On the reintroduction of capital punishment: a reply to Chelsey Lotz

Loammi Wolf

Chelsey Lotz's plea for the reintroduction of capital punishment is controversial to say the very least.

In S v Mkwanyana - one of the first seminal judgments of the Constitutional Court after the new constitutional system was introduced in 1994 - the court ruled that the death penalty infringed upon the right to life and went beyond the limits of valid limitation .

This was one of the first great breakthroughs of a constitutional system based on law and justice instead of might.

Even if parliament would like to reintroduce capital punishment, this would not be possible - not even with a constitutional amendment attempting to abolish the right to life. The rule of law and justice based on human rights have been enshrined by section 1 of the Constitution and is there to remain, until this Constitution is abolished. To repeal section 1, a 75% majority of the members of parliament must first agree to it in terms of section 74(1) of the Constitution.

Thank God, one might say. Such hasty and simplistic solutions envisaged by Ms Lotz are tantamount to throwing the baby out with the bathing water.

I agree with her, however, that the problem is that criminals often don't fear prison. The problem, however, will not be solved unless the parole system is reformed and poverty has been overcome. If people have nothing, they can hardly lose anything.

Both these issues can be tackled with the political will to do that. More than 50% of South Africa's population lives in poverty. To create opportunities for them to improve their living standard is a long-term project, which will probably take another one or two generations with a social democracy that functions properly and where BEE does not only benefit a select few.

Yet, poverty need not be an excuse for criminality. There are many countries were a large segment of the population is as poor and yet their societies do not bungle under such a crime rate. It is also a matter of what ethical norms parents instill in their offspring with child rearing. Both parents and society at large have a responsibility in this regard.

In the short term, a reform of the parole system can bring more immediate results. The parole system is one of the fields where the old Westminster system had been retained although it is no longer in conformity with the current constitutional system.

Under the Westminster system, two aspects of criminal justice were different from state organization in a constitutional state: first, the prosecutors formed part of the executive branch and were only functionally independent from the justice ministry, and second, judicial sentences were executed by the justice ministry, including the granting of parole. The executing of both of these functions as executive powers is not compatible with state organization in a constitutional state.

In a constitutional state, the prosecuting authority is structurally independent from the executive and is not controlled by the justice minister. The latter only facilitates co-operation between prosecutors and the criminal police, who assist prosecutors in criminal investigations. Unless the prosecuting authority is free from executive interference, they cannot perform their functions ‘without fear, favour or prejudice' as envisaged by section 179(4) of the Constitution.

In a constitutional state, the prosecuting authority is a state organ in its own right next to the judiciary in the third branch of state power. This is also the way it has been envisaged by Chapter 8 of the Constitution. The function of these two state organs is to enforce the law: prosecutors investigate and prosecute crime, whereas the judiciary adjudicates in all matters brought before it.

This transition from the Westminster system, however, was incomplete .

The way in which the National Prosecuting Authority Act of 1998 has been conceived is in many respects not in conformity with the Constitution. The Act provides for extensive control powers by the executive, which are not mandated by the Constitution.

Although, the Act at least tries to establish some functional independence, the executive believes that it may control the NPA like ministers control executive state departments.

This has not only politicised the prosecuting authority, but leaves much room for executive manipulation of criminal prosecutions to protect politicians and executive officers from prosecution. This seriously hampers effective prosecution of crime.

Yet, even if crimes are successfully prosecuted and criminals brought to bay, the way the legislature has regulated the granting of parole leaves much to desire.

First, the minimum period of an incarceration sentence that must be served before parole could be granted in terms of section 73 of the Correctional Services Act of 1998 could be as low as a quarter of the sentence. (It is different with regard to life sentences (i.e. 25 years) where parole could be considered only after 15 years of the sentence was served or other serious crimes where parole can only be granted once at least four-fifths of the term of imprisonment was served.)

In the majority of cases, a convicted person therefore serves only a fraction of the real sentence meted out by the judiciary. Obviously criminals know that and thus severe sentences with which the legislature brags to establish its hard stance on crime, have absolutely no deterrent effect.

Second, the Westminster system's practice that there is no clear separation of functions when it comes to the alteration of sentences meted out by the judiciary when part of an incarceration sentence is transformed into parole or correctional supervision has been perpetuated. The alteration of sentences was rarely referred back to the courts and often parole boards or the minister (who are both part of the executive) decided on that.

Under the 1996 Constitution, such a blurring of judicial functions with powers exercised by executive state organs is no longer possible. Section 165(5) of the Constitution explicitly proscribes a delegation of judicial power and emphasizes the binding of judicial sentences in no unclear terms:

"An order or decision issued by a court binds all persons to whom and organs of state to which it applies."

In other words, it is a judicial power to mete out sentences and the amending of such sentences by granting parole is also a judicial function.

The legislature seems oblivious of the fact that section 73 of the Correctional Services Act of 1998 infringes upon judicial power.

It doubtful whether Shaik or Selebi would have qualified for medical parole if the alteration of their sentences were subjected to judicial scrutiny. Tony Yengeni certainly would have served more of his 4 years' incarceration sentence than the four months before the minister of correctional services let him out.

* Dr Loammi Wolf specializes in constitutional law and has a special interest in state organization. She has published widely on these topics.

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