To pardon or not to pardon? And then who to pardon? These questions have occupied acres of column space, bloggers too numerous to tally and South Africans of all persuasions over the past few weeks. This as journalists were able to make news during silly season out of the fact that Shabir Shaik (friend of the president and convicted fraudster) and Eugene De Kock (apartheid hit squad commander) have applied for presidential pardon. It is a subject that couldn't fail to touch nerves and stimulate passionate and vociferous debate across the board. When the time comes to make his decision President Jacob Zuma will have any number of opinions and advice as to who is most deserving of the act of presidential mercy.
Not to ignore the potential political gain for voicing a popular opinion, the opposition Democratic Alliance has even attempted to bring before parliament a private members bill to regulate the process of pardon.
It is the Constitution (Section 84(2)(j)) that confers upon the President the responsibility for ‘pardoning or reprieving offenders and remitting any fines, penalties or forfeitures'. No other guidelines are offered and no criteria have been set against which the President is to weigh or consider applications for pardon. Thus, as much as the DA's proposal to regulate the process of presidential pardon may be political point scoring, some regulation or guidance as to who qualifies for such pardon does appear necessary.
Yet as wonderful as the Constitution is that confers this merciful power upon the President of South Africa, I have to wonder what the purpose of this pardoning really is and whether it has a place in our democracy.
Certainly South Africa is not the only country that grants its leader the statutory right to pardon those who have violated the laws of the land. Some of the most stable democracies in the world do - or let their figurehead monarchy exercise the exculpatory powers of clemency. In many of these cases the power to confer pardon or clemency is circumscribed by a clear set of rules as to who qualifies and who not. The conditions for pardon in South Africa are, however, vague and thus allow plenty of space for the president to exercise his discretion (read: to pardon whomsoever he wishes).
But what exactly is the purpose of the presidential pardon?
Is it an opportunity for the President to demonstrate his generosity by showing mercy to the pitiful and fallen? If so, it seems a rather a kingly function to confer upon an elected official. Former president Nelson Mandela perhaps used this aspect to best effect by pardoning women who were incarcerated with young children. Thus showing mercy not only to the women themselves, but equally their innocent children. However well it may be used, it seems an anomaly to provide the President of a democracy carte blanche to pardon so as to demonstrate his benevolence.
Is it then perhaps intended to allow an opportunity to free from incarceration those who we deem to have paid their debt to society, shown remorse for their actions and who no longer pose a threat to society?
If so, there is at least a basis for some clear criteria to be set upon which to base the act of mercy. It also seems that there is little reason for it to be the exclusive preserve of the president to exercise this right of pardon. In fact, with clear criteria set, pardons could just as easily be dealt with through an annual administrative process, signed off by the president.
I can imagine a whole set of criteria against which we may wish to weigh whether to continue to incarcerate individuals. Consider that national and international evidence suggests that few offenders over the age of 35 continue to have active criminal careers. Thus would it not relieve the pressure on prisons and indeed save the taxpayer a great deal of money if we were to review the sentences of all those who are over 35 and still in prison? If that is too galling for those whose expectation of prison is retribution rather than the removal of potential offenders from society - then to the age requirement could be added a requirement for evidence of remorse, or acceptance by the offender of responsibility for the crime. We could also consider legible those who are seriously ill.
Former President Thabo Mbeki used the process of pardon to extend the amnesty provisions of the TRC - by providing those who were convicted of politically motivated crimes committed before June 16, 1999 an opportunity to apply for pardon. While the criteria for pardon in this case mirrored the criteria for amnesty to have been granted by the TRC (that the crime was politically motivated, that the perpetrator had made a full and honest disclosure about the crime(s) and that the crime was proportional to the political objective) it was highly insensitive, and unacceptable to victims that only political parties and the perpetrators were offered a chance to make their representations on the cases under consideration for clemency.
In 2008 a group of civil society organisations (including the Freedom of Expression Institute and the Centre for the Study of Violence and Reconciliation) succeeded in obtaining an interdict against acting President Kgalema Motlanthe, preventing him from granting pardons for this very reason. Yet, by setting up a reference group, albeit problematic in composition, Mbeki seemed to tacitly acknowledge that the power of pardon should not be the exclusive decision of the president. One of the uncertainties around the current pardons is whether President Zuma will continue this process and apply these criteria.
Pumla Gobodo Madikizela argued in the Mail and Guardian last week that the pardoning of Eugene De Kock would ‘open up the possibility of a movement towards a new politics of remembrance, one that would help invigorate dialogue about the kind of future we want and the future of young South Africans'. Leaving aside arguments of the merits or demerits of pardoning De Kock and whether this is a realistic view of what such a pardon would achieve; what Gobodo Madikizela is suggesting is that a president could use this power of pardon to send a message to society about the kind of society we would like to be. In other words, to use the power of pardon as a symbolic gesture. One may find merit in this argument, but since the president has the prerogative not to provide any reasons for why he pardons one and not another, the power of the symbolic act may be weakened. And again, it simply feels wrong to confer this power upon an elected official, whatever his status.
At very least there is a need to reconsider presidential pardon and whether it has a place in our democracy. Certainly for as long as the prerogative of the president allows space for doubt about his intentions in conferring one pardon over another it does not seem to serve the interests of stable democracy.
Written by: Chandré Gould, senior researcher, Crime, Justice and Politics Programme, ISS Cape Town