THE outcry over former national police commissioner Jackie Selebi's release on medical parole is understandable given the manner in which this aspect of the law has been abused in the past. The release of Schabir Shaik in 2009 was clearly politically motivated and probably unlawful, so a degree of cynicism on the part of the public is justified.
However, the granting of parole is always going to be controversial because individual circumstances differ so markedly and so much is left to the discretion of parole boards. It is hard to compare two cases and therefore difficult to prove that the release was not justified, especially when there are medical reports declaring a prisoner to be in a terminal state.
In the case of Shaik, his medical condition was real enough and could have been terminal, but time has proven people's suspicions correct - he is still alive and kicking (and apparently doing good deeds in his community) more than three years later. But that does not mean Selebi is pulling a fast one. Unlike Shaik, he is not only a very sick man but is highly unlikely to make much of a recovery. If he is still alive in three years' time, he will be frequenting outpatient clinics for regular dialysis rather than golf courses.
Rather than comparing symptoms and debating the definition of "terminal", we should be concerning ourselves with both the content and application of the law that allows medical paroles to take place. Section 79 of the Correctional Services Act was amended in the wake of the Shaik debacle, ostensibly to make the process more transparent and avoid controversy in future, but the outcome appears to have been the opposite.
The discretion granted to the national commissioner of correctional services, the Correctional Supervision and Parole Board and the correctional services minister to release prisoners on medical parole has actually been increased through the use of the word "may" throughout. And there is no longer any requirement that a patient be facing imminent death to qualify for early release, so Shaik's parole would probably have been legal today.
The latter change is not necessarily problematic - society gains nothing from keeping a genuinely ill and permanently incapacitated but not terminal prisoner behind bars - but the amount of discretion that has been allowed is an open invitation to abuse for political ends. That may not be what happened in the case of Selebi, but it will inevitably be a temptation in future.