TO HANG AND NOT TO HANG-IS THE DEATH PENALTY A SOLUTION TO CRIME? BY GEORGE MAGOMA
South Africa is in the grip of crime, society living in fear, children fed drugs, women molested, raped and abused and loss of life. This is not a rhetorical statement, but an observation buttressed by the statistics released by the South African Police Service.
These statistics induce shock, painting a picture of a country but equally opens society to the categories of crime and its manifestation.
This is the daily realities of South Africans. The endemic crime besieging the country had necessitated various multidisciplinary and supporting measures to obliterate it, but remains obstinate. Its viciousness and prevalence, permeates into households, schools, institutions of higher learning, the workplace and the nook and crane of society pierces into the soul of every citizen. In addition to the measures introduced by the police Gun Free South Africa advocates for stricter control and the removal of guns from society.
Statistics have revealed that guns account for the violent crimes, the Cash in Transit, house robberies, kidnappings, hijackings and other crimes. These crimes are not unique to South Africa but pervasive across the world in the presence of the death penalty as a deterrent, and other systems in the form of Sharia law and the doctrine of “an for an eye,” reminding us of Amina Lawal and Malala Yousafzai. Despite this, crime refuses to recede, the loss of life continues unabated, the most vulnerable sections of society nakedly exposed to violent attacks. “While the courts must express anger against crime, the state cannot endorse an "eye for an eye" mentality.”- Justice Pius Langa In our context as South Africa, in the midst of this scourge, there are shrieking cries for the return of the death penalty as an elixir to stem its violent vortex that ravages society, discouraging investment, tourism and stuns economic growth. Its consequences and impact are too heavy to quantify. For ordinary South Africans, victims and survivors of crime and the voices who lie muted in our graveyards seeking justice from their assailants.
The decline in rapes, murders and other crimes offers no comfort. In view of the multiplicity of the voices which advocate for the return of the noose man, South African needs a candid debate on the effectiveness of the death penalty as an antidote to violent crime. This piece agitates and resuscitates a debate that has been in the discourse since time immemorial, attempts to balance the sanctity of life entrenched in the Constitution pursuant the 6 June 1995 landmark case of the Constitutional Court judgment in the State V Makwanyane and Another. This judgment unanimously declared capital punishment unconstitutional and abolished the death penalty and the rights of victims of violent crime, drug proliferation, rape and other forms of crime. In its judgment, the court elevated the right to life as sacred.
This shaped our jurisprudence, constitutional democracy and found expression in the Constitution, banning capital punishment on the virility of section 11 which protects the right to life, elevating its sanctity. Life is precious, and remains a fundamental right protected by law. In South Africa, there is a minimum sentence dispensation whilst in other countries there is lethal injection, a firing squad and other methods as forms of the death penalty. “Rights to life and dignity are foundational and that the state's mode of punishment must reflect this.”- President Arthur Chaskalson.
In arguing for the return of the death penalty there is a strong argument that the sentence should fit the crime.
That is where the balancing act is necessary, using the Makwanyane case as a study. Whose life is more sacred? The perpetrator or the victim? This is what society asks and debates in the argument for and against the death penalty, calling for the amendment of the Constitution.
Opponents of the death penalty define it as a barbaric system which has no place in our constitutional dispensation predicated on the culture of human rights, a poignant reminder of its arbitrary weapon of silence by the apartheid regime against its opponents. On the one hand, there is a view that it is an effective weapon to deter crime, and to give perpetrators justice. We are painfully reminded of the five members of the Vulindlela family who were hanged together on July 3, 1964, at the Pretoria Central Prison (now Kgosi Mampuru II Correctional Centre), Solomon Mahlangu, Benjamin Moloisi and many others who walked the 52 steps to a final appointment with the hangman. “The Constitution as a bridge from a divided past to a human rights-focused future.”- Justice Yvonne Mokgoro We are equally reminded, and painfully so, of thousands of women and men who suffered at the hands of callous criminals, their last painful cries for mercy echoed by the candles and flowers which adorn our communities.
