“Bring back the death penalty!” It’s a rare cry – “Get rid of Zuma!” is the other – that seemingly resonates with the same intensity among blacks as it does among whites, in township shebeens as it does in country club pubs.
Unfortunately, the issue of a nation’s right to execute, in a humane manner and after a fair trial, those convicted of the most heinous murders, has in South Africa for more than two decades been a subterranean and essentially pointless conversation.
A 1995 Constitutional Court judgment formally abolished the death penalty, five years after it had been suspended during the negotiations to shape a democratic, constitutional state.
The decision, written by Chief Justice Arthur Chaskalson, a jurist of towering intellect and a scion of the political left, accorded precisely with the similarly lefty inclinations of many of the media gatekeepers whose clammy hands sometimes stifle public discourse in this country. It was also a decision which, at that moment, fortuitously chimed emotionally with the fact that hangings had been often been used as a political tool by the white minority against the black majority.
Abolition was, too, part of a seemingly irreversible historical tide. At recent count, more than a 100 countries have legislated an end to capital punishment, while a further 140 have stopped implementing it, while retaining the legal option to do so.
Things change, however. Tides are never irreversible, nor do rational bulwarks hold sway indefinitely, as evidenced by the growing traction of populism in the United States, Europe and South Africa.
It is also worth remembering that a number of nations with which the ANC identifies ideologically, such as Cuba, the Palestinian Authority, and Iran, have capital punishment. Of our new best friends, the BRICS nations, India executes sparingly and China often, Brazil does in exceptional circumstances, and in Russia the option remains codified but unused, for the moment.
And the anti-death penalty movement in Africa, despite of the support of the African Union, has never been as strong as elsewhere in the world. Of 54 African Union states , 38 retain the death penalty, albeit many don’t use it. Commitment to abolition, like the waning African enthusiasm for the International Criminal Court, is conceivably a momentary aberration.
Our immediate neighbours Lesotho, Swaziland, Zimbabwe, and Botswana, all have the death penalty and at least two of them – Botswana and Zimbabwe – apply it vigorously.
That all these nations have exponentially lower rates of violent crime than we do, especially crimes accompanied by the gratuitous barbarism that distinguishes SA, should surely interest our social scientists? But even in academia the heavy hand of PC-engineered intellectual unanimity chokes curiosity and investigation.
In SA, too, abolitionist emotionalism has eased. We have for more than two decades had a democratically elected government that abides by what we are assured is one of the best bits of legal parchment in the world. Sanctioned state execution could never again, on these shores, be used as a government tool.
It is against this backdrop that the Institute of Race Relations this week released a timely report questioning whether abolition was the right decision, in the light of almost half a million murders since 1994.
The IRR, while coyly not naming who commissioned its investigation, says: ‘We were asked to look into the death penalty as a way to deter the most cruel crimes ... characterised by gratuitous violence.”
This is a sober and, as one would expect from SA’s premier think-tank, even-handed analysis. Both the hang-them-high populists and the effete purveyors of love and forgiveness should read it.
There are lacunae in the report. One of them is its ready acceptance of the abolitionist proposition that SA’s murder rate has been dropping steadily since 1994.
The statistics are not as clear as they are made out to be. The assertion ignores the fact that political assassination was at its apogee during the closing years of the liberation struggle. Any regression analysis should interrogate statistics as far back as is possible, at least to the 1960s, as well as try to separate criminal and political killings.
The IRR tested five objections to the death penalty – that it is “cruel and unusual”; that it is retributory beyond the pale; that it is arbitrary; that it is not a deterrent; and that there is possibility of irreversible error. It was able to overcome the first four but‚ “the most compelling argument” was the possibility of error in an ailing, incompetent SA criminal justice system.
The IRR concludes that while a case could be made to reopen a death penalty debate ‚ it would have to overcome that fifth objection.
So the genie is out, let the debate begin. But the pro-capital punishment lobby, a likely majority of South Africans, should reflect on the fact that changing a constitution in knee-jerk response to populist opinion is a slippery slope.
Think today's populist credos. Think nationalisation and seizure of land without compensation. Think of relinquishing the protection of minorities, of the media’s freedom to investigate government abuses, and the right to mock the rich and powerful.
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