Crime and punishment (and presidential pardons)

8 December 2016

Crimes must be punished. This is a fundamental part of criminal law and of everyday morality. So fundamental, in fact, that the image of the unpunished wrongdoer, the criminal getting off scot-free, is one that evokes visceral outrage.

Despite this, the idea of granting some sort of amnesty for President Jacob Zuma, and for South Africa’s patronage class more generally, is one that has attracted some attention in recent weeks. The argument is that corruption is too deeply rooted in South Africa to be eliminated by prosecuting those responsible. There are too many of them, and they have too much power and too much to lose. Thus, the only way to uproot corruption is to offer some sort of amnesty to the corrupt. They would then be willing to leave voluntarily and South African governance can restart with a clean slate.

Opponents of this idea argue that corruption has harmed South Africa too much to go unpunished. Furthermore, the image of a president in the dock would send out a clear message that corruption will not be tolerated in South Africa.

But this is not what this brief is about. While the desirability of amnesty is a fascinating question, this brief instead considers how amnesty might be granted, and the legal plausibility thereof.

Some caveats. First, this brief does not make the claim that President Zuma, or any of his colleagues, are guilty of corruption. It must be emphasised that President Zuma has not been convicted of anything, and one is innocent until proven guilty. This brief instead considers the position of a hypothetical South African president, guilty of corruption, ensconced in a web of patronage, unwilling to leave office because he might later face prosecution. Secondly, this brief does not consider whether amnesty is likely to happen – merely how it might happen and whether the law would allow it. With that out of the way, let’s begin.

Presidential pardon

The first way in which amnesty might be granted is through the President’s power to pardon offenders under section 84(2)(j) of the Constitution, which provides that ‘[t]he President is responsible for … pardoning or reprieving offenders and remitting any fines, penalties or forfeitures’.

On its face, the power is broad. To pardon someone is to expunge a conviction – to treat a person convicted of a crime as if he had not committed it. To grant a reprieve is to delay or cancel a punishment for a crime. In America, reprieves are often granted to prevent the death penalty from being carried out. Finally, to remit a fine, penalty or forfeiture is to reduce or eliminate it.

The section-84(2)(j) power can be used to pardon an individual,[1] or a group of people.[2] In the Hugo case, for example, President Mandela remitted the sentences of all mothers, with children under the age of 12, who were imprisoned for having committed minor offences. In Albutt[3]and Chonco,[4] President Mbeki pardoned certain people who would have been eligible for amnesty from the Truth and Reconciliation Commission, but who had failed to apply for it. No prisoner has a right to be pardoned.[5] Parliament cannot restrict the President’s power through legislation,[6]and the President cannot restrict it himself by agreement.[7] Finally, pardoning might be something the President does on his own initiative (as in Hugo) or after receiving applications (as in Albutt and Chonco).

But while the power is broad, it is not unrestricted. The most significant restriction is that it must be exercised in a way that is consistent with the Constitution.[8] This means several things. First, he can’t pardon in breach of the Bill of Rights. He is not allowed to pardon only white prisoners, for example, because that would be unfairly discriminatory in contravention of section 9 of the Constitution. Secondly, he must exercise the power in good faith. A pardon in exchange for a bribe would be an example of one made in bad faith. Thirdly, the power must be exercised rationally – in other words, it must be rationally related to a legitimate purpose. Finally, he must exercise the power personally. He cannot delegate it to a subordinate.

The pardon and the Presiden

Can the pardon power be used to provide amnesty for our hypothetical president? Possibly, but such a scheme will encounter significant legal obstacles.

First, who pardons? One option is for our president’s successor to promise that, once she is President, she will pardon our president, who will, by then, have retired in return for the promise. This would resemble the pardon of US President Richard Nixon, who was pardoned by his successor, Gerald Ford, for ‘for all offenses against the United States’ which Nixon ‘[had] committed or may have committed’ during his presidency.[9] Critics claim that the pardon was granted in exchange for Nixon’s resignation as part of a ‘corrupt bargain’.

But there is a problem: such an agreement is not enforceable. As held by the Constitutional Court in the SARFU case, the President cannot fetter his power to pardon through agreement. Thus, while our president’s successor can promise that she will pardon, she cannot be held to this promise. This, of course, reduces its ability to serve as an incentive to retire.

A second option is for our president to pardon himself. While this might seem ludicrous, the text of section 84(2) does not preclude it. It grants the President to power to pardon ‘offenders’ – a term that does not exclude the President. But there are other reasons that self-pardon might be unlawful. One might argue that it is in bad faith. It also arguably contravenes the rule that one should not be a judge in one’s own case. It might also be irrational.

