To: Dr F N Ginwala, Speaker of the National Assembly
From: Tony Leon, Leader of the Opposition

SUBMISSIONS OF LEGISLATIVE PROPOSAL IN TERMS OF RULE 234 OF THE NATIONAL ASSEMBLY RULES: PARDON INVESTIGATION PROCEDURE BILL

I transmit herewith a copy of the memorandum required in terms of Rule 234(1) pertaining to the Pardon Investigation Procedure Bill which I intend introducing in the Assembly in my individual capacity for purposes of obtaining the Assembly’s permission in terms of Rule 230(1).

It is submitted that the attached memorandum conforms to the requirements as set out in the Rule.

You are hereby requested to table the memorandum in the National Assembly as required in terms of Rule 234(1) as well as to the committee for Private Members Legislative Proposals and Special Petitions.

PARDON INVESTIGATION PROCEDURE BILL
Private Member’s Bill Submitted in terms of Section 73 (2) Read with Section 75 (1) of the Constitution

MEMORANDUM

Notice is hereby given of the introduction of a Private Member's Bill 'n terms of Section 73(2) read with Section 76(1) of the Constitution. In terms of Rule 234 (read with rule 230(1), a member must submit to the Speaker a memorandum which:-

(a) sets out particulars of the proposed legislation;

(b) explains the objects of the proposed legislation; and

(c) states whether the proposed legislation will have financial implications for the State and, if so, whether those implications may be a determining factor when the proposed legislation is considered.

The Honourable Speaker is requested to deal with this Bill in terms of Section 235 of the National Assembly Rules.

A. PARTICULARS OF PROPOSED LEGISLATION

The enactment of the following Bill is proposed:

BILL

To prescribe the process by which the Minister of Justice and Constitutional Development nvestigates potential exercises of the powers of the President of the Republic in terms of section 84(2)()) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

Definitions

1. In this Act, unless the context otherwise indicates -

"executive clemency" means any exercise by the President or the powers granted to him in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, 1998 (Act 108 of 1996);

"Minister" means the Minister of Justice and Constitutional Development;

"President" means the President of the Republic of South Africa;

"victim" means any person who, individually or together with one or more persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or substantial impairment of human rights as a result of the criminal activity of the person(s) for whom a grant of executive clemency is petitioned or otherwise under consideration,

Reporting Requirement

2. If the President delegates to the Minister the responsibility for investigating, or requests the Minister to make a recommendation concerning, a potential grant of executive clemency in any particular case, the Minister shall prepare and make available to the President a written report, which shall include-

(1) a description of the efforts of the Minister-

(a) to make each determination required under Section 3; and

(b) to make the notifications required under section 4(1)(a); and
  1. any written statement submitted by a victim under Section 3.

Determinations Required

3. In the preparation of any report under section 2, the Minister shall make all reasonable efforts to:-

(1) inform the victims of each offence that is the subject of a potential grant of executive clemency, or their next of kin, should the victims be deceased or incapacitated, that they may submit written statements for inclusion in the report prepared by the Minister under section 2, and determine the opinions of those victims regarding tie potential grant of executive clemency;

(2) determine the opinions of law enforcement officials, investigators, prosecutors, probation officers, judges and prison officials involved in apprehending, prosecuting, sentencing, incarcerating, or supervising the conditional release from imprisonment of the person for whom a grant of executive clemency is petitioned or otherwise under consideration as no the propriety of granting executive clemency and particularly whether the person poses a danger to any person or society and has expressed remorse and accepted responsibility for the criminal conduct to which a grant of executive clemency would apply;

(3) determine the opinions of law enforcement officials as to whether' the person for whom a grant of executive clemency is petitioned or otherwise under consideration may have information relevant to any ongoing investigation or prosecution, or any effort to apprehend a fugitive; and

(4) determine the opinions of law enforcement officials and the National Intelligence Agency regarding the effect that a grant of executive clemency would have on the threat of ongoing or future criminal activity.

