Constitutional Hill

January 13th, 2010:

A short lesson on Presidential pardons

Jan 13th, 2010
by Pierre De Vos.
27 comments

Ok class, listen up. A short lesson on Presidential pardons seems to be called for. The lesson is required because seldom has so much nonsense been spoken by so many different people with different political convictions, than recently on the granting of Presidential pardons.

First the President claimed wrongly that Schabir Shaik had not applied for a pardon, then his office claimed that a decision by the President to pardon anyone could not be reviewed. And today the DA’s James Selfe said it was currently not clear whether a Presidential pardon could be taken to court for review.

The DA has proposed a private members Bill that would require the Minister of Justice to make a written recommendation to the President on whether to pardon an applicant and would require the President “to take into account” the recommendation before granting a pardon. The Bill would require the minister to have regard to a list of guidelines before making a recommendation  to the President. These guidelines are currently non-biding guidelines used by the ministry of justice to process pardons and to advise the President and include:

* The age of the offender at the time of the commission of the offence;
* Whether a reasonable period has lapsed since the conviction;
* Circumstances surrounding the commission of the offence;
* The nature and seriousness of the offence;
* Personal circumstances of the offender at time of application;
* The interest of the State and the community; and
* The interests of the victim, if any.

Currently the President is not bound by these guidelines or by the recommendation of the Minister of Justice and a decision to pardon anyone is his alone. Both the Presidency and the DA seems blissfully unaware of the existence of a Constitutional Court judgment in the case of President of the Republic of South Africa v Hugo in which it confirmed that any decision by the President to pardon anyone had to conform to the Constitution and could be reviewed by a court.

If Mr Selfe had taken the time to have a quick look at this case, he would have realized that his draft Bill, if passed, might well run into serious constitutional difficulties. Writing about an almost identical provision in the interim Constitution, Justice Goldstone stated that:

The powers of the President under section 82(1) are expressed in wide and unqualified terms. Unlike most other presidential powers they can be exercised without the concurrence of the Cabinet…. his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution.

A law that would require the President to consult the Minister of Justice and to take into account a recommendation of the Minister will either be utterly irrelevant and useless (if the President could ignore the guidelines or the recommendations of the Minister altogether) or it would fetter the discretion of the President as it would force him to make a decision based on the guidelines set out in the Bill and the recommendations of the Minister made in terms of the guidelines.

In the latter case – which seems a more likely reading as the Bill would require the President to apply his mind to the recommendations and if he failed to do so a court would be able to set aside his decision – the provisions of the Bill would probably not pass constitutional muster. An ordinary law cannot limit the almost unfettered powers granted to the President by the Constitution. This is an inevitable consequence of the supremacy of the Constitution. Mr Selfe seems sadly unaware of this rather obvious fact.

This does not mean that where the President pardons an individual, that decision cannot be reviewed by a Court. As Goldstone stated in the Hugo case:

In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power… This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) a court would 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. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

So if the President pardons Schabir Shaik because he fears that Shaik will spill the beans on the mutually symbiotic (and corrupt) relationship between himself and the President or because Shaik had deposited a million bucks into his bank account, the decision could be set aside by a court.

But what would happen in this case where Shaik was convicted of bribing the President? If the President now pardoned Shaik would a court find that this decision was taken in bad faith because it was irrevocably tainted by the previously corrupt relationship between him and Shaik? I might be wrong, but I suspect the Constitutional Court will not declare the granting of such a pardon an act of bad faith as there is no evidence that the previously corrupt  relationship between the President and Shaik had continued after Shaik went to hospital… err I mean prison.

This does not mean it would be wise for the President to pardon Shaik. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.

No one has presented a plausible argument that Shaik was wrongly convicted. It would manifestly also not be in the public benefit to pardon Shaik as it would send a signal that all are not equal before the law and that if one happens to be a friend of the President one could escape just punishment for corruption merely because of one’s connections to the head of state. This would undermine respect for the rule of law and would surely send a signal that in South Africa who one knows is far more important than what one did or did not do.

Herewith ends the lesson.

