Schabir, Eugene and the president

Speculation has reached runaway-fire proportions that Schabir Shaik and Eugene de Kock are about to walk. Shaik has applied for a presidential pardon. This has been confirmed. The state president had a meeting with incarcerated De Kock, it is alleged and it could well be true. Meanwhile, the DA has submitted to Parliament a “private member’s legislative proposal on presidential pardons”. It is easier than trying to amend the Constitution.

Mr James Selfe of the DA explains that the DA neither wishes to amend the Constitution as such nor take away from the president’s constitutional prerogatives and responsibilities as laid out in Section 84, 2J of the Constitution of the Republic of South Africa. They just do not want the president to pardon someone, as Mr Selfe put it “because his breakfast cereal told him to”. The bill is aimed at preventing “abuse of the executive power to pardon” and at “prescribing and regulating the process” by which such pardons are granted.

If the DA bill is passed into law:

The president will be compelled to obtain advice from the department of justice before granting a pardon.
The department of justice will be compelled to take certain specified criteria into account when providing such advice to the president.
The minister of justice will be compelled to present the advice to the president in a specified manner.
The minister will be compelled to notify the victims and to publish the names of the pardoned with details of each pardon in the Government Gazette.

The reported ANC reaction to the bill, alleging that the DA seeks cheap publicity and that they wish to amend the Constitution by the backdoor rather hysterical and unwarranted. It is neither unconstitutional nor unlawful to amend the Constitution if you do it in terms of the relevant constitutional provisions. Nor is there evidence that the DA is merely seeking publicity.

I think the DA is a lot more earnest than that and the ANC knows it. The DA is being its usual self — seeking wherever and whenever possible to “fetter the unfettered powers” of the president. In politics, if you cannot own power you better have influence over those who own power — or better still, take ownership of the owners of power. If you cannot own those who have power, acquire a straight lease of it. If power will not be rented out to you, negotiate time-share. In the meantime, employ every strategy that will assist you to lay your hands on that seductive and illusive power directly and permanently. Such strategies will be greatly enhanced if you actually do not trust the incumbent. Include among your arsenal of power-grab strategies personal attacks on the integrity of the power incumbent(s). Raise as many fears from as many angles as possible about past, especially present and future abuse of power. In and through this bill, the DA is being a lot more astute than either the ANC or the DA have let on in their recent public press statements.

But do we really have to change guidelines into an act that will compel a head of state, a ministry and a minister in the processing and exercise of presidential pardons? I really do not think so. It is one thing to propose guidelines it is quite another to ask that guidelines be fixed into an act. As guidelines, most of the proposals contained in the DA bill could actually be very helpful. But to ask that these and previous guidelines from 2004 be turned into binding law is an overkill that will take away the very essence of the constitutional responsibilities of the head of state and the ability of the head of state to exercise real discretion.

In the Constitutional Court case of Hugo vs the President of the Republic of South Africa decided on the 18th of April 1997, Judge Goldstone in his judgement pointed out that, should a president abuse the power vested in him or her under section 82(1)(k) a court would be NOT be powerless:

For it is implicit in the interim Constitution that the president will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court.

The door is therefore open for the DA or anyone for that matter, to ask for a review, in a court of law, of any pardon granted by the president if they can prove that such a pardon was done in bad faith. Indeed, I think that in both the cases of Eugene and especially Schabir, it should be feasible to ask for a review should President Zuma end up pardoning them.

I honestly hope that President Jacob Zuma will not be so careless as to presume to grant a presidential pardon on his former financial adviser convicted for activities that relate directly to him. It will be unwise and ill-advised for the president to do that. Parole is not the same as a pardon, but Schabir should be content with parole for the duration of the term of this particular president, I am afraid. Similarly, I honestly hope that President Zuma will not insult South Africans by pardoning Eugene de Kock fourteen years into a sentence of over 200 years. What national purpose would such a pardon serve? I do not get it. But if he dares, any and everyone will be within their right to challenge such a decision in a court of law. Should Eugene and Schabir be pardoned by the current president, the presidency of this otherwise popular president would be forever be tainted in the eyes of many South Africans.