The claim that the Constitution contains a criminal’s bill of rights has been often made by the ”law and order” lobby. These spokespeople emphasise order above law, as if the denial of due process to accused persons will curb the crime wave. There is a nostalgia in the land for a return to the jackboot of apartheid policing: assault an accused, extract the confession and procure a conviction. It’s so simple. This approach may increase conviction rates and help the national mood in the short run.
I am not defending police incompetence or government inaction, but reminding readers that a return to a brutal past will not curb crime.
Better policing, the proper deployment of modern forensic techniques by the police service, a determined campaign to make townships liveable residential areas, public works programmes and economic policy that takes the poor as the priority (rather then adheres to the trickle-down approach of Gear), among others, are more viable options that should be pursued.
It is understandable if victims demand retribution. It is to be expected that some politicians and those citizens who still hanker for the past would argue in favour of the repeal of constitutional provisions that may appear to run counter to law and order. But it is of far greater concern when judges enter the fray. A judge presiding in yet another tragic murder of a small child (that of Makgabo Matlala) suggested that a referendum on the death penalty should be held. It is understandable that a judge who presided over so tragic a loss of life would ponder the death penalty as an option.
But when judges muse in public about changes to the Constitution, which they have taken an oath to uphold, do they not overstep the mark?
Judges should not fuel populist fires. As then chief justice Arthur Chaskalson said in State v Makwanyane, in which the Constitutional Court unanimously declared the death penalty to be unconstitutional, ”the very reason for establishing the new legal order was to protect the rights of minorities and others who cannot protect their rights adequately”.
Constitutions place controversial issues above the transient hue and cry of the public. Judges, of all people, should not undermine the essential purpose of the Constitution.
Judge Gerhardus Hattingh makes a ponderous case for a referendum on the death penalty. The judge was not seized with a difficult case, but undertook the remarkable step of calling publicly for a reconsideration of the Constitution as interpreted by the Constitutional Court. If a member of the public or a politician wishes to so act, that is his or her democratic right. But judges should be very reluctant to call for referendums on a constitutional question of this kind.
By contrast, a number of judges, including distinguished members of the Constitutional Court, have engaged recently in explaining the Constitution to the public. That is a welcome development since judges are appointed to protect and develop the Constitution. When they make their institution and the Constitution accessible to the public, they move beyond the ivory tower that characterised the apartheid Bench, which in true colonial fashion upheld the whim of the minority ruler.
But encouraging judges to defend and indeed expound on the Constitution and explain their role to the public is different to judges calling for constitutional change in response to a popular climate.
For this columnist, the death penalty is arguably a viable punitive option. But when judges seek, by way of a call for a referendum, to prompt a change to the Constitution, they undermine the very idea behind a constitution — that some moral issues are placed beyond the reach of a majority of public opinion as constituted at a fleeting point in the nation’s history.