Ross Garland
A Second Look
Following his extradition from South Africa, Khalfan Khamis Mahomed was convicted on May 29 in New York for embassy bombings in Tanzania and Kenya in 1998. He may face the death penalty.
Two South Africans, one in Botswana, another in Swaziland also face the possibility of hanging.
The capital punishment question has fascinated and divided philosophers and philistines alike since Socrates was put to death and Plato exercised his right of reply. Grotius, Hobbes, Locke, Rousseau, Diderot and Montesquieu argued for execution. Against were Beccaria, Voltaire, Jefferson, Paine, Lafayette, Bentham and Robespierre (who renounced his position only to find himself on the wrong end of the guillotine when later executed).
The death penalty potentially results in the death of innocent people. It is open to political abuse. Due to state-funded appeal processes, it costs more than a life sentence. There is no proof that the death sentence is a deterrent to some offenders. It results in the death-row phenomenon whereby convicted capital offenders spend a decade or more in prison before being executed. It is inherently arbitrary when one examines how few murderers are executed in relation to those arrested and prosecuted. It is barbaric and incompatible with a civilised society.
There can be only one argument ultimately for the death penalty. Retribution.
Transcending these debates is an emerging trend towards abolition. We now find many nations (108 at last count) do not apply capital punishment. Prominent countries that apply the death penalty include China, India, Japan and the United States.
Public opinion has always played a limited role in any event. When capital punishment has been abolished it has invariably been in the face of public opinion. Only once the public does not consider the death penalty to be a sentencing option has support for it waned.
In South Africa public opinion appears to be as strongly as ever in favour. But given time perhaps it will decline as the next generation grows up without a death penalty.
The emerging trend towards abolition is reflected in a growing body of jurisprudence of courts around the world supporting abolition.
In the Makwanyane case of 1995, the South African Constitutional Court went further than any other court in the world in declaring the death penalty to be unconstitutional on the basis that it is inhumane and intolerable.
The view that the death penalty is fundamentally wrong is a new departure for judicial trends towards abolition. Finding the death penalty to be unlawful on the basis that it is fundamentally wrong means that it is unlawful in all cases.
In its decision on the Mahomed case, the Constitutional Court decided last week that the government cannot deport or extradite a person to face charges in another country, unless it obtains assurances that any ensuing trial will not result in execution. The court repeated its viewpoint in Makwanyane that the state cannot teach persons to respect life by taking it. The retention of capital punishment implicates and cheapens us all.
The US has in general turned a blind eye to recent abolitionist developments. Yet the trend towards abolition ironically began in its courts. In 1972 in Furman v Georgia, the US came within a whisker of ridding itself of capital punishment, following a break in executions since 1967.
The majority of the Supreme Court declared it to be unconstitutional, as against three who concluded otherwise.
The US rushed off to amend its legislation and in 1976 the Supreme Court reinstated the death penalty.
But where does the US find itself in light of global trends?
Will the US be embarrassed one day to have remained in the moral shadows for so long? Having recently been excluded from the United Nations Human Rights Commission, perhaps the US is beginning to see the ramifications of choosing to stay out of the global normative dialogue.
Public support for the death penalty in the US has decreased from 80% to 66% in the past half decade, and already 12 states have outlawed it.
From a South African perspective, comments such as those of Frank Chikane, Director General in the Office of the President, speaking of the Bosch case, are to be avoided: “Botswana will make their own, independent decisions.
“They have made such a decision and I think that is where the matter ends. We should rather be proud of the steps we have taken and remain steadfast in the face of any local or foreign pressure to the contrary.”
Ross Garland is a Cape Town advocate. He is working on a PhD entitled The Judges and the Hangman