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.
Did the DA or Afriforum ever asked nor challenge the decision taken by the then president, Thabo Mbeki, when he freed Eugene Terre’blance and Mark Scott-Crossely from jail?
No No No ! ! !
Aggrrh, why do I bother asking that question, whereas the answer is quite simple:
It’s all about skin pigmentation stupid !
Superb article, with excellent insight and extremely well laid out arguments.
It’s possible that the DA is getting tired of being forced to take practically every decision made by this government to court.
It’s also pretty obvious that ‘guidelines’ mean nothing to the present government.
Quite so
Its a fundamentally flawed thought to think that pardoning De Kock would somehow balance pardoning Shaik.
In whose eyes?
There is a racist undertone – as if blacks are in one camp and whites another.
Both deserve to be in jail.
Far from ‘forever tainting … the presidency in the eyes of … many South Africans’, a pardon for Schaik would more likely make Zuma look even better to them. After all, it would reaffirm Nicholson’s confirmation that it was all just a sinister plot by that nasty Mbeki to ‘get’ the hero of Polokwane. To the ‘many South Africans’ who swept Zuma into power, he can do no wrong, so he has carte blanche. Don’t forget, if Zuma is innocent, then by implication so must Schaik be – therefore why shouldn’t he be pardoned? As for challenging such a decision in a court of law, this would be simply be seen by the ‘many South Africans’ as more proof that their hero is being despicably attacked.
Some of what you write makes sense, but you forget the constitution assumed the electorate would never be irresponsible enough to vote a corrupt person to the highest position in the state. Because they have now done that, additional safeguards are needed. The justice system is already tainted by the ANC so no safeguards there either..
The publicity around the pardoning of Shaik and more especially De Kock was done intentionally by the presidents office to guage both public and political response. It is a usual ploy in politics to have publicity about an issue, prior to implementation, in order to aclimatise everyone to a decision that WILL be made in the future. It allows all the negative publicity to be aired before the evil deed is done, thus rendering the publicity afterwards as boring and much less newsworthy. It also helps the decision maker/s to decide on the correct timing for the official announcement. Obviously President Zuma has been at his wits end on how to push a pardon through for Shaik, and his advisors have devised the plan to include the evil De Kock in the hope it will appease the white and the right wing population. This ones backfired. The white right wing in SA is such a minority they do not count. But the rest of us find it abhorrent that these two criminals can be put in the same position by political manouvres. The criminality of Shaik’s parole is indefensible, mainly because it’s government giving it’s citizens the middle finger. Unfortunately the majority of voters will not care about a pardon for Shaik, but they will for De Kock, making the decision by Zuma to include De kock a cock up.
The attempt to legislate those guidelines is not a publicity stunt, I agree.
It will if legislated, however, avoid the tedious, drawn-out, expensive and unnecessary court challenges that arise if a presidential pardon is granted and it is thought to be done out of bad faith.
All South Africans have recourse to the courts – this right is necessary and should never be curbed. At the same time it should be balanced with existing guidelines/legislation that make it clear what a societies norms & values are regarding executive & state powers – this will avoid long queues outside the constitutional court appealing anything from presidential pardons to receiving a fine for a parking violation.
having spent the last 3 years trying to get criminals to admit their guilt and seek rehabilitation, so as to become productive members of society; i am left with just one comfort… and that is that swearing allegiance to God, and then claiming to tell the truth before God as your witness – is like signing your own death warrant, if you lie in the process of “telling the truth”… and since we have precendent that says God cannot be lied to, conned or defrauded… then does it matter whether we incarcerate people? if they claim to be terminally ill… they will become terminally ill and die… that is the immutable law of karma… and if someone is granted a concession which is a violation of the rule of law… then the person granting that concession has to answer to God… but most of all criminals are a danger to society… so releasing unrehabilitated criminals into the public… in contrary to the objects of being a responsible leader, isnt it? so for instance if a serial killer is pardoned and then he kills again… its the pardoner who has to pay for that karma… likewise if a tender wallah is paroled, and then he wallahs a tender again… then the pardoner has to pay for that karma… one wonders why the ancestors would allow JZ to be undermined and compromised by his “own people”… after all political prisoners, who are “owed something”, all spent more than 5 years doing hard labour…
Well reasoned. Good judgement and common sense cannot and should bot be enshrined in law.
I just disagree with one statement. This presidency is already “forever tainted.” Nobody actually believes that a relationship such as existed between Schaik and Zuma can only be corrupt and illegal from one side.
The fact that Zuma was saved from prosecution by a dubious technicality does not “untaint” his presidency, I am afraid.
Well laid out Thought Mr. Maluleke.
Both De Kock and Shaick should try their luck with a post-Zuma presidency.
