One law for the poor, another for the politically connected?
Section 79 of the Correctional Services Act is reasonably clear: any person serving any sentence in a prison who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of any terminal disease or condition, may be considered for placement under correctional supervision or on parole.
The law may be sparing in its scope, but it is exact in its cumulative requirements: the prisoner must be diagnosed as having a terminal disease or condition, which must be in its final phase, and the sole purpose of the release must be to enable the prisoner to die a consolatory and dignified death.
So narrow is the authority to release a prisoner that the law reports contain a number of cases where prisoners suffering terminal disease, such as advanced Aids, were compelled to apply to court for parole in the teeth of resolute opposition from the Correctional Services Department.
By contrast, Shabir Shaik needed no application to court. He succeeded where many prisoners with terminal medical conditions had failed. Understandably, there is a furore.
Shaik has been trying for some time to gain release on parole. He gave no public hint of being seriously ill at his trial or at the appeal, where he appeared confident, even arrogant. Soon after his incarceration he was hospitalised and the possibility of parole was mooted.
Significantly, in September 2008, Parliament’s prisons committee discussed parole in general and why, specifically, Shaik was ineligible for parole at that time.
So the question is being asked: why is he eligible now? Has his condition finally deteriorated beyond that which pertained during his initial attempts at parole so that he now meets the statutory requirements?
Have three doctors seen the medical problem differently from those of six months ago, or have the authorities become more generous in their policy? These questions deserve answers so that the public may be sure that the law has been applied properly and fairly.
The department hides behind the defence of privacy of medical records. To that there are a couple of answers. Firstly, there has been disclosure of Shaik’s records in order for a decision to be made about his release. Thus it is hardly a defence to the call for a review of the decision to grant him parole that medical records are private affairs. If the minister can peruse the medical reports, so can Judge Desai as chairperson of the parole review board or Jody Kollapen as chairperson of the Human Rights Commission to determine whether the law has been followed.
Secondly, Shaik’s is no ordinary case. Thanks to his conduct and subsequent conviction, the country has witnessed a continuous legal soap opera concerning charges against the most powerful person in the country. The president-in-waiting indicated recently that Shaik should be pardoned. So the political context in which Shaik is to be located could not be more controversial. He is no ordinary applicant for parole.
Take the two arguments together and the implication is clear: this is a decision by a public official that screams to be tested by an independent authority. Shaik was convicted of serious crimes and sentenced to a term of imprisonment of 15 years. Three courts, including the highest in the land, confirmed the conviction and sentence. If the law relating to parole has not been followed, the implication is clear: there is one law for ordinary residents and another for those with powerful political connections. That would mean a significant erosion of the rule of law. If the decision was taken lawfully, neither Shaik nor the minister would have anything of concern and, correctly, there would be considerable public sympathy for Shaik and his family, who have suffered greatly through this ordeal.
But to refuse to adhere to the principle of accountability in so fraught a case is worrying in the extreme. One law for the poor and another for the politically connected is not what our Constitution promised.
So important is this case, that a ministerial refusal to review should be met by organisations of civil society using the constitutionally extended definition of legal standing to challenge in court the decision to grant parole by claiming, as it must be, that the dispute is in the public interest.
Ironically, it is the supporters of Jacob Zuma who have used the very same argument to contend that he has been subjected to prosecution precisely because he was a political opponent of Thabo Mbeki. Correctly they have argued that agencies of the criminal justice system be above political influence. Does that only apply when they were out in the political cold? We shall have to wait and see.