Many supporters of convicted former President Jacob Zuma have been insisting that current President Cyril Ramaphosa must use his pardoning power to get Zuma out of jail. Some have threatened violence and others have threatened bringing the economy to a standstill should Zuma not be released from prison.
While there might be oceans of political will available to pardon Zuma, the law would not be on Ramaphosa’s side should he decide to do so.
Section 84(2)(j) of the Constitution provides that the President “is responsible for” (an interesting variation on the usually “may” or “must”) “pardoning or reprieving offenders and remitting any fines, penalties, or forfeitures.”
While the pardoning power elsewhere in the world is usually regarded as an executive prerogative that could be exercised freely, this is not the case formally in South African law. South Africa, being a rechtsstaat that subscribes to the Rule of Law, does not exempt the pardoning power from judicial review.
In the First Certification Judgment, the Constitutional Court argued:
“The power of the South African Head of State to pardon was originally derived from royal prerogatives. It does not, however, follow that the power given in [section] 84(2)(j) is identical in all respects to the ancient royal prerogatives. Regardless of the historical origins of the concept, the President derives this power not from antiquity but from the [Constitution] itself. It is that Constitution that proclaims its own supremacy. Should the exercise of the power in any particular instance be such as to undermine any provision of the [Constitution], that conduct would be reviewable.”
From this it is quite clear that it is the Constitution and its values and text which informs the pardoning power, rather than the nuances found in the history of the power itself, or how it is implemented elsewhere.
More importantly, in the case of S v Makwanyane it was held that a provision of the Constitution “must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular” other provisions in the chapter of which it is a part. This supports the fact that the Constitution must be read holistically, bearing in mind the values and purpose of the entire text as well as the particular provisions.
It was also held in President of the Republic of South Africa v Hugo that the President may not abuse this power:
“… if a president were to abuse this power vested in him or her under section 82(1)(k) a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court.”
The constitutional pardoning power is therefore fully reviewable by the courts in light of the Constitution, its values, and the exercise of good faith. Various provisions throughout the Constitution, such as the commitment to the Rule of Law in section 1(c), the duty of the President to uphold, defend, and respect the Constitution as the supreme law in section 83(b), and the imperative of a “high standard of professional ethics” for the President and other civil servants found in section 195(1), must be borne in mind before the pardoning power may be exercised.
The standards of the Rule of Law are most important. In a minority judgment in Van der Walt v Metcash Trading Limited, the Constitutional Court described the Rule of Law as “permeating” the entire body of South African law, and that its basic tenets include the non-arbitrary exercise of public power and predictability. Arbitrariness is perhaps the main mischief that the Rule of Law seeks to eliminate. And because the Rule of Law is said to permeate the entirety of the Constitution, the principles of the Rule of Law must be adhered to, also insofar as the exercise of the pardoning power relates.
Pardoning Jacob Zuma would be a very brazen abuse and arbitrary exercise of a public power. It cannot be said that our Constitution condones a state of affairs where members of the political class lawfully protect one another from the application of law. That would fall foul of the imperative that both the governed and the governors must be treated equally by the law. It would also be a clear signal that offences committed by highly-placed political functionaries will go unpunished. The Constitution evidently does not allow for this kind of abuse of power.
I remain sceptical that Zuma will be sleeping in a cold prison cell for the next 15 months. There can be no doubt that special arrangements have been or are being made for him, which other elderly inmates can forget about. But at least when it comes to the pardoning power, we know that if Ramaphosa does decide to invoke it, it can and will be challenged in court, and hopefully our courts will then further prove their resolve against corruption and abuse of law.