By Dene Smuts
Another View: The last thing we should do is grant wider presidential powers in this area, writes Dene Smuts
Our president is beginning to resemble Henry VIII. Not only is he a much married man —but so much more civilised than the English king — he also appears to be attempting to take sole charge of the power of pardon.
The royal prerogative is sometimes called the Henry VIII power because he alone could bestow clemency on traitors, murderers and other felons after 1536. Before that, pardons were also given by other authorities, and could be solicited or sold and used to effect conscription.
But our "Henry" cannot claim the power of pardon from ancient royal prerogative, as former South African heads of state did. The Constitutional Court has said that, "regardless of the historical origins of the concept, the president derives this power not from antiquity but from the constitution itself. It is that constitution that proclaims its own supremacy.
"Should the exercise of the power in any particular instance be such as to undermine any provision of the constitution, that conduct would be reviewable." Now our president and minister of justice have joined right-winger Ryan Albutt in an application before the Constitutional Court to challenge the constitutionality of the view that the pardon power constitutes administrative action, alternatively to declare unconstitutional Section 1 of the Promotion of Administrative Justice Act, which says it is an administrative action and therefore reviewable.
Albutt is apparently one of the political applicants recommended by the Mbeki-appointed Pardons Reference Group. He has been frustrated by the successful urgent application of the Centre for the Study of Violence and Reconciliation and others to the High Court in Pretoria for an interim order preventing the president from granting pardons until the rights of victims have been established. Albutt is reported to have met his victims and so — like the nonpolitical Schabir Shaik in whose case other considerations apply — he wants his pardon and he wants it now.
What has Shaik got to do with the political pardons? Absolutely nothing, of course. One can only deduce from the kite-flying exercise (or perhaps, more plausibly, the leak) about the simultaneous clemencies for Eugene de Kock and Shaik that an attempt will be made to set the president's friend free under cover of the political pardons.
That way he would, for political purposes, appear to be part of a group or category of persons. Group pardons, however, are always going to be more vulnerable to legal challenge than individual clemency. When Mandela set imprisoned mothers free, a father, JPP Hugo, launched a discrimination action.
The Constitutional Court said in the Hugo judgment that it was hard to think that the pardon of a single prisoner would ever be reviewable. However, this was assuming the pardon was performed in good faith. If a president ever "abused his powers by acting in bad faith" he would be up for review — "for example, a decision to grant a pardon in consideration for a bribe could be set aside, or one in which a president misconstrued his powers".
The entire enterprise is fraught with difficulties. The so-called political pardons are presented as the unfinished business of the Truth and Reconciliation process. But are they not, in truth, the unfinished business of organisations who were party to the conflicts of the past?
At least two of the parties now looking for pardons actively avoided assisting their members to seek amnesty from the TRC: the IFP and the Pan Africanist Congress . It does not take rocket science to work out that the reason for the avoidance in at least some cases was that the members would not have qualified.
The PAC and Apla commanders told the TRC that task force members of Apla (the PAC 's armed wing) were "often recruited from the ranks of known criminals… because they were best suited to 'repossession' by theft or robbery". That is hardly "political" and it surely disqualifies them from pardon, not least on public welfare grounds.
But are they part of the recommended batch? We simply do not know, and are fed selected names through newspaper revelations. The names include Ebrahim Jeneker of (vigilante group) Pagad's G-force. Political? It is not only the victims who are disadvantaged by the lack of transparency that has marked this process; it is all of the people of South Africa.
How can (Chris Hani's assassins) Clive Derby-Lewis and Janusz Walus be recommended unless the mandate of the relevant political organisation has been dropped as a proof that the crime was politically motivated? Their amnesty failed largely on this count. On what basis did they become eligible at all, given the fact that Mbeki, in his original announcement in parliament in late 2007, excluded persons denied amnesty by the TRC in order to avoid undermining the integrity of that process?
The special pardon process to date is destroying the moral basis on which we tried to place amnesty when we legislated the TRC into existence. The way the special dispensation is being conducted seems to show that we need the exact opposite of what our president is seeking. He seeks a prerogative power unencumbered by review and the requirement for the public airing of criteria and reasons for granting executive clemency. Perhaps what we need instead is a constitutional amendment.
Perhaps we should simply delete section 84 (2) (j) — the pardon power — from the "Powersand Functions of the President". And write a law which provides for a fully transparent process.
In Times Live.