Shaik pardon: unwise but not illegal?

The news that “terminally ill” Schabir Shaik, who was released from prison on medical parole “to die a dignified death” at home, has applied for a Presidential pardon does not come as a surprise. Shaik is not an ordinary criminal. He is a criminal convicted of bribing the President of the country. He gave more than R1 million to the President and managed to convince the President to do favours for him in return. He also solicited a bribe from an arms deal company executive on behalf of the President. This is the same executive whom the President himself has met on at least two occasions – although the President unfortunately misled Parliament about at least one of these meetings, denying that it took place.

Moreover, Shaik’s brother is the newly appointed head of the South African Secret Service (SASS). He is also the brother of Chippy Shaik, who was fingered in the report of the NPA and the Auditor General into arms deal corruption and who later fled to Australia to avoid prosecution for arms deal corruption (and perhaps to avoid further embarrassment which resulted from the revelation that he had plagiarised his doctoral thesis).

I imagine Shaik would fancy his chances to be granted a full pardon by President Jacob Zuma long before that mysterious “terminal illness” brought an untimely end to his life. Shaik, after all, might have some rather damaging secrets (or at least gossip) that he would be happy to keep for himself in return for a pardon.

Opposition parties are of course rightly outraged by the prospect of Shaik receiving a pardon from the very person whom Shaik had bribed. Democratic Alliance spokesperson James Selfe was predictably hysterical and over the top, saying that if President Jacob Zuma granted Shaik’s application it would constitute a decisive step toward the “complete corruption of the South African soul”.

Patricia de Lille “pointed out” that the law said that an applicant should meet certain criteria to qualify for a pardon – he should have served a significant part of his sentence, for example, or have shown remorse for his crime. “One of the pardon conditions is that you must have served a substantial part of your sentence and on that basis alone Shaik fails hopelessly,” said De Lille.

A pardon would, of course, be shocking and would make a complete mockery of the statements by President Zuma that his government was tough on corruption. If our President pardons Shaik, I for one would laugh hysterically and derisively every time anyone in the government talks about the evils of corruption. Not that our President would be alone in this. Bill Clinton also pardoned some foul crooks who donated money to his political campaign and although he was rightly vilified for this cynical use (or is it abuse?) of his power, the American soul was probably not completely corrupted by his shifty move. Clinton was “merely” exposed as the slimy politician he was.

I am also not sure that Patricia de Lille is correct and I would be surprised if any court found that a pardon for Shaik was unlawful. Section 84(1)(j) of the Constitution states that the President is responsible for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.

The Constitutional Court has confirmed that this section conferred a very broad discretion on the President. It originates from the prerogative powers that have been traditionally vested in the English monarch, but now vests in the Constitution and an exercise in terms of this provision can therefore be reviewed by the courts. Though there is no right to be pardoned, every applicant had the right to have their pardon application considered and decided upon rationally, in good faith, in accordance with the principle of legality, diligently and without delay.  

In President of the Republic of South Africa and Another v Hugo the Constitutional Court stated this power was granted to the President “to determine when in his view the public welfare will be better served by granting a remission of sentence or some other form of pardon”. 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.

The Constitutional Court was also very cautious to note that “the power of pardon is not subject to cabinet concurrence or to legislative control, but is conferred upon the President directly by the … Constitution.” The exercise of this power is reviewable but, said the Court in the Hugo case “in cases where the President pardons a single prisoner, it is difficult, (save in an unlikely situation where a cause 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.” The pardon will thus be reviewable is limited to very narrow grounds, like whether the President acted in good faith or was bribed.

During the saga surrounding the pardoning of Allan Boesak, the Presidency stated that when the Department of Justice considers an application for pardon to advise the President, the following factors, as contained in internal policy guidelines, are taken into consideration:

• 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.

I guess if Shaik is granted a pardon, the President will argue that a pardon was granted because of the personal circumstances of Shaik, him being at deaths door and all. This will constitute an outrageous act of political expediency and cynicism for which President Zuma will sadly pay a very small political price in the long run. It will remind the chattering classes and the media elites of the fact that although our President is a charmer, he has had some very dodgy dealings with crooks in the past. Although the print media and the non-state TV channel might criticise Zuma, people have short memories so come the next election it would probably not have any effect on the ANC’s electoral performance.

But for those of us with long memories such a pardon – if granted – would remain as a permanent stain on our President’s name, much like the name of President Clinton was permanently sullied by the pardons he granted in the last hours of his Presidency to some serious crooks who had given money to his political campaigns.

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