New pardons law proposed

2010-01-13 19:10

Cape Town - The Democratic Alliance on Wednesday called for a new law to guide the president on granting pardons that would make it easier to challenge his decisions in court.

Admitting the move had been precipitated by Schabir Shaik's bid to have his name cleared, DA MP James Selfe said it was currently not clear whether a presidential pardon could be taken to court for review.

He said the party would hand the Speaker a private member's bill - based on currently non-binding guidelines - that would 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 denied the bill sought to limit a constitutional power held by the president, saying it would simply help him make a "rational decision" and avoid accusations of abuse of power.

Constitutional trouble

"The president should not wake up one morning and decide to grant a pardon because his breakfast cereal told him to do so," he told a media briefing.

He argued that the post-apartheid Constitution did 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 believed if the bill were passed, "it may run into constitutional trouble".

De Vos said while he agreed with the DA that the right to pardon was not unfettered, the Constitutional Court had 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 said.

Can already challenge pardons

De Vos said that case, as well as two others on which the court has yet to pronounce, proved it was already possible to challenge a presidential pardon.

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 accused 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 said.
He went on to warn that the lack of legally binding guidelines created the danger "that a pardon could be abused in order to pardon political allies, or act in ways contrary to the interests of the public".

De Kock denied amnesty

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.