OPINION | Why i think death penalty should never be reinstated in South Africa

The rate of crime in South Africa continues to climb high, exacerbated by the pandemic, it is not a surprise that many South Africans believe that the only way to address the high levels of crime is by reinstating death penalty. It has been reported that over 300 000 people signed a petition calling for the government to reinstate death penalty. Recently, the Supreme Court of Malawi declared death penalty unconstitutional and ordered the re-sentencing of all convicts facing execution.

More than 30 countries in Africa still have the death penalty laws in their books, but just under half have carried out executions in recent years. It is therefore important for us to discuss death penalty in South Africa and its implications if reinstated. This is because reinstating death penalty is not just a case of instituting a harsher sentence, it is a matter of changing Constitutional law.

In this blog, I provide my arguments in support of 'why I think the state should never reinstate death penalty in South Africa'. First, let's look at the history of death penalty in South Africa.

History: Death penalty in South Africa.

As any law student will be able to tell you, death penalty was abolished in the case S v Makwanyane. The right to life, as enshrined by our Constitution, and the possible mistakes made during the investigation process were both considered by judges in support of the abolishment of death penalty in South Africa. 

The second reason why death penalty was abolished is because it is in conflict with what the right to life guarantees in section 11 of the Constitution of the republic of South Africa. When the president of the republic of South Africa, Cyril Ramaphosa, was questioned on the possibility of reinstating death penalty, he said:..

''it is not the state's place to take life, our Constitution has enshrined the right to life, this means that the State should not be the one to terminate life. The surge in criminality should be addressed in other ways other than ending people's lives".

The following are my arguments in support of why i think the state should never reinstate death penalty:


Deterrence: Death penalty is not a deterrent.

Of course, many factors may influence the murder rate in each country or state. However, murders are committed in moments of passion or anger or by criminals who are substance abusers and acted impulsively. They do not expect to be caught and do not weigh the difference between a possible execution and life in prison. The +300 000 people who signed a petition calling for the government to reinstate death penalty did so because they believe that by reinstating death penalty, criminals will be deterred from committing violent crimes. The US, with its death penalty laws, has a higher murder rate than the countries of Europe or Canada, which do no employ capital punishment. Therefore, I do not agree with those who argue that death penalty is a deterrent to crime.

Criminals concentrate on escaping detention, arrest and conviction, and thus no threat will discourage them to refrain from committing violent crimes. This view is widely accepted by experts. In a study published in 2009 in the Journal of Criminal Law and Criminology, the authors reported that 88.2% of criminology experts are of the opinion that the death penalty does not deter murder. The question i ask is; How does the threat of any punishment help in preventing a crime that is not pre-meditated?. If severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

In S v Makwanyane, Chaskalson pointed out that the “greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished”. 


Retribution: Capital punishment does not restore the balance of Justice.

The Law and the criminal justice system must demonstrate a complete respect for life, even for the life of a murderer. This means that, Although we may desire to inflict pain on those who wrong us, revenge only extends the chain of violence. Also, Vesting the government with the authority to kill will only approve killing as a form of 'Pay-back'.

Retribution is just another word for revenge,  and the desire for revenge is one of the lowest human emotions — perhaps sometimes understandable, but not really a rational response to a critical situation.

Many victim's families denounce the use of death penalty because execution does not right the wrong of their loss but instead, causes more pain. For the victim's family, pain and suffering can not be healed simply through the retribution of capital punishment or by vengeance.

The argument that an execution somehow gives ‘closure’ to a tragedy is a myth. 

Amnesty International, in a Sep. 2007 document retrieved from its website titled “The Death Penalty v. Human Rights, Why Abolish the Death Penalty?,” offered the following:

“When the arguments of deterrence and incapacitation fall away, one is left with a more deep-seated justification for the death penalty: that of just retribution for the particular crime committed. According to this argument, certain people deserve to be killed as repayment for the evil done: there are crimes so offensive that killing the offender is the only just response.

