The South African Presidential Political Pardon: Normalising Abnormality

by Luvuyo Mthimkhulu Dondolo, PhD 

IN South Africa, the month of October is commonly known as the ‘Transport month’ and the ‘Red October’ within the South African Communist Party (SACP) – the question of whether there are ‘true communists ” or not in South Africa, is a separate topic on its own. 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.

It is in this context that Anton Muziwakhe Lembede and Robert Mangaliso Sobukwe, amongst others, challenged the SACP class struggle analysis.   For instance, in an inaugural meeting of the African National Congress Youth League (ANCYL) held on 9 April 1944, Lembede made his views known on Africanism: “In his attempt to foster the spirit of nationalism and racial pride, the speaker first dealt with Africa as a continent… The speaker ended by saying that Africans should not import from the West foreign ideology that does not fit into their culture…The Youth League, therefore, aimed at evolving an ideology for Africans, and this would be neither Capitalism nor Nazism, neither Socialism, nor Communism, but Africanism” (Edgar and Msumza, 1996: 127-128). Subsequent to that, on 24 February 1945, Lembede wrote an article titled ‘Some basic principles of African nationalism’ for the Ilanga lase Natal newspaper. In this piece he grouped his views on African nationalism into six categories: (a) ‘The philosophical basis, (b) the scientific basis, (c) historical basis, (d) economic basis, (e) democratic basis and (f) ethical basis’ (Ibid). 

Critical Race Theory (CRT), which gives a better understanding of the racial undertones of the colonial and apartheid configurations of South Africa, is an important canon for the philosophical framing and analysis of the struggle. The Critical Race Theory as a theoretical framework focuses on the application of critical theory, through the investigation of society and culture at the crossing of race. Law and power contest the experiences of whiteness as a ticket to privilege and superiority in countries such as South Africa and the United States of America (USA). It is grounded on the unique material human experiences of the darker race. The socio-political, historical and human material experiences and the context of racial oppression are crucial for a comprehension of racial dynamics, principally the way that current inequalities are connected to earlier, more overt, expressions and practices of racial exclusion. The CRT recognises racism as lived experiences, hierarchies of segregation, suppression of power structures, authority and control and the institutionalised and systematised white supremacy and nationalism in America and anywhere else. 

In an interview Sobukwe gave to Gail Gerhart in 1970 he made the following point: “Our real gospel actually was George Padmore’s book, Pan Africanism or Communism: The Communist International, Africa and the Diaspora, 1919-1939. A few copies were or one was passed around till it was dog-earred. It was compulsory reading for the Africanists. No other book was comparable in influence” (Robert Mangaliso Sobukwe, Interview with Gail Gerhart, 1970). 

The relationship between Communism and Pan Africanism is long with its own sociology and complexities. It is, among other factors, this complex relationship that brought Du Bois and Padmore together. According to Mullen, “Their personal relationship is symbolic of the larger relationship between Communism and Pan Africanism in the twentieth century” (Mullen, 2016: 90). Du Bois and Padmore had their own strategic, tactical and class struggle differences at various times. “But Du Bois earned Padmore’s wrath for his constant criticism of the failures of the American left, including the Communist Party, to sufficiently address racism in the working class” (Ibid, pp 91). 

Padmore’s book, Pan Africanism or Communism, illustrates the Pan Africanism and Communism complex. The Bolshevik political trajectory was at the centre of this dichotomy. Mullen contends that Padmore wrote “one of the best-known books of the anti-colonial era, referring to the latter” (Ibid, p 92). Early in his life he believed in Communism, but, the Pan Africanism and Communism dichotomy, the approach by the Union of Soviet Socialist Republic (USSR) to Africa and the relationship with other colonial masters later forced him to review his commitment to Communism. He later chose Pan Africanism over communism.

