On April 27 1994 all South Africans could vote for the first time to mark a new era of equality and justice for all. This stands in stark contrast to how the rule of law, criminal justice and equality in the execution of criminal sentences are viewed by the executive today.
Last Friday it was announced that:
“President Zuma decided to exercise his mandate in terms of section 84(2)(j) of the Constitution, to grant special remission of sentence to certain categories of offenders in the spirit of Freedom Day. Special remission as enshrined in our Constitution is a normal practice in democracies worldwide and it is used to recognise or commemorate special events in the life of a country and nation.”
Further details set out that:
“It is projected that approximately 14 651 sentenced inmates will be released conditionally or unconditionally in terms of this process, as well as an approximate 20 855 probationers and parolees. This will reduce the level of overcrowding in Correctional Centres from 34% to approximately 20%.”
President Zuma recently expressed the view that the Courts should refrain from ‘interfering’ in policy-making since that is the domain of the executive. It is indeed correct that policy-making is an executive function. Cabinet ministers may introduce bills in Parliament to get statutory approval to implement certain policy measures. Such legislation may be subjected to judicial scrutiny for its constitutionality though. The latter is a judicial function, but the courts may not go beyond the more limited function of scrutinising the constitutionality of legislation or the legality of administrative action, which is taken by the executive to put that policy which has been cast in legislative form, into practice.
It might therefore be instructive to test whether the executive is equally prudent to refrain from usurping judicial powers. In fact, one can observe that the executive has installed itself as a de facto High Court of the Executive that could overturn any judicial sentence, and furthermore, that it is casting the separation of powers in the mould of executive supremacy, which would even allow the executive to scrutinises the exercise judicial power.
The origins of this skewed perception of how state organs ought to exercise their powers in a constitutional state is twofold: the first has to do with the retention of outdated royal prerogative powers that were part of the Westminster system, and the second with smuggling elements of the separation of powers as it functioned in former East Block socialist regimes into the constitutional state’s system of separation of powers. Let me deal with that consecutively.
In 1701, the Act of Settlement was adopted in England, which substantially curbed the powers of the British monarch. In terms of this settlement, the monarch could no longer perform judicial functions in the sense of hearing cases and passing judgment, and could no longer make laws. The monarch’s powers were being reduced to focus primarily on the executive sphere. This was still the times when the King’s Council ruled and when the monarch could appoint all ministers to the cabinet. At that stage, political parties have not yet captured the power that the leader of the strongest party could form a democratic government.
What is important to note about the Act of Settlement though, is that the monarch retained two royal prerogative powers in the field of legislative and judicial power: the first was a veto of judicial sentences with pardons and remissions and second concerned a veto of legislation that was adopted by Parliament. The legislative veto was exercised for the last time in 1707 and fell in disuse completely by 1720. The judicial prerogative of pardons and remission of sentences survived into modern times, primarily due to the fact that lay (ie not legally trained) judges could be appointed in England, which increased the risk of a miscarriage of justice.
Such a veto by the head of state of legislation that has been adopted by a Parliament or of sentences that have been passed by the judiciary like it was done by former royal rulers is no longer in tune with a modern separation of powers.
The problem is essentially that the 1996 Constitution correctly proscribes a veto of legislation by the head of state (section 79), but retained the veto of judicial sentences in the format of the former judicial prerogative powers in section 84(2)(j). This creates an internal conflict between this provision, which gives the president a free hand to overrule any judicial sentence and section 165(5) of the Constitution, which lays down that all judicial decisions and sentences are binding upon other state organs. Such organs obviously includes the head of state and the executive, which means that they do not have the power to alter or remit any sentences – be that in the form of pardons or parole or any other conversion of sentences.
These two provisions of the Constitution thus stand in diametric opposition to each other. The Constitutional Court will therefore have to resolve this internal conflict in the Constitution. In fact, it should never have certified that pardons and remissions are compatible with the paradigm of a constitutional state. In other constitutional states like Germany, parole decisions or the conversion of sentences is a judicial power. All sentences must be reviewed after statutory prescribed periods. In an extensive analysis of the difficulties which the retention of the judicial prerogative power creates for upholding the rule of law and a clear delineation of judicial power from executive power, I have suggested a possible solution (see http://www.nwu.ac.za/webfm_send/26570, pp 165-168).
The current regulation of pardons and remission of sentences creates a de facto High Court of the Executive, where the executive branch has the power to overturn any judicial sentence as it pleases.
Two years ago President Zuma played with the idea to pardon his financial advisor Schabir Shaik, who was tried and sentenced to 15 years imprisonment in the same matter for which Zuma got off the hook twice. He tried to make the pardon palatable by trading that off with a pardon for Vlakplaas commander Eugene de Kock, but then got cold feet in the face of a public outcry.
