1(a) A pardon is an act of grace proceeding from the power entrusted with the execution of the laws which

exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he or she has committed.1 In Zimbabwe the power to pardon flows from section 31I of the Constitution. The effect of a pardon is to eliminate any punishment or sentence imposed as a result of a conviction though it does not go to the extent of removing the conviction itself. The President can grant a pardon to any person concerned in or convicted of a criminal offence against any law. 2 The phrase concerned in means that the pardon may be granted before a conviction.3 The phrase convicted of means that after conviction a person may also be pardoned though this does not eliminate the conviction itself. The phrase any law refers to all laws which operate in Zimbabwe be it the Constitution, Acts of Parliament, Statutory Instruments and case law. The President is also empowered to grant respites (intervals of rest) from the execution of any sentence for an offence either for a specified period or indefinitely.4Section 31I also empowers the President to alter the sentence for any offence by either substituting a less severe punishment for that imposed or suspend the whole or part of a sentence. The President also has the right to declare that persons resident in Zimbabwe who have been convicted of criminal offences in other countries shall not be regarded as having been so convicted for the purposes of the Constitution or any other law in force in Zimbabwe.5 The prerogative of mercy is purely a discretionary act and it follows that the courts under Section 31K(2) of the Constitution are not entitled to inquire into either the manner in which the prerogative is exercised or the nature of the advice tendered by the Cabinet. The courts however have the power to insist that the prerogative is exercised lawfully.6 Gubbay CJ held that when the death penalty is imposed, the prerogative operates in the nature of an automatic review of the death sentence which means that its purpose is to serve a useful function of correcting social injustices which might result from applying the technicalities of the law.7

1(b) This essay will begin by explaining that the President is not obliged to provide reasons for reducing the sentence of the other four offenders though there are some moral and political reasons why he ought to provide reasons for such an exercise. The essay will then identify and explain the grounds I would pray the Courts to review the Presidents decision to pardon Mr Sungano and to reduce the sentence of the other four offenders.

The Constitution of Zimbabwe does not stipulate that the President must give reasons justifying his use of the prerogative of mercy.8 Since our Constitution is the supreme law of the land,9 then the President cannot be said to have violated any law in the event that he does not provide reasons for reducing the sentence of the other four offenders.
1 2

President of the Republic of South Africa v Hugo 1997 CCT 11/96 para 24. Constitution of Zimbabwe sec 31I. 3 G Linington Constitutional Law of Zimbabwe (2001) 81. 4 Constitution of Zimbabwe sec 31I. 5 Ibid sec 31I. 6 PF ZAPU v Minister of Justice 1985 (1) ZLR 305 (S).
7 8

Nkomo and Another v Attorney-General and Others 1993 (2) ZLR 422 (S). G Linington The Prerogative of Mercy: A review of Section 31I of the Constitution of Zimbabwe (1998) Legal Forum vol 10 no 3 p47 at 49. 9 Constitution of Zimbabwe sec 3.

However it should be noted that there are moral grounds for believing that any grant of mercy ought to be explained.10 This means that from a legal perspective there is no law that gives the President an obligation to provide reasons for his exercise of the prerogative of mercy but from a moral perspective, in a democracy, he ought to explain this exercise because he is accountable to the electorate.11 One writer expressed these moral grounds by saying The President in a democracy is not in the position of a medieval monarch running a personal fiefdom. He is elected by and should act in the interests of the people as a whole. If he has made a decision that has attracted widespread and strong criticism, he should be able to justify his actions to the public. If he refuses to give reasons, this will create the impression that the decision may have been taken on arbitrary or insupportable grounds.12 The above quotation distinguishes between a President in a democracy and a medieval monarch, the former derives his mandate from the people who elect him and should be accountable to them whilst the latter through Devine right could not be questioned as he practically owned his subjects. The President in a democracy is elected by the people and it follows that he or she is obliged to explain to the people why he or she has made such a decision and if the people are not satisfied if possible to reverse such controversial decision.

The first ground I would pray the Courts to review the Presidents decision to pardon Mr Sungano and to reduce the sentence of the other four offenders is that it is unconstitutional. When the President is exercising his power to pardon, he is under a legal obligation in terms of section 31 H(2) of the Constitution to uphold and ensure that its provisions are faithfully executed.13In the case at hand the unconstitutionality arose when his decision to pardon Mr Sungano and the other four offenders was done unilaterally when he was obliged to exercise this function on the advice of the Cabinet. 14 The Constitution stipulates that In the exercise of his functions, the President shall act on the advice of the Cabinet, except in cases where he is required by this Constitution or any other law to act on the advice of any other person or authority.15 The listed grounds upon which the President can act unilaterally in section 31H of the Constitution do not include the prerogative of mercy and there is no other law that allows him to act unilaterally which means that he is obliged to act on the advice of the Cabinet when exercising the prerogative of mercy. It must also be noted that the prerogative of mercy is a public power that is meant to be used in the public interest.16 This means that mercy ought to be granted in deserving cases that is cases where a failure to exercise the prerogative would result in a miscarriage of justice. 17 Mhlaba notes that the prerogative of mercy when properly construed is intended to serve a useful function of correcting social injustices which might result from applying the technicalities of the law.18 The case of James Bassopo-Moyo is a clear example where the prerogative was properly exercised, James became seriously ill while serving a two year sentence after being convicted of attempted murder, his illness was terminal and so
10 11

