President Thabo Mbeki is not obliged to say why he decided to pardon convicted fraudster Allan Boesak, the Department of Justice and Constitutional Development said on Tuesday.
It said in a statement that the Constitutional Court ruled in 1996 that ”no reasons need to be given for the exercise of or the refusal to exercise the presidential pardon”.
”The presidential pardon is thus an executive act of mercy to be exercised by the president in his exclusive discretion,” it said.
Presidential spokesperson Bheki Khumalo said at the weekend that Mbeki had decided to grant the pardon in the ”public interest”, but has given no more information on the motivation for the decision.
The Democratic Alliance said on Tuesday it has written to both Mbeki and Minister of Justice and Constitutional Development Brigitte Mabandla, asking for full reasons.
DA justice spokesperson Sheila Camerer said that in terms of the justice department’s own guidelines, remorse is usually a prerequisite for pardon.
”Allan Boesak was released three years ago and has not, so far, shown remorse or even admitted guilt regarding his conviction of theft and fraud,” she said.
Camerer said she has asked the president and the minister what criteria and guidelines were used in weighing up his application, what motivation had supported it, and whether the donors who gave the money that Boesak stole from his Foundation for Peace and Justice were consulted.
She has also asked whether the pardon is consistent with Mbeki’s commitment to set the government firmly against corruption.
”In order to address the growing perception among the public that this pardon was a nakedly political act to benefit a member of the African National Congress elite, the president and the minister of justice should provide answers to these questions as soon as possible,” she said.
Inaccuracies and confusion
The justice department said in Tuesday’s statement that it has noted ”with concern” inaccuracies and confusion surrounding the pardon.
It said Mbeki’s power to pardon comes from the Constitution, in a section with its roots in powers traditionally vested in English monarchs.
”A presidential pardon is an act of grace or mercy, proceeding from the power entrusted with the execution of laws, which exempts the individual, on whom it is bestowed, from punishment the courts inflict for a crime he or she committed.
”Therefore, a pardon is not a private act of grace or mercy from an individual happening to possess power. It is part of our constitutional scheme.
”When it is granted, it is the determination of our highest executive authority, the president, that the public welfare will be served by inflicting less punishment than the courts have decided.”
The Constitutional Court has found that a pardon can also be used to ”correct mistaken convictions”.
In making recommendations to the president on a pardon application, the department takes account of factors including the time elapsed since the conviction; the circumstances of the offence and its seriousness; the personal circumstances of the offender at time of the pardon application; the interest of the state and the community; and the interests of the victim, ”if any”.
‘White justice’
Boesak was convicted in 1999 of fraud and theft of donor funds entrusted to his Foundation for Peace and Justice, and was paroled in May 2001 after two years of his three-year prison term.
He has consistently maintained he was unjustly convicted, and when he entered prison, several senior ANC figures, including Minister of Safety and Security Minister Charles Nqakula and his wife, Minister of Home Affairs Nosiviwe Mapisa-Nqakula, demonstrated at the Pollsmoor gates against what they labelled ”white justice”.
Boesak got his presidential pardon only the second time around after his initial application in 2001 was rejected.
The ministry said at the time that then justice minister Penuell Maduna had opposed a pardon because Boesak had ”failed to acknowledge in his application that he had committed an offence”.
It said on Tuesday that the second application was lodged in 2003 with ”new reasons” and supporting petitions from both local and international pastors, clerics and ministers. — Sapa