Jaco Barnard-Naudé: Reparations for big business collusion with apartheid overdue

Jan 13th, 2010
by Pierre De Vos.
2 comments

Angry appeals show true colours of business

Published in Business Day on 13 January 2009

JACO BARNARD-NAUDÉ

THE apartheid reparation cases in the US courts continue this week amid news that similar cases are now being prepared in Europe. The corporations that have been sued in the US have done everything in their power to resist these claims and the hearing this week is the latest in a long series of appeals against court judgments in favour of the claimants.

It is an understatement to say that big business, abroad and in SA, has generally spoken out against these claims — it condemns them in the strongest possible terms. Daimler- Chrysler has gone so far as to say that it will terminate most — if not all — of its operations in SA should the claim against it proceed.

Business’s dismay with the reparation cases is, of course, hardly surprising to anyone familiar with the capitalist fundamentals of big business. Big business makes big profit — that is its raison d’etre. The degree to which big business will voluntarily contribute to charity or take responsibility for other social ills depends on whether such activities will contribute to the overall maximisation of shareholder wealth.

From this point of view, the idea of reparation is repulsive because it would signify an admission of responsibility for apartheid era atrocities; it would signify that somehow the maximisation of shareholder profit during apartheid was undue.

The ultimate message of neoliberal capitalism of this ilk is often formulated in the ambiguous slogan that “capital” — the disembodied idol of big business — is not, and cannot be expected to be, moral. This also forms the basis of business’s appeal in the courts this week: corporations are not moral agents. Given that this is the general mantra of neoliberalism, it is no wonder that the only way to get business to take social responsibility is to force the “moral agents” — the people who form and associate in these businesses — to do so by legal means.

When SA was in the first moments of its transition from totalitarian rule to constitutional democracy, big business feared for a moment that the new government would put two and two together and realise the huge role capital had played in extending the life of the military industrial complex.

Big business feared that the new government ( brimming as it was with former “communists”) was going to get it into its head to hold it to account for some of the atrocities, such as, for example, the one that happened at Gencor’s Kinross mine on September 15 1986. That morning more than 170 workers were killed in an underground polyurethane fire. Of these, 152 were black. The mine published only the names of the dead white workers. The deceased black workers were identified only according to their ethnic group.

By December 1997, when the Truth and Reconciliation Commission (TRC) concluded its three days of hearings on the role of the business sector in the perpetration of what is an officially recognised crime against humanity, it was clear that big business had nothing more to fear. The hearings took, for most part, the form of a to-and-fro about whether apartheid was good or bad for capitalism. Now and again, the question regarding undue benefit was raised but business repeatedly declared its indignation with any suggestion that apartheid allowed profits to soar.

The TRC did not have the power to order big business to pay social reparation to the amount of billions of rands — it could only recommend this to the government. This it did. The government decided to ignore the recommendations. After all, the Berlin Wall had fallen, philosopher Francis Fukuyama had declared neoliberal democracy as the “end of history”, and SA needed to take its place in the global village.

So the “reparation” that was forced on big business took the form of affirmative action and black economic empowerment. It remains doubtful whether these have succeeded or are succeeding in bringing about the kind of redistribution of wealth that can be said to address the structural inequalities left by apartheid.

In the meantime, business has had to rely as recently as a year ago on a “socialist style” bail-out to save capitalism. It seems that state intervention is acceptable to the corporate hegemony only when it is ultimately geared at resuscitating the “free” market.

In the same week that the apartheid reparations cases are in the news, speculation is mounting that apartheid- era perpetrators, such as Eugene de Kock, will be given a presidential pardon — which is conceptually not very far removed from amnesty.

One of the strongest and most valid criticisms of the TRC process was that there was nothing in it that would countervail for victims the benefits perpetrators received through amnesty. That criticism is as applicable now as it was to the TRC more than 10 years ago.

The Zuma administration has indicated its support for the apartheid reparation cases — which is a step in the right direction, one supposes, if judged against the vehement opposition the Mbeki administration displayed against these claims.

Nevertheless, it seems that the South African government is assuming the stance that reparations are tolerable — as long as it is not actively involved in the process . Only time will tell whether it is pardons or real reparation that win the day. Needless to say, my money is on reparations.

- Barnard-Naudé is associate professor of jurisprudence at the University of Cape Town and a director at the Institute for Justice and Reconciliation.