The president should not have the power to impose sentences because it is unconstitutional and blurs the separation of powers between the judiciary and the executive, the Johannesburg High Court ruled this week.
Judge Kathy Satchwell found section 1(5) of the Criminal Law Amendment Act’s — allowing the president the power to re-sentence prisoners previously sentenced to death — offensive to the Constitution. In terms of the disputed law, the condemned prisoners don’t even need to be in court when their fate is decided.
After the abolition of the death penalty in 1995 Parliament enacted a law effectively giving the president the right to replace a death sentence with a different punishment. The re-sentenced prisoner has no recourse once the new sentence has been meted out.
Judge Satchwell found that the provision effectively meant that prisoners were re-sentenced in a secret trial in which they were not allowed to participate.
The Johannesburg court’s decision has been referred to the Constitutional Court — the final arbiter of all constitutional disputes — for confirmation or rejection.
The high court findings were made after an application by four men sentenced in different trials between June 1991 and July 1993. Respondents were the president and the ministers of justice and correctional services.
The application by the four, Aaron Sibiya, Purpose Khumalo, Petrus Geldenhuys and David Nkuna, argued that, with the abolition of the death penalty in 1995, their continued incarceration had become illegal — infringing their right not to be arbitrarily denied their freedom.
They wanted to be released because their warrants of detention were ”issued strictly for [the] death sentence and for nothing else”.
Judge Satchwell rejected this argument, saying that their contin- ued incarceration, though without the proper detention warrant, was justifiable.
The four had told the court that they had not been approached to make submissions about their re-sentencing.
”We have, since our death sentences were declared unlawful, been treated not as human beings, but as ghosts who should count themselves lucky to be alive. When the death sentence was declared unlawful, we became entitled to be sentenced lawfully,” they said in court papers.
Judge Satchwell was scathing about the various government departments’ lack of diligence and respect for the men’s rights, saying they had been ”treated as no more than chattels with no right to know and understand their current status or to exercise such rights as they may have with regard to that status”.
The judge praised the four for the effort they had put into their applications. ”The first applicant repeatedly stated: ‘I bring this application in person as a layman in the law’, yet the court papers are clearly drafted and raise pertinent issues of fact and of law.
”By contrast, save for the office of the [director of public prosecutions], the various state authorities have exhibited a want of professionalism in their approach to this application as well as an unhealthy and unproductive arrogance in the second to fourth respondents’ answering affidavits. The tone is harsh, confrontational, arrogant, familiar and quite inappropriate.”