The recent spate of xenophobic attacks appears to be affecting South Africans’ cognitive abilities in more ways than one. Following the tragic killing of