Pistorius injustice demeans us

After I was sentenced to two year’s imprisonment in July 2014, the date of my release became the focal point of my existence. Whatever I did in prison, my whole being was focused on that date. Nothing is more important to a prisoner than the date of release.

I was sent to jail with the human rights lawyer Thulani Maseko by the then chief justice of Swaziland, Michael Ramodibedi, for articles we had written criticising his conduct as a judicial officer. It was an excessive jail term – normally it would not have exceeded three months, if we indeed had a case to answer.

While in prison, I often thought about Nelson Mandela and the Rivonia trialists and wondered how they managed to keep their sanity for all those years on Robben Island while serving life sentences without a release date.

It was only when I met Mandela’s lawyer and friend, George Bizos, while I was in South Africa shortly after my release that I got an idea of how he might have tackled it. I asked Bizos why Mandela had refused to appeal his sentence in 1964.

He said Mandela believed the life sentence would keep the struggle for liberation alive and that a reduced sentence, had they succeeded on appeal, would remove the pressure on the apartheid government to liberate the country.

My understanding of that was that Mandela had, in his mind, not gone to prison but to war. He had told himself that, like any soldier in combat, he might never return home. If he did, like a good soldier, victory would have made the sacrifice worth the time.

It was an incredible feat of mental gymnastics. For, let there be no doubt about this, life in prison is no child’s play. A day behind bars is a very, very long time.

It was for this reason that my heart went out to Oscar Pistorius when I heard he would not be going home at the end of his sentence last month. He must have been gutted to be told this shattering news on the very week he was to be released.

I do not doubt that, like me or anyone else doing time in jail, there was nothing more important to look forward to for Pistorius than the day he would be leaving prison. He can never claim not to have done that daily countdown, every morning bringing the nightmare closer to its end, each sundown reminding him that another day had gone, to be cancelled on the calendar.

That Pistorius committed a most heinous crime in killing his girlfriend, Reeva Steenkamp, on Valentine’s Day two years ago is not in dispute. That he deserved a much longer prison sentence for this senseless act is obvious.

But shutting the prison gates in his face just as he was about to walk out to freedom in order to get justice for Steenkamp, her family and all who were horrified by the killing cannot be condoned by anyone who believes in human rights and justice.

I will borrow from the former chief justice of South Africa, the late justice Arthur Chaskalson, and describe the timing of the refusal to let Pistorius go home as cruel, inhuman and degrading.

The minister for justice, Michael Masutha, is quoted as having said the decision on the date of release for Pistorius had been taken without any legal basis. He referred the matter to a review board while the former world athlete remained behind bars.

Once prisoners have been convicted and sentenced, the correctional services staff call them to a short meeting at which they are officially told how long they will be in jail and given the date of their release. It is the norm in all jails around the world.

It is this date that keeps you alive in jail. To have it taken away arbitrarily, as seems to have been the case here, is very insensitive and cruel. And Masutha admitted that he had bowed to public pressure not to release Pistorius.

In the famous Makwanyane case in 1995, where two prisoners on death row challenged the constitutionality of the death penalty, Chaskalson addressed the issue of public pressure in the Constitutional Court and said: “The majority of South Africans agree that the death sentence should be imposed in extreme cases of murder.

“The question before us, however, is not what the majority of South Africans believe the proper sentence for murder should be. It is whether the Constitution allows the sentence.”

South Africa’s Constitution of 1996 is based on three fundamental values: human dignity, equality and freedom. Section 10 says: “Everyone has inherent dignity and the right to have their dignity respected and protected.”

Can it honestly be said that these values were taken into consideration when one considers the timing to take the decision to deny Pistorius his release?

In his book Long Walk to Freedom, Mandela writes: “Prison and the authorities conspire to rob each man of dignity.”

It has been said by some of the most eminent jurists around the world that even the “vilest criminal remains a human being possessed of common human dignity”.

It is difficult to ignore the fact that Pistorius was denied his freedom at the time when the state was filing its papers to appeal his conviction and sentence.

If, indeed, Pistorius was wrongly convicted and deserved a longer prison sentence, would it not have been much more prudent to wait for the appeal process to make its findings before decisions on his dignity and freedom were taken extra-judicially?

There can never be any justification for what Pistorius did. But, he stood trial, was paraded before TV cameras for the world to see as he faced his comeuppance in court.

While I was in jail, I watched him on TV. A sorry sight he was, as Judge Thokozile Masipa read his judgment and sent him to prison. Neither he nor his lawyers ever tried to play fast and loose with the law. They simply put up a defence in what could be said to have been a fair trial.

When he was told to go to prison, he did just that. That he was given less than he deserved was not his doing. But, the manner in which he is being treated, one would swear he tried to pull a fast one with the law.

Come to think of it, Pistorius’s trial has come to symbolise all that is wrong with societies around the world when it comes to how women are treated. The protests against his early release are informed by this belief that women’s lives don’t matter, especially in patriarchal societies.

Yes, an early release for Pistorius would simply reinforce this belief.

However, quoting the German Constitutional Court, Chaskalson said: “Respect for human dignity especially requires the prohibition of cruel, inhuman and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect.”

Can it be said that Pistorius, denied freedom at a critical moment of his life, was accorded his constitutional rights?

I wonder.

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