In order to avoid accusations of bad faith being made against the president when he exercises his constitutional right of granting pardons to convicted criminals, and to clear up the rather opaque jurisprudence on the reviewability of such decisions, the Democratic Alliance (DA) has put forward a private member’s Bill on presidential pardons.
James Selfe, the DA’s spokesperson on correctional services and the party’s federal chairperson, on Wednesday submitted their legislative proposal to the office of the Speaker.
“Because it is such an important power,” Selfe said, “it must be used in a responsible, rational and reviewable way.”
The proposed law codifies the list of considerations, which at present are used by the Department of Justice, when approving pardons to be granted. The considerations include the age of the offender at the time of the offence, whether a reasonable period has lapsed since the since the conviction — the DA suggests 10 years — the nature and seriousness of the offence and the negative effect of the conviction that distinguishes it from other similar convictions.
The DA proposal also insists that the president must take into account the justice minister’s report on the pardon, and to disclose publicly evidence that each applicant conformed to the particular requirements. Victims of crimes perpetrated by the applicants would also have to be consulted.
The courts would have the right to review the granting of pardons. The DA feels that this Bill would create “an appropriate legislative check on the president’s power”.
“I am hoping that it will be possible for Parliament to adopt a bi-partisan approach to this issue,” Selfe said at a media briefing in Parliament on Wednesday. “And with this in mind I will be sending a copy of this legislation to the chairperson of the portfolio committee on justice and constitutional development and to the leaders of the parties represented in Parliament.”
On Tuesday, the DA insisted on an answer from the Presidency on whether Schabir Shaik and Eugene de Kock are being considered for presidential pardons, complaining about conflicting statements on the matter.
“The [DA] notes with astonishment that presidential spokesperson Vincent Magwenya has reportedly claimed President Jacob Zuma never denied that Schabir Shaik had applied for a presidential pardon,” Selfe said in a statement.
Earlier, Magwenya told the South African Press Association that Zuma did not deny that Shaik applied for a pardon while being interviewed on e.tv. Magwenya said Zuma did not have the details of the more than 300 pardon applications waiting for his consideration.
According to Selfe, however: “Yet the president has been recorded on national television stating of Shaik’s pardon application: ‘Why should I pardon him when he has not applied?’.”
The party said a statement issued last October by the Presidency “spelt out in black and white” that Shaik had applied for a pardon.
“Twice in two days we have seen irreconcilable statements from the Presidency — first from the president himself, and now from his spokesperson.
“And all of this serves to illustrate just how desperate the president is to avoid answering the straightforward question: Is he considering pardoning Schabir Shaik and Eugene de Kock? … What we need is a proper answer to a very simple question.”
Shaik was convicted of corruption in a trial that dealt partially with whether he facilitated a bribe for Zuma from a French arms company. De Kock was jailed for apartheid-era murders. Shaik is out on medical parole and De Kock remains in prison.
De Kock and Zuma met last April, but the content of the discussion was not revealed.– I-Net Bridge, Sapa