Gaye Davis
The fate of 453 former death-row prisoners remains unclear as politicians and legal experts wrestle with the dilemma of how best to deal with them.
When the Constitutional Court abolished the death penalty two years ago, it ordered that prisoners sentenced to death remain in custody until their sentences were either set aside or substituted by new ones.
But as the parliamentary portfolio committee on justice heard this week, this is more easily said than done.
The draft Criminal Procedure Act Amendment Bill, now before Parliament, proposes that each former death-row prisoner be re- sentenced by the original trial court. But human rights organisations reject this on grounds that the prisoners may not get a fair trial at the hands of judges who originally sentenced them to hang, while justice officials say an already overloaded system will not be able to cope with hundreds of new trials.
Ronel Berg, an advocate in the office of the Western Cape Attorney-General, told Parliament’s portfolio committee on justice that the Cape High Court managed to finalise only 130 criminal cases last year.
“Here we are looking at more than 400 cases. What about awaiting-trial prisoners? Must they wait while these prisoners get another bite at the cherry?” she asked.
A “quick-fix” solution, with Parliament enacting legislation to replace every death sentence with life imprisonment, was also impractical and could lead to a Constitutional Court challenge, she said.
While some former death row prisoners had exhausted all avenues of appeal, the cases of others were still in the pipeline, rendering a blanket approach unfeasible.
“The Bill’s proposal that death-row prisoners be re-tried is correct in law,” Berg told the Mail & Guardian. “But it presents a practical nightmare. It would involve dealing with thousands of pages of court records and clog up both the courts and attorney-generals’ offices, impacting on awaiting-trial prisoners’ rights to be dealt with speedily.
“It is an intractable problem, but one that has to be dealt with,” Berg said.
African National Congress MP and justice committee member Willie Hofmeyr said: “We are exploring the possibility of substituting the lesser sentence of life imprisonment without having to re-sentence everybody. The president regularly commutes death sentences to life sentences and this is one option we are looking at.
“There are some real debates here. The prisoners were legally sentenced at the time, so it’s not as if their sentences have been declared invalid. It is just that they cannot be executed.
“We are going to try hard to find a more speedy mechanism to deal with the problem.”