13 January 2010

Pardons Saga Continues: Confusion Reigns

In 2009 SAHA were involved as the Fifth Respondents in a case heard before the Constitutional Court: Albutt v the Centre for the Study of Violence and Reconciliation and Others. However, in the past few weeks issues relating to the Presidential pardons dealt with in this case have again arisen in media attentions. There have been recent reports that the President is considering pardoning Schabir Shaik and Eugene De Kock. A controversial political debate has now developed as, after Zuma denied that Shaik had applied for a pardon, the Democratic Alliance noted that there was currently an official application pending before the President. Further, in spite of renewed fervour in media reports stating that pardons were imminent, the Presidency on Sunday denied considering any applications for Presidential pardons.

The President's spokesperson, however, stated on Tuesday that: "People should stop stressing themselves about a matter that is clearly the President's prerogative as empowered by the Constitution". The President's spokesperson also stated that: "The President is not obligated by any timelines nor by any process. He will apply his mind over the applications at a time of his choosing and he will make his decision based on the facts and the information...No one can dictate to him how and when to go about exercising his constitutional prerogative."

However, what seems to have not been mentioned, amidst the media focus on the controversy of the selected pardon's applicants, is that there is currently an interdict standing against any continuation of the Presidential pardons process in terms of his 'Special Dispensation', which covered applicants outside of Mr De Kock. Currently, most of the pardons process occurs through the process known as the ‘Special dispensation for Presidential Pardon'. On the 28th of April 2009 the Gauteng High Court handed down a judgement which expressly held that:
"[The President] is interdicted from granting any pardon in terms of the ‘Special dispensation for Presidential pardons for political offences'...".
It would seem then that the President's spokesperson is wholly incorrect in stating that the President may exercise this prerogative whenever he so pleases, as the interdict still stands in regard to those types. It is, in fact, currently being re-considered by the Constitutional Court in the Albutt case. Perhaps the President could continue the process under this other individual dispensation which considers Mr De Kock and individual applicants, but it seems unlikely in the face of precedent that such a dispensation could stand in the face of a legal challenge.

The President may have a prerogative power, but the power is derived from the Constitution and is thus subject to constitutional scrutiny - the power is not, as stated, unlimited. The Constitutional Court should be left to determine the limits of this power, as it is currently so doing. It is hoped, then, that the President remains by the statement he released on Sunday suggesting that the pardons process was not currently continuing.