Kanya Cekeshe. Picture: Azarrah Karrim/News24
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The NPA has been plagued by allegations of political interference, and the minister's announcement to seek a presidential pardon on behalf of Kanya Cekeshe does nothing to fight the perception of political interference, writes Phephelaphi Dube.
"The quality of mercy is
It droppeth as the gentle rain
Upon the place beneath. It is
It blesseth him that gives and
him that takes."
So wrote William Shakespeare in The Merchant of Venice,
to suggest that society is all the better for occasionally deviating from the
requirement that wrongdoing should be punished.
Enter then, Kanya Cekeshe, a former student activist from
the #FeesMustFall protests in 2016. He has been imprisoned since December 2017,
after he was sentenced to five years behind bars for public violence and
malicious damage to property. He entered a guilty plea for setting a police
vehicle alight during a 2016 protest.
His latest bid for freedom failed recently when a magistrate
turned down his appeal against the conviction and the appeal for him to be
granted bail pending a petition to the High Court to appeal his conviction and
sentence. Unless he successfully convinces the higher courts to come to a
different conclusion, he seems all but set to serve the remainder of his
sentence behind bars.
Enter too, Minister of Justice and Correctional Services
Ronald Lamola, who in the aftermath of the appeal being denied tweeted, "We're in the process of urgently assisting him with an
application for presidential pardon or other legally available avenues."
But just how do pardons work? Can the minister assist
Cekeshe with applying for a presidential pardon, as the social media entry
There is no right to be pardoned. Pardons are a presidential
prerogative in line with section 84(2)(j) of the Constitution which sets out
the president's powers. This means that the president has a discretion in how
he exercises the power to pardon or reprieve offenders. This includes the
remitting of fines, penalties and any other forfeitures.
This is not to suggest that this power is unfettered. On the
contrary, this power can only be exercised within the confines of the spirit
and purport of the Constitution and in good faith. It must also be a rational
decision, that is, a decision taken pursuant to a legitimate goal. As the
Constitutional Court made clear in President of the Republic of South Africa
and Others v South African Rugby Football Union and Others, the power to
pardon cannot be delegated to a subordinate – it is a power that the president
alone can exercise.
While there is no legal framework to guide how the president
may exercise this discretion to pardon, the public interest should be a guiding
factor in the decision. Pardons may be used to correct mistaken convictions or
reduce excessive sentences. A pardon may be used further to confer mercy upon
individuals or groups of convicted prisoners when the president thinks it will
be in the public interest. This would require the president to consider the
nature of the offense as well as the rights of the victims of any such offense.
As such, the president must weigh all of the relevant
information regarding Cekeshe's offence. This includes the fact that the demand
for free higher education is a legitimate protest cause and the fact that the
right to protest is constitutionally enshrined. This must be considered alongside
the offense of which he is convicted; public violence and malicious injury to
The public interest would also require that any victims of
Cekeshe's offenses be heard in the decision to grant a presidential pardon.
Such a victim would likely be the South African Police Services, seeing as it is
their property admittedly set alight.
What becomes apparent though is that the power to pardon
Cekeshe does not rest with Minister Lamola, but rather with the president,
however well-intentioned the minister's remarks on social media may be. In any
event, Cekeshe has not exhausted the available legal remedies. He may still
petition higher courts, all the way to the Constitutional Court, after which
there will be finality on his sentence.
Thus, having exhausted all available legal remedies, he may
apply for a presidential pardon. Of concern though is Lamola seemingly seeking to
interfere in the processes of the National Prosecuting Authority (NPA). The NPA
has in recent years been plagued by allegations of political interference, and
this announcement by the minister does nothing to fight the perception of an
attempt at political interference.
Nonetheless, a presidential pardon, or mercy, is an integral
element in the criminal justice system. Lamola, however, need not bypass
existing structures nor force the president's hand for this to happen.
- Dube is an independent legal consultant.
Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
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