George Padmore’s commitment and solidarity to the realisation of an independent, free Africa, unified African states and a believer in Pan Africanism is unquestioned. Nkrumah in his speech on Black Power in 1968, The Spectre of Black Power, stated that: “The work of the early pioneers of Pan Africanism such as Sylvester Williams, Dr W.E.B. Du Bois, Marcus Garvey, and George Padmore, none of whom were born in Africa, has become a treasured part of Africa’s history. It is significant that two of them, Dr Du Bois and George Padmore, came to live in Ghana at my invitation. Dr Du Bois died, as he wished on African soil, while working in Accra on the Encyclopedia Africana. George Padmore became my Advisor on African Affairs, and spent last years of his life in Ghana, helping in the revolutionary struggle for African unity” (Nkrumah, 1973: 421-422). 

Most importantly, on 15 October 1987, one of the African revolutionaries and a Pan Africanist, 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 the 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 to join the ancestors. The passing on of the Democratic Congressman in the United State (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. 

However, in this year’s October we also witness the skeletons of the #FeesMustFall campaign continue to haunt the nation in more ways than one. The 2015/16 Fallists movement (fees must fall 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.

It is in the context of the need for Afrocentric epistemology and pedagogy that Malaika wa Azania in Wandile Ngcaweni and Busani Ngcaweni (2018) viewed the #RhodesMustFall and #FeesMustFall Movement as an intellectual struggle. Azania stated, “It was an intellectual struggle that sought justice for the epistemological onslaught that African intellectuals and intellectuals in the Global South were subjected to by an academy that was deeply resistant to change” (Ngcaweni and Ngcaweni, 2018: XIII). The observation of an intellectual struggle against the epistemological onslaught on African intellectuals, was as a result of epistemological colonialism, a systematic and structural destruction of an indigenous order, ways of knowing and knowledge production in colonised Africa with the aim of ‘civilising’ the other- transculturation project.      

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, culture and attitude in South Africa’s higher education post-1994. It is through this theoretical framing that the struggle with our own self at Fort Hare can be better understood. The domination of colonial and Eurocentric gazes of the universities’ public spaces is underpinned and feeds into the ‘coloniality of power, of knowledge and of being’ and into hierarchies of knowledge production. Through this worldview, the Afrocentricity, the culture and the history of the previously oppressed inform the decoloniality discourse in form and shape. They are key elements of the need to Afrikanise the South African universities and their public spaces.   

Post-1994, the decoloniality conversation in South African universities, is both a political project and a socio-cultural and economic enterprise in that the essence of the engagement seeks to re-conceptualise and reframe the higher education system and the universities’ public spaces, architecture, culture and attitude. This past and present Black man’s quest is underpinned by Africa-centred thinking (Afrocentricity) and (Pan) Africanist thought. The execution of a decoloniality project must take into account the theorisation and historicisation of decoloniality and primarily tackle the colonial architectural gazes and public spaces, which are currently marginalised in the rethinking of universities and their curriculums.   

Kwame Nkrumah’s concept of the decolonisation of education, including African history and civilisation, was an anti-thesis of colonial African framing. Africa was presented as with no history, as ‘uncivilised’ and as a place that did not contribute to broader human development. This colonial perspective was used to justify colonialism. Further, it was trapped in the juxtaposition discourse of the ‘civilised’ and modern white community against the ‘primitive’ and ‘backward’ black people. This fitted well with the politics of ‘otherness’ and superiority and inferiority complexes that dominated the South African socio-political and economic landscapes for decades.     

It is in this light of student activism that some of the demands of the Fallists (Fees must fall and Rhodes must fall movement) in 2015 must be historicised and understood within a broader context. The University of Fort Hare (UFH) 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 failure to historicise the Fallists movement, is as a result of the distant and recent past complex, the monolithic and hegemonic historical master narratives and the craft of curating the nation by the state and rewriting of history – official history- solely from an ANC perspective. 

The Fees Must Fall movement is the continuation of the long student activism tradition that dates back to 1949 – Robert Sobukwe’s popular speech as the outgoing SRC President at the University of Fort Hare-  and even earlier in the 20th century. 

The dominant account of the Fees Must Fall campaign is trapped in partisan narrative, popular politics and monolithic and hegemonic master account of the past. Susan Booyesn’s book (2015) titled “Fees must fall: Student Revolt, Decolonisation and Governance in South Africa, is interesting in a number of ways. The book notes that the #RMF and #FMF illustrate the fundamental issues of transformation in higher education, unfinished South African social, economic and justice transformation; and the quest for an African identity on the part of the students as demonstrated during the protests. In the book some elements of Africanist, black consciousness and black power are highlighted. However, it does not provide comprehensive historical and political contexts, instead it provides a selective framework. There is history and sociology of the Africanist 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 speech as the SRC president at the University of Fort Hare can be viewed as the origins and masterpiece of this thinking. 

