by Pierre de Vos
Over the weekend ANC presidential hopeful Lindiwe Sisulu raised the possibility of granting President Jacob Zuma amnesty from prosecution for all the crimes he is alleged to have committed, in order to “preserve the unity” of the ANC. The problem is that there is no valid legal avenue through which President Zuma could be granted amnesty from prosecution. One would have to subvert the Rule of Law and the constitutionally guaranteed independence of the National Prosecuting Authority (NPA) in order to do so. The only legally valid option would be for an incoming President to pardon Zuma after he had been convicted of fraud, money laundering, corruption and/or racketeering.
In an ideal world, corrupt people in the public and private sector will be vigorously investigated by the Hawks and then skilfully prosecuted by the NPA. Many politicians and business men and women will be convicted for corruption and then sentenced to the prescribed minimum 15 years in jail. They will not be released on sham medical parole (supposedly being at deaths door), before suddenly making a miraculous recovery allowing them to play endless rounds of golf.
In this ideal world the Hawks and the NPA will remain entirely uncaptured by the political and financial interests. Because they will remain uncaptured these institutions will play a pivotal role in arresting the spread of the cancer of corruption.
As we all know, we do not live in an ideal world.
The Hawks is entirely captured by a faction of the governing party. But even if it was not, one wonders how many of its investigators have the skills to find their nearest branch of Shoprite, let alone the skills to read an email or to decipher a financial statement. And given the botched attempt to prosecute former Finance Minister Pravin Gordhan for something that could not possibly be a crime, it is unclear whether Shaun Abrahams, the National Director of Public Prosecutions (NDPP), remembers anything of what he was taught at University.
So, under current circumstances there does not seem to be the political will nor the legal and forensic skills to investigate and prosecute President Zuma successfully – whether for a parking violation or for corruption. Talk of amnesty might therefore be rather academic in nature.
Nevertheless, let us assume for the moment that both the Hawks and the NDPP have the political will and the skills to investigate and prosecute all those involved in corruption and to secure convictions for the guilty. Can the NPA legally grant President Jacob Zuma amnesty from prosecution to protect him against prosecution?
The simple answer is no.
The NPA does not have the legal power to grant amnesty from prosecution to anyone. If there is a winnable case, prosecutors normally have a legal duty to prosecute the accused person unless the prosecution policy allows them not to proceed. This is made clear by section 179(4) of the Constitution which states that the “prosecuting authority exercises its functions without fear, favour or prejudice”.
While section 179(5) allows the NDPP (with the concurrence of the Minister of Justice) to determine a prosecution policy, which must be observed in the prosecution process, this policy must apply generally to everybody.
A policy aimed at granting amnesty only to the President will be in breach of the Rule of Law and hence constitutionally invalid. It will be in breach of the Rule of Law, first, because any rule that applies only to one person in one situation is in breach of the Rule of Law and, second, it would be irrational to decide not to prosecute an individual to advance the interests of a specific political party.
Of course, there are other ways open to the NDPP to grant an informal amnesty to President Zuma. It may, for example, now be impossible to secure a conviction against President Zuma in the case in which he was bribed by Schabir Shaik and by the French arms company. This might be the case because so much time has passed and much of the evidence might have been lost.
I have no idea if this is indeed so, but I am just imagining what types of legally plausible arguments an informed and astute NDPP might conjure up to justify a decision not to prosecute President Zuma. Of course, this kind of argument will not be much use for any alleged criminal offences committed by President Zuma over the past few years in relations to the alleged misuse of his office to favour his son and the Gupta.
But any such decision not to prosecute because there is allegedly not a winnable case will still have to meet the constitutional requirement of rationality. It would not be rational to decline prosecution merely because the accused happened to have been the President or because prosecuting the accused will not be in the interest of one or other political party.
The only other option would be to promise President Zuma that a new President will use his or her Presidential powers in terms of section 84(2)(j) of the Constitution to pardon President Zuma after he is convicted of various criminal offences. It is clear from the Constitutional Court judgment in Certification of the Constitution of the Republic of South Africa, 1996 that the new President will not have the power to pardon President Zuma prospectively – even before he is convicted of any crime. In that judgment the Court held that:
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.
A pardoning power could therefore not be used to subvert the Rule of Law, to undermine the independence of the NPA, or to usurp the powers of the judiciary. It could only be used after the NPA has secured a conviction against an accused before a court of law. As the Constitutional Court explained in that case the objection against allowing the President to pardon offenders
really amounts to a complaint about a perceived overlap of powers and functions between the President, as a member of the executive, on the one hand and the judiciary on the other. It has never been part of the general functions of the court to pardon and reprieve offenders after justice has run its course. The function itself is one that is ordinarily entrusted to the head of state in many national constitutions, including in countries where the constitution is supreme and where the doctrine of separation of powers is strictly observed.
This passage confirms that the President can only pardon an offender after justice has run its course. It cannot be used to pardon a person for something he or she might or might not be convicted of at a future date.
Given the recent comments made by US President Donald Trump about his absolute right to pardon himself and anyone else (at best a doubtful statement as far as US constitutional law is concerned), the interesting question is whether a South African President would be permitted to pardon himself.
The answer, I would think, is an unambiguous no.
Once again, the reasons is that the Rule of Law, which is enshrined in section 1(c) of the Constitution as one of the founding values of the Constitution, read with the provisions in the Bill of Rights dealing with procedural fairness, make this impossible. In terms of these provisions it is well-established that no one can serve as a judge in his or her own cause. This principle is captured by the Latin maxim: nemo iudex in sua causa. If the President pardoned himself, he would be using his executive power to undo a criminal conviction, thus judging himself in reverse.
One could get to the same outcome by arguing that it would always be irrational for the President to pardon himself. As the Constitutional Court remarked in President of the Republic of South Africa and Another v Hugo (quoting from foreign case law):
A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.
The argument would be that it is always going to be irrational for a President to pardon him or herself because there could never be any rational connection between such an act and the aim of serving the public welfare. As the pardoning power is an exceptional power that, in effect, undoes the work of another independent branch of government (the judiciary), it would make no sense if the head of executive branch could pardon him or herself. It certainly would never serve the public welfare.
Having said all of this, I remain sceptical that President Zuma will ever be prosecuted, either for being bribed by Schabir Shaik (Shaik was, in fact, convicted for bribing Zuma), or for anything he might have done to use his position to favour his son and the Guptas.
I am just not convinced that our institutions – including the Hawks and the NPA – are politically strong enough and possessed with the requisite legal and investigative skills, to mount such a politically earth-shattering prosecution. It will take many years to rebuild these institutions, at which time we would all have moved along, probably outraged by an entirely new villain in the form of some or other corrupt businessman or family even more nefarious than the Guptas.