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Death Penalty Information

Thursday, April 19, 2007

South Africa: Human response to inhuman acts
Human Response to Inhuman Acts

ON THE Wednesday before the first court appearance of Andrew Jordaan,
alleged murderer of seven-year-old Sheldean Human, I receive a forwarded
SMS from a number in Tshwane: "Please wear pink and blue on Friday in a
show of solidarity with the family..." On the Friday evening, the
Afrikaans news leads with the story of the court appearance. Cameras zoom
in on an angry mob assembled in front of the Pretoria Magistrate's Court,
waving posters demanding: Hang hom! (Hang him!).
It is evident that much time went into preparations for the protest. A
mannequin with a noose around its neck forms the centrepiece in the
enraged display. A petition to reintroduce the death penalty does the
rounds. Celebrities interviewed say they are gatvol. A little girl is
carrying a poster with a question messily painted in bright red letters:
"Am I next, Pres Mbeki?"
A woman from Sheldean's community says in an Afrikaans accent: "Don't hang
him. Give him to us..." This sentiment is later echoed in Mitchells Plain
at the arrest of Richard Engelbrecht, the man allegedly responsible for
the death of 11-year-old Annestacia Wiese.
What is happening to SA? It appears the public has become so consumed with
moral rage against violent crime that it is no longer to be reasoned with.
Will it soon start taking matters into its own hands? Is the pressure of
the prevalence of violent crime ultimately stifling all moral and ethical
aspirations beyond economies of violence? Why did we again abolish the
death penalty despite strong public opinion to the contrary and despite
the increasing rate of violent crime in SA? Do the reasons the
Constitutional Court gave in coming to its decision remain cogent more
than 10 years later?
These questions force one back to the earliest hours of our democracy.
In 1995, our newly founded Constitutional Court abolished the death
penalty. The court carefully distinguished between the question of whether
the public believes that the death penalty should be a proper punishment
for murder and whether the constitution allows it. In elaborating on this
difference, the court said there would be no need for constitutional
adjudication if public opinion were to be decisive.
The protection of rights would then be left to Parliament, which is
answerable to the public and that, according to the court, would be a
retreat from the new legal order: a return to parliamentary sovereignty.
The court also held that capital punishment was not the only way in which
a society could express moral outrage against murder.
In answering the question whether the death penalty is nevertheless a
justifiable limitation on the above rights, the court dealt with the
argument that the death penalty serves as a strong deterrent to violent
crime in SA. The court refuted this argument, pointing out there was no
evidence that the death penalty was a greater deterrent than, for
instance, life imprisonment.
The court also showed that violent crimes in SA increased at a time when
the death penalty was still on the statute books. There was thus not
sufficient evidence that the imposition of the death penalty serves as a
greater deterrent to violent crime than other forms of punishment.
The then president of the court, Arthur Chaskalson, said: "The greatest
deterrent to crime is the likelihood that offenders will be apprehended,
convicted and punished. It is that which is presently lacking in our
criminal justice system; and it is at this level and through addressing
the causes of crime that the state must seek to combat lawlessness."
Finally, the court held that SA had committed itself to the recognition of
human rights, democracy and peaceful coexistence. At the heart of this
commitment lies the affirmation of the rights to life and dignity.
Having committed ourselves "to a society founded on the recognition of
human rights", the court held that we are required to value the rights to
life and dignity above all others. "And this must be demonstrated by the
state in everything that it does, including the way it punishes
Aspirational words, you might say. And while it will always remain
impossible to fully mourn the tragic deaths of victims of violent crime,
it is the aspirational character of these words that should remain to
guard the possibility of a future in which these heinous acts no longer
If we would like to believe we have morally, ethically and politically
become more sophisticated in the 21st century, then these words have to
hold true (even if primarily on an aspirational and inspirational level)
even more than 10 years later.
If we are simply to respond to the cruelty of the murderer with a
matching, deliberate cruelty, which would basically repeat the crime, if
the death penalty becomes that which we fight for (aspire to) as an
ethical response to heinous crime, then we will lose the very aspiration
for a nonviolent, transformed society founded on the rule of law.
Behind the abolition of the death penalty lies the unconditional
affirmation of the right to life. And is this not precisely what the
religions of SA advocate? How does one reconcile the religious demand to
"forgive the unforgivable" with hungry calls for vengeance in front of
court buildings?
While these aspects might be irreconcilable, the injunction to forgive the
unforgivable is an almost unbearable, unrealistic, impossible moral
demand, which, nevertheless, must remain with us as we attempt to
formulate new, more human responses to the inhuman acts that so vividly
permeated our experience as a nation over the past few months.
That the state has an urgent and inexcusable duty to facilitate the proper
functioning of such responses through intensified programmes of law
enforcement and crime prevention is self-evident and it should go without
saying that this injunction forms part and parcel of the aspirational
nature of the court's judgment.
While it is true no politics or law can be founded on the notion of
forgiveness, the state is not forgiving the criminal when it abolishes the
death penalty. It is still imposing a punishment -- often a life sentence,
which can easily become a death sentence.
But by refusing to impose the death penalty, the state reaffirms that the
economy exacted by the death penalty cannot and will not contribute to
ethical living and a constitutional culture of rights.
If this reaffirmation is not taken seriously by the state and its
citizens, we shall soon be immersed yet again in the dark days of moral
decay from which we have emerged.
(source: Opinion, Business Day--Dr Jaco Barnard is from the department of
private law at the University of Cape Town)
The views expressed in these pages are those of individual AI campaigners or researchers, and do not necessarily reflect official AI policy.