By Anton Katz
A key principle in any decent, fair and caring society is the notion of justice.
Justice may not on its own solve all society’s ills, but it can go some way to alleviate suffering and hardship on a range of levels. Indeed, the biblical principle of justice encapsulated in ‘Tzedek, tzedek tirdof’ (Deuteronomy (16:20)) enjoins all persons to pursue righteousness. In modern society that may include striving for economic and social equity; combating all forms of racism, and unfair discrimination, promoting tolerance and peace; preventing human trafficking and slavery; care for the young, the unfortunate and the aged; and generally the pursuit of personal righteousness.
But, at its core justice requires that those who commit evil deeds be held accountable. They are to be investigated, tried and, if found guilty, punished, albeit with the requisite element of mercy.
Governmental authorities (for example the President, the police, the prosecuting authorities) may in limited and exceptional circumstances permit those guilty of crimes to be pardoned, granted amnesty or be granted immunity. Where does justice fit in?
A pardon in South Africa is a constitutional power that vests in the President. He, as head of state, has the power to pardon or reprieve offenders. The person must already have been convicted by a court of law, and sentenced. The President may grant any offender a pardon; but if he does so irrationally or is bribed to grant the pardon, a court challenge to the grant of the pardon may well succeed. Famous US examples are President Bill Clinton pardoning Marc Rich (the convicted oil trader, then living in Switzerland) on his last day in office as President. The rumour is that Mr Rich contributed financially to the Clinton Presidential library. President Trump in August 2017 pardoned Sheriff Joe Arpaio, an aggressive anti-immigrant Arizona enforcer convicted by a federal court of contempt of court for his refusal to halt cruel racist immigration patrols.
When a pardon is granted the punishment imposed on the convict is set aside and the person goes free with none of the disabilities associated with the conviction.
Amnesty is often different to pardon. Amnesties are a means to starting afresh. Persons are offered the opportunity to come clean. Tell the truth and no sanction, criminal or civil will follow. An amnesty can apply to issues as diverse such as tax or foreign exchange violations to war crimes. The terms of amnesties differ widely. The Constitutional Court commented in relation to amnesty for apartheid crimes: ‘Despite its severe impact on fundamental rights, both criminal and civil amnesty was warranted and indeed constitutionally envisaged, since a fraught transition from grievous injustice and conflict under apartheid to realising the ‘objectives fundamental to the ethos of a new constitutional order’ demanded it. Amnesty was a means to an end. The amnesty that the Truth and Reconciliation Commission could grant was necessary to uncover the truth about the injustices that scarred South Africa’s oppressive past. ‘Truth, which the victims of repression seek so desperately to know is much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do.’ Without that incentive, the Court pointed out, ‘there is nothing to encourage such persons to make the disclosures and to reveal the truth’.
Immunities, like that recently granted by the South African government, perhaps unlawfully, to Ms Grace Mugabe of Zimbabwe is different to pardons and amnesties.
An immunity immunises a person or state from criminal (and civil) liability for something that may be done in the future. In contrast pardons and amnesties relate to past conduct. The concept of immunity is also a means to an end. Sovereign immunity is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.
Sovereign immunity is based on the notion that one sovereign may not be subjected without its approval to the jurisdiction of another sovereign. The House of Lords observed, ‘The courts of a country will not impede a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.’
This principle is commonly expressed by the popular legal maxim rex non potest peccare, meaning ‘the king can do no wrong.’ South Africa is not a constitutional monarchy. It has an elected President, who is not a King or Queen. Therefore the President does not enjoy immunity from the South African courts. He can be investigated, prosecuted, convicted and sentenced to imprisonment for a crime. The President can be sued civilly in a court of law.
In order mainly to facilitate interaction on the international plane and notions of international comity certain foreigners, such as heads of state, diplomats and consulates, are immune from the courts in South Africa. When he was in South Africa the government did not arrest Sudan’s President Al Bashir, who is sought by the International Criminal Court for war crimes on the basis of him enjoying immunity. Both the South African courts and the ICC found the South African government to be wrong. Al Bashir’s immunity did not exist as a warrant for his arrest had been issued by the ICC.
After Zimbabwe’s Grace Mugabe, who was in South Africa on private business, allegedly severely assaulted and badly injured a young woman she was granted immunity as the spouse of a head of state. She has escaped prosecution, at least for now. The grant of immunity is being challenged in court on the basis that she was not entitled to immunity.
There have been rumours that President Zuma has been offered immunity from prosecution, or a pardon or amnesty if he steps down as President. The idea is that South Africa can enjoy a clean slate once again. A new beginning in an attempt to enjoy fresh and hygienic government.
The key question is: do these pardons, amnesties and immunities serve justice. Perhaps in limited circumstances, the non-prosecution of a criminal serves justice, bearing in mind the larger picture. But those instances should be limited. Justice demands that accountability should be the norm, and only deviated from in limited exceptional cases.
Anton Katz SC is a practicing advocate at the Cape Bar and has been a member of the United Nations Human Rights Council Working Group on Mercenaries since 2011.