This article, written by Roger-Claude Liwanga, xenophobia and racism project coordinator at SAMGI, was first published in the Cape Times on Monday, May 5.
Cartoon from Monet’s studio
By Roger-Claude Liwanga
In order to guarantee peace and safety, society has set up rules about which behaviors are prohibited and which allowed.
All human behaviour which is in contrast to the established prescriptions is viewed as dangerous for the social order, and some behaviors are judged as, particularly serious, such as murder, rape, robbery and corruption.
Perpetrators of such offenses will endure punishment because of their conduct, such as the death penalty or life imprisonment, or imprisonment for a specified number of years and/or a fine.
Capital punishment, the execution of a person by the state as chastisement for a crime, is often the subject of controversy.
Defenders of capital punishment base their understanding both on retribution and deterrence.
The perpetrator of murder has to be killed in order to pay for his/her wrongdoing.
This expresses the “lex talionis“, the rule founded on “an eye for an eye, a life for life”, affirming the notion of the absolute irreplaceability of every life.
In addition, “the offender must also be punished in a way that the punishment serves as a threat to deter others from committing the specific crime in question”.
However, opponents of the punishment stand on human rights concepts, expressing the concerns that the death penalty has led to the execution of innocent people, and that life imprisonment is an effective and less expensive substitute.
Opponents also argue that capital punishment discriminates against some groups and against the poor, and violates the criminal’s right to life.
South Africa installed the death penalty into its legislation through Section 277(1)(1) of the 1977 Criminal Procedure Act No 51, which made “the death penalty obligatory for murder, with the exception of where the perpetrator of the crime of murder was under 18 years old”.
Subsequently, with the advent of democracy in South Africa, based on principles of human rights and dignity — particularly in the case of the State v Makwanyane and Mchunu — the Constitutional Court held that the Section 277(1)(a) of the 1977 Criminal Procedure Act No 51 prescribing the death penalty as a competent sentence for murder, was inconsistent with Section 11(2) of the 1996 Constitution of South Africa, which granted the right to life.
This judgment resulted in the abolition of the death penalty in South Africa.
However, with the increase in crime in the country, some of those who worked hard to abolish capital punishment several years ago are now calling loudly for the return of this sentence in South Africa.
Is reinstating the death penalty a way to reduce, stop or resolve the problem of crime in South Africa? Is the solution somewhere else?
History bears testimony to the problems of arbitrariness and racial discrimination in the administration of the death penalty before the birth of democracy in South Africa. Sometimes, “judges, while applying their minds in the act of sentencing offenders, were influenced by non-judicial factors”.
The deterrent character of the death penalty is not absolute.
Even countries still applying capital punishment, such as the United States, China, Saudi Arabia, Iran and North Korea, which together account for more than 97% of all executions carried out annually — some 5 000 or more, according to the 2006 Death Penalty Worldwide report — cannot conclusively prove that the punishment works as a deterrent.
Within those countries where the death penalty is still being applied, and in spite of its daily application, the status quo in terms of criminality is still maintained.
The Bill of Rights of the 1966 Constitution of South Africa, inspired by numerous international and regional conventions on fundamental human rights, human dignity and life, and signed by the state, grants rights to life and dignity.
It is in this context that it is necessary to approach the question of the death penalty as a solution to the crime problem in the country.
Instead of reinstating the death penalty to combat crime, the beginning of a solution should be found somewhere else.
A serious discourse is needed on improving the efficiency of the rehabilitation of offenders, on social education about the values of human life and dignity (moral regeneration), and about reducing poverty.
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