A presidential pardon could be part of the ANC’s package offered to President Jacob Zuma for him to vacate office before his term comes to an end in 2019.
ANC insiders said this week there have been informal discussions between supporters of Zuma and ANC president Cyril Ramaphosa about the possibility of granting Zuma a presidential pardon should he be convicted on 783 counts of corruption, fraud and racketeering. Zuma has also been accused of allowing the Gupta family to influence the appointment of Cabinet ministers and government tenders.
Some of the embattled president’s supporters have proposed immunity for Zuma but this has been rejected by Ramaphosa supporters, who say doing so would be unconstitutional.
Zuma is expected to submit new representations to the National Prosecuting Authority (NPA) by the end of this month as to why he should not face the corruption charges. This is after the Supreme Court of Appeal dismissed Zuma’s and the NPA’s application in October to appeal a high court ruling that the 2009 decision to drop corruption charges against him was irrational.
Zuma has used KPMG’s admission of fault on the South African Revenue Service (Sars) intelligence report to question the integrity of the audit involving him. This forms part of his basis for wanting to make fresh representations to the NPA to allow the authority to make a rational decision on his fate.
Last year, KPMG made an about-turn on its audit report into the so-called Sars rogue unit and withdrew its findings and recommendations. The report was headed by Johan van der Walt, the same person who led the lifestyle audit of Zuma, which led to the instatement of corruption charges against him.
But even if the current national director of public prosecutions, Shaun Abrahams, cleared him, his decision could be subjected to legal challenges because the high court found his appointment as prosecutions boss to be invalid. Because Zuma is implicated in the matter, the court ruled that his deputy, Ramaphosa, should appoint the new prosecutions head.
Zuma is appealing the judgment, arguing that the court cannot direct Ramaphosa to exercise presidential powers alongside him.
NPA spokesperson Luvuyo Mfaku on Thursday said the prosecuting authority would only confirm whether it had received Zuma’s fresh representations after the January 31 deadline had passed.
Last week, the ANC national executive committee (NEC) mandated its top six officials to negotiate a dignified exit for Zuma to avoid a conflict between two centres of power now that Ramaphosa is ANC president.
The party is also worried it might suffer a further decline in electoral support if Zuma remains in office until the end of his term in 2019.
Some ANC leaders say keeping Zuma out of jail should be done in line with the Constitution.
“People are saying we should give Zuma a package similar to [former Zimbabwean president Robert] Mugabe that says there will be no prosecution,” an ANC NEC member who asked not to be named said.
“How do you say that in a constitutional democracy? We do that, someone will stand up and go have a private prosecution.”
He said a small group of senior ANC leaders have started informal discussions to have the option of a presidential pardon included in Zuma’s exit package.
“It [presidential pardon] has been considered but not in the public space. Not everyone is involved in those discussions,” the NEC member said. But the issue of immunity for Zuma was out of the question.
“How do you stop it [prosecution]? You will not stop it. If we do that, we will be inviting [advocate] Gerrie Nel and them to start private prosecution. You can’t stop that prosecution. You may allow it to happen if you are very rational. Let it happen and, if he is sentenced to say 30 years, we can give him presidential pardon after three months or so,” the NEC member said.
Another committee member said, although he was not opposed to the idea of a presidential pardon, the ANC would have to look at the severity of the charges before it decided to do that.
“The presidential pardon consideration will depend on the severity of the charges because it sets a particular example for any leader who comes in. A lot of damage has been done over the last 10 years. As a country, we would have been very far by now.”
Constitutional law expert Phephelaphi Dube said, although politically the ANC could pass a resolution to pardon Zuma, the party would probably find it difficult to defend the decision legally. And Zuma would still need to go through the prosecution process.
“Politically speaking, they can pass that kind of resolution but the question is, would it hold up legally. Legally, at, present there is not enough precedent to allow that to hold legality,” Dube said.
“Remember, only the president has the powers to grant immunity but he can only exercise them in a rational manner. So, even if they pardoned him, the matter could still be challenged by whomever to question whether it was rational or not.”