Congratulations to the writer of this article. Also to the commentators. This is a singularly well argumented and commented case in contrast to many blatant racists’ comments found in these columns.
Update – “State President” became “President” in 1994
Of course Zuma is going to pardon Shaik as this is in the best interests of Zuma and no-one else. Once Shaik is pardoned the next step would be to destroy all eveidence that corruption ever too place?
The current president will do everything that he can to wash away the past.
@ Siphiwo
Scott-Crossley was not pardoned by Mbeki, the SCA overturned his murder charge and he was granted parole. Unlike Schabir he is required to pay back society for his misdeeds (clearly he was found to be more living than dead when paroled) and can be seen tending the gardens and washing police vans at a certain Mpumalanga police station.
The irony of Scott-Crossley and his name always being used by the ANC apologists when it comes to the freeing of prisioners, is that he prior to the 2008 general elections he publically announced that he would vote ANC.
Mr Maluleke’s argument is so well reasoned, I am rather disappointed he is not an attorney, or a partner in a law firm. His international credentials are also impressive. I would be proud to have him represent me!
To suggest that whites will claim de Kock in a “prisoner swop” is hugely racist, insulting and ignorant. It only confirms the racism of Zuma (or whoever is floating the idea). de Kock may have been brain-washed, only a pawn and just carrying out orders, but that argument – the Nuremberg Defence – has been rejected by courts around the world. “He done the crime(s), he do the time”
To even suggest that there is equivalence between de Kock (acting out of a warped sense political of duty and whose lawyer claims he has co-operated with the authorities) and Shaik (acting for pure self interest for himself and his crony, no matter how noble his role in the struggle may have been otherwise and who has NOT cooperated with the authorities and is, no doubt, threatening Zuma with disclosure) is crazy. He, too, did the crimes, he must do the time. In fact, given that his parole was rigged, he should revert to jail. Maybe he could share a cell with de Kock.
Shaik has the option to enter a plea bargain with the state to reveal what he knows about the Arms Deal.
how Zuma thought that including de Kock, in the pardons, would somehow placate the ‘whites’ is beyond me. The 2 cases are seperate and should be looked at in that manner.
The difference is that while the die hard ANC fanboys will back a Shaik pardon (on no more grounds, than ‘he’s the presidents china’ and the whites don’t like it therefore we must do it), the ‘whites’ won’t back a de Kock pardon nor a Shaik pardon.
In this respect, the Prez’s plan has backfired a bit. He was hoping to have each camp support their ‘hero’ in their bid for freedom, and therefore allow the other camp their success in exchange for their own.
seeing as the ‘whites’ don’t back a pardon for either candidate, the plan is a flop.
If the Prez wants to save his corrupt pal, then he should just do it already. We know he wants to, and watching him manouvre left and right in an attempt to make it happen is silly.
It’s what we have come to expect from the ANC, so we won’t be shocked when Shaik is officially freed.
Siphiwo Siphiwo, what skin colour is E. de kok???? — white
Brent
I don’t understand why we have to compare the pardoning of Shabir and de Kock, this is chalk and cheese. Whatever the outcome from the presidency, one can only say “sanity will prevail”. We’ll all talk until we are blue in our faces, fact is a decision has already been taken and it is only a matter of time before we all .
don’t understand why we have to compare the pardoning of Shabir and de Kock, this is chalk and cheese. Whatever the outcome from the presidency, one can only say “sanity will prevail”. We’ll all talk until we are blue in our faces, fact is a decision has already been taken and it is only a matter of time before we all know the outcome.
I may be wrong, but I think one of 2 things will happen (1) There will be parole but no pardon for Mr Shaik until the next presidency (2) There may well be a ‘general amnesty’ for the Arms Deal, given that there were others not prosecuted who were equally guilty and it is unfair that Mr Shaik should be selectively prosecuted. If the amnesty is in return for full disclosure, it would be a legal solution to a festering sore and might just happen given it is seen as the fault of the previous administration. Let’s wait and see.
Sorry Tinyiko – I forget to thank you for a well balanced article.
That’s it Zuma, lift the carpet, now.. sweep sweep sweep. there, almost gone. Now those pesky scorpions are gone we can all rest a little easier… It’s so inconvenient being caught. Sit NPA sit. Good boy. Mpeshe? Won’t you crack another bottle of bubbly?
@siphiwo: “It’s all about skin pigmentation stupid !”…. no it’s not, it’s about the fact that normal people are tired of having their intelligence insulted as Zuma does whatever he pleases, using a flimsy tissue of lies as his calling card – there’s no accountabilty any longer, and the good people of SA who follow the news are getting worried about our future… look around you, the rich are getting richer and the poor are getting poorer… we are desperate for leaders of integrity: Not false prophets and hefty price tags.