DA's pardons bill undermines the constitution - Motshekga
Democratic Alliance's proposed pardons bill undermines the President and the constitution
The Democratic Alliance has proposed to Parliament's Private Members' Legislative Proposals Committee a Bill aimed at "guiding" President Jacob Zuma in the process of carrying out presidential pardons, a prerogative afforded to him by the Constitution (see here).
A pardon is the forgiveness of a crime and the sentence and or penalty associated with it. It is granted by a head of state or a monarch or president, or a competent church authority in certain countries. Pardons are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise deserving of a pardon.
In Canada pardons are considered by the National Parole Board under the Criminal Records Act, the Criminal Code and several other laws. In France Pardons and other acts of clemency are granted by the President who, ultimately, is the sole judge of the propriety of the measure. It is a prerogative of the President and is directly inherited from that of the Kings of France.
In the United Kingdom the power to grant pardons and reprieves is known as the royal prerogative of mercy. It was traditionally in the absolute power of the monarch to pardon and release an individual who had been convicted of crime from that conviction and its intended penalty. The first General Pardon in England was issued in celebration of the coronation of Edward III in 1327.
In New Zealand the Governor-General exercises the Royal Prerogative of mercy which is an ancient right of convicted persons to seek a review of their case where they allege an injustice may have occurred. The Governor-General acts on the advice of the Minister of Justice.
In South Africa, Section 84(2)(j) of the Constitution confers upon the President the power and authority to pardon or reprieve convicted offenders and remit any fines, penalties or forfeitures.
A pardon has the effect of restoring the convicted offender to his/her life as it were prior the conviction, and also expunging the criminal record. To pardon a person is to forgive a person for his/her unlawful deeds and is therefore not available to persons who maintain their innocence and should not be misconstrued as an advanced form of the appeals procedure.
Various sections of the South African Constitution are replete with instances where the Constitution directs that legislation be enacted to give effect to the clause or provide guidance for implementation. Nowhere in the Constitution it is stipulated that such a proposed piece of legislation must be enacted in order to give effect to the Section 84(2)(j).
The motivation behind the DA's proposed Bill is that the President cannot be trusted with exercising the authority bestowed upon him by the Constitution and the majority of the South African people in relation to granting pardons, as well as upholding and defending the Constitution. It therefore argues that some of his powers must be removed.
The Constitution of the Republic states in Section 83(b) that the President "must uphold, defend and respect the Constitution as the supreme law of the Republic". Should the President fail in this duty, the Constitution is unambiguous in its instruction in Section 89 that he or she must be removed. This section ensures that the President adheres to the strict legal prescripts in the execution of his functions as enshrined in the Constitution.
If indeed the President has failed in his constitutional responsibility as outlined in Section 89, the DA would surely have all the ammunition in the form of concrete evidence to pursue his impeachment.
Alternatively, since the view of the DA effectively seeks to contest the application of the Constitutional clause, the DA should have opted the route of the Constitutional Court, which is the highest Court in the land for all matters relating to the interpretation of the Constitution.
It would seem that the DA may have either received poor legal advice on this matter or are deliberately trying to dilute the authority and powers of the President, who was elected through the overwhelming majority vote. This proposed private members' legislation could also just be another ploy by the DA to score cheap political points and get some publicity.
Either way, the majority of the South African people will not accept some backdoor manoeuvres in which power lost through the ballot is snatched piece by piece through baseless Bills with no legal grounds. If the ANC was to accede to this tactic, the Constitutional clauses will be littered with numerous pieces of legislations which will render the President powerless to take any decision. Turning our Presidency into a marionette operated by strings of Bills cannot be acceptable. But the DA's attempt to undermine President Jacob Zuma through nefarious strategies is not a new phenomenon.
During the period ahead of the 2009 elections, party's leader Helen Zille led one of the most negative and desperate campaigns, titled "Stop Zuma". The campaign was a rude reminder to those who thought the party had shed its lily-white political character and orientation, which it was infamous for during the era of her predecessor Tony Leon. Leon led the notorious and racist Fight B(l)ack campaign in 1999, which was widely translated to mean that power must be returned to the white minority.
Faced with the inevitable reality of Zuma's ascension to the Presidency of the country, particularly after the National Prosecution Authority's decision to drop the charges against him, the DA embarked on relentless and hopeless attempts to convince courts to overturn the NPA's decision. The DA's philosophy is that the supremacy of the Constitution and the principle of the rule of law can manifest only if they feed into its narrow political agenda.
So contemptuous is the party and its leader Zille, that in her latest diatribe against Zuma during her speech (see here) to mark the anniversary of former President FW De Klerk's address to Parliament, she repeatedly refers to the President of the country as "their President", which is a clear indication that the DA is yet to come to terms with the fact that President Zuma is the President for all South Africans. This aims to revive that ugly "us" versus "them" atmosphere that our nation has long went beyond.
President Zuma has led with distinction since he took over and there is absolutely no basis, legal or otherwise, for a Bill whose only motivation is based on distrust by a Party which represents the minority interest.
It is ironic that a Party, which during the elections campaign employed false and deceptive scare tactics that the ANC will change the Constitution, is today itself beginning to show signs that it want to amend the Constitutional so that the sitting President is rendered powerless.
As the Parliamentary Caucus of the ANC, we reject any Bill that seeks to undermine the President and the Constitution as the supreme law of the land.
Dr Mathole Motshekga is an ANC NEC member and ANC Chief Whip in the National Assembly. This article first appeared in ANC Today, the weekly online newsletter of the African National Congress.
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Comments
Not once in the referred article is there any reference to "their president". Ironically enough, it would have been justified in the context, as the article gives a justified warning what happens when an elite instills their own people for their own gain. . .more
by K25 on February 08 2010, 02:48
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The DA seeks for there to be some sort of control mechanism so as to prevent power abuse. At present, the president of South Africa can pardon anyone on any basis - for example, it appears to be many South Africans that Zuma is set to pardon a man for the . .more
by Michael Shackleton on February 08 2010, 23:01
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