Saturday, September 26, 2009

The Death Penalty: Why we lost faith in the Constitutional Court

Or, in other words, the Constitutional Court itself is responsible for the massively high murder rate in SA (whatever the motives for murder may be)...The SA constitution is a misplaced attempt to apply first world rules in a third world country. We also see it in a more trite way in the application of "non smoking laws" in a country where coal or paraffin operated stoves for cooking and heating is a reality for millions of shack dwellers.

Do not be put off by
Lyndall Beddy's opening on, her arguments are cogent and her conclusions are valid. I think she gets to the heart of the crime problem in SA. Mandela himself said that that the death penalty was never coming back to SA. I think he was wrong. Dead wrong.

With its very first judgment the Constitutional Court lost the faith of the people: their decision on the death penalty.

Prior to 1935 the death sentence was mandatory for those found guilty of murder, and only a presidential or governor-general reprieve could save those convicted. In 1935 judges were given the right to impose a life sentence instead if they found extenuating circumstances.

Had there not been that change in the law Mandela and the others in the Rivonia trial would have had to be condemned to death by the judge. After 1935 the number of executions diminished, until 1948 when the trend reversed under the apartheid regime. From 1911 to 1947 there were 21 executions. In the first 7 months of 1948, 37 people were hanged. By 1987 the annual toll had reached 181. This would also have been to do with the apartheid laws which treated sabotage as equivalent to treason.

But when the Constitutional Court sat for its first case there had been a moratorium on the death sentence imposed by De Klerk for more than 5 years. People were ALREADY blaming the increase in serious crime on the suspension of the death penalty – and crime had not then spiraled to the horrific proportions it has now, after two decades of no death penalty.

The argument for the death penalty is that it is a deterrent. Also that it is a burden on the state to financially support prisoners with life sentences. The arguments against are many. I list some of the reasons given by the Constitutional Court judges:

Judge John Didcott:
“The protagonists of capital punishment…must therefore convince us that it indeed serves such a purpose{deterrent}…..the State must set an example by demonstrating the priceless value it places on the lives of all its subjects, even the worst”

Acting Judge Sydney Kentridge
“..that does not mean that the State should respond to the murderer’s cruelty with a deliberate and matching cruelty of its own…even the worst and most vicious criminals are not excluded from the protection of the constitution

Justice Johann Kriegler
“ statistical exercise and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force..”

Justice Pius Langa
“An outstanding feature of Ubuntu in a community sense is the value it puts on life and human dignity…….A person does not become “fair game” to be killed at the behest of the State, because he has killed”

Justice Thole Madala
“..we live at a time when the high crime rate is unprecedented…..every accused person who is sent to jail is not beyond being rehabilitated…I do not agree with this submission, it implies that this court or any other court must function according to public opinion…it is,in my view, not necessary or even desirable that public opinion should be sought on the matter”

Justice Ismail Mahomed
“We were not furnished with any reliable research dealing with the relationship between the rate of serious offences and the proportion of successful apprehensions….I therefore cannot conclude that the State has successfully established that the death penalty per se had any deterrent effect..”

Justice Yvonne Mokgoro
“The described sources of public opinion can hardly be regarded as scientific…Generally, Ubuntu translates as humaneness……The high rate of crime in this country is indeed disturbing and the State has a duty to protect the lives of all its citizens-including those who kill. However, it should find more humane and effective integrated approaches to manage its penal system and to rehabilitate offenders.”

I could argue against those judges conclusions blindfolded with my hands tied behind my back. So could you. If they had no figures then – they have them now. The escalation of violent crime with the removal of the death penalty has been horrendous.

I also do not understand why the choice the judges appeared to be considering was either a mandatory death sentence or no death sentence. What is wrong with what worked before – a death penalty AT THE DISCRESION (sic) of the judge? Without that proviso, no decent human being would accept an appointment to the bench.

We do not need a referendum. We need to go back to the court with the information now available and point out the errors in their judgment.

Judges Didcott and Kriegler and Mohomed reasoned that no statistical exercise , no theoretical analysis and no reliable research were presented to the court to substantiate that the death penalty was a deterrent. I submit that such submissions should be made. The very increase in the rate of murders is some proof on its own. More information is now available, than when original submissions were made to the court.

As for Judge Madala’ snotty comment that seeking public opinion on this matter is neither necessary or even desirable – sucks to him!

Evidence from Jonny Steinberg’s book “The Number” on gangsterism and the culture of prison gangs, substantiates, for the first time, the real reasons for the Flower Gang murders on an isolated farm in Namaqualand in 1996. Arranging these murders of a white farmer and others as a ritual in this way guaranteed the leader of the gang elevated status when he, as a habitual prisoner, returned to prison as he was inevitably going to do.

Not only was the original judge at the original trial unaware of these facts, but so would be most judges. How many other farm murders have there been for such motives? Such murders would definitely be deterred by the death penalty.

However many rights murderers might have – victims and their families have rights as well. What would happen if a released murderer murdered again – could damages be sought from the Constitutional Court?

Despite Judge Madala’s contempt for the opinion of the public – I believe it is time to open public debate on this topic. Imagine what bliss if our murder rate could drop to the stats of the pre apartheid days?

With half the Constitutional Court retiring within the next month, it is time to raise the question of the death penalty again, and whose rights are paramount – criminal or victim.

NOTE: All facts and quotes are from chapter 41 of George Bizos’ Autobiography “Odyssey to Freedom”, titled “Thou Shalt Not Kill”

4 Opinion(s):

Viking said...

Great post

I've always been in favour of the death penalty. Not only is it a deterrant, but it makes you feel better. Victim's relatives should be allowed to pull the trigger themselves. For once, China has the right attitude :)

Doberman said...

Very good piece. I have always been in favour of the death penalty and the argument that this somehow lowers us to their level (wtf?) is crapspeak. And so what? If a murderer rapes and kills a three year old, does he not deserve to be dead? Society - not judges - not politicians - should decide about the death penalty. 75% of SAns have stated that they are in favour of its return. As public SERVANTS it's their job to carry out the will of the people.

And if we have judges too squeamish to impose the DP, get a jury system in place for capital offences or change the judges.


Interesting that the one judge says : ignore the opinion of the majority - yet this fool get's payed his salary from the the tax payers in this mayority. He seems to know perfectly well that if there was a referendum the YES for the death penalty would win hands down. Maybe all this judges are against the death penalty because they realise what a prostituted and unreliable system the whole law industry has become.

pro death said...

The death penalty can only NOT serve as a deterrent where the perpetrator thinks he won't get caught or won't be punished if he does get caught. The police give up on finding murderers precisely because they are released into society again and will find and murder the cops who had them arrested in the first place. Read the Daily Sun occasionally on how many cops are kidnapped on a regular basis.