Challenge: Anger followed the murder of student Uyinene Mrwetyana, resulting in some people calling for the death penalty to be reinstated. But this is contrary to the Constitution and experience shows it does not stop crime. (David Harrison)
LAW
South Africa is facing a national crisis: horrific incidents of gender-based violence and xenophobia occur in our homes and on the streets, leading to collective expressions of outrage, an overwhelming sense of injustice, and fear.
Such emotions lead to calls for reactive measures to be put in place. One petition proposes the implementation of a state of emergency and another calls for the reinstatement of the death penalty, abolished in 1995, a year after the demise of apartheid.
We are reeling from and devastated by the violence to which so many fall prey on a daily basis. We want a definite, powerful, certain solution to counter the feelings of helplessness.
But it would be remiss of us to allow calls for the death penalty to go unchallenged. South Africa must not — and constitutionally cannot — bring back the death penalty. We were shocked by the minister of justice and correctional services’s assurance that he would take to Cabinet calls for a referendum on the return of the death penalty.
Thankfully, the justice ministry has since released a media statement clarifying Ronald Lamola’s intentions, providing several reasons why the death penalty is not a solution to gender-based violence and stating that the government will not “be tempted by rather populist calls for the return of the death penalty”.
But, we remain concerned that political parties such as the African Transformation Movement, the African Christian Democratic Party, and the Inkatha Freedom Party stay steadfast in their support of the death penalty.
Our solutions to the epidemic of men murdering and raping women, other genders, children and other men cannot be grounded in the same hyper-masculine violence they serve to address.
Evidence has shown that the death penalty and life sentences do not prevent crime or minimise violence. In the words of the former chief justice, Arthur Chaskalson, in his landmark judgment abolishing the death penalty (also cited by the justice ministry in their media statement: “We would be deluding ourselves if we were to believe that the execution of the few persons sentenced to death during this period, and of a comparatively few other people each year from now onwards, will provide the solution to the unacceptably high rate of crime. There will always be unstable, desperate, and pathological people for whom the risk of arrest and imprisonment provides no deterrent, but there is nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of such people, or that there will be more of them if imprisonment is the only sanction.”
South Africa is among the few African countries that have abolished the death penalty. According to Amnesty International, five countries on the continent applied capital punishment in 2018, yet research has shown that there are other means to attain justice and fairness. South Africa abolished the practice almost 24 years ago, therefore calls for its return will not only take the country one step back from the progress made in its criminal justice system over the years, but will also undermine the values entrenched in the Constitution as well as the Universal Declaration of Human Rights.
If one perpetrator in a society where the idea of manhood is shared by the majority of men is removed, he will simply be replaced by another. Unless we put proactive, actionable and tangible social interventions into place — prioritised and funded by government and civil society alike — we will lose the battle.
The death penalty will not bring our mothers, children, aunts and friends back. The death penalty will not protect us from further violence. The ultimate goal should forever be to prevent men from perpetrating this violence. This implies that we also have to understand the root causes of gender-based violence and promote a co-ordinated response among key role-players.
The most effective solution would be to call on the government to ensure safe reporting and supported court procedures that are sensitive to and supportive of victims, as University of Fort Hare lecturer Christine Hobden so articulately expressed in her Daily Vox article. We also need to reform our prisons so that they cease to be incubators of misogyny and violence, and rather spaces conducive to rehabilitation. These strategies are our best hope of curbing male violence.
As we move forward to find possible solutions, we must hold dear those principles and ideals that too many have lost their lives protecting. We must fight for a world where love triumphs over hate and one where life triumphs over death.
The Detention Justice Forum is a coalition of nongovernmental organisations and individuals seeking to ensure that the rights and well-being of those who are detained are respected. This article is endorsed by Sonke Gender Justice, the Peace Centre, Lawyers for Human Rights, the Centre for Applied Legal Studies, the Wits Justice Project, Scalabrini Centre Cape Town, Just Detention International-SA, and African Criminal Justice Reform