Death penalty in South Africa? Can we? Should we?

The short answer to the above question is an emphatic NO!

But your auntie complaining about crime over Sunday lunch will probably need more convincing than that.

When the principle of Ubuntu was invoked in every law students’ first court case reading – S v Makwanyane, a 1995 case abolishing the death penalty in South Africa – our law was slightly different.

While many may claim that Ubuntu is a part of our law, and in some respects, it may be for judges who dare attempt to define it, they don’t tend to consider a very deliberate and glaring omission. In the 1994 interim constitution, there was Ubuntu under Chapter 16 titled, National Unity and Reconciliation which was regarded as the Interim Constitution’s epilogue.

In fact, in S v Makwanyane, it was referenced all of 23 times in the body and another 5 in the footnotes.

In the final constitution though, not only is the concept of an epilogue removed, but so is any trace of Ubuntu. Does this mean that the concept lasted only two years and was eviscerated in 1996? Probably not, because the precedent had already been set and we’ve seen Ubuntu come up in a number of court cases, albeit that a universal definition will probably always allude us. So the notion of Ubuntu and that case is probably enough to prevent the death penalty ever returning to our law.

However, your auntie might not buy it. It’s at this point that you should ask what is involved with the death penalty?

Sure, somebody commits a crime and if it’s bad enough and they’re caught, they sit on an uncomfortable chair or swing from a rope. The latter is oft justified by the prior so what happens when the latter occurs without the prior?

Put differently, what happens when somebody is put to death for a murder they did not commit? It’s bad enough when they’re imprisoned but at least they can be released if an error is discovered. Programs such as the Innocence Project shed light onto the fact that wrongful convictions are more common than we may think. Proportionally, they may not represent a lot of convictions but that they represent any at all should be enough to have one question putting a person in jail, let alone putting somebody to death.

You can ask your auntie how she would feel about the death penalty were she wrongfully convicted.

You may even want to throw in the little gambit of, “but if the state acts on our behalf when putting people to death on the justification that they committed a crime, and then it’s later determined that they did not commit that crime so the justification goes away, does that make you a murderer?”

If by some chance you have a very stubborn auntie who just won’t pick up anything you’re putting down, the costs associated with the death penalty are extraordinarily high, with increased legal battles, ensuring compliance and the like. Whether they go to jail or get killed, the practical result remains the same. That they’re not able to come into contact with the greater society, so is the additional cost and burden on the hangman’s conscience worth it? Probably not.

Yeah sure, there are paroles and shorter sentences, though it isn’t like the person who you would argue should get death would get a six-month suspended sentence in the alternative.

By this time, you should be on to pudding and auntie should have realised she’s not going to make you budge but if she persists, the age-old argument of effect must come to fruition in that there is little credible research to show that death penalties even work as a deterrent.

One would think that the goings-on in prison are enough to deter crime, but with a recidivism rate of upwards of 80%, it seems that deterrents do not work.

Oh yes, and auntie will exclaim: “Exactly! That’s why we need to kill them before they commit another crime!”

Well then, auntie is showing her colours but those colours are unfortunately incompatible with South African jurisprudence. Killing somebody because they may commit a crime again in the future did not work in for Tom Cruise in Minority Report and it won’t work for us in South Africa. In our case, because it still does not prevent the original crime. Deterrents are hardly effective in South Africa and the statistics bear that out.

Even if it were effective, compatible with our constitution and totally accurate (all things which it is not and enough to singularly dismiss the notion outright), the death penalty is a bad idea in South Africa because it places a lot more life and death power in the hands of the state and… Well, they haven’t exactly been fantastic with the power that they’ve had thus far.

So maybe, to shut your auntie up, ask her if she’d be happy knowing that she could be in the dock in front of a thirsty prosecutor armed with evidence housed in police custody with the hangman looming.

To be friendly, one could even agree with auntie that something needs to be done about crime though something is not anything.

Something should be something compatible, affordable, and effective, and the death penalty is none of those.

If auntie is willing to leave the conversation on your non-concession, odds are next Sunday lunch will be more pleasant after that.

Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.

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