purposes of the public authority being exercised.
The authority of the ministers to parole convicted offenders derives from the Correctional Services Act and guided by the Parole Board Manual. In deciding the application, the minister considered primarily the nature and seriousness of the crime, as well as the remarks made by the court in imposing sentence, despite the other considerations required by the manual counting in favour of paroling Waluś and parole boards, recommending it.
In attacking the rationale and legality of the minister’s decision, Zondo pointed that these factors were in the past, they were immutable. From this premise, he concluded that “therefore, this court must vitiate the minister’s decision. If it were not to do so, it would in effect be giving its approval to the proposition that in future it would be appropriate for the minister to deny the applicant parole even when he may have served 30 or 35 or even 40 years of imprisonment”.
To suggest Waluś is remorseful based on the personal apology to Hani’s family is absurd. Waluś killed Hani for his political beliefs, and to provoke the black working class into a bloody civil war. Not only there is no evidence of Waluś renouncing his far-right views. In recent times he has become a sensational figure of the East European Far-right, which is growing violent in its racism, anti-communism and terrorism.
He has done nothing to denounce or distance himself from proponents of the very ideology that led to his crime and imprisonment.
Parole system
Nowhere in the Constitution, Correctional Services Act and Parole Board Manual is there a right to a parole. The only right that exists is for a right to apply and be considered fairly, and reasonably based on the guidelines, none of which are absolute.
The court failed to give adequate weight to the nature of the crime as an act of war against the black working class as a whole and the dangers to the fabric of society associated with releasing someone who is a hero of fascists and the broader far-right in South Africa and in his home country Poland.
What Waluś did was far worse than a common crime. Nor can the decision be viewed as expressing a progressive, non-punitive approach to crime in general. Co-applicants, Families for Lifers, an NPO, that wanted the judicial review of the broader problems with the correctional and parole system and its failure to deliver just, and efficient decision-making for those competent for parole, in a matter clearly concerned with the same legal issues affecting many life sentence prisoners the applicant represented.
Not justice for the oppressed.
In an extremely violent society, where 68 people are killed and 115 raped every day, higher figures than many war situations, this decision is a betrayal of the Struggle against oppression of the marginalised, especially women who bear the disproportional burden of these brutalisation and violent crimes. There is a need for addressing prison overcrowding, inadequate study opportunities and lack of psychosocial support that make a mockery of rehabilitation for ordinary criminals, whose crimes are a product of social crises caused by capitalism and cannot be equated with those of far-right terrorists like Waluś.
The decision is also a betrayal of the black working class service activists engaged in delivery, student and industrial protests, who are at the receiving end of harsh sentences by the courts for exercising their democratic rights in furtherance of the equality the Constitution proclaims. These courageous youth, community and labour activists are frequently brutalised by police and private security with no consequence. Upon piercing through the judicial legalese, one finds the common class denominator in all these groups failed by this decision: They are overwhelmingly black working class and poor.
The rule of law against the working classes.
As the ultimate guardians of the Constitution and rule of law, this Constitutional Court jurisprudence justifies itself on the constitutional rights including the right to equality before the law, fair and just administrative action, and other democratic rights, which were conquered in the Struggle against apartheid.
The Waluś parole decision, however, follows the trend of leniency towards the crimes committed against the black working class and severity towards the measures taken by the working class in defence, including in exercising their democratic rights to protest and speak out. This inconsistency betrays the thinly-veiled class basis of the judicial system.
Judiciary must be democratically elected and accountable.
The Waluś parole decision, like others, is a glaring remainder of the social and political chasm that separates the world of the working class and the judiciary in this country. Despite changes in its racial composition, the judiciary, like the rest of the post-apartheid state, serves to uphold a juridical system for legal regulation of capitalist social relations, which are based on class exploitation and racial oppression.
Many of the judges not only uphold the rule of law in the interest of the capitalist class, but themselves are part of it. At any rate the working class has only one right, a right to be judged. We need a system of democratic elections for judges as the only way to purge judiciary of its most reactionary elements, make it more accountable and sensitive to the needs of the working class for justice.
* Mametlwe Sebei is a lecturer in the Department of Jurisprudence at Unisa.
** The views expressed do not necessarily reflect the views of Independent Media or IOL.