This is what it would take to get the death penalty reinstated in South Africa
Justice and Correctional Services minister Ronald Lamola says that the question of whether South Africa could reinstate the death penalty will be taken to cabinet for further discussion.
It is just one of the many topics that will be discussed by the government relating to what has been dubbed a ‘femicide’ in South Africa.
South African citizens, civil rights groups and political representatives have called on government to take action, following a string of reports detailing brutal and violent crimes against women in the country.
The latest report, of the rape and murder of UCT student Uyinene Mrwetyana at the hands of a South African Post Office worker, spurred public outrage, underpinning police statistics such as the 3,000 women who are murdered each year, and 50,000 more who are victims of sexual offences.
Talk of the death penalty entered the picture through a Change.org petition, which drew over 500,000 responses, calling for the capital punishment to be reinstated for those convicted of violent crimes, including crimes against women and children.
What it would take to get the death penalty back
The abolishment of the death penalty in South Africa was not only a government decision, but also a path rooted in law.
Following a five year moratorium on the death penalty between 1990 – 1995, the issue was finally dealt with in the constitutional case of S vs Makwanyane.
The judgement was unanimous with all 10 judges giving different reasons as to why the death penalty should be abolished. These included issues such as possible mistakes made during the investigation process, as well as the right to life under the Constitution.
According to director at legal firm Norton Rose Fulbright, Patrick Bracher, the only way to reintroduce the death penalty in South Africa is by way of legislation which passes constitutional muster.
“In 1995 in State v Makwanyane the Constitutional Court declared the section in the Criminal Procedure Act that allowed for the death penalty to be inconsistent with the Constitution and accordingly invalid,” Bracher said.
“It is unlikely that the Constitution will be amended because it sets the principles and not the specific requirements in relation to the death penalty.”
The court in Makwanyane established the important constitutional principle (followed ever since) that public opinion (eg a referendum) is “no substitute for the duty vested in the courts to interpret the Constitution and uphold its provisions”, Bracher said.
“As the court said, there would be no need for constitutional adjudication if public opinion were decisive. The purpose of the Constitution is to protect vulnerable individuals and minorities not to implement majority public opinion.”
Regarding the death penalty, the Constitutional court found that the punishment was cruel, inhuman and degrading, prohibited by the Bill of Rights.
The State did not prove that the death penalty would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment and justifying the State taking a life as well.
“Retribution by death penalty, the court said, smacks too much of vengeance to be justified for taking life in an enlightened constitutional democracy. Two of the judges (Mahomed DJ and Langa J) also referred to African culture which respects life and treatment that is cruel, inhuman or degrading is ‘bereft of Ubuntu’.”
The death penalty also infringes the right to dignity, equality, proportionality of sentencing and other values which are the core of our Bill of Rights, Bracher said.
“Unless the State can prove that the death penalty is undoubtedly a significant deterrent for the crime of murder, that justice will operate evenly for rich and poor and that the incidence of murder is such that the death penalty is required as a proved deterrent, there is no possibility of the Constitutional Court reversing its previous decision, in my opinion,” Bracher said.
“On the contrary, since the 1995 judgment the death penalty has been abandoned in many more democratic societies.”
Is the death penalty a good idea?
While there appears to be strong public desire for the death penalty to be introduced, human rights and legal experts advise against it.
Speaking to eNCA, human rights lawyer Kelly Stone said that calls for the death penalty are a “visceral response to our collective anger” over the lack of response from the state to take the matter seriously, as well as general frustration over inaction.
However, Stone said that it’s also short-sighted, and likely won’t achieve what people want it to achieve. She said that the real solution lies in finding the underlying causes of violence against women, and letting that inform the collective response.
Countries around the world are abolishing the death penalty, finding that crime levels – including those against women and children – have not dropped.
According to Stone, 27 states in the US still use the death penalty, and these states have violent crime levels that range between 48% and 101% higher than states that do not. “So we know it doesn’t work,” she said.
In South Africa, Stone says violence has been normalised as a way of communication and an expression of masculinity, which is playing out in a cycle of trauma that has seen no intervention.
Thus the solution, she believes, needs to be a social effort and collective responsibility – not just something done by the state, police, courts or prison systems.
This sentiment has also been echoed by government, with Minister for Women, Youth and Persons with Disabilities, Maite Nkoana-Mashabane, saying that all South Africans need to play a role in ending the violence towards women.
“To end violence against women and girls we must educate men and women and change gender stereotypes, attitudes and beliefs that condone violence and harmful constructions of masculinity. We must also promote gender equitable norms and behaviours and women’s participation in decision-making,” she said.
Read: South Africans are calling for the death penalty to be reinstated – here’s what government says
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