Shaik pardon would be an unconstitutional act of grace

By Loammi Wolf

The envisaged pardons for Shaik in exchange for setting Eugene de Kock and 179 IFP political offenders free, raise several constitutional issues. Before I say a few words about the constitutional tenability of pardoning with the separation of powers in a constitutional state, I would like to focus on the pardoning of Shaik in terms of the applicable law.

Currently the focus in the public debate on the possible pardon for Shaik is only on the pardon petition which he lodged after the Nicholson judgement in September 2008 with regard to his criminal conviction for corruption. However, early in 2009 — after the controversial deal to split the interest on his forfeited assets — he also lodged another application for a remission of the forfeited assets.

I have pointed out elsewhere that the deal to split the R14 million in interest on the forfeited assets would probably not survive a test of legality should it be contested in a court. At the time the Assets Forfeiture Unit (AFU) justified the splitting of interests with Shaik with the argument that “there was a relatively complex legal dispute about whether the AFU could claim interest on the amount of the confiscation order”.

The dubious deal not only begs the legal foundation of such a novel interpretation of the rules of property law but de facto overturned a previous judicial ruling, where the Supreme Court of Appeal affirmed the forfeiture of Shaik’s assets (Shaik v The State (2) [2006] SCA 134). The AFU did not explain how Shaik could share in the interest that accrued to the forfeited assets after the assets were seized and ownership passed to the state by order of the court. Section 19 of the Prevention of Organised Crime Act is pretty clear on this. The provision defines proceeds of unlawful activities as the “sum of the values of the property, services, advantages, benefits or rewards received, retained or derived by him or her at any time”. This obviously includes the interest on such assets as the fruits thereof.

Having landed this coup, Shaik immediately lodged a second petition for a presidential remission of the forfeiture order to get the R34 million back as well. It was alleged that Shaik, while he was still waiting in hospital to be let out on medical parole, bankrolled Zuma’s fourth wedding. Meanwhile President Zuma married another bride and two more are lined up. The question therefore arises: What is financially in this for the president should he remit the forfeiture of the Shaik millions?

Given the background that Shaik, Zuma and Thint were all to be charged for the same offence, the dilemma is that only one person had to bear the brunt of criminal justice. Supposedly terminally-ill, Shaik was granted a controversial medical parole “to die a consolatory death”. Shaik has been turned into the proverbial bird in a golden cage. Recent photographs show him well and alive, shopping, playing golf and enjoying a luxury life. It has become a national sport to catch him out on breaking his parole conditions.

The question therefore is: Can Zuma pardon him? The answer is no.

In President v Hugo, the Constitutional Court precluded pardons that can be classified as a personal act of grace. Should President Zuma nevertheless grant a pardon and remission to his friend, this would certainly qualify as an unconstitutional act of grace. What would make the pardon even more contentious is that Shaik was charged for the same offence before the prosecutors generously granted him a nolle prosequi to make his way free to run for president.
Likewise a pardon for De Kock and the IFP political offenders would qualify as a personal act of grace because that is a trade-off with which Zuma intends to counterfeit and pacify public outrage. It amounts to political opportunism and has nothing to do with mercy. It is not clear in how far the 179 IFP offenders referred to, overlap with the 384 applicants in the Chonco case. They petitioned the president for a pardon for political offences over the last six years and took legal action to effect that. Other political offenders have also applied for such pardons under the special dispensation of former president Mbeki. They include the AWB perpetrators of the Worcester bombing in 1995, who were sentenced to 8 years imprisonment. They only started to serve their sentence at the beginning of 2008. A pardon could mean that they are out after two years again.

The question therefore is: Should their sentences be remitted while prisoners who serve longer sentences for far less serious offences are treated differently? Section 9 of the Bill of Rights guarantees equality before the law and prescribes that everybody should equally benefit from the law. This implies that there should be parity in the post-trial execution of sentences, including remissions and pardons.

This makes clear that the retention of the former royal prerogative of mercy causes serious problems for the rule of law and post-trial equal treatment.
Another problem regarding the former Westminster prerogative of pardon is that one cannot subject that to judicial review. It is based on mercy, not legal norms. Exactly this was the dilemma confronting the Constitutional Court in the Hugo case. Yet Judge Goldstone ruled that the court would be able to scrutinise the legality of pardons. The criteria he suggested, however, pertain to administrative law and not judicial prerogatives.

The British tried to restrain an abuse of this power by way of convention. Before that absolutist monarchs could arbitrarily overrule judicial sentences with pardons and remissions. In those days monarchs could still make laws and often penalised minor offences with draconian measures such the death penalty or forfeitures to the Crown. Judges were bound to mete out these disproportionate sentences but then referred such instances for mercy to the Crown. Subsequently Parliament wrestled law-making powers from the monarch to make fairer laws. In addition, the exercise of this power was limited by convention which required that the Crown could only exercise this power on the advice of the Home Secretary (justice minister).

