The president’s decision to remit the sentences of more than 9,000 convicted prisoners serving time for nonviolent offences has been met with joy in some quarters and incandescent rage in others, mainly because one of the said “prisoners” is Jacob Zuma.

The legal position is clear: the constitution empowers the president to grant remissions of sentences. This power was used by then president Zuma himself in 2012, in celebration of Freedom Day and to promote “shared responsibility for the correction of offending behaviour, as well as for rehabilitation”. Or so he said at the time.

The power to remit sentences must be exercised rationally for a legitimate purpose of government. These features are part of the doctrine of legality that is a cornerstone of the rule of law. The jury is still out on whether these remissions can be regarded as a proper exercise of the president’s discretion. The proffered reason for doing so is the long-standing unattended overcrowding in our prisons.

If the record of decision, which will have to be supplied by the president in any review proceedings assailing his decision, reveals an opportunistic sham rather than a well-considered decision, those attacking the decision will have grist to their mill.

It is curious that awaiting-trial prisoners, who are plentiful in jails due to their inability to raise bail, were apparently not considered for release before those serving time for offences that had been proved beyond a reasonable doubt to the satisfaction of a competent court. Remissions for the convicted in preference to release, on their own recognisance, of those who are still entitled to be presumed innocent has a curious ring.

If the “Zuma factor” is the only rational explanation for this preference, the decision may well be struck down as inconsistent with the constitution and the rule of law. The excellent attendance record of those released on their own recognisance pending criminal trials suggests that those presumed innocent should be preferred for release from overcrowded prisons.

Paul Hoffman, SC
Director, Accountability Now