Hamadziripi Tamukamoyo, Researcher, Crime and Justice Programme, ISS Pretoria
On
Freedom Day, 27 April, it was announced that South African President
Jacob Zuma had decided to exercise his mandate in terms of the
Constitution to grant special remission of sentence to certain
categories of offenders ‘in the spirit of Freedom Day’. ‘The power [of]
the president to change sentences or grant pardons is provided for in
our Constitution, is a normal practice in democracies worldwide and is
used to recognise or commemorate special events in the life of a country
and nation,’ stated the announcement by the presidency. However, the
question can be asked whether these pardons are of any value and whether
they have a place in a modern democratic system that is based on the
principle of the rule of law. Is this done for political reasons, given
that the real reason for overcrowding in South African facilities is the
large number of unsentenced and awaiting trial prisoners?
The
practice of handing out executive pardons can be traced to the English
kings who were vested with the power to rescind any sentence, given that
absolute power rested in their hands. It has remained a feature of many
democracies around the world and it is invoked in different
circumstances and for a range of reasons.
When announcing the recent remission of sentences in South Africa, it was stated that:
- all
sentenced inmates, probationers and parolees will be granted a
six-month remission of sentence. Those who have not been convicted of
aggressive, sexual, firearm and drug-related offences, will receive an
additional 12 months off their sentences;
- escapees and absconders who are still at large are excluded from the special remission; and,
- 14 651 sentenced inmates will be released conditionally or unconditionally in terms of this process, as well as an approximate 20 855 probationers and parolees.
The SA government’s Justice, Crime Prevention and Security Cluster (JCPS) projects
that the remission of sentences will reduce the level of overcrowding
in correctional centres from 34% to approximately 20%. Though the
cluster says that this decision is governed by ‘placing safety first and
promoting shared responsibility for the correction of offending
behaviour as well as for rehabilitation’, there has been concern over
the possible negative impact this will have on public safety and the
rule of law.
The official opposition Democratic
Alliance (DA) said that ‘lessons have not been learnt from the flaws
that marred a similar process seven years ago’ under then president
Thabo Mbeki. DA MP and the party’s spokesperson for correctional
services, James Selfe, noted that the remission did not allow for a
case-by-case consideration of each offender’s circumstances, or state of
rehabilitation. Selfe also said, ‘We believe that the premature release
of un-rehabilitated prisoners is a danger to the public. Prisoners
should be properly rehabilitated before they are allowed to walk the
streets again. If they are not, they are likely to reoffend and end up
back in jail, defeating the purpose of the special remission, which is
to alleviate overcrowding.’
The JCPS in a media
statement dated 28 April stated, ‘The reduced level of overcrowding in
correctional centres will create a conducive environment for delivering
effective rehabilitation programmes to offenders.’ What is missing from
the statement is an acknowledgement of the reality that overcrowding is
mostly a challenge in those facilities holding unsentenced and awaiting
trial prisoners. Facilities for sentenced inmates operate at or below
the required capacity. Clare Ballard, a legal researcher at the
Community Law Centre’s Prison Reform Initiative at the University of the
Western Cape, has noted, ‘Our very high awaiting trial population means
there’s a huge bottleneck and the criminal justice system is broken.
That’s where the problem is. If the president wanted to focus our
attention on something it should be that.’ It is profoundly misleading
to simply assert that the impetus for the remission of sentences is to
reduce overcrowding in facilities without disaggregating the numbers as
to where the overcrowding occurs.
In South Africa,
one of the reasons given by the Executive to justify pardons is that it
is a common practice across the globe. While this is true, some
segments of society have questioned this, arguing that granting pardons
simply to emulate the practice in other countries does not necessarily
mean that it is appropriate in the South African context. Proponents of
this view further argue that in the case of sentenced offenders,
evidence would have been tested before the courts and the presiding
judicial officers reached the conclusion that the accused individuals
are indeed guilty and therefore should serve time. They note that the
remission of sentences and release of inmates undermines the
independence of the judiciary. Yet, others believe that the remission of
sentences is justifiable in the case of geriatric inmates and those who
are terminally ill. However, this is provided for in legislation and
can be undertaken on a case-by-case basis through parole boards.
Although
there have been assurances from the Department of Correctional Services
(DCS) that the lessons from past remissions have been learnt, some have
warned that the DCS is not equipped to adequately manage either the
remission or the post-release process. This is a crucial point
considering that for years the DCS has failed to recruit and retain
staff at the appropriate levels. In addition, there has been a continued
disproportionate allocation of the budget, with the rehabilitation and
well-being of offenders receiving the smallest share.
It
should be acknowledged that there are robust arguments that those
offenders with sentences of two years or less for non-violent offences
should never be imprisoned. This is because such offenders do not
qualify for sentence plans and therefore do not receive
rehabilitation-type services while in prison. Proponents of this view
argue that in these cases prison intensifies the prisoners’ alienation
from society, making it harder for them to re-integrate into society and
the job market, and therefore there is value in the pardons.
The
remission could be viewed through a political lens, particularly in the
context of the run-up to the ANC election conference in Mangaung in
December 2012. Zuma may believe that by pardoning inmates, the ANC
voting delegates will perceive him as a benevolent leader who cares for
the plight of those in prison and consequently, the majority of South
Africans.
If Zuma really cares about the
overcrowding in correctional facilities there are several steps he could
take using his executive powers, including:
- the
formation of a competent task team to examine the factors that result
in the slow turn-around of cases, particularly in the lower courts, and
consequently lead to overcrowding in facilities for those awaiting
trial;
- issuing a directive to the Department of Justice and
Constitutional Development (DoJ) to rapidly implement a comprehensive
and technologically updated case-flow management system;
- committing funds, through Treasury, to the case-flow management system;
- issuing
a directive to the DoJ and the DCS to conduct research that explores
the various alternatives that can be taken, other than incarceration,
for those awaiting trial, especially in the case of those accused of
petty and non-violent crimes; and,
- directing the respective departments on the basis of the research findings and following appropriate costing and stakeholder consultation, to undertake pilot programmes testing various practical options.
