Should a way be found to spare Jacob Zuma from jail time? It’s a tough call

The Constitutional Court’s decision not to consider an appeal by the National Commissioner of Correctional Services in Jacob Zuma’s parole matter means that Zuma must now go back to prison to serve the remaining part of his 15-month sentence, subject to his early release on either parole or on any other ground provided for in the law. The question now is whether a way could be found (or ought to be found) to spare Zuma from further incarceration.

The Supreme Court of Appeal (SCA) judgment which invalidated the granting of medical parole to Mr Jacob Zuma, made clear that this leaves Mr Zuma in the position “as it was prior to his release on medical parole”. This means that Mr Zuma “has not finished serving his sentence” and that he “must return to the Escort Correctional Centre to do so”.

It is important to note that whatever decision is taken by the commissioner about Mr Zuma’s possible early release from prison on parole or under correctional supervision, in terms of the SCA judgment Mr Zuma is first required to return to prison.

As has so often happened in the past when faced with legal difficulties, Mr Zuma has revived an undisclosed medical condition, and has jetted off to Russia, allegedly to receive medical attention there. If he indefinitely delays his return to South Africa, or if he refuses to go back to prison on his return, the National Commissioner of Correctional Services would be able to rely on 39(6)(a) of the Correctional Services Act which allows him (“if he is satisfied that a sentenced offender has been released from a correctional centre erroneously”) to “issue a warrant for the arrest of such a sentenced offender to be re-admitted to a correctional centre, to serve the rest of his or her sentence”.

If Mr Zuma goes back to prison, his stay there might well be short-lived, as it may be possible for the national commissioner to place him under correctional supervision and release him from prison almost immediately afterwards. This he is permitted to do if he believes this is the appropriate course of action after taking into account the relevant circumstances of the case.

Do these circumstances include the time he spent on unlawfully granted medical parole?

The SCA made clear that “whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration” is for the commissioner to decide. However, the commissioner can only do so if he is empowered by law to do so.

The Correctional Services Act does not seem to empower the national commissioner to count the time spent on unlawful medical parole as part of the sentence already served by Mr Zuma. This means for the purposes of the granting of ordinary parole, Mr Zuma has only served 59 days of his 15-month sentence (about an eighth of his sentence).

As the commissioner is bound by section 73(6)(aA) of the Correctional Services Act, which allows the granting of parole for offenders like Mr Zuma only after they had served at least a quarter of their sentence, Mr Zuma would have to serve just short of another two months of his sentence to qualify for release on parole.

But as I read the act, nothing in it prohibits the national commissioner from considering the time spent by Mr Zuma on unlawful medical parole as a factor to justify Mr Zuma’s immediate release from prison by placing him under correctional supervision. This he would be empowered to do because he is granted a broad discretion by section 75(7)(a) of the act to place offenders serving sentences of less than 24 months under correctional supervision — even when they have not served one-quarter of their sentence.

If Mr Zuma is released under correctional supervision, he would be subject to strict conditions to which he would have to agree beforehand. Such restrictions could include a prohibition on leaving his house or magisterial district, on using drugs and alcohol, on visiting specified places, on contacting specified persons, on threatening specified persons by word or action, and on committing further criminal offences. If Mr Zuma fails to adhere to the conditions imposed on him, he could be sent back to jail to serve the rest of his sentence.

What the SCA judgment did not mention is that Mr Zuma could also avoid serving anything but a token amount of the remaining part of his sentence if the president decides to grant him parole or to shorten (remit) his sentence. This is so because section 82 of the Correctional Services Act grants sweeping powers to the president to “authorise the placement on correctional supervision or parole of any sentenced offender”, or to “remit any part of a sentenced offender’s sentence”.

When the president acts in terms of section 82 he is not bound by the other provisions of the Correctional Services Act and can authorise the granting of parole even if the offender had not served the minimum period required. It would therefore be entirely lawful for President Cyril Ramaphosa to immediately order Mr Zuma’s release on parole or to shorten his sentence to allow for his immediate release — as long as this decision is rational.