Now both Shaik and Selebi, the two most prominent ANC convicts of corruption, who barely served their sentences, should benefit from a general remission of sentence in terms of the Westminster system’s royal prerogative to remit sentences. This is a clear infringement of judicial power in terms of the constitutional state paradigm because executive organs can arbitrarily overturn binding judicial sentences.
Apart from that, it transgresses upon the norm of equality in criminal justice. Some 35 000 randomly selected prisoners should be set free in an act of grace to commemorate Freedom Day.
Executive state organs tried to do something similar in India in 2006. The governor of Andhra Pradesh wanted to grant remissions to 1500 prisoners to commemorate the coming into power of the Congress Party upon its 60th anniversary. The pardoning order inter alia set aside the sentence of Congress leader Reddy, who was convicted on two counts of culpable homicide and sentenced to ten years’ imprisonment. The Indian Supreme Court set aside the blind-axe pardoning order because it was motivated by political expediency and resembled an act of grace, which does not fit into the scheme of a modern separation of powers. The court stressed that the supreme quality of the rule of law is fairness and legal certainty. This may not be compromised on the grounds of political expedience.
Interestingly the Indian Supreme Court ruled that such pardons on the occasion of commemorating celebrations of independence do in fact constitute unconstitutional acts of grace. In the case Zuma’s envisaged remission of sentence to commemorate Freedom Day would also constitute such an inadmissible act of grace, which was ruled to be unconstitutional in President v Hugo.
The sentence remission of 35 000 prisoners is further linked to alleviating prison overcrowding. The current Correctional Services Act retained a provision of the predecessor Act, which was adopted under the former Westminster Constitutions that accorded the power to the Department of Correctional Services (previously the Department of Justice) to set prisoners free in order to reduce prison overcrowding.
The question thus arises whether this provision is constitutional. It is not for two reasons: First, the conversion of judicial sentences is a judicial power, which is subject to the norms of criminal justice under section 35 of the Bill of Rights. All prisoners who do not benefit from this blanket remission of sentences could therefore contest its validity on the basis that it transgresses the norm of equal treatment with regard to the execution of sentences in criminal justice.
Second, sentencing or the review of sentences is not an executive power and therefore not subject to the norm of administrative justice under section 33 of the Bill of Rights. The executive therefore cannot exercise the power of remitting sentences as if this is an executive power. If that should be the case, the executive will have to proof that the act of imprisoning a convict was taken by the executive in a manner that is ‘lawful, reasonable and procedurally fair’. This is obviously constitutional nonsense. The applicable law is criminal law, not administrative law; and the state organ passing sentence is a court consisting of judges and not a ‘High Court of the Executive’.
As set out above, these difficulties are primary the result of the unconsidered retention of the Westminster system’s royal prerogative to veto judicial sentences. Lately the executive also pressed forward to curb judicial powers even further.
The minister of justice has published a discussion document on judicial reforms. I have analysed the Seventeenth Constitutional Amendment Bill and the Superior Courts Bill, which form the subject matter of the discussion document (see here).
The envisaged judicial reforms show remarkable similarities with how the courts used to function in East Germany. The envisaged reforms foresee that the courts should be co-opted to participate in making and enforcing government policy as it was typical in former East Block countries. Like in East Germany, the Chief Justice would be hand-picked by the executive and would be given the power to issue directions and advise other judges how to adjudicate in a specific matter. The executive also wants to give their input into adjudication.
These reforms can in fact be compared to smuggling a Trojan horse into the constitutional state with the sole purpose of curbing judicial independence and making it easier for the current President to fend off a potential prosecution for corruption.
The creeping control, which the executive attempts to exert in relation to the exercise of judicial functions, is highlighted by the fact that the Minister of Justice regards adjudication as ‘service delivery’ by courts which falls under the auspices of the department of justice. Thus he has written out a public tender to assess the performance of the superior courts.
Public procurement under section 217 of the Constitution, however, only allows executive state organs to grant public contracts in the ordinary course of their legitimate constitutional and statutory powers. The minister of justice is not allowed to subject the judiciary, which falls under a different branch of state power, to executive control in this manner. The tender is therefore both ultra vires as administrative action and unconstitutional because it impinges upon judicial independence (see here).
It is something different if an independent academic institution would conduct such a survey since it has no implications for the separation of powers. The executive certainly does not have the power to assess the performance of the superior courts as if the judiciary is a subordinate part of the department of justice.
This trend of executive usurpation of judicial functions and exerting control over the judiciary does not bode well for the future. The survival of the constitutional state will depend a lot on the willingness and assertiveness of the judiciary to fend off such executive encroachments upon judicial power.