The South African Presidential Political Pardon: Normalising Abnormality

A photograph depicting separation of `whites and `non-whites' on a bridge in Cape Town. Picture: Supplied

In South Africa, October is commonly known as the ‘Transport Month’ and the ‘Red October’ within the South African Communist Party (SACP). The latter has a particular history in South Africa, which also demonstrates the tensions between the class struggle analysis and a race (nation) struggle and consciousness.

On 15 October 1987, one of the Africanist revolutionaries, Thomas Sankara –the first President of Burkina Faso- was killed during a coup organised by his former colleague – Blaise Compaore- at the age of 37; and on 16 October 1939, Charlotte Makgomo Mannya Maxeke – a politician, religious leader, social worker and founder of the Bantu Women’s League of South Africa (the precursor to the African National Congress Women’s League) passed on. The passing on of the Democratic Congressman in the United States (US), Elijah Cummings, a champion of civil rights and social justice on 17 October 2019, joining a number of other Black World leaders who passed on this month, also marks the month of October.

In this October, we also witness the skeletons of the #FeesMustFall campaign continue to haunt the nation. The 2015/16 Fallists movement (#FeesMustFall movement) is important on a number of levels. It did not just represent students’ demands for free education, decolonised curriculum, removal of colonial statues and renaming of colonial building. But, it was also an intellectual struggle for black academics as argued by Malaika wa Azania in Ngcaweni and Ngcaweni (2018).

The Eurocentric epistemology and pedagogy with racialised hierarchies of knowledge production continue to define higher education in South Africa. These are ingredients of institutional racism, exclusion/inclusion and culture in South Africa’s higher education post-1994. The domination of Eurocentric gazes of the universities’ public spaces is underpinned by the coloniality of power, of knowledge and of being. In this phenomenon, the Afrocentricity informs the need to Afrikanise the South African universities.

The decoloniality conversation in South African universities is a multidimensional enterprise that seeks to re-conceptualise the higher education system. This Black man’s quest is underpinned by Africa-centred thinking. The execution of a decoloniality project must take into account the theorisation and historicisation of decoloniality and primarily tackle the public spaces, which are currently marginalised in the rethinking of universities. 

It is in this light of student activism that some of the demands of the Fallists in 2015 must be historicised and understood within a broader context. The University of Fort Hare as an intellectual space for young black students in the 1940s became a space for the National Question and its debate. The political liveliness and intellectual engagement in late 1940s, for instance, brought a particular identity and the seed for the new phase of the National Question.

The Fallists movement is the continuation of the long student activism tradition that dates back to 1949 – Robert Sobukwe’s seminal speech as the outgoing SRC President at Fort Hare- and even earlier in the 20th century. Due to the failure to historicise the former, its dominant account is trapped in partisan narrative, distant-recent past complex and monolithic master historical account of the past. This narrative does not provide comprehensive context. There is history of the Afrikanist thinking in the marathon of decolonising higher education in South Africa. This marathon in the 20th century is incomplete without Sobukwe’s quest for an African university underpinned by African philosophic thought. His 1949 ground-breaking speech can be viewed as the masterpiece of this thinking.

During the #FeesMustFall moment, some of its activists were arrested. Others were later released while some were placed under house arrest or imprisoned. The politics of the presidential political pardon are at play in the attempt to handle the imprisoned student activists.

According to the South African government website, “The presidential pardon is an executive act of mercy to be exercised by the President in his exclusive discretion, and which will only be reviewable by the courts in very limited circumstances where bad faith by the President can be proved”. This praxis of the presidential pardon is contested. The contestations are presented here in three different contexts:

Firstly, Khanya Cekeshe’s case. On 14 October 2019, the Justice and Constitutional Development Minister Ronald Lamola, responding to the decision by the Johannesburg Magistrate’s Court in the matter of Cekeshe – the #FeesMustFall activist who is still imprisoned for torching a police vehicle during the students protest- posted on Twitter: “We note the dismissal of both the leave to appeal and bail for fees must fall activist Khanya Cekeshe by the Johannesburg Magistrate Court. We’re in the process of urgently assisting him with an application for presidential pardon or other legally available avenues”. He was also joined by the Minister of Transport, Fikile Mbalula, who stated on his Twitter handle: “We must fix this. This cadre must be freed whatever it takes”.