The country’s criminal justice system came under heavy scrutiny, its sad state playing itself out in the Madlanga Commission, exposing the putrid and institutionalised rot that enervate the police’s capacity to fight crime, including the prosecutorial authority captured by the underworld, exposing the citizens to vulnerability and criminality.
There is the National Crime Prevention Strategy to fight crime, anchored on societal activism, community policing forums as organs of people’s power complementary to many efforts to obliterate crime. Another example of a failed deterrent of crime by use of lethal force is the shooting of criminals in KwaZulu Natal. Every day and week the police come under fire from criminals. In retaliation, the police exact proportionate force, killing the suspects. Yet, there is no iota of evidence indicating the efficacy of the usage of lethal force by the police as a deterrent.
Another example is China using the death penalty in serious offences such as corruption, murder and drugs. Still, China continues to experience a flood of drugs, corruption and violence in its society. Using both analogies, the usage of force is not a deterrent. The death penalty is brutal force, and offends against human dignity and the right to life. According Parker (2021) there is no evidence that the presence of a capital punishment statute is sufficient to deter murders when using synthetic controls on states that abolished the death penalty and those that retained it.
This finding is supported by Kovandzic & Vieraitis (2009) who postulate that there is no empirical support that the existence or application of the death penalty deters prospective offenders from committing homicide, after analysing annual state panel data from 1977 to 2006. There is plenty of these views demonstrating the ineffectiveness of capital punishment as a deterrent. According Death Penalty Information Centre, more than 70% of the world’s countries have abolished capital punishment in law or practice. However, the death penalty continues to exist in many parts of the world, especially in countries with large populations and those with authoritarian rule. Ours is a constitutional democratic founded on human rights.
In recent decades, there has been a clear trend away from capital punishment, as many countries have either abolished the death penalty or discontinued its use. This is instructive, indicating that most countries are jettisoning the use of capital punishment. The work of Hood and Hoyle reveals that a study has influenced worldwide reform of the death penalty, indicating that nowhere is this more evident than in China where the number of executions has fallen dramatically over the last decade.
While international law does not prohibit the death penalty, most countries consider it a violation of human rights. The death penalty is not working and should not be politicised but remain a culture embedded in human rights. In his summation of the seminal work of Hood and Hoyle (supra), Clive Stafford Smith says both are doing vital work which is only going to get more vital with the politicisation of the death penalty in Asia. This is eruditely surmised by Justice Kate O'Regan, who in the Makwanyane judgment described the interrelation between life and human dignity. Let the debate continue with a view to put in innovative measures to end crime as opposed to the perpetration of human indignity through executions, lethal injections and firing squads. Both the lives of the victims and perpetrators are equal and sacrosanct. The global division among decent people regarding state executions versus coexisting with killers must be addressed, as expressed by Justice Sachs. "To be consistent with the value of ubuntu ours should be a society that 'wishes to prevent crime... [not] to kill criminals simply to get even with them.'"-Justice Chaskalson “Justice and morality are not advanced by taking a human life in retaliation.”-Coretta Scott King South Africa is on par with the rest of the world, rooted in the culture of human rights.
The right to life sacrosanct.
REFERENCES Death Penalty Centre. https://deathpenaltyinfo.org/policy-issues/policy/international Hood, R. and Hoyle, C (2015). The Death Penalty: A Worldwide Perspective 5th edition. Oxford University Press. Parker, B (2021), "Death Penalty Statutes and Murder Rates: Evidence From Synthetic Controls.” Journal of Empirical Legal Studies. Republic of South Africa. Constitution (1996). Government Printing, Pretoria. S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC). Tomislav V. Kovandzic, Lynne M. Vieraitis (2009), Denise Paquette Boots. Does the death penalty save lives? New evidence from state panel data, 1977 to 2006. https://doi.org/10.1111/j.17459133.2009.00596.xDigital Object Identifier (DOI).
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