Life in South AfricaOn capital punishmentThe question seems moot: according to the Human Sciences Research Council, 70% of South Africans support the re-introduction of the death penalty. South Africa is a democracy, so surely the people should get what they want? The problems with the death penalty are discursively set out in S v Makwanyane 1995 6 BCLR 665 (CC). Contrary to popular belief, the Constitutional Court in Makwanyane did not decide that the death penalty contravened the right to life (doing so would have created difficulties when it came to deciding on abortion), but held that the death penalty was a violation of the right to freedom from cruel, inhuman and degrading punishment in terms of section 11(2) of the 1993 South African Constitution. Briefly stated, the court stated that the death penalty was unacceptable because the process itself was an inherently cruel one, it was arbitrary in the sense that whether the convict received the death penalty depended on a number of factors, and the period during which the convict waited for his execution was characterised by continual episodes of hope and despair, leading to the "death row syndrome". In addition, execution was not the only means by which the purpose of this type of punishment could be achieved -- a sentence of life imprisonment would have the same effect. So what? To be honest, I don't think that the average person would regard these reasons as compelling. Sure, capital punishment is cruel. What punishment isn't? But is it any more cruel than the agony that the victims of these killers have to go through? Execution is a painless, virtually instantaneous process. How much sympathy did these killers show when their victims were begging for their lives? Should we feel any compassion for someone who has stabbed another human being 30 or 40 times? I think not! We should feel revulsion and contempt! Having said that, I don't think that bringing back the death penalty will be a deterrent to murderers. I don't think that criminals sit and think "Hey, if I'm caught, I'll only get life -- that's not so bad, yeah, I think I'll go ahead!". What makes criminals different from the rest of us is that they feel that they won't get caught. If they do get caught, they can just bribe the police to lose the docket. If they do get convicted, they can just bribe the gaoler, or escape! The troubling thing is, as anyone who lives in South Africa will tell you, they'd be dead right! According to statistics, there are an average of 25 000 murders a year. That's a frightening statistic. But how many murderers are actually caught? How many of those caught are eventually convicted? How many serve gaol sentences? How many will be released next time Mandela has a birthday? This isn't a justice system, it's a leaky bucket! To add to the police incompetence and corruption (to be fair, they are short of R 635 m ...), we have the justice department which refuses to employ white prosecutors. So what do you have? Black prosecutors who are under-paid and overworked, and white law graduates who cannot find employment. In any other country, the authorities would rope in the unemployed graduates and make the system work, but in South Africa we need "transformation" . Usually affirmative action costs livelihoods. In this case it costs lives. Having said all that, is there a place for the death penalty? I think there is, although my reasons would not pass jurisprudential muster. I think that there are some people who have shown themselves to be so evil and so violent that they should be removed from the face of the earth, and that removing these people would give the relatives of those killed some sense of justice. Search for S v Makwanyane here Mailto: |