Exercises of the Prerogative of Mercy (Part 1)

| Thursday July 5, 2012 00:00

 

I have chosen to write on the subject of the exercise by any President of the Republic of Botswana of his/her powers under the Prerogative of Mercy, in terms of Section 53 of the Constitution of the Republic of Botswana, which issue has been topical following the so-called 'pardoning' of the killers of the late John Kalafatis. The writer's purpose in so doing is not to add heat to what is already an emotive issue; but rather to shed some light on the legal nature of such powers, and the conditions for the appropriate exercise of such prerogatives in future by the current and successive holders of the office of President of the Republic of Botswana.

It cannot be doubted, or gainsaid, that the Constitution of the Republic of Botswana quite clearly and deliberately recognises the notion/principle of separation of powers, and which of necessity dictates the design and disposition of various powers of the State/Government between different branches and organs thereof; and which principle, i.e.separation of powers, compels the functional separation between the Legislature vis-a-vis the Executive vis-a-vis the Judiciary. Consistently therewith, the same Constitution provides, inter alia;

a. the legislative power shall vest in the Parliament of Botswana, which shall have power to make laws for the peace, order and good government of Botswana (Section 86);

a. the executive power of Botswana shall vest in the President and, subject to the provisions of this Constitution, shall be exercised by him either directly or through officers subordinate to him (Section 47 (1));

c. the judicial or adjudicative power of the Republic of Botswana shall vest in the High Court of Botswana (Section 95), and its Court of Appeal (Section 99 (i) Part II). But that said, Section 53 of the same Constitution, provides as follows:

The President may -(a) grant any person convicted of any offence a pardon, either free or subject to lawful conditions; (b) grant any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence; (c) substitute a less severe form of punishment for any punishment imposed on any person for any offence; (d) remit the whole or any part of any punishment imposed on any person for any offence or penalty or forfeiture otherwise due to the Government on account of any offence';

It will be observed, upon a proper reading of the aforesaid section, that the exercise by any President of any of his/her prerogatives, as enumerated in sub-sections (a) to (d), presupposes that the intended beneficiaries or grantees of his/her mercy have been convicted for a criminal offence, and further that a lawful punishment has been meted out by an appropriate court.

As such, as several commentators and observers (on this subject) have in fact noted, a President's prerogatives under Section 53 of the Constitution do in fact confer upon the incumbent of such office the power to alter, interfere with or vary the consequences that would naturally (or ordinarily) follow a conviction for a criminal offence. Questions may arise as to the necessity or justification for conferring such a power on a President, given the co-existence of the doctrine of the separation of powers which clearly assigns the determinations of legal guilt and associated issues of sentencing (in any case) to the judicial branch or organ of Government. But, as the writer shall endeavour to show elsewhere in this writing, the existence of such a power is justifiable; and provided that it is exercised with the required measures of circumspection and judgment, it is not inconsistent with a liberal democratic political dispensation and legal order such as our own.

What is a Prerogative? It is not intended to pitch the level of this discussion beyond the understanding of non lawyer readers, and for this reason minimal (if any) reference will be made to judicial authority on the subject; but suffice it to say, that in these modern times prerogatives represent the final residues (or vestiges) of the absolute powers that once lay or rested with the Crown (or Monarch) after the coming into being, or the establishment of, liberal democratic political dispensations; and that, as such, the exercise by a Head of State (even presently) is immune from judicial review or scrutiny, as was the position historically. Besides the prerogative of mercy which is under discussion here, there are several other types of prerogatives which exist in our law, i.e (a) the summoning, prorogation and dissolution of parliament; (b) the conferment of national honours; (c) the fixing of the date for national elections, just to mention a few examples.

Although there have been judicial developments (both locally and elsewhere) which have extended the scope of judicial review to exercise of certain prerogatives, there is not as yet (so far as the writer is aware) any decision which has held that exercises of the prerogative of mercy are open to judicial review or scrutiny.On account of the paucity of judicial decisions in this jurisdiction which have analysed and considered the prerogative of mercy, we are for the most part reliant upon judicial decisions from countries which have constitutional provisions and legal systems that are sufficiently analogous to our own, particularly those decisions of the Judicial Committee of the Privy Council which are highly persuasive judicial authority in this country especially if it is recalled that that same court was until 1973 the final or ultimate court of appeal for this country. 

A review of the decisions of that distinguished court, even those which might be regarded as being more recent, clearly demonstrates that (a) the exercise of the prerogative of mercy in Botswana is qualitatively no different to its exercise in England (save for the fact that in the UK it is exercised by the Home Secretary on behalf of the Sovereign; (b) that the granting of mercy or otherwise under this prerogative is not the subject of legal rights, and that the subject of mercy begins where legal rights end; (c) the discretion exercisable by a Head of State with respect to the prerogative of mercy, even in death penalty cases, is a purely personal discretion and that a Head of State is not in fact bound to follow the recommendation of the Advisory Committee on the Prerogative of Mercy. As such, there is no reason for believing that an exercise of the prerogative of mercy in Section 53 would be reviewable by a court in this jurisdiction.

Whose decision is it?

