Politicians calling for the reimposition of the death penalty are more interested in buying votes than in curbing crime, argues Dennis Davis
ONE might have expected that the death penalty would have been settled after the decision of the Constitutional Court handed down earlier this year.
Unfortunately, however, that tenacious and consistent advocate for human rights in South Africa, the National Party, has managed to keep the matter as a controversial issue before the Constitutional Assembly. Accordingly, in the published draft final Constitution, we are presented with an alternative. Either we maintain the existing provision, namely that everyone has the right to life, or we support an exception to this right, namely that the right to life can be limited by not being applicable in respect of an execution of a court sentence following conviction for a crime for which the death penalty is prescribed by an Act of Parliament.
Without such an expressly formulated limitation, the earlier decision of the Constitutional Court will continue to be valid and the death penalty will doubtless remain unconstitutional. The law and order lobby has thus sought the limitation. The premier of Gauteng, Tokyo Sexwale, has also seized upon the opportunity and called for a referendum on the matter. Given the shocking crime wave at present, the result of the referendum is quite obvious and Sexwale, an astute party politician, knows this well. Ironically, the sheer incompetence of his own safety and security ministry and the lack of will and ability to deal with the appalling crime wave are major causes for the kind of hysteria which makes impossible a rational debate and renders inevitable the outcome of a referendum.
>From Sexwale’s disturbing expediency, it would appear that neither he nor his highly paid legal advisers have bothered to examine the implications of the judgment of the Constitutional Court when it declared the death penalty unconstitutional.
The court heard that there was no compelling evidence that the death penalty deterred crime. During the 1980s, South Africa executed more prisoners than in any other country which has a comparable judicial system, but crime rates still increased exponentially. Naturally, supporters of the death penalty in the National Party did not care a jot about crime in those days so long as it was confined to black townships. Hence, the lack of deterrent value in the death penalty in South Africa is often ignored.
The court found “the greatest deterrent to crime is the likelihood offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system”. Perhaps Sexwale and the NP might put some of their energy into the kind of rational efforts at deterring crime described by the court.
The court also stated that the very purpose of the Bill of Rights “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities”. President Nelson Mandela is a statesman and understands this. Consequently, he has insisted that the imposition of the death penalty will not be reconsidered. Sexwale is a party politician and for him no issue is beyond the grubby reach of a politician so long as it can win votes. And for those from the NP who will jump on the Sexwale bandwagon, will they now support a referendum on whether a dispute regarding the property clause should be resolved by public opinion?
Should the death penalty option be inserted into the Bill of Rights, the very document will be at war with itself. It emphasises the importance of human dignity and prohibits cruel and inhuman punishment. These values were found by the Constitutional Court to be fundamentally undermined by the death penalty. To have these values in the Bill of Rights and to uphold the death penalty is to produce an incoherent product lacking in integrity. Perhaps Sexwale also wants a referendum to decide about the importance of human dignity and cruel and inhuman punishment?