Clive Derby-Lewis's Medical Parole
CLIVE DERBY-LEWIS'S MEDICAL PAROLE
Adv Jacques du Preez of the FW de Klerk Foundation
According to recent media reports, Clive Derby-Lewis - who is currently serving 25 years in prison for the murder of SACP general secretary Chris Hani in 1993 - will be applying for medical parole. Derby-Lewis was first sentenced to death, but this was commuted to life imprisonment after the abolition of the death penalty. His amnesty application to the Truth and Reconciliation Commission was refused on the grounds that although his crime was politically motivated, he had not made a full disclosure of the circumstances of the crime - or provided information on others who might have been involved in a conspiracy to assassinate Hani. He again applied for - and was denied - normal parole in 2011.
The release of prisoners on medical parole has become a contentious issue - especially in light of the medical paroles granted to Schabir Shaik, and more recently, to former National Police Commissioner, Jackie Selebi.
Formerly, medical parole was regulated by section 79 of the Correctional Services Act 111 of 1998, which determined that “any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of any terminal disease or condition, may be put on parole so that they may die a consolatory and dignified death”.
The fact that the provision was seemingly open to abuse was illustrated by the Shaik-parole. Shaik was released on medical parole in March 2009 after serving only two years and four months of a 15 year sentence, supposedly because he was terminally ill. There was general outrage because of suspicion that his parole had resulted from his close relationship with President Zuma. Suspicions of improper interference in the judicial process were strengthened after Shaik repeatedly violated his parole conditions. The Parole Board was criticized for granting Shaik medical parole when he was seen playing golf, and after a reported fracas with a journalist.
The medical parole provision was amended on 1 March 2012 by section 14 of the Correctional Matters Amendment Act 5 of 2011, which gave greater discretion to the National Commissioner of Correctional Services, the Correctional Supervision and Parole Board, as well as the Minister of Correctional Services, to release prisoners on medical parole. The new provision determines that a prisoner may be considered for medical parole if:
(a) Such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care;
(b) the risk of re-offending is low; and
(c) there are appropriate arrangements for the inmate’s supervision, care and treatment within the community to which the inmate is to be released.
In effect, prisoners no longer have to be faced with imminent death to qualify for medical parole. One of the first beneficiaries of the new system was Jackie Selebi. His case appears to be fundamentally different from that of Schabir Shaik because it is not disputed that he is gravely ill. Responding to questions as to whether Selebi’s release resulted from his being politically connected, Dr Angelique Coetzee of the Medical Parole Advisory Board confirmed that Selebi had already been ill before he was sentenced. He had acute renal failure, and had suffered a stroke as well as a pulmonary embolism, amongst other serious conditions.
It is clear that he qualifies for medical parole in terms of the new provisions. Questions might, however, be asked as to whether his political connections enabled him to go to the head of the queue of hundreds - if not thousands - of prisoners who are also seriously ill.
A fundamental provision of our Constitution is that “everyone is equal before the law and has the right to equal protection and benefit of the law.” This should be the guiding principle for those who consider Clive Derby-Lewis’s application for medical parole. It means that all applications for release on medical parole should be treated equally and fairly. In Derby-Lewis’s case the criteria should be those set out in section 14 of the Correctional Matters Amendment Act 5 of 2011. Politics should not play a role - regardless of the heinous nature of Derby-Lewis’s crime.
Published in: FW de Klerk Foundation