It was reasoned, however, that pardons should be retained in order to grant mercy in cases of an “error of law” or a “miscarriage of justice”. This made sense at a time when there were still many lay judges and juries presiding over criminal trials in the UK.

Nowadays judges are highly trained lawyers and sentences can be appealed. The justification for its retention therefore fell away.

That the pardoning provision causes serious problems for the constitutionality of the criminal justice system in South Africa should be obvious even to lay persons. Major problems include the following:

Firstly, prerogatives were geared to suit the needs of a class-based constitutional monarchy. Since these powers were simply shifted to the president as head of state in different kind of constitutional system, they upset the separation of powers. Pardons and remissions impinge on judicial powers because it overturns and/or changes sentences. Section 84(2)(j) of the Constitution (regulating pardoning) cannot be reconciled with section 165(5) of the Constitution, which states that an order or decision issued by a court “binds all persons to whom and organs of state to which it applies”. This provision does not provide for any exception to the rule, and since pardons and remissions de facto overturn judicial sentences, one of the two provisions will have to go. If South Africa purports to be a constitutional state, pardons as a remnant from constitutional monarchies is the likely choice.

Secondly, Mbeki announced a “special dispensation” of amnesty pardons for political offenders to deal with the “unfinished business of the past”. He thereby extended the scope of pardons to encompass a legislative power: Amnesties and indemnities always require enabling legislation, because they constitute exceptions to ordinary criminal liability. Apart from that Mbeki extended the cut-off date of this transitional measure by five years, linking that to his own inauguration. A typical feature of an act of grace is to set offenders free to celebrate such personal highlights of a ruler. The whole endeavour is unconstitutional because he may not usurp legislative powers (section 41(1)(f) of the Constitution) and may also not grant pardons as an act of grace.

Thirdly, although a country like the US also retained the pardoning power as a presidential power once they became a republic, one must bear in mind that the US has a different type of constitutional system. Nobody would contest that the US is a democracy, but it does not qualify as a constitutional state. Even though it has a written constitution and a bill of rights, its state organisation in the area of criminal justice falls short of the norms set to qualify as a constitutional state.

It differs in important respects from European constitutional states. The US constitutional system could rather be termed an executive supremacy due to the fusion of the offices of head of state and head of government. The system allows the executive to exert control in the area of criminal law which is actually the domain of the third branch of state power. It affects both pre-trial criminal investigations and the post-trial execution of sentences. Critique has often been raised that pardons and remissions are abused by the executive president. (See here.)
Another problem area is that parole used to form part of remissions but was statutorily delegated to the justice minister. In Germany, by contrast, the power to grant parole is a judicial power. The altering of sentences, just like the meting out of sentences, is an inherent judicial power. In South Africa this power was simply conferred upon the wrong state organ in 1959. The status quo was perpetuated under the new Constitution although section 84(2)(j) does not mandate a delegation of this power to the executive.

The Democratic Alliance probably meant well with the Private Member’s Bill, which aims at curbing the exercise of the power to pardon. Tony Leon tried that before with a similar bill. That bill departed from the premises that presidential pardons are an executive power. The new DA bill similarly terms the pardoning power an executive power, which it is not. It is a power of the head of state and the Constitutional Court specifically emphasised that in the last Chonco decision.

The DA bill basically falls back on Westminster model to hold the president accountable. The DA suggested that the president should act on advice of the minister of justice when he considers pardons and remissions. However, as I pointed out, there is no mandate in section 84(2)(j) of the Constitution for such a delegation of the pardoning power to the executive. Moreover, trying to control the president by a member of his own cabinet really does not make sense. It is doubtful whether this initiative will bear any fruit.

The DA bill also mentions the reprieving of sentences. This concept refers to the stay of execution of a death sentence. Although the death penalty was already abolished in 1995, the pardoning provision was never updated.

To summarise, it is clear that this outmoded prerogative power belongs to a different constitutional system viz a constitutional monarchy. Section 84(2)(j) stands in direct conflict to section 165(5) of the Constitution. There are no interpretational means available to courts to resolve the internal conflict of these provisions so that they could accommodate both. One of them will therefore have to go and if South Africa purports to be a constitutional state, it should be pardons because they undermine the rule of law and judicial power.

If the British parliament is revising all these outmoded prerogatives and considers abolishing most of them, South Africans must really ask themselves if they are still moving with the times. Another example is the nolle prosequi which the NPA granted to Zuma based on English precedent at a time when the British parliament abolished nolle prosequis.

Loammi Wolf specialised in constitutional law, focussing on transitional democracy, constitutionalism and state organisation law. She obtained an LLM at the University of Virginia and a doctorate at Unisa. She also studied at the Karl Ruprecht University in Heidelberg and qualified in taxation law and chartered accountancy in Frankfurt, Germany. She is currently running the initiative Democracy for Peace.