It is an emotionally powerful argument. It is also one which, if valid, would invalidate the basis for human rights. If a person who commits a terrible act can ‘deserve’ the cruelty of death, why cannot others, for similar reasons, ‘deserve’ to be tortured or imprisoned without trial or simply shot on sight? Central to fundamental human rights is that they are inalienable. They may not be taken away even if a person has committed the most atrocious of crimes. Human rights apply to the worst of us as well as to the best of us, which is why they protect all of us".

Innocence: Death penalty imposes an irrevocable sentence.

Recently, The Wits Justice Project, which investigates miscarriages of justice and raises awareness of issues within the criminal justice system, helped release two wrongfully convicted men after 14 years in jail. False allegations and perjury is a crime in itself, not only against an innocent man, but against all women because one woman’s false allegations damage the credibility of all rape survivors, sometimes even serving as a deterrent to reporting their trauma for fear of being disbelieved.

On the 14th of October 2021, The Eastern Cape High Court's Acting Judge, Tembeka Ngcukaitobi, overturned the conviction of a former paramedic found guilty of raping his girlfriend. The good thing is that South Africa subscribes to the rehabilitation system which allows an opportunity to overturn wrongful convictions. However, if death penalty laws were in place, the story would have been different. Death is irrevocable.

Once a person is executed, nothing can be done to make amends if a mistake has been made. The capital punishment system is unreliable. Some scholars have found that for every seven people executed, one person on the row was actually innocent. The finding was confirmed by a Columbia University Law School study which found that "two thirds of all capital trials contain serious errors".

A South African court wrote in its opinion that “Everyone, including the most abominable of human beings, has the right to life.”

Therefore, death penalty should never be allowed in a country that protects the right to life. The rights to life, dignity, freedom and security should never be subject to the general limitations provision. Society takes risks and innocent people die in the process. We build bridges knowing that statistically, some workers will be killed during construction and we take great precaution to prevent or reduce that. But wrongful executions are a preventable risk.

The Constitutional Court (in Makwanyane case) considered the provisions of section 11(2) of the constitution and said this:

“Death is the most extreme form to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under Chapter Three of the Constitution. It leaves nothing except the memory in others of what has been and the property that passes to the deceased’s heirs. In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment.....it is also an inhuman punishment for it involves, by its very nature, a denial of the executed person’s humanity, and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state"

"Anyone who says we must bring back death penalty, must come and present scientific evidence of where death penalty has succeeded in reducing Crime… We must not be emotional and take decisions that are going to victimise all of us" Julius Malema

Arbitrariness: death penalty targets those who can not defend themselves.

A punishment that is administered in an arbitrary way — that is, imposed on some individuals but not on others, with no valid justification for the difference — is unconstitutionally cruel. 

Almost all defendants facing the death penalty cannot afford their own attorney. They are therefore poorly represented because many state lawyers lack experience in capital cases. Also, state lawyers are underpaid which is, perhaps, why they are more likely to fail in investigating a case properly. A new report by the Sentencing Project revealed that Black Americans are incarcerated in state prisons at nearly five times the rate of White Americans

Therefore, Until race and other arbitrary factors like economics and geography can be eliminated as a determinant of who lives and who dies, the death penalty must not be reinstated. Death penalty requires guidelines to determine when should a prosecutor seek the death penalty, or when should a judge give it. In many countries, these guidelines are neglected or do not exist; which ensures that the application of death penalty is discriminatory against racial, gender and ethnic groups. Therefore, the idea of reinstating death penalty must never resurface again in our minds considering these facts.

Re-Integration: Everyone deserves a second chance.

The system should not only aim to punish, but to rehabilitate and allow prisoners who have reformed to re-enter society where they can make a positive contribution.

Andile Gaelesiwe hosts Uthando Noxolo a reality show on MojaLove centred around forgiveness were the perpetrator seeks to meet with the victim and ask for their forgiveness. In another episode, the victim has decided to let go of their pain and confront their perpetrator giving them forgiveness even if they have not asked for it. At the heart of each story, are individuals who are learning to give up hope of what the present or the future would look like, if the past had not occurred.