G Linington Constitutional Law of Zimbabwe (2001) 84. Ibid. 12 G Linington The Prerogative of Mercy: A review of Section 31I of the Constitution of Zimbabwe (1998) Legal Forum vol 10 no 3 p47 at 49. 13 President of the Republic of South Africa v Hugo CCT 11/96 para 49. 14 Constitution of Zimbabwe sec 31H (5). 15 Ibid. 16 R v Secretary of state for the Home Department 1994 QB 349 (DC) at 362. 17 Constitution of Zimbabwe sec 23(2). 18 L Mhlaba The President Pardoning of Dr Shava Legal Forum (1989) vol 1 No 6 p25 at 27.

he was released in order to spend the last few days of his life with his family. 19 The case at hand does not fit within the category of deserving cases in that among those who were prisoners convicted of politically motivated crimes and had children under the age of 13 years who were pardoned by the President was Mr Sungano who belongs to the Presidents party which is evidence that the prerogative was exercised arbitrarily and also discriminated against other prisoners which is in violation of section 23(1)(b) of the Constitution which prohibits any discrimination against other persons. The reason that the President was motivated by the interests of the children can also be dismissed on the basis that his (Mr Sungano) alleged unfortunate plight could be true to most of the prisoners in Zimbabwes jails.20 Ngcobo CJ held that ...the exercise of the power to grant pardon must be rationally related to the purpose sought to be achieved by the exercise of it which therefore means that the President is only expected to exercise this prerogative within the parameters provided by the Constitution or put differently, in the event that he acts ultra vires the Constitution, such conduct should be reviewed by the courts and declared unconstitutional.21

The second ground that I would pray the Courts to review the Presidents decision to pardon Mr Sungano and the other four offenders is that the prerogative of mercy is just like other powers of the executive and is reviewable. The Constitutional Court of South Africa in its first Certification decision held that Should the exercise of the power in any particular instance be such as to undermine any provision of the Constitution, that conduct would be reviewable. 22 This line of thinking was adopted in the Hugo case where Goldstone J held that the exercise by the President of his powers to pardon may be subject to review by the courts of appropriate jurisdiction in the same way as the exercise by him of other constitutional powers would be subject to review. 23 This means that the powers to pardon are no longer prerogative but flow from the Constitution itself and so it matters not whether the President was acting as head of state or as head of the executive (cabinet), he will be acting as an executive organ of the state and therefore can be reviewed by the courts in the same way on the exercise by him of other Constitutional powers. 24Dumbutshena CJ in PF ZAPU v Minister of Justice held that Should the prerogative be exercised under unlawful conditions or be performed outside the law, the courts...have a duty to find out whether the facts upon which the prerogative power was exercised were lawful.25 This shows that our position is similar to that of South Africa and it means that in the event of the lawfulness of the Presidents exercise of the prerogative being challenged it is possible that the court might order the President to provide reasons in order to determine whether he had acted within the parameters of the prerogative. In the case at hand there is public outrage which confirms that the courts are entitled to review the decision to pardon Mr Sungano and the other four offenders.

19 20

G Linington Constitutional Law of Zimbabwe (2001)88. P Gappah The rule of law and Presidential Pardon Legal Forum (1994) vol 6 No 3 p46. 21 Albutt v Centre for the study of violence and Reconciliation para 49. 22 Exparte Chairperson of the Constitutional Assembly: In ReCertification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) para 116. 23 President of the Republic of South Africa v Hugo para 13. 24 L Currie and J De Waal The new Constitutional and Administrative Law vol 1 (2001)244. 25 1985 (1) ZLR 305 (S).

The third ground I would pray the courts to review the Presidents decision to pardon Mr Sungano and the other four offenders is that it is in violation of the doctrine of rule of law which is compatible with the concept of democracy. The doctrine of the rule of law as written by Dicey denotes the following: (i) that the regular law of the land predominates over and excludes the arbitrary exercise of governmental power (ii) that all classes of people are subjected to the ordinary law of the land administered by the ordinary courts and (iii) the law of the Constitution itself is derived from the rights of the individuals as declared by the courts. 26 It is clear that the President in the case at hand has arbitrarily exercised his power to pardon which violates principle (i) above as he unilaterally reduced the sentence of the four offenders from life in prison to only twenty-five years in prison. The decision to pardon Mr Sungano was purely political since he is a member of the Presidents party which means it is in violation of principle (ii) above in that Mr Sungano and the other four offenders are more equal than other prisoners. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second citizens for no good reason as stipulated in section 23(2) of the Constitution.27

In summation, the President is under no legal obligation to provide reasons for reducing the sentence of the other four offenders but has a moral obligation, in a democracy to do so. The decision by the President to pardon Mr Sungano and the other four offenders should be reviewed by the courts because it was unconstitutional, it is reviewable just like other executive functions and violates the doctrine of rule of law.

26 27

PS James Introduction to English Law 8 ed (1972)138. Constitution of Zimbabwe Section 23(2).

BIBLIOGRAPHY

Text books G Linington Constitutional Law of Zimbabwe (2001) Legal Resources Foundation: Harare.

L Currie and J De Waal The new Constitutional and Administrative Law vol 1 (2001) Juta Law: Lansdowne.

PS James Introduction to English Law 8 ed (1972) Butterworth and Co Ltd: London.

Journals G Linington The Prerogative of Mercy: A review of Section 31I of the Constitution of Zimbabwe (1998) Legal Forum vol 10 no 3 p47.

L Mhlaba The President Pardoning of Dr Shava Legal Forum (1989) vol1 No 6 p 25.

P Gappah The Rule of Law and Presidential Pardon Legal Forum (1994) vol 6 No 3 p 46.