As it is stated in the opening words of Section 53, the exercise of one or more of the powers conferred by sub-sections (a) - (d) of Section 53 of the Constitution is clearly vested in a President of the Republic of Botswana, to the exclusion of any other person or authority. Indeed, this provision is in-keeping with Section 47(1) of the Constitution which vests the Executive power of the Republic of Botswana in a President; and which, further by Section 47(2), goes on to state that a President in the exercise of his/her executive power shall exercise his/her 'own deliberate judgment and shall not be obliged to follow the advice tendered by any person or authority' .

'Upon perusal of Section 54(1) of the Constitution, it is provided that, there shall be an Advisory Committee on the Prerogative of Mercy which shall consist of:

(a) the Vice President or a Minister appointed by the President in writing under his hand; (b) the Attorney-General; and (c) a person qualified to practise in Botswana as a medical practitioner, appointed by the President by instrument in writing under his hand;

Sub-section 54(3) provides that the Committee shall not be summoned except by the authority of the President who shall, as far as is practicable attend and preside at all meetings of the Committee, and, in the absence of the President the member of the Committee appointed under sub-section (1)(a) of this section shall preside. It will thus be seen, that whilst the attendance of a President at meetings of the Advisory Committee is certainly desirable and is encouraged, the said provision does permit the holding of a meeting of such Advisory Committee in a President's absence with the result that such President may be deprived of the immeasurable benefit of the deliberations and views expressed by such Committee in the formulation of its advice and recommendations to himself or herself. Furthermore, the Committee in terms of sub-section 54(4) may act notwithstanding any vacancy in its membership and nor shall its proceedings be invalidated by the presence or participation of any person not entitled to be present or to participate in its proceedings.What this effectively means is that, assuming a President has not in fact appointed either the Vice-President or a Minister (in terms of Section 54(1) (a)) or a medical practitioner (in terms of Section 54(1) (c)), such vacancies in the membership of the said Advisory Committee shall not invalidate its proceedings, although such President shall undoubtedly be disadvantaged in terms of the breadth, quality and range of advice available to him.

Now Section 55(1) provides: 'Where any person has been sentenced to death for any offence, the President shall cause a written report of the case from the trial Judge, together with such other information derived from the record of the case or elsewhere as he may require to be considered at a meeting of the Advisory Committee on the Prerogative of Mercy, and after obtaining the advice of the Committee he shall decide whether to exercise any of his powers under Section 53 of this Constitution'.

Further, Section 55(2) provides: 'The President may consult with the Committee before deciding whether to exercise any of his powers under the said Section 53 in any case not falling within sub-section (1) of this section'. In other words, or more simply put, Section 55(1) only compels a President to convene or empanel the Advisory Committee on the Prerogative of Mercy in those cases where a person has been sentenced to death, and where the issue at hand is the consideration of either a commutation or reprieve of the death penalty in that individual's case; and by sub-section 55(2) he is not required to convene or empanel the Committee in other instances that do not involve a death penalty.

So that, in all other instances, a President can actually decide to exercise, or to withhold the exercise, of any of his prerogatives without reference to the Advisory Committee, and even without their knowledge. If the lead story contained in the Botswana Guardian dated Friday lSth June 2012 can be relied upon, the member of the Advisory Committee (appointed in terms of Section S4(1)(c) has disavowed his personal involvement and knowledge of everything associated with the granting of a pardon to the convicted killers of the late Kalafatis. Interestingly, the other members of the said Advisory Committee have not stepped forward to confirm their personal involvement and knowledge, which would support inference that even they were not present, nor was their advice ever sought in relation to these pardons; and that they are as much in the dark about this matter as the medical practitioner. But, even if this inference is incorrect, the truth of the matter is that, even if all members of such Advisory Committee were present and had been fully consulted, theirs is an Advisory Committee, whose advice and/or recommendation, regardless of its cogency, intensity and unanimity, is not binding on a President.

Moreso, Section 50(3) of the Constitution states that the obligation of a President to consult his Cabinet, and for the Cabinet to accept collective responsibility under this section, shall not apply to the exercise by a President of his/her powers under the Prerogative of Mercy. So that, upon close analysis, not only is a President entitled to take action as he/she sees fit; but, he/she has been expressly and specifically relieved of the responsibility to consult his/her Cabinet. What this practically or in effect amounts to is, that the holder of the office of President of the Republic of Botswana may potentially find himself or herself completely bereft of the advice or counsel of his/her principal advisers, who are normally members of Cabinet; and his/her isolation may be even worsened where he/she did not convene a meeting of the Advisory Committee; or, having so convened it, was unavoidably absent from its meeting and was thereby deprived of the benefit of its useful 'advice'. 

Undoubtedly, under the current Constitution, ownership and/or responsibility for the exercise of a decision under the prerogative must, and can only, lie with a President.  But, speaking for himself, the writer has often wondered whether the President (in relation to the pardoning of the convicted killers of the late Kalafatis) would not have been more greatly comforted or fortified if he had had the benefit of the advice of the Advisory Committee, or the views of Cabinet (or both), if not with respect to the decision taken; but at the very least, in relation to the management of the public relations consequences of his decision, including contending with any backlash in terms of public opinion.