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JEREMY MAGGS: Just after 7:30am on this Friday, we learned that former president Jacob Zuma is not going to serve any prison time, even though the Correctional Services commissioner said he’d be returned to the Estcourt Correctional Centre. This is how it played out, Zuma was reportedly admitted into the system and then instantly released on remission of sentence granted by President Cyril Ramaphosa overnight to low-risk offenders.
Let’s start our coverage with expert legal analysis and attorney Mpumelelo Zikalala, a very warm welcome to you. So in context of the South African Constitution, also the Correctional Services Act, this remission of sentence that’s been granted by the President, in your view, is it legally sound?
MPUMELELO ZIKALALA: I would say the process or the avenue which has been followed is legally sound. However, I’d also guess many political parties or interested individuals would want to know… what informed the commission in order for you to apply (it)… When did (it) experience overcrowding, when did the process start in your assessment on the type of sentences that you have chosen. What was the methodology or the science behind that …
Read: Zuma off the hook
JEREMY MAGGS: It does seem very contrived and coincidental, as you mentioned, almost as though there was a deliberate strategy that was rubber stamped.
MPUMELELO ZIKALALA: It does create that particular impression, especially if you’re going to look at when the announcement was made that we are going to take a decision on the former president, then that announcement is then delayed and then overnight while you are delaying it, you then receive information that the individual who was meant to come and serve within the correctional facility is now released due to remission.
Another process would be to just look at other prisoners, how many have been released since this morning…
What was the criteria which was used in order to release them or in this instance which special type of treatment has been utilised in order to protect or maybe in order for the former president to be able to benefit.
But legally speaking or on ticking the boxes, definitely they’ve done all the things in the manner that they ought to be done in. It’s the rationality part that will come into play and in which, I guess, many individuals will be interested.
JEREMY MAGGS: So how difficult legally will it be to challenge that rationality?
MPUMELELO ZIKALALA: You would first need a bit of information before you go to court. I think first an engagement with the office of the president in terms of [facts]. How many prisoners are there, how many were released, what was the criteria (that was used). (What was) the process from A up until Z, and check if it was done in a normal manner. So in other remissions that have taken place, did they take sufficient time or time similar to this one.
What was the criteria which was used, does it alleviate the pressure of overcrowding…?
After this process has been induced, what is the percentage it was going to go down to, is it enough in order for a prison to be able to survive. So it’s all those questions that must be looked at before you go to court.
If the questions [that I mentioned earlier], if most of them are in the negative and you can see there’s no rational approach, then whoever … goes to court and say, court, can you please set aside this decision. It may be lawful in terms of the president, in terms of the Constitution, but when it comes to rationality … it’s been taken … it does not serve the purpose [it was] supposed to provide…
Listen: ‘No prospect of Zuma returning to jail anytime soon’
JEREMY MAGGS: Is it common practice for someone to be released on medical parole and then later to have their sentence remitted?
MPUMELELO ZIKALALA: Not at all. I think maybe if we look at back at the history of when remissions are granted, it’s not something which is granted willy-nilly. It’s one of those provisions, I wouldn’t say they should be promoted at all because at the end of the day, a person goes to prison not because they want to go to prison.
There’s a trial that’s taken place, they’ve been found guilty and there’s been a proper scientific and methodology utilised that you can go back to in terms of saying, you’re going to stay in jail for an X amount of days or an X amount of months.
But most importantly there’s a complainant who is involved. So that particular complainant has it in their mind that I’m getting justice in the sense that the person who orchestrated this bad thing against me is going to stay in jail for three years or even ten years.
Now, if you wake up in the morning and the president has decided on his own, not informed by any other decision, except for the resources which are there available as to whether the person can stay in prison or not, then decide to reduce this amount, the amount of sentence … person [released] from prison.
This is something from a restorative justice or from a justice point of view, does not look good or does not look [as if] justice is really being served.
But the second part of it then says, Mr President, you are in charge of running the country, any decision that you take, there must be some rationality that comes in that says, but for the … we are seeking to avoid, this is the decision that you have taken. The decision [that has] been taken is going to benefit us South Africans in this particular … Those are the types of questions and some of the things in which the president ought to have thought about when he utilised this remission exercise in order to make sure that he’s not found wanting when he needs to account as to why did he take this particular [platform].
Certainly, for me it’s one of those rights or functions of the president that should be utilised very sparingly because you’re now dealing with a system which operates on its own… Now, if you are going to come in as the president and say the … of what the judges have stated, I’m going to reduce your sentence to an X amount because I don’t have the resources …
JEREMY MAGGS: Alright, Mpumelelo Zikalala, thank you very much indeed.