Notification to victims

4.

(1) IN GENERAL - The Minister shall make all reasonable efforts to notify the victims of each offence that is the subject of the potential grant of executive clemency, or their next of kin, should the victims be deceased or incapacitated, of the following events as soon is practicable after their occurrence;

(a) The undertaking by the Minister of any investigation of a potential grant of executive clemency.

(b) The making available to the President of any report under section 2.

(c) The decision of the President to deny any petition or request for executive clemency.

 

 

  1. NOTIFICATION OF GRANT OF EXECUTIVE CLEMENCY- If the President grants executive clemency, the Minister' shall-

(a) make all reasonable efforts to notify' the victims of each offence that is the subject of the grant, or their next of kin, should the victims be deceased or incapacitated, that such grant has been made as soon as practicable after that grant is made, and, if such grant will result in the release of any person from custody, such notice shall be prior to that release from custody, if practicable;

(b) not later than 30 days after executive clemency has been granted, cause notification thereof to be published in the Government Gazette, which notification shall include-

(i) the names of the recipient(s) of executive clemency;

    1. the type of executive clemency granted to each recipient threof;
    2. the offence(s) in respect of which executive clemency has been granted with regard to each recipient thereof;
    3. details of the sentence(s) originally imposed for the criminal offence(s) in respect of which executive clemency has been granted; and
    4. an indication as to whether the granting of executive clemency in each case has led or will lead to the recipient thereof being released from state custody, and if so, the duration of the outstanding period of incarceration that the recipient would have been liable to serve, but for the granting of executive clemency.

No effect on other actions

  1. Nothing in this Act shall be construed to-

(1) prevent any officer or employee of the Department of Justice and Constitutional Development from contacting any victim, prosecutor, investigator, or other person in connection with any investigation of a potential grant of executive clemency;

(2) prohibit the inclusion of any information not mentioned herein in any report to the President; or

(3) affect the manner in which the Minister or the President determines which petitions for executive clemency lack sufficient merit to warrant further investigation.

Regulations

6. Not later than 90 days after the enactment of this Act, the Minister shall promulgate regulations governing the procedures for complying with this Act.

Short title

7 This Act is called the Pardon Investigation Procedure Act

B. THE OBJECTS OF THE PROPOSED LEGISLATION

The object of this Bill is to prescribe and regulate the process by which the Minister of Justice and Constitutional Development, when requested to do so by the President, investigates and makes recommendations on potential exercises of the powers of the President of the Republic in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) - i.e. the powers to grant pardons, reprieves or remissions of fines penalties or forfeitures, These powers are collectively referred to as "executive clemency".

In conducting his investigations and reporting to the President, the Minister will be required to inform, and ascertain the opinions of, a range of relevant parties, judges, law enforcement officials etc. Central to this Bill is the insistence upon the rights of the victims of a crime or their families to be advised of any potential grant of executive clemency to the perpetrator, and to give their opinions to the Minister in this regard. Furthermore, this Bill would compel the Minister to advise not only the victims, but the public timeously of any grant of executive clemency immediately after it has been granted.

This Bill will severely limit the scope for arbitrary exercises of executive clemency, and will work towards ensuring transparency and consistency in the procedure to be followed by the Minister in investigating and making recommendations to the President. However, it will not limit the President's constitutional powers - the President will still be entitled to ask anyone else for their opinion, or to exercise his powers without taking any opinions from anyone at all. In other words, this Bill would apply only in cases where the President asks the Minister for an investigation and a recommendation. It is, of course, to be hoped that this would be standard procedure.

C. FINANCIAL IMPLICATIONS

The legislation should not place any undue strain on the existing agencies that would have to implement it. Although there may be financial implications, they are not so significant as to affect the desirability of such amendments. The need for this type of legislation outweighs the consideration of possible financial implications, which are likely to be secondary in nature.

Name of Member: Anthony James Leon

Signature: …………………………………………………………..

Date: 23 August 2002.……………………………………………..