The High Court's ruling last week interdicting the president from granting pardons in terms of the special dispensation on political pardons raises important questions regarding the state of the rule of law in South Africa. Apart from criticisms and direct attacks on the judiciary by politicians, the relevance of the judiciary is itself being eroded through the executive's attempts to tamper with both the prosecution of suspects and the sentencing of convicted criminals.

In his ruling, which temporarily blocks the president from granting political pardons, Judge Willie Seriti found that the president is obliged to act in accordance with the constitution and to respect the rights of victims of crime when making decisions about pardons.

He affirmed that, as with parole hearings, victims have a right to be heard before pardons are granted. The ruling comes after extensive lobbying efforts by a coalition of human rights and survivor groups to ensure a more transparent process with survivors' full participation.

Until last week, these demands were met by blunt rejections by the president and the reference group that was established to review applications from those claiming to be political prisoners.

In December, the courts made a similar finding with regard to prosecutions. The High Court found that the amended prosecution guidelines by the national director of public prosecutions (NDPP) were unconstitutional and that, in effect, they amounted to a "copy, or duplication" of the Truth and Reconciliation Commission (TRC) amnesty process.

Judge J Legodi found that this was unlawful because "when there is sufficient evidence to prosecute, the NDPP must comply with its obligation. Entitlement by the NDPP to refuse to prosecute where there is a strong case and adequate evidence to do so would in my view be unconstitutional. *1"

Government interference in procedures for instituting criminal charges is preventing certain cases from reaching the courts.

At the other end of the legal process, the state is also second-guessing judicial decisions on appropriate punishment for criminal acts. Without these bookends of justice, the substantive impartiality and credibility of the justice system is being eroded as executive authority encroaches on the prosecution and sanction of criminal acts.

Two high-profile cases with which the government is accused of tampering are the non-prosecution of Jacob Zuma and the parole granted to Schabir Shaik. While these have received extensive coverage, similar meddling in the judicial process by the executive has drawn less attention - even though it directly affects thousands of apartheid victims.

Reluctance to prosecute politically sensitive cases runs deep in the new democratic dispensation.

Since the conclusion of the TRC's Amnesty Committee in 2001, there have been only four cases prosecuted by the NDPP, despite the TRC handing over 300 cases for investigation and possible prosecution.

Human rights organisations and, one would assume, the country as a whole, looked at the TRC process as heralding a new era of rights for victims - that it would be unimaginable for their voices to again be ignored in developing policies affecting their rights, or administrative actions affecting their lives. The principles of transparency, openness and inclusivity were indispensable.

The special dispensation for pardon blatantly reneged on these principles. Indeed, Judge Seriti ruled that former president Thabo Mbeki's public commitment when announcing the pardons process was true to "the basic values and principles enshrined in our constitution. In order to act in accordance with this public commitment, my view is that the president should allow the victims and/or their families and interested parties to be heard prior to releasing any prisoner on pardon."

Last week, the court also ordered that the president and the minister of justice provide the civil society coalition with a list of the prisoners recommended for pardon.

The right to justice is a fundamental principle in our democracy. While the cases of Zuma and Shaik provoke extensive public interest - and aggravation for many - the denial of justice is even more deeply felt by survivors, as they are denied their right to justice and judicial redress from perpetrators who killed, tortured and otherwise seriously harmed them or their family members.

Whereas opposition parties have decried the handling of the Zuma and Shaik cases, they have remained strangely mute on the prosecution and pardons policies on human rights abuses. In Parliament they welcomed the announcement of the new prosecutions policy, which was subsequently judged unconstitutional. After they were co-opted into the reference group steering the presidential pardons process, they somehow became resistant to pleas to help bring survivors' voices into the process. Political parties were at best silent spectators, at worst collaborators, in this process that has also been declared to be inconsistent with our constitution.

In both these cases, it has been civil society organisations and survivors themselves who have had to speak out, and eventually turn to the courts to curb the abuse of political power. The courts have thus far proven an effective protector of these rights.

While much attention has been focused on the elections, we should keep in mind that a vibrant civil society remains a pillar of democracy and guarantor of human rights protection.

Dr Hugo van der Merwe is the Transitional Justice Programme Manager at the Centre for the Study of Violence and Reconciliation. Rebecca Murdoch is a research intern at the centre.

With acknowledgements to Rebecca Murdoch, Hugo van der Merwe and Sunday Independent.