To pardon is Mbeki's prerogative
Matome Sebelebele
19 January 2005
The government has moved to clear the air around what it calls "inaccuracies and confusion" over the presidential pardon granted to former anti-apartheid cleric Allan Boesak.
The Department of Justice and Constitutional Development has rejected claims that the pardon granted by President Thabo Mbeki was unconstitutional.
"A presidential pardon is an act of grace or mercy, proceeding from the power entrusted with the execution of laws, which exempts the individual on whom it is bestowed from punishment the courts inflict for a crime he or she committed", the department said in a statement.
"Therefore, a pardon is not a private act of grace or mercy from an individual happening to possess power. It is part of our constitutional scheme."
When a pardon is granted, the deparment said, "it is the determination of our highest executive authority, the President, that the public welfare will be served by inflicting less punishment than
the courts have decided."
Boesak was released from jail almost four years ago after being incarcerated for fraud and theft involving donor funding.
A year later, he applied for pardon, which was rejected, prompting a second application, lodged two years ago with new reasons and supporting petitions from local and international pastors, clerics and ministers.
When considering the pardon, the justice ministry and later the Presidency took into account such factors as whether a reasonable period had lapsed since the conviction, the nature and seriousness of the offence, circumstances surrounding the commission of the offence, personal circumstances of the offender at the time of application, and the interest of the state and the community.
'It's the President's prerogative'
On Tuesday, the department referred to section 84(2) (j) of the Constitution, which entrusts the President with the power to pardon or reprieve offenders and
to remit any fines, penalties or forfeitures.
The section, the department argued, originates from the prerogative powers traditionally vested in the English monarch.
"Similar powers have been and still are exercised by the head of state, or the executive in his or her name, in many countries both in and outside the Commonwealth", the department said
The department referred to a 1997 Constitutional Court ruling - in the case of the President of the Republic of South Africa and Another v Hugo - that acknowledged the existence of a presidential pardon in SA's constitutional dispensation.
This ruling, the department argued, was in concert with another ruling (1996 Certification judgement) that no reasons needed to be given for the exercise of or the refusal to exercise the presidential pardon.
"The Presidential Pardon is thus an executive act of mercy to be exercised by the President in his exclusive discretion, and which will only be reviewable by the
courts in very limited circumstances where bad faith by the President can be proved", the department said.
Source: BuaNews
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