By Dr Vusi Shongwe
LIXOSHWA LIBHEKILE – MR PRESIDENT!
The new developments regarding former president Jacob Gedleyihlekisa Zuma’s imprisonment is that he has been granted medical parole given his health condition. It is in the light of these current developments, therefore, that with painstaking consideration of the delicacy of the issue of pardon as provided for in the Constitution of the Republic of South Africa, I have resolved with a sense of trepidation to pen you down this letter appealing for presidential clemency in respect of former Zuma’s case. I do concede that former president Zuma erred by not appearing before the Zondo commission. Hence, it is said: LIXHOSHWA LIBHEKILE!
As Justice Robert Sharpe of the Court of Appeal for Ontaro said: “the traditional view was that pardons were a safety valve that allowed for consideration of mercy and compassion in cases where the law failed to reflect understandable human frailties and where it would be dangerous or inappropriate for the law to do so formally.”
Admittedly, there is no right to be pardoned as pardons are a presidential prerogative in line with Section 84(2) (j) of the Constitution which sets out the presidential powers. This means that the president has a discretion in how he exercises the power to pardon or reprieve offenders. Such pardons are granted in the interest of the public in knowing that society is all the better for occasionally deviating from the requirements that wrongdoing should be punished. This power can be exercised within the confines of the spirit and purport of the Constitution and in good faith.
World-wide, precedents of pardoning former presidents have been set a long time ago. Gerard Ford, the 38th president of the US (1974 – 1977) pardoned his predecessor, president Richard Nixon, in the aftermath of the Watergate Scandal. We all remember the Watergate Scandal as an illegal espionage by Nixon’s team when they broke into the Watergate headquarters and stole classified state documents and wiretapped the phones in an aggressive, forceful presidential re-election campaign by Nixon.
The pardon granted by Ford was not seen as a blot in his presidential office but was conceived of as an ennoblement of his presidential achievements as per the discourse analysis of his presidential years. Appearing before the House Judiciary Committee, Ford explained he granted Nixon the pardon because he wanted to end the national divisions created by the Watergate scandal. Decades later, John F. Kennedy Library Foundation presented its 2001 Profile in courage award to Ford for his 1974 pardon of Nixon. Let me hasten to say I am by no means insinuating that you should pardon Zuma so that you could be honoured with an award.
In advancing the plea for the Constitutional presidential pardon, I would like to cite the following as critical factors worth considering: First, the current medical parole granted to the former president is rightfully replete with elements of imprisonment given the attendant stringent requirements which need to be adhered to. Secondly, Zuma is almost 80 years old. Hence, I echo the sentiments expressed by one political party in Zambia that, given his age, and the sacrifices the former president made in the struggle for liberation, his situation deserves to be looked at mercifully.
Shakespeare presented mercy as a quality most valuable to the most powerful, strongest and highest people in society. In "The quality of mercy", which is a speech given by Portia in William Shakespeare's The Merchant of Venice (Act 4, Scene 1), Portia, disguised as a lawyer, begs Shylock to show mercy to Antonio. The speech reproduced hereunder extols the power of mercy which is "an attribute to God Himself."
The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest; it becomes
The thronèd monarch is better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptered sway.
It is enthronèd in the hearts of kings;
It is an attribute to God Himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea,
Which, if thou follow, this strict court of Venice
Must give sentence 'against the merchant there.
Mr President, your always exuberant and imperturbable demeanour, especially during challenging times, is a marvel to watch. As the Latin scribe Publilius Syrus wrote in the first century BC, “anyone can hold a helm when the sea is calm”. The challenge, of course, is to hold one’s grip when the storm comes. The ability to remain calm and focused, to hold a firm grip, is what you have been magnanimously endowed with to navigate the vicissitudes of changing political weather. Weathering the storm, you have not been found wanting. You have an engaging humility that makes it easy to connect with you. I am told, joie de vivre (joviality or vivacity) makes you pleasant and fun to be with. Indeed, your equanimity is undoubtedly part of what has made you successful in life.
Mr President, when the idea of penning this letter came up, I was, and still is, filled with a sense of trepidation. I have, however, been spurred on by two quotes from Martin Luther King Jr. First, King Jr. avers that “there comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.” Secondly, King Jr. Is sagaciously of the conviction that “the ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” I have also been encouraged to write to you by your discernibly ebullient personality and your widely reportedly compassionate personal temperament.
I would invoke the name of our founding pPresident, former president Nelson Rolihlahla Mandela’s love for both of you and Zuma is an undisputable public knowledge. As Prof Ariel Dorfman opined in his 8th Nelson Mandela Memorial lecture on “Whose Memory, Whose Justice? A Meditation on How and When and If to Reconcile” that Madiba is more than a legend, with his wisdom and pragmatic compassion and as a guide to contemporary humanity.
In his wisdom, he saw an ANC that had a good future in both your complementary capabilities and acumen. I have little doubt that in his pragmatic compassion and counsel to contemporary humanity, he would have deemed it appropriate to pardon one of his sons. Prof Dorfman warned us that Mandela would always remember that at the heart of every oppressive tool developed by the apartheid regime was a determination to control, distort, weaken, and even erase people’s memories. Mandela would have gravitated towards making a decision that would salvage the glorious movement, and its chequered history.
In conclusion, it is sad to observe that on the eve of him becoming an octogenarian, former Zuma has completed a cycle that few liberation fighters have completed. He has moved from prison to exile to presidency and back to prison. Hence, Mr President it is in consideration of this tragic journey that Zuma has travelled that presidential pardon can favourably be granted. Thus, Mr President, it bears repeating that LIXHOSHWA LIBHEKILE! In my humble view, therefore, Zuma does deserve clemency in the circumstance of him having erred by not appearing before the Zondo commission.
>> Dr Vusi Shongwe is Former Head of the Department of the KwaZulu-Natal Royal Household and Chief Director for Heritage in the Office of the Premier. He is currently the chief director of the Heritage Resource Services in the KwaZulu-Natal Department of Arts and Culture. He writes in his personal capacity.
NB. The letter is dedicated to my stupendously pulchritudinous and sagacious late mother, Nomasabatha Pearl (nee Nkosi) Shongwe