IN TERMS of Section 84(2)(j) of the South African Constitution, the president — acting as the head of state — is “responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.
President Cyril Ramaphosa relied on this provision to order a 12-month reduction of the sentences of all prisoners not serving time for certain categories of serious or violent crime. He granted low-risk offenders an additional 12-month remission of their sentences.
For low-risk offenders like Jacob Zuma, who had less than 24 months of their sentence remaining, the remission in effect “extinguished” the remaining part of their sentence. As a result, Zuma no longer had any prison sentence to serve, and was therefore a free man.
Even if he had wanted to, there was nothing the Commissioner of Correctional Services could have done to ensure that he served out the required part of his original sentence. Informed critics of this turn of events would argue that it is not a coincidence that Ramaphosa’s decision to remit the sentences of certain categories of prisoners, which will result in the release from prison of approximately 9 500 inmates, resulted in Zuma not having to go back to prison.
They might argue that the “real” purpose of (or the motive behind) the remission was not to reduce overcrowding in prisons (as Ramaphosa claimed), but to ensure that Zuma did not have to go back to prison.
While this may well all be true, it does not mean the decision was unconstitutional. Nor is it that clear that it demonstrates contempt for the rule of law and the principle of equality before the law — as some critics believe. To explain why this is so, it is necessary to take a closer look at the nature and scope of the powers bestowed on the president by Section 84(2)(j) of the Constitution.
The power of heads of state to pardon and reprieve offenders and remit their sentences can be found in a large number of the constitutions of constitutional democracies across the world.
As Andrew Novak explains in his book Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective, this power has its roots in absolute monarchy, and it is therefore odd that so many democracies continue to allow the head of state to interfere in the justice system, to overturn criminal convictions (through pardon) and to suspend (through reprieve) or to reduce (through remittance) the punishment imposed by a sentencing court, thus blurring the separation of powers between the executive and the judiciary.
This power is also open to abuse – especially, as is the case in South Africa, where no or few restrictions are placed on the purposes for which it can be used. An infamous example from the United States is the pardoning of Richard Nixon by President Gerald Ford after the Watergate scandal.
A more recent example is former President Donald Trump’s granting of clemency to several unsavoury characters, including former campaign staff members and political advisers such as Paul Manafort, Roger Stone, Michael Flynn and Stephen Bannon.
The power is also difficult to reconcile with the principle that everybody is equal before the law, as it will often – and sometimes quite randomly – benefit some offenders over others. This is especially true in cases where the president pardons or reprieves, or remits the sentence, of an individual offender. But proponents of the retention of this power argue that it remains valuable because it allows justice to be tempered by mercy, a powerful argument in contexts where the harsh or unequal application of the law causes severe injustice.
The most obvious example would be a situation where the power is used to commute the death sentence imposed on an individual whose guilt may be in doubt. It is striking that Section 84(2)(j) of the South African Constitution grants a broad, seemingly unfettered, power to the president to pardon or reprieve offenders or remit their sentences.
The section thus allows the president to exercise this power for a wide range of good or bad reasons. The exercise of this power is nevertheless subject to judicial review in terms of the principle of legality, but because the discretion bestowed by it is so wide, courts will seldom be able to invalidate decisions made in terms of the provision.
The courts will have to ask if the power was exercised for a legitimate purpose, thus a purpose permitted by section 84(2)(j) of the Constitution. —DM