The show reflects the path to forgiveness. The show teaches us two things which are related to our topic. First it teaches us that offenders can change and become positive people in our society. Number two, it teaches us that anyone can forgive any person who once offended them. A message of forgiveness is a message of love because it also sets free the person who was offended. Therefore, if the government ever reinstate Death penalty, offenders may never get an opportunity to ask for forgiveness and closure.


Obligations

What many people will not be aware of is that South Africa is not permitted to reintroduce the death penalty because we have signed and ratified an international protocol on the death penalty called Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Article 1.1 of the protocol states that: “1. No one within the jurisdiction of a State Party to the present Protocol shall be executed”. This means South Africa has committed itself never to reintroduce the death penalty, and in terms of international law, it is obliged by its treaty obligations to honour this pledge. This is yet another reason why the death penalty is never going to be reintroduced in South Africa.


Conclusion

Justice Chaskalson said in the case that abolished death penalty that "we have long outgrown the literal application of the biblical junction of 'an eye for an eye and a tooth for a tooth'". Death penalty is in conflict with the principles of Ubuntu. With regard to Ubuntu, Justice Chaskalson clarified that the state has to demonstrate respect for life and dignity in everything it does, including the way in which it punishes criminals. Therefore "this can not be archived by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby". Therefore I submit that although rape and murder are the antithesis of Ubuntu, but so is execution of prisoners through death penalty.



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References:

S v Makwanyane 1995 (3) SA 391; [1996]

Carolyn Raphaely "Five wrongfully convicted men, one judge, no compensation from the State" (Wits 2017) https://www.wits.ac.za/news/latest-news/in-their-own-words/2017/2017-04/five-wrongfully-convicted-men-one-judge-no-compensation-from-the-state.html Accessed 06 October 2021

Christina Carrega "Black Americans are incarcerated at nearly five times the rate of Whites, new report on state prisons finds" CNN 2021 https://edition.cnn.com/2021/10/13/politics/black-latinx-incarcerated-more/index.html?utm_source=fbCNN&utm_medium=social&utm_content=2021-10-14T03%3A05%3A03&utm_term=link Accessed 13 October 2021


Jeanette Chabalala "Court overturns conviction of man found guilty of raping girlfriend who didn't want penetrative sex" News24 2021 https://www.news24.com/news24/southafrica/news/court-overturns-conviction-of-man-found-guilty-of-raping-girlfriend-who-wanted-to-remain-a-virgin-20211014 Accessed 14 October 2021

South African institute of Race Relations 'Capital punishment In South Africa: Was abolition the right decision?" 2016

Pierre de Vos "Herman Mashaba, the death penalty is not a deterrent to violent crime" Daily Maverick 2020 https://www.dailymaverick.co.za/opinionista/2020-08-20-herman-mashaba-the-death-penalty-is-not-a-deterrent-to-violent-crime/amp/ Accessed 09 October 2021

Wits Justice Project pmg.org.za

EFF News Conference 5 September 2019

DPIC 'Arbitrariness' https://deathpenaltyinfo.org/policy-issues/arbitrariness Accessed 06 October 2021

Jade Weiner, “Bringing Back the Death Penalty in South Africa for Crimes Against Women”, (OxHRH Blog, October 2019), https://ohrh.law.ox.ac.uk/bringing-back-the-death-penalty-in-south-africa-for-crimes-against-women/ Accessed on 06 October 2021

Said in Orbiter Jan 25 'The death penalty in South Africa'

Should the death penalty be used for retribution for victims and/or society? 2021 https://deathpenalty.procon.org/questions/should-the-death-penalty-be-used-for-retribution/#:~:text=The%20two%20main%20arguments%20for,is%20clearly%20not%20the%20case. Accessed 19 October 2021

Michigan State University and Death Penalty Information Center "Arguments for and Against the Death Penalty" 2002
http://deathpenaltyinfo.msu.edu/ Accessed 05 October 2021