‘An eye for an eye makes the whole world blind.” This saying, attributed to Gandhi, best describes South Africa’s departure from capital punishment in the seminal Constitutional Court case State v Makwanyane and Another, which was decided on June 6 1995 and which re-affirmed the fundamental right to life and human dignity, as enshrined in the Bill of Rights of the Constitution.
The judgment found that the death penalty was inconsistent with the principles of the constitutional democracy South Africa was incubating. It was one of the most significant events in the development of our constitutional jurisprudence that separated us from the brutality of prior colonial and apartheid regimes.
But this decision of the court has consistently come under fire from a populace frustrated and shocked by the high violent crime rate. This debate continually re-emerges with new fervour, particularly in light of gender-based violence.
Sexual violence is of particular concern. A total of 52 420 sexual offences having been reported in the 2018-2019 financial year, according to statistics from the South African Police Service. Of these reported sexual offences, 79% were categorised as rape, which translates to 114 reported rapes a day. It is irrefutable that South Africa has a pathological problem with sexual violence.
Added to this, the prominently publicised femicides of Anene Booysen (in February 2013), Karabo Mokoena (who went missing in April 2017 and was later murdered); University of Cape Town student Uyinene Mrewetyana (in August last year), Capricorn College student Precious Ramabulana (who was stabbed 52 times in November last year) and 18-year-old Gomolemo Legae (who was stabbed, doused with petrol and set alight in December last year) have left the nation reeling with shock, anger and the desire for an immediate end to excessive levels of violence against women and children.
The argument for the return of the death penalty largely follows two streams of logic:
It would act as a deterrent for crime; and
It provides proportional and adequate retribution for the crime committed, that is the “eye for an eye” principle.
Apart from the accompanying international and localised constitutional jurisprudence on the right to life and dignity as well as the human rights of accused and convicted persons in general, the trajectory of the South African constitutional democracy cannot and does not endorse sanctioned murder by the state.
Instead, the state recognises that criminality should be met with sufficiently proportionate punitive measures. Rape, as the most violent, brutal and egregious sexual offence has a prescribed mandatory minimum sentence of at least 10 years imprisonment, under extenuating or mitigating circumstances, as contemplated by the Criminal Law Amendment Act 105 of 1997, if section 51(2)(b)(i) is applied in conjunction with Part III of Schedule 2 of the Criminal Procedure Act.
The mission of the department of correctional services, according to its website, is: “Contributing to a just, peaceful and safer South Africa through effective and humane incarceration of inmates, rehabilitation and social reintegration of offenders.” In other words, the department should keep society safe by removing criminal elements and rehabilitating such offenders so that they can be integrated back into society. But imprisonment or incarceration serves a punitive function as well.
For the department to achieve its mission of punishing, removing and rehabilitating offenders, those who commit sexual offences need to be convicted and brought to justice. This mission is unobtainable in the current, realistic context.
A report titled Rape Justice in South Africa: Retrospective Study of the Investigation, Prosecution and Adjudication of Reported Rape Cases from 2012, based on a study by the Medical Research Council on behalf of the National Prosecuting Authority, proved that conviction rates for sexual offences are shockingly low.
The sample consisted of 3 952 dockets opened at police stations in 2012 in response to a complaint or an incident of rape. The sample revealed that only 57.8% of the cases were considered for prosecution. Of the cases reviewed for prosecution, it was decided by prosecutors not to proceed with a further 23.3% cases. Therefore only 34.5% of cases were accepted and placed on the court roll. A further 16% of the initial cases were dropped before the trial started. Shockingly, in only 8.6% of the initial cases, the trial concluded with a verdict of guilty of a sexual offence.
Unless a major shift has occurred in the past seven years, it is clear that perpetrators of sexual offences are not held to account. Even with a generous view, as to include capital punishment as a viable punitive option for sexual offences, it is ineffective as a deterrent, if only 8.6% of reported sexual offenders are convicted and thus could be potentially executed.
An argument for the implementation of the death penalty does not take into account that judicial officers may also exercise their discretion and may not hand down a capital punishment sentence. According to the Death Penalty Information Centre, the average time spent between sentencing and execution for death row inmates in the United States stood at 186 months (15.5 years — the equivalent of the average sentence for rape).
Ultimately, it should be clear that for women and girls to be safe from sexual violence, we need to accept the fundamental principles of our human rights framework within a context of equality, dignity as well as freedom, and abandon the recurring debate on the death penalty.
What the state, civil society, faith-based groupings, business and all sectors of society, including chapter 9 institutions (such as the South African Human Rights Commission and the Commission for Gender Equality), is to end patriarchy and create a safe and conducive environment where women and girls can truly enjoy their constitutionally guaranteed equality. The first way to address this is by dealing with the glaring inefficiencies of the criminal justice system that sees 91.4% of accused sexual offenders go free.
Gushwell Brooks is the communications co-ordinator at the South African Human Rights Commission