Ruling has implications for Shaik and De Kock

THE Constitutional Court decided to be agnostic on two legal and political hot potatoes — and these two hot potatoes are called Schabir Shaik and Eugene de Kock.

Instead of pre-emptively discussing its findings in a possible future case about whether or not the president should ask De Kock’s victims what they think about the possibility of his release, the court restricted itself to the very specific group of prisoners that was the object of the case before it. Yet, if we rehearse the decision and rationale behind it, important legal and ethical implications for how the president handles other pardons seem to follow.

The case before it is, of course, of critical legal and sociopolitical significance in its own right. In terms of “unfinished business” related to the Truth and Reconciliation Commission’s (TRC’s) attempt to engender reconciliation across the nation, the president had decided to consider pardoning certain prisoners whose deeds fell within the political scope of TRC work.

The basic thinking is that doing so would help to take care of “unfinished” business by presumably strengthening reconciliation. The problem, however, is that this is being done by fiat. The input of the victims and their families was not deemed necessary. The Constitutional Court disagreed.

In essence, the court decided that there must be a rational connection between the aim of granting these special pardons and the process by which it is decided who among the applicants should be pardoned.

In relation to the victims and their families, the legal question then becomes whether this principle of legality would still be respected in the absence of consulting the victims. But it is obvious that if the aim of the pardons is to promote reconciliation, then the demand of the victims to be heard is one that bears a rational connection with the aim of reconciliation.

After all, reconciliation by definition involves two parties and can only be achieved if they are on the same psychological wavelength about their previously broken relationship now having been restored. So we have yet another spot-on confirmation by the Constitutional Court.

Now the real fun starts, however. The wider question is whether this reasoning applies to other applicants for pardoning. And, of course, the big elephants in the room are Shaik and De Kock.

Since the application was for a special category of prisoners in relation to a unique politico-historical process, the Constitutional Court strategically bypassed the need to opine on the constitutional question beyond its focus. But let us reject the court’s agnosticism and speculate.

First, it seems that at the very least this decision develops the one asserted less bluntly in the Hugo case — that the principle of legality demands that the president makes rational decisions when he exercises prerogative powers. This matters.

Actually, it helps both the president and the rest of us. We get at least a formal guarantee that undue influence is minimised by the requirement of rationality. The president, in turn, gets to have an excuse not to behave unethically by being able to say to an old friend, “Mate, I’d love to pardon you for taking care of the car-wash ticket, but I don’t have a fake set of reasons to give my peeps. Can I give your brother a job instead?”

This sort of guideline does not override the freedom of the president to offer pardons, but it does rightly constrain that power by the light of fundamental principles such as that of legality.

Second, however legally accurate, the court is being convenient in pointing to the unique historical nature of the case before it. How can it not see the obvious similarity with a case like that of De Kock?

De Kock has a whole bunch of victims and their families who have experienced identical grief and loss to that suffered by the victims of the prisoners whose case is before the court. Indeed, the grief is not just of the same kind and the same intensity, it also stems from the same historical context, at least in De Kock’s case. For this reason, I would predict that a reasonable argument can be made in future for why the decision of this week’s case, and much of the rationale for it, should apply identically to a case about the right of victims to be heard on the possible De Kock pardon.

Last, even if a legal argument cannot be sustained for excavating the analysis from this week’s judgment and throwing it at the De Kock matter, the ethical and political pressure to listen to the public’s input has been strengthened.

If we take the constitutional principles at the heart of our democracy seriously, then we need constant dialogue between the state and citizens about decisions that will affect the health of intergroup relations.

The conclusion is therefore irresistible. Even if Jacob Zuma should survive a legal challenge to also hear the victims of De Kock about that potential pardon, he cannot survive the moral and political entitlement that victims have to express their view. If he is astute, furthermore, he would ask them voluntarily to express a view and take the responses genuinely seriously rather than treating it as just an exercise in procedural democracy. I will not hold my breath.