IT took three days of court argument, three-and-a-half months of deliberation and 244 pages of opinion for the Constitutional Court to re-establish the sanctity of life in South Africa by declaring invalid the death penalty. This week’s decision is a major break from the past. It brings to an end South Africa’s long-standing dominance of the international capital punishment market. And it is the first time in this country that new institutions have given the rights of individuals ascendancy over the force of public opinion.
Those who argue that the 11 judges are over-riding public opinion, or that a matter of this sort should be settled by referendum, miss the point of a Bill of Rights and a Constitutional Court. The function of these new institutions is to give individuals and minorities protection from the shifting winds of public opinion. The public may come to believe that the killers of Chris Hani should be beheaded in public, or those perpetuating violence in KwaZulu/Natal be locked up without trial, or that abortionists should be jailed. But a Bill of Rights is intended to assert that some rights are so fundamental to democracy that they are inviolable. It is intended to ensure that individuals and minorities are protected from the vagaries of public opinion.
Hopefully we have a government strong enough not to feel the need to pander to public opinion on this. One would expect the National Party to latch on to this populist cause, as it has, forgetting quickly that it found itself unable to hang anyone in the last few years of its government.
It is worth noting that there was an outcry when President Nelson Mandela said he would ask for changes in the Constitution if it was necessary to prevent violence in KwaZulu/Natal. No such outcry has accompanied the National Party request to change the Constitution to allow the state to kill people. But if you water down the right to life in the Bill of Rights, you will be giving up the most basic, the most important, the most fundamental right of all.
There could be an argument for this if there were substantial evidence that the death penalty was an effective deterrent to crime; or that one could eliminate the possibilities of errors which sometimes take the wrong person to the gallows; or remove the likelihood that some defendants — those without access to proper defence — would be more likely to be hanged than others. But none of these over-ride the most basic argument against capital punishment: that this country, more than most, needs to re-establish the sanctity of human life, not continue to degrade it. You cannot do this by giving the state the right to kill.