Of Winnie, Allan and Tony's Criminal Records (cont.)
First the law: the Constitution itself spells out the position very succinctly in section 47 which deals with the requirements for membership of parliament. Stripped of the legalese and excess verbiage the section says that anyone who is convicted of an offence "and is sentenced to more than 12 months' imprisonment without the option of a fine," is ineligible to be a member of the National Assembly. The section goes on to stipulate that: "A disqualification under this paragraph ends five years after the sentence has been completed."
Now the facts: Tony Yengeni was sentenced to more than 12 months for defrauding the very Parliament to which his party wishes to return him. He is still on parole, having served part of the sentence. Everyone seems to be agreed that he is ineligible and his name has been removed from the ANC party list for submission to the Independent Electoral Commission. This does not, apparently, preclude him from participating in the top echelons of the administration of his party, the ANC. He is a member of its National Executive Committee, the top policy making body in the organization between conferences of the party held every five years. There are apparently moves afoot to address the presence of fraudsters in top party structures and a further move to exclude the corrupt from parliament. But those are for the future.
Allan Boesak was found guilty of theft and fraud and sentenced to more than 12 months imprisonment without the option of a fine. He served his sentence in Malmesbury prison and has refused to accept that he has ever done anything wrong, despite the High Court, the Supreme Court of Appeal and the Constitutional Court all being satisfied that he was correctly convicted and sentenced by Mr. Justice John Foxcroft for the crimes proved against him by the State. Boesak seeks to portray his "struggle bookkeeping" as excusable. The donors of the funds, the children to whom the funds concerned were meant to go, the State and the Courts do not see the facts in the same light. Boesak has served his sentence. Subsequently, and acting in terms of his responsibilities under section 84 (2) (j) of the Constitution, former President Thabo Mbeki has pardoned Boesak. This means that his criminal record is expunged with effect from the date of the pardon, notwithstanding his failure to seek forgiveness or even admit wrongdoing. These features of Boesak's present status will feature in political commentary and his questioning by talk show hosts who are lucky enough to interview Boesak. They may even impact on his popularity as a politician, but they will not in any way detract from his eligibility as a candidate for election. His slate has been wiped clean by his pardon and accordingly, legally speaking, he will be able to stand for office, whether as Premier of the Western Cape or in any other capacity.
Of the three, Winnie Madikizela Mandela's case presents the most controversial example. The Constitution makes it clear that no one may be regarded as having been sentenced until an appeal against the conviction and sentence has been determined. Winnie did appeal the findings of a lower court in which she was found guilty of theft and fraud. In July 2004 the Pretoria High Court overturned the convictions of theft but upheld the allegations of fraud which it found had been proved against her. Her sentence was reduced on appeal to three and a half years imprisonment (without the option of a fine) and was suspended for five years on the usual conditions relating to the suspension of sentences in matters involving dishonesty. The five years accordingly do not expire until July this year, which is likely to be after the election is held, unless it is postponed for some reason.
Some analysts have been making their calculations for Winnie Madikizela Mandela's eligibility for membership of the National Assembly, and she is near the top of the ANC list of candidates, on the basis of the date of conviction in the lower court. This is clearly wrong as the Constitution says in terms (section 47 (1) (e)) that: "No one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined." The applicable date for determining the expiry of any possible disqualification is thus July 2004, not quite five years and therefore not quite the end of the period prescribed.
Other pundits suggest that the suspended nature of the imprisonment means that the disqualification does not apply. The suspension is however conditional upon good behaviour during the period of suspension. The option of a fine is not applicable as no such option was given. Can the words "sentenced to more than 12 months imprisonment" apply to both custodial sentences and suspended sentences? The Constitution is silent on this but does contain a clue to assist those who seek to find the proper interpretation of the section. This clue is the use of the verb "completed" in the sentence "A disqualification under this paragraph ends five years after the sentence has been completed." Had it been intended to limit the disqualification to custodial sentences only, it would surely have been more appropriate to have used the verb "served" rather than the verb "completed" which is in fact used in the section. The use of "completed" serves the interests of boni mores, or good public morals, as it is not in the national interest to return convicted persons with uncompleted suspended sentences to Parliament. Only after they have finished paying their debt to society, by successfully completing the period of suspension without facing charges again, may such persons properly be regarded as eligible for election as parliamentary representatives of the people of the nation. Only exemplary citizens should be elected as our leaders - it is not appropriate, desirable or accountable to allow those with incomplete suspended sentences to be public representatives.
Both Professor David Unterhalter of the Centre for Applied Legal Studies at Wits University and Professor Shadrack Gutto of UNISA's Centre for African Renaissance Studies consider that Winnie Madikizela Mandela is in fact disqualified. The ANC has however not heeded the opinions of these two wise men. It has taken its own legal advice from unnamed lawyers whose reasoning has not been made available for public scrutiny. This is unfortunate. It is likely to lead to a challenge to the correctness of any list on which Ms Mandela's name features. This could lead to more work for the courts. Only when the Constitutional Court finally determines the matter will there be legal certainty as to whether the learned professors or the ANC's anonymous advisers are right in their respective interpretations of the words in the section that are set out above. In the final analysis, the Constitution means what the judges of the Constitutional Court say it means. Long may that be so.
Paul Hoffman SC
Institute for Accountability in Southern Africa.
28 February, 2009.