Furthermore, for Booysen, the historical context of the #FMF and #RMF appears to be relegated to Black consciousness, race politics and class struggle. This analysis feeds to the currently peddled monolithic historical narrative that accommodates the Black Consciousness Movement (BCM) and Steve Biko while excluding and marginalising Sobukwe and the Pan Africanist Congress (PAC) – Biko  and BCM being used as the buffer zone by the governing party between the ANC (and Mandela) and the PAC (and Sobukwe). The 1996 Robben Island Museum official opening exhibition is testimony. Booysen downplays the essence of Sobukwe’s speech at Fort Hare which predates the recent past of decolonisation of higher education and Africanisation of South African universities and promotion of Afrocentric thought.

In addition, as indicated, Booysen’s account of the #RMF and #FMF is trapped in the monolithic historical master narrative popular in post-1994. The silence or lack of detail of the role played by Pan Africanist Students Movement Association (PASMA) in other institutions such as the University of the Western Cape is evidence. In this narrative the book reflects on the prominence of ANC and EFF aligned student bodies.     

Sobukwe, in his quest for Fort Hare to be an African university, did not only question the western epistemology but also laid the foundation for decolonisation of higher education and the curriculum but also engaged in a broad philosophical reflection of Afrocentric knowledge production, identity, settler and native discourse, and African-ness and the race politics in South Africa and the continent. 

During the #FeesMustFall moment, some of its leaders and activists were arrested. Others were later released while some were placed under house arrest or still imprisoned. The politics of the presidential political pardon are at play in the attempt to handle the still 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” In post-aparthied South Africa, there is a particular history of the presidential political pardon.    

At the beginning of 2010, it is stated on the website: “According to the Presidency, (then) President Jacob Zuma has more than 300 applications for pardons awaiting his attention, from South Africans from all walks of life who have violated the laws of the land. Apartheid-era police hit squad commander Eugene De Kock and convicted fraudster Shabir Shaik are among the candidates who applied for a presidential pardon. This has been received with criticism especially by opposition parties” (Ibid). The two individuals, amongst others, were later pardoned by President Zuma. 

This praxis of the Presidential pardon is contested. The contestations are presented here in three different contexts. These are:

Firstly, Khanya Cekeshe’s case. The month of October also witnessed the call by the Justice and Constitutional Development Minister Ronald Lamola for the presidential pardon of the #FeesMustFall activist, Khanya Cekeshe, who is still imprisoned for torching a police vehicle during the students protest. 

On 14 October 2019, Lamola, responding to the decision by the Johannesburg Magistrate’s Court in the matter of Cekeshe posted on Twitter: “We note the dismissal of both the leave to appeal and bail for fees must fall activists 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, Honourable Fikile Mbalula who stated on his twitter handle: “We must fix this. This cadre must be freed whatever it takes”.

The public held a mixture of views on the matter. These tensions were also exhibited 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 before the minister intervenes. “The defence can still petition the high court. There is a further avenue of appeal, to the supreme court of appeal and to the constitutional court, either by way of a petition or leave to appeal,” Curlewis said. Curlewis said only after all avenues of appeal had been exhausted would the minister be expected to entertain an application for pardon.

“The minister must be careful not to intervene under these circumstances,” he added. Curlewis said the department should receive an application for pardon for processing, and then the minister should then make a recommendation to the President on whether to grant pardon.

Wits University’s criminal law expert Prof Stephen Tuson shared Curlewis’s sentiments, adding, there must be compelling grounds for the presidential pardon application”.

While the gesture by the two ministers is welcomed by some and I fully understand the reasoning and context, it also illustrates popular politics and politics of relevance on the part of Lamola and Mbalula. Importantly, it raises fundamental questions about the process and perhaps more importantly, the politics and complexities of the presidential political pardon.