If I am correct that Mr Zuma’s immediate release would be lawful under certain circumstances, it raises a more difficult question, namely whether Mr Zuma ought to be released before he had served the minimum required part of his sentence. I believe there are cogent arguments for and against his early release, although my tentative view is that an early release may be undesirable.

The most pressing argument in favour of Mr Zuma’s immediate release is an argument that applies more broadly to non-violent offenders languishing in prison despite posing no threat to society. Imprisonment is by its very nature dehumanising and harsh. It limits the human rights of individuals, seldom leads to the rehabilitation of offenders if they need this, and places enormous strain on state resources.

Incarceration also does not appear to be much of a deterrent, negating one of the main purposes of keeping non-violent offenders in prison. One reason for this is that only a small number of offenders are ever prosecuted, sentenced and imprisoned, which means most offenders have every reason to believe that they will never be caught and punished. To such offenders, it matters little that the few offenders who are caught are sentenced to long terms of imprisonment.

As the Constitutional Court explained in S v Makwaynane the “greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system.”

Moreover, as my colleague Anine Kriegler and other researchers have shown before, inequality is arguably the most accurate predictor of crime levels in a country. Other solutions — including, I would suggest, mandatory minimum prison sentences for certain crimes — are merely plugging the holes in a leaky bucket.

In the South African context, as in the US, the reliance of the criminal justice system on harsh prison sentences in effect targets poor, black men, which is made worse by the fact that white-collar criminals with deep pockets seldom get convicted and, if they are, tend to receive lighter sentences. For all these reasons I generally favour the early release of offenders like Mr Zuma who do not pose an obvious threat to others.

Mr Zuma’s personal circumstances — including his advanced age, the fact that he spent time on medical parole and was not completely free, and (if he can prove that he is ill) also his alleged bad health — would also mitigate against the need for Mr Zuma to serve more of his sentence.

However, in my view, it would be wrong to justify his early release based on the fact that riots occurred in parts of KwaZulu-Natal and Gauteng after Mr Zuma’s incarceration, and might occur again. To the extent that there may be a link between these events, it points us to the pressing argument against Mr Zuma’s early release from prison. This relates to the nature of the conduct for which he was punished and the threat this posed to the entire legal order and the rule of law.

Recall that Mr Zuma was sentenced to a 15-month prison term because he refused to obey an order of the Constitutional Court to testify before the State Capture Commission, thus acting in contempt of court. He compounded this contempt by launching scurrilous and unfounded attacks on the Constitutional Court and on the judiciary more broadly which the Constitutional Court described as “a series of direct assaults, as well as calculated and insidious efforts” on Mr Zuma’s part to corrode the legitimacy and authority of the court.

Mr Zuma did all this to avoid having to answer any questions about his involvement in State Capture; thus in order to escape any form of accountability. He seemed to believe that he had no duty to comply with the kind of legal obligations that all other citizens are required to obey, that he was therefore above the law, that he would launch a full frontal attack on any institution or person who would dare to tell him otherwise, and thus that he had no regard for the rules and institutions at the heart of our democratic system.

According to this argument, it is necessary to protect the legal system and democratic institutions from Mr Zuma’s scurrilous campaign and to affirm (at least in a symbolic way) that he is not above the law, by requiring him to serve at least one-quarter of his sentence before being considered for release on parole, thus treating him in the same manner that ordinary offenders are treated in accordance with the Correctional Services Act.

Were he to be released because of his status as a former president, or because of fears that he and his family would incite or encourage further violence, it would signal that Mr Zuma was correct when he insisted that he has a right not to be held accountable.

These arguments pull me in two diametrically opposite directions. I changed my mind about where I stand on the issue while writing this column. Then I changed it back again.

But considering the fact that Mr Zuma faces incarceration for no longer than two months, as well as the fact that he will be held in favourable conditions unlike anything ordinary prisoners face every day, I believe (for the moment) that releasing Mr Zuma before he qualifies for ordinary parole would be a mistake.

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