Decision devoid of empathy for the working class

THE unanimous Constitutional Court decision to free Polish right-winger Janusz Walus who was convicted for killing then general-secretary of the SACP and uMkhonto we Sizwe commander Chris Hani in 1993, has been met with outrage and 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.

As Walus’s co-conspirator, Clive Derby-Lewis pointed out that Hani “had a radicalised youth”, aspiring for a profound social transformation to end working-class exploitation, poverty and racial and gender oppression.

The Walus parole decision was remarkable for its cold, legalistic language devoid of empathy and solidarity with the political sentiments of the black working class. Anyone reading the judgment would think Walus is the victim of his heinous crime.

As Chief Justice Raymond Zondo points out, Walus 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 highlight that parole by definition is a privilege, granted at the discretion of the parole authority within the correctional system.

The authority of the ministers to grant parole to convicted offenders derives from the Correctional Services Act and is 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 the sentence despite the other considerations required by the manual counting in favour of paroling Walus, and the parole boards recommending it.

In attacking the rationale and legality of the minister’s decision, Zondo pointed out that these past factors 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 Walus is remorseful based on the personal apology to Hani’s family is absurd. Walus killed Hani for his political beliefs, and to provoke the black working class into a bloody civil war. Not only is there no evidence of Walus renouncing his farright views, but 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 ideology that led to his crime and imprisonment.

Nowhere in the Constitution, Correctional Services Act and Parole Board manual is there a right to be paroled. The only right that exists is the 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 and the dangers to the fabric of society associated with releasing someone who is a hero of fascists and the far-right in South Africa and Poland, his home country.

The co-applicants, Families for Lifers, an NPO, 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 concerned with the same legal issues affecting many life-sentence prisoners.

There is a need to address prison overcrowding, inadequate study opportunities and the 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 crimes of farright terrorists like Walus.

As the ultimate guardians of the Constitution and rule of law, this ConCourt jurisprudence justifies itself on 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 Walus 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, in exercising their democratic rights to protest. This inconsistency betrays the class basis of the judicial system.

The parole decision is a reminder of the chasm that separates the working class and the judiciary. Despite changes in its racial composition, the judiciary – like the rest of the postapartheid state – upholds a juridical system for the legal regulation of capitalist social relations based on class exploitation and racial oppression.

At any rate, the working class has only one right, a right to be judged.

We need a system of democratic elections for judges to purge the judiciary and make it more accountable and sensitive to the needs of the working class.