An old adage in the legal circles goes: justice is blind. Equally the South African Constitution, in resonance with general fundamental provisions in founding documents of many countries throughout the world, proclaims that all are equal before the law. This implies that justice is a great equalizer in that when a person has done something wrong no differentiation is entertained along the lines of social status, wealth, political affiliation, religion or any other measure used by society to categorise people. However, recent South African experiences leave one with the notion that this old adage may be a facade.
South Africa's liberators and the criminal justice system
For decades South Africa had a system in terms of which her citizens were treated differently, principally, on the basis of race. When liberation was attained in 1994, those who fought tirelessly became heroes and were revered for their foresight, bravery and selflessness. However, some of them had committed criminal acts in the course of their struggle against the apartheid system while others went on to commit crimes in the new democratic dispensation. An obvious example of the former is Allan Boesak. He had committed fraud in respect of funds raised from abroad to assist the South African struggle. He was tried, convicted and sentenced to prison. There were people in South Africa, including Boesak himself, who thought the trial was not justified. Their basis seemed to be that someone who had given so much to South Africa during the struggle could not be paraded through the criminal justice system. Moreover, he had committed the crime to support a good cause. This argument, it would appear, sought to consider the standing of Allan Boesak in the course of the administration of justice. Well, he was convicted, served his sentence and was later pardoned by the President of South Africa.
Tony Yengeni, at the time the Chief Whip of the African National Congress (the ruling party) was brought before the courts and charged with corruption. He was convicted of the crime and sentenced to prison. He was paroled after serving a part of his sentence. Then came Schabir Shaik, the former financial advisor of the current South African President, Jacob Zuma. In his own right, Shaik has credentials as having participated in the struggle against apartheid. He was found guilty of corruption and later released on medical parole. At the time of his release on parole, he had spent a significant amount of his sentence in hospital than in prison. The import of the case against Shaik was that it implicated Jacob Zuma as having been the beneficiary of his (Shaik's) corrupt activities. On this basis, charges were brought against Zuma but were later controversially withdrawn amidst complaints and protest marches by his supporters who would not bear the reality of their leader being brought before the courts to answer for his alleged wrong-doing.
Now the former national police commissioner and former president of Interpol, Jackie Selebi, has been found guilty of corruption and sentenced to fifteen years in prison. This is the same length of prison time that Shaik was sentenced to. On the day that the Supreme Court of Appeals confirmed his conviction and sentence, Selebi collapsed and has up to now spent a significant amount of his prison time in hospital. The Department of Correctional Services (DCS)--the government department responsible for running prisons--has stated that Selebi will spend his prison time in a specially adapted prison 'hospital'. Interestingly, some people have already approached the DCS with a request for Selebi to be granted medical parole. Reasons given for the requests include Selebi's health, age and, curiously, the fact that he has suffered enough embarrassment. Should the latter point be a consideration? If so and if we are true to the notion of equality before the law, many offenders would be entitled to this consideration when applying for parole. Or is it a preserve for Selebi because of his social standing and/or liberation struggle credentials?
Wrong perception that undermines the criminal justice system being created?
There is another old adage which stipulates that it is not enough for justice to be done but it should be seen to be done. This saying is used regularly in the South African courts. It implies that administrators of justice are conscious of perceptions they create in meting out justice. It is when regard is had to the apparent leniency with which the high profile people were treated by the criminal justice system that an ordinary person has reason to wonder whether there is equality before the law in South Africa. Perhaps it would be good advice for the South African authorities to consider the way in which public perception is managed. At present it does not look good. As in the case of Selebi, the state has spent millions of rands on his trial, including paying for his defence. He has now been found guilty but he is not 'doing time' as would be the case with some without his social standing. In respect of Shaik, a lot of money was spent on his trial only for him to be released on medical parole and, to the extent that media reports are to be believed, he is enjoying golf and benefits of someone who has not committed a crime of corruption which South Africa has declared war on. Is this not fuelling the perception that money can buy you freedom even if you commit the most heinous of crimes?
Lest this be understood to call for harsher treatment of high profile offenders, it is equally unjust and unfair for them to be treated differently because of who they are. Justice should, as the adage quoted at the beginning of this article requires, be blind. Or is it pie in the sky in the face of day to day realities? What is to be made of the seeming link among these recipients of criminal justice leniency being their political cloud and/or connections?
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