The Justice Minister’s swift pronouncement on the political pardon of one of the fees must fall leaders, points to a number of factors and raises serious questions of rationale, justification and process on the issue of the presidential political pardon. 

Secondly, Kumkani (King) 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 King 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.  According to Ayanda Mthethwa of News24 and Daily Maverick, “the Minister of Justice and Correctional Services Michael Masutha, in a statement, confirmed that a recommendation for Dalindyebo’s pardon was made to the President… Khusela Diko, spokesperson of the Presidency confirmed that the recommendations were received by the president’s office” (Mthethwa, “Presidential Pardon for AbaThembu king? Waiting on the wheels of justice”, on Daily Maverick, 18 April 2019: 2). 

The Congress of Traditional Leaders in South Africa (Contralesa) with the support of the King’s loyalists, first called for the pardon of the AbaThembu king in January 2016. The King himself also later applied for the presidential pardon.  

As the wheels of justice have been very slow for the embattled King, the Contralesa, family and his loyalists tried to put more pressure on the governing African National Congress. Before the last national elections, this group called for the boycott of the national election if the King was not realised from jail. President Ramaphosa in his provincial visit before the elections visited the Bumbane Great Place and promised to look into the matter after the elections. To date, there is nothing that seems to indicate that he’s looking into the matter and that the possibility of a pardon exists. 

The case of Kumkani Buyelakhaya demonstrates the inconsistencies and politics at play. It is in this context that we also see 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 still imprisoned also highlights the inconsistencies. There are still a number of APLA members who are still languishing in jail without receiving pardon from the President while most of the apartheid perpetrators – of a system which the United Nations declared a crime against humanity – 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 members who fought for the liberation of this country is both an insult to them, their political organisation; and does not (re)humanise them as were dehumanised during the apartheid era. This also relates to the evident coloniality experienced in the present. 

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 that mirrors the ‘unfinished business’ of the past in South Africa as argued by Dumisani Ntsebeza and Terry Bill (2001) in their book, Unfinished Business: South Africa, Apartheid and Truth.

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, victor-loser complex and politics of reconciliation and TRC. 

This normalisation of the abnormality and its legitimisation through the TRC and other government official prescripts, constitute violence at various levels.  These are: character assassination, liberation struggle violence of the other and symbolic violence as advocated by Pierre Bourdieu (1979). Bourdieu references contemporary social hierarchies and social inequality and effects as produced by physical forces.  The latter is a type of violence exhibited in the power variance between social groups. It is an imposed dominant worldview, norms and outlooks on the subordinate or colonised group of people. When internalised by the subordinate group/s as a result of structure and systematised social and economic systems, it becomes a subconscious agreement on the subordinate group of a political formation or royality.

In this discourse of normalising the abnormality with its legitimisation initiatives and levels of violence, populist and sensational politics are at play. The manner the #FeeMustFall movement story has been profiled and the amount of public support from some of the Ramaphosa cabinet ministers illustrate a selective amnesia. There has not been this kind of public declaration in government and in ANC about the Kumkani Buyelekha issue and former APLA members that are still imprisoned. This does not just echo politics of relevance, populist and sentential politics but also arrogance of power, and a selective amnesia and desperate attempts by the governing party. Why is it that the same determination has not been displayed in the case of Kumkani Buyelekhaya and the former APLA members? 

In conclusion, this year, 2019, marks the 25th anniversary of the new 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. What could be the challenge to change this state of affairs? There are many possible answers ranging from complexities and tensions of transition from the minority rule to the majority rule, politics of reconciliation, victor-loser complex, power relations, pitfalls of national consciousness to politics of the so called the presidential pardon, popular and sensational politics, and politics of relevance, amongst others. All these pointers have their own sociology, inconsistencies, and socio-political capital.

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 and the conduct and posture of the present day government can be understood. 

Dr Luvuyo Mthimkhulu Dondolo, is a historian, heritage studies specialist, museologist, a former Fulbright Scholar at Cheyney University (US) and a former Rockefeller Scholarship holder to Emory University (US). He is the Director of the Centre for Transdisciplinary Studies at the University of Fort Hare. He writes in his personal capacity.

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