DA proposes law to guide president on pardons

2010-01-14 09:51

THE Democratic Alliance has called for a new law to guide the

president on granting pardons that would make it easier to challenge his

decisions in court.

Admitting that the move has been precipitated by Schabir Shaik’s

bid to have his name cleared, DA MP James Selfe says it is currently not clear

whether a presidential pardon can be taken to court for review.

He says the party will hand the Speaker a private member’s bill –

based on currently non-binding guidelines – that will force the president to

consult the ministry of justice before making a decision.

The bill also stipulates that the president must consult with the

victims of the crime before considering pardoning the perpetrator.

Selfe denies that the bill seeks to limit the constitutional power

held by the president, saying the bill will simply help him make a “rational

decision” and avoid accusations of abuse of power.

“The president should not wake up one morning and decide to grant a

pardon because his breakfast cereal told him to do so.”

He argues that the post-apartheid constitution does not confer an

unfettered power on the president, unlike its earlier version which did and

derived from the divine right of English kings to pardon perpetrators.

But constitutional law expert Pierre de Vos told Sapa he believes

if the bill were passed, “it may run into constitutional trouble”.

De Vos says while he agrees with the DA that the right to pardon is

not unfettered, the Constitutional Court made it clear in the Hugo case – where

a decision by former president Nelson Mandela was unsuccessfully challenged by a

prisoner – that it is a prerogative power, limited only by the stipulation that

it should be exercised in good faith.

“If for example you were paid a bribe to pardon someone, that would

be a bad faith pardon,” he says.

De Vos says that case, as well as two others in which the court has

yet to pronounce, prove it is already possible to challenge a presidential


The DA unveiled the bill two days after President Jacob Zuma caused

a stir by denying knowledge of Shaik’s request for a presidential pardon, which

was submitted in 2008.

Selfe accuses the presidency of subsequently “patronising” South

Africans by suggesting the public should not concern itself with something that

is clearly a matter of presidential prerogative.

“The granting of pardons ought to be exercised sparingly, in

exceptional circumstances and to correct an incorrect or excessive sentence,” he


The presidency has confirmed that Zuma met Eugene de Kock, who has

served 14 years of a 212-year-sentence for apartheid-era atrocities, prompting

speculation that he is considering pardoning the former Vlakplaas commander,

nicknamed “Prime Evil“, as a political trade-off for a reprieve for Shaik.

Shaik was controversially granted medical parole last year after

serving two years and four months of a 15-year jail term for fraud and

corruption, relating in part to an alleged bribe he arranged between Zuma and a

French arms dealer.

Selfe said the DA not only opposed pardoning Shaik, but also De

Kock. He said it should be remembered the latter was denied amnesty by the Truth

and Reconciliation Commission for the crimes that put him in jail.

“Maybe one day when De Kock has served 28 years of his sentence and

things are different,” Selfe said.

Presidential spokesperson Vincent Magwenya has brushed off

criticism of Zuma’s denial by saying the president did not have the details of

some 300 pardon applications awaiting his attention.

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