The public held mixed views on the matter. This was also apparent in an article in TimesLive by Ernest Mabuza and Nomahlubi Jordaan: “Justice Minister’s ‘own goal’: he can’t help #feesmustfall activist get a pardon – expert”.

The article quotes criminal law expert Dr Llewellyn Curlewis who reportedly said the defence should be allowed to take all avenues available to it such as the petition the high court, the Supreme Court of appeal and to the constitutional court, either by way of a petition or leave to appeal before the minister intervenes.

While the gesture by the two ministers is welcomed by some, it also illustrates popular politics and politics of relevance on their part. It raises fundamental questions about the process and the intricacies of the presidential political pardon.

Secondly, Kumkani Buyelekhaya of AbaThembu fiasco. Before the last national elections of 8 May 2019, the then Minister of Justice and Correctional Services, Michael Masutha, submitted recommendations to President Cyril Ramaphosa to pardon AbaThembu Kumkani Buyelekhaya Dalindyebo, who is serving a 12-year sentence for multiple convictions. The recommendation was a result of a lengthy process that was followed by the ministry.   

As the wheels of justice have been very slow for the embattled Kumkani, the Congress of Traditional Leaders in South Africa (Contralesa), family and his loyalists tried to put more pressure on the governing ANC. Before the last national elections, this group called for the boycott of the national election if Kumkani was not realised from jail. President Ramaphosa in his provincial visit before the elections promised to look into the matter after the elections. To date, there are no indications.

The case of Kumkani Buyelakhaya demonstrates the inconsistencies and politics at play. Further, it also displays the tensions of the colonial master Roman/Dutch law against the indigenous African law and governance.

Lastly, the former Azanian People’s Liberation Army (APLA) members that are imprisoned also highlights the discrepancies. There are many of them who are languishing in jail without receiving pardon from the president while most of the apartheid perpetrators were given political pardon or amnesty and others walked free. What type of freedom is this that appeases the perpetrators of the past gross human rights violations and institutionalised and systematised racism at the expense of the liberation fighters? The continued imprisonment of the former APLA member is an insult to them, their families and political organisation.

The execution of the presidential political pardoning normalise the abnormality. With its undertones, the presidential pardon legitimises the colonial and apartheid outlook into the present. This is partly as a result of the post-1994 disjointed national consciousness and reconciliatory disposition. The late political stalwart mama Zondeni Sobukwe, tata Dagama Mngqibisa and Dr Motsoko Pheko, amongst others, through their initiatives and letters to the post-apartheid black presidents have not been successful. This is the indictment of the post-independence politics and victor-loser complex. This normalisation of the abnormality and its legitimisation through the TRC and other government official prescripts, constitute violence at various levels – character assassination, liberation struggle violence of the other and symbolic violence.  

In this discourse of normalising the abnormality with its legitimisation initiatives and levels of violence; populist and sensational politics are evident. The manner Cekeshe case has been profiled and the amount of public support from some of Ramaphosa cabinet ministers illustrate a selective amnesia as there has not been this kind of public declaration in government and in ANC about Kumkani Buyelekha issue and former APLA members matter. This also echo arrogance of power.  

This year, marks the 25th anniversary of the fully democratic government in South Africa. One would have thought that at least by now no former liberation activist or member of the liberation army would still be in jail and the tensions between the Roman/Dutch law and the indigenous African law and governance would have been seriously attended to.

South Africa is a free country but has not done away with colonialism and coloniality. The post-apartheid government does not bring about the death of the two pointers and complete discontinuance of colonial and apartheid conduct toward the African royalties and liberation organisations. It is also in this context that normalisation of the abnormality in the execution of the presidential pardon can be understood.

Dr Luvuyo Dondolo, is a historian, heritage studies specialist & a former Fulbright Scholar at Cheyney University (US). He is the Director of the Centre for Transdisciplinary Studies, UFH. He writes in his personal capacity.