Opposition parties are preparing to use the death penalty to whip the ANC. Will the ANC be able to withstand the pressure, asks Marion Edmunds
A political fight over the death penalty is brewing between the African National Congress and opposition parties – one in which ANC leadership finds itself at odds with majority opinion. As the state fails to fight crime, and the reality of the 1999 elections dawns, so opposition parties are amplifying the cry from the street for the state to implement the death penalty, at most, and, at least, to allow the people to decide.
First the United Democratic Movement called for a referendum on capital punishment; then National Party strongman, Western Cape Premier Hernus Kriel, asked for a provincial ballot, and now the Inkatha Freedom Party has called for a referendum, after heated caucus discussions, to provide guidance for the state.
“People feel that crime has bloomed since the scrapping of the death penalty in 1990. As this has to do with a basic right, we feel that it is better for the public to decide,” says the IFP’s chief whip Koos van der Merwe.
“The ANC is frightened of losing the referendum. It hides behind its constitutionality arguments. Can the ANC afford to say to the majority of the people: you are wrong and we are right?”
“I don’t know if, scientifically speaking, the death penalty will actually work, but the electorate is calling for it, so let us have the referendum – before the elections – so the ANC can get a good hiding,” he says.
Siding with majority opinion on this issue is strategically clever, but at the same time morally indefensible, because, like Van der Merwe, most opposition party leaders are personally doubtful that imposing the death penalty will actually reduce crime levels. The NP and the IFP say they are driven by the raw gut feelings of their caucus and angry constituents in this, and have not done party political research on the matter.
The Pan African Congress and Democratic Party leadership is still strongly opposed to the penalty, but both are anticipating controversy about it within their ranks before 1999.
The Freedom Front’s General Constand Viljoen says: “I think the call is a message to the government from all political parties and the government will ignore it, and it will affect the elections. We are asking for it because the call has political value.”
Justice Minister Dullah Omar says there was a similar surge of support for the death penalty in the United Kingdom, but British political parties came to an agreement not to make it a divisive political issue.
It would suit the ANC to strike such a bargain here, because its Achilles heel is its inability, as a government, to fight crime, and the death penalty calls throw that into sharp relief.
The ANC’s arguments for resisting the death penalty are both logical and idealistic.
Omar says a referendum would be tantamount to undermining the constitution. “Our constitution has placed certain values beyond the reach of a temporary majority, whether it be a parliamentary majority or one gained from a referendum,” he says. “If we were to revert to the majority principle, that would require scrapping the constitutional framework, which prohibits strict majoritarianism on a range of issues. If there is a referendum, it must be on whether or not we retain the constitution, with its protection for its minorities, or move away to simple majority rule.”
Omar also rests his case on international research proving that the death penalty is not a deterrent to crime.
The world has not yet reached consensus on the matter. A hundred countries have abolished the death penalty and 94 still use it. The trend, however, is towards abolition. Most Western European countries have abolished it; many of the newly independent Eastern European states have retained it but carry out fewer and fewer executions. Middle Eastern and North African states have largely kept it. The most aggressive defenders of the state’s right to use capital punishment are the United States, China, Singapore and Sudan.
Sadly, many South Africans have gone past logical thought on the death penalty, moving into the realms of despair and revenge, because they believe the state has failed them.
The gruesome nature of many assaults serves to intensify the despair and fear. This week, for example, the media told how burglars had poured boiling water over a young Pretoria couple, Ootren and Maligay Naidoo, and burnt them with hot irons, after kicking, beating and choking them, to make them open their safe. The burglars tortured with a free hand, stopping just short of murder, but what punishment is fitting for such cruelty? Maligay Naidoo is in hospital in a critical condition.
The rise of Pagad – People Against Gangsterism and Drugs – is the most tangible sign of this despair and fear. Almost in self-defence, a community of people took arms and reclaimed the death penalty as the ultimate punishment for sinners against society.
Omar suggests that Pagad has reformed its stance on revenge murders. Cassiem Parker, Pagad’s Western Cape legal co-ordinator, says Pagad continues to support the death penalty.
“Whichever way you look at it it’s a travesty of justice that the death penalty was passed through the constitutional court the way it was,” Parker says.
“In every Western Cape suburb there is at least one family that has had to endure the pain of somebody being killed, and then in front of her door every day the murderer taunts a grieving mother, saying: `So, I killed your son. So what?’ It’s only when people know there is a possibility of capital punishment, that they will take heed of other people’s rights.”
Omar admits that explaining the constitution to relatives of murdered victims is difficult.
“When you talk to victims those answers will be brushed aside because it does not satisfy the deep anger,” he says.
Political analyst Vincent Maphai, executive director at the Human Sciences Research Council, says the ANC is in a tight spot.
“I think the ANC has painted itself into a corner by defining this as a human rights issue, which it is not. I think it was a mistake that this matter was dealt with by the Constitutional Court rather than by the government, as the government has not given itself space to interrogate this question. What it will find is that the issue of the death penalty will provide a continued irritation. But there will be great resistance to bowing to this pressure.
“As long as there is debate without the ANC, the ANC will continue to resist the temptation. I think it will become an issue once it is raised within. Winnie Madikizela-Mandela has, but nobody has taken it up yet.”
The vehemence with which Madikizela- Mandela’s call for a referendum was denied, suggests the ANC wants to keep a lid on death penalty discussions. But opposition parties claim the majority of ANC parliamentarians support the death penalty. They will have to wait until next month’s ANCconference to see whether this support has consolidated into a powerful lobby.
If ANC MPs and branches listen to reason, the constitution will remain supreme; if they listen to their supporters, the ANC will be forced to bring back the gallows, and the new constitution will be undermined – by the crudeness of public opinion and the government’s sensational failure to jack up the criminal justice system and provide a solution to the scourge of crime.