Apart from who pardons, the second significant problem with pardoning our president is that it might unconstitutionally contravene section 34 of the Constitution, which is the right of access to courts. In the AZAPO case,[10]the Constitutional Court held that amnesty under the Truth and Reconciliation Commission ‘effectively obliterates’ the right of victims of apartheid political crimes to obtain redress before the courts. This might have unconstitutionally infringed section 22 of the Interim Constitution (the predecessor to section 34), were it not for the special circumstances surrounding the TRC. These were, first, that the Interim Constitution permitted TRC-style amnesty and secondly, that our democratic transition might never have happened had amnesty not been on the table.

On this authority, a pardon for our president would limit (if not ‘effectively obliterate’) the section-34 rights of victims of his crimes. This limitation is unconstitutional unless it can be justified in terms of section 36 of the Constitution – if it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Is it? On the one hand, one could argue that it is not justified by section 36 – that to allow a corrupt president to go free undermines the dignity of victims of corruption and favours the corrupt over ordinary citizens, something not consistent with the value of equality. In this vein, in theHeath case,[11] the Constitutional Court held that corruption undermines ‘the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms.’

On the other hand, one could argue that the pardon is necessary to entice a corrupt, entrenched elite to relinquish power, opening the way for clean, effective governance, and thus that it meets section-36 muster. In other words, to end corruption in the future, we need to forgive it in the present.

A rejoinder to this argument is that the pardon would not end corruption in the future, because it sends the message that future acts of corruption might also be pardoned. It creates something like a moral hazard. A sur-rejoinder would be that we could diminish the moral hazard by creating stronger safeguards against corruption, post-pardon.

Ultimately, it is not clear which argument a court will find convincing, as section-36 justification is an unpredictable process. Thus, it is difficult to say for sure whether our pardon would unconstitutionally infringe section 34 or not.

One could doubtlessly make the argument that a pardon would infringe other constitutional rights. The Constitutional Court has held, clearly and consistently, that corruption undermines the Bill of Rights collectively. In the second Glenister case,[12] for example, the Constitutional Court held that ‘[i]t is incontestable that corruption undermines the rights in the Bill of Rights, and imperils democracy’ and that it ‘has deleterious effects on the foundations of our constitutional democracy and on the full enjoyment of fundamental rights and freedoms.’ One might also argue that a pardon would be irrational, depending on the circumstances.

Legislative amnest

Amnesty does not have to come from the President’s pardon power, however. Parliament could pass legislation granting amnesty to our president and his colleagues, much like it did with the TRC in relation to political crimes committed during apartheid.

Two brief points about this option. First, it suffers from many of the same constitutional defects that we considered in relation to the pardon power: it might unjustifiably infringe section 34 (or other sections) of the Constitution.

Secondly, and this is a point unique to the legislative option: legislation cannot be adopted without some form of public participation.[13] This is likely, at the very least, to be a public-relations nightmare for proponents of legislative amnesty. It is much less clear that this sort of procedural fairness would be required for a presidential pardon. In the SARFU case, the Constitutional Court held that procedural fairness was not generally a requirement for the exercise of the President’s section-84 powers.[14]

Conclusion: amnesty and the TR

It is clear that amnesty for our president would face constitutional uphill. Proponents of amnesty thus might want to model their programme on another amnesty programme that the Constitutional Court has held to be constitutional: the TRC.

What would this mean? First, just like the TRC was aimed at closing the book on our conflict-driven past, the new amnesty would need to do everything possible, after the present corrupt elite is uprooted, to ensure that systemic corruption does not take root again. It may thus have to be paired with tough new corruption-prevention policies. Secondly, the procedure for attaining amnesty should emulate the procedure under the TRC. Most notably, an applicant for amnesty (including our president) must make full disclosure of all relevant facts. He must fully describe any corruption he was involved in

But there are at least two important ways in which a new amnesty deal cannot resemble the TRC (in addition to the obvious fact that the former deals with corruption and the latter with apartheid, a crime against humanity). Importantly, these differences were some of the factors that prompted the Constitutional Court to uphold the constitutionality of the TRC. The first is that the TRC was explicitly authorised by the Interim Constitution. Any new amnesty finds no such constitutional sanction. Secondly, under the TRC, one was not eligible for amnesty if one committed a crime for personal gain and not for a political objective.[15]Our hypothetical president, and his hypothetical colleagues, cannot escape the fact that their crimes were committed for personal gain.

Piet Olivier is a Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.

[1] President of the Republic of South Africa v Hugo 1997 (4) SA 1 para 29.