Presidential pardons: DA proposes measures to hold executive to account

On October 19 last year the Democratic Alliance established that Schabir Shaik had applied for a presidential pardon. After disclosing this information publicly, the Presidency confirmed that Mr. Shaik had applied for a pardon; then, on December 21, presidential spokesperson Vincent Magwenya stated during an interview with the Business Day: "The president is considering a number of applications and Shaik's is among them."

But in recent days both President Zuma and Mr Magwenya have contradicted their earlier remarks - claiming variously that Mr. Shaik had not applied for a pardon, that Mr. Zuma was unaware of the pardon, and that Mr. Zuma could not consider the pardon because it had not yet reached his desk. Meanwhile, reports suggest that Eugene de Kock, Clive Derby-Lewis, Janus Walusz and a number of politically affiliated offenders are all also being considered for pardons. It would appear that the President is seriously considering these pardons as part of some kind of exercise in politically expediency.

The granting of pardons ought to be exercised sparingly, in exceptional circumstances and to correct an incorrect or excessive sentence. Section 84 of the Constitution does provide the president the power to pardon and reprieve offenders; however criteria for considering pardons are not codified in law, and the danger of this is that a pardon could be abused in order to pardon political allies, or act in ways contrary to the interests of the public.

This, we believe, would be the case in the granting of a pardon to the aforementioned applicants. To rectify this, we will today submit to the Office of the Speaker of the National Assembly a private member's legislative proposal on presidential pardons. Under this proposal:

1. the President of the Republic would be required to seek advice from the Department of Justice as to the advisability of granting a presidential pardon for an individual or group;

2. the Department of Justice would be compelled to take into account certain criteria when preparing this advice and when reviewing applications for presidential pardons to be forwarded to the President for consideration;

3. the President would be compelled to take into account the Minister of Justice's report when considering granting a presidential pardon to an individual or a group - and to disclose publicly, in the Government Gazette, evidence that each applicant conformed to the particular requirements set out for a pardon;

4. before any pardon was granted, victims of crimes perpetrated by the pardon applicants would be consulted;

These proposed provisions would ensure that no pardon is granted unless a set of considerations is fully complied with. The criteria set out include:

• The age of the offender at the time of the commission of the offence;
• Whether a reasonable period (10 years or more) has lapsed since the conviction;
• The circumstances surrounding the commission of the offence;
• The nature and seriousness of the offence, with the sentence imposed being the determinant factor;
• The personal circumstances of the offender at the time of the application of the pardon;
• The interest of the State and the community;
• Whether the sentence included imprisonment and the blameworthiness attached to the offence; and
• The negative factors flowing from the conviction are of such a nature that the relevant case can on these grounds be distinguished from those of other South African citizens with similar convictions

Such legislation would assist the President to avoid accusations pertaining to the exercise of his powers in bad faith, and would enable the merits of all applications for pardon to be assessed equitably and fairly.

Statement issued by James Selfe, MP, Democratic Alliance shadow minister of correctional services, January 13 2010

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