Wednesday, May 16, 2012

South Africa: What is the Value of the Recent Presidential Pardon of Inmates?

Prison cell
Source: ISS

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.
 Indeed, Zuma does have an opportunity to leave a legacy of an efficient and fair criminal justice system that is accessible to all. However, to accomplish this the Executive will need to go beyond the rhetorical mantra that remission of prison sentences and the release of inmates addresses the challenge of overcrowding in correctional facilities. It is clear that South Africa’s justice system, particularly in the lower courts, urgently has to deal with the panoply of bottlenecks that cause a disproportionately large unsentenced and awaiting trial inmate population.