Presidential Pardons In South Africa
Mike Smith - 11/17/2007
The issue of Presidential Pardons for politically motivated offenses is currently in the news in South Africa. Every year, just before Thanksgiving (the fourth Thursday in November), the president of the USA pardons a Turkey in a ceremony at the White House. This demonstrates his power of Executive Clemency or Presidential Pardon.
It means that the President can pardon anybody who committed a crime against the country or its people except in cases of impeachment.
The History of Executive Clemency goes back thousands of years to the days of kings and emperors and it has been used many times, not as a sign of mercy from the ruler, but as a political tool to gain favour from one’s opponents or the public. The modern version of Executive Clemency originates from the prerogative powers that have been traditionally vested in the English monarch.
In South Africa our constitution also provides for Executive Clemency under section 84(2) (j).
Presidential pardon can only be given to people who have already been convicted of crimes, distinguishing it from "Amnesty", which is granted before a trail is set, or "Reprieve", which means a reduced sentence. Executive Clemency is a full pardon and complete restoration of the person’s civil liberties (right to vote, own a fire arm, etc) after the courts found the person guilty. Although Executive Clemency is the right of the head of state and by law he does not have to give any explanation for his decision, he should use it sparingly and only when it is in the interest of the state.
In January of 2005, we saw that President of South Africa, Thabo Mbeki pardoned the Anti-Apartheid activist Reverend Dr. Allan Boesak, who spent two years in prison for fraud and theft of Danish donor money that was meant for the poor. To this day Mr Mbeki claims that this pardon was in "National interest", but never clarified, how this could be. Well, as said before, he does not have to.
So how do we need to look at the current consideration of 384 applications for executive clemency in South Africa?
First of all, everything the ANC or its leaders does at the moment should be seen against the backdrop of immense tension in the party leading up to their conference at the end of the year when they will choose a new leader.
The battle lines for the presidential contest in December 2007 were already drawn in 2005, when President Thabo Mbeki fired Jacob Zuma from his post as deputy president of South Africa. Zuma's financial adviser, Shabir Shaik, had been convicted on charges of corruption, relating to money paid to Zuma.
If Zuma becomes the leader of the ANC, he will most likely become the next president of South Africa in 2009 (unless Thabo Mbeki changes the constitution and serves a third term). Further, as leader of the ANC, Zuma will be Mbeki’s boss even though Mbeki is the president.
Zuma is still facing possible corruption and fraud charges. If the National Prosecuting Authority(NPA) decides to prosecute Zuma, he can go to prison or be granted "Executive Clemency". But why would Mbeki want to pardon Zuma?
Let us turn to the Philipines for a lesson. When Corazon Aquino became president there in 1986 she pardoned many of her former opponents, but they turned out to be her fiercest enemies afterwards. Little wonder then, that when the current president of the Philippines, Gloria Arroyo, granted former president Joseph Estrada Executive Clemency, she did so on condition that he never again engages in politics.
"This Arroyo regime is continuously being isolated due to massive human rights violations, widening of poverty among the populace and massive corruption. Again and again, multi-million scandals are being exposed and all strings are leading to the Malacañang-based mafia. This recent move is made to buy her more time against the growing calls of resignation from the Filipino people," said Prestoline Suyat, spokesperson of the KMU.
The Executive Clemency granted to former President Joseph Estrada by Gloria Macapagal-Arroyo is a clear sign, not of mercifulness on her part, but of weakness in her rule and it smacks of political pragmatism, a survival instinct for her dying regime.
We have seen in America that Richard Nixon was pardoned by Gerald Ford for the Watergate scandal. Many believe the Nixon pardon was the reason he lost the 1976 election to Georgia Governor Jimmy Carter.
Carter also pardoned those who avoided serving in the Vietnam War by fleeing the U.S. or not registering. George W. Bush pardoned Lewis Libby who was indicted on charges of federal obstruction and perjury.
If we look into American History, we also see another reason for pardoning.
Take the "Whiskey Rebels" for instance:
In 1791 the congress imposed heavy taxes on spirits and small producers were hardest hit. They rebelled against the government of George Washington and it took 13,000 troops to quell the rebellion. They were convicted of treason, but pardoned later. The pardon calmed the opposing sides down and effectively prevented a full blown civil war in the young USA.
Further, Andrew Johnson, took office the day that Lincoln died from gunshot wounds. Johnson had a mixed reputation. He was popular in the North, but considered a traitor in the South. After becoming President in 1865, while Congress was not in session, he pardoned Southerners in the Confederate States on the condition that they would take an oath of loyalty to the Union.
In South Africa, we might find that Thabo Mbeki will use his power of Executive Clemency to pardon Jacob Zuma in order to gain favour from his political opponents and suck in the Zuma surporters. There is however rumours that Thabo might also grant Executive Clemency to Rightwing Janusz Walus and Clive Derby-Lewis who unsuccessfully sought amnesty from the Truth and Reconciliation Commission (TRC) in 1999 for the 1993 assassination of the then head of the SA Communist party, Chris Hani, and applied for a presidential pardon in May 2002.
Earlier this year they asked Mbeki to make a decision on their application, failing which they would take the matter to the High Court, a step they would now take.
For Executive Clemency to work, the person whom it is granted to, should accept it and herin lies the twist. We saw that the previous government granted Nelson Mandela Executive Clemency on condition that he suspended the "Armed Struggle", which was a euphamism for "Terrorist Campaign".
Mandela chose not to accept this Clemency. Even After F.W. de Klerk freed him unconditionally, he chose to leave the prison when he wanted to and delayed his own freedom by two months.
Just as executive Clemency can be used to appease one’s opponents, the refusal of Clemensycan be used to fuel a rebellion. If Janusz Walus and Clive Derby-Lewis refuses Executive Clemency, they could become martyrs in the same way as Mandela was. The same goes for the Boeremag-accused, whose trial is still ongoing.
As more and more scandals, mismanagement and corruption unfolds, whites are becoming more and more resentful towards the ANC. Many are talking about an own Homeland and many support the idea openly. In the Afrikaner intellectual circles, the Homeland idea is hotly debated. Personally I think the ANC should be thankful that there are so many liberal Afrikaners who opposes the idea of an own Homeland…but for how long?
Executive Clemency for people like Derby-Lewis, might just calm down a possible Rightwing Backlash, something the ANC fears more than the Tokoloshe.
As they say, "In politics there exist no permanent friends nor enemies, only permanent interest and the interest of the ANC is to hold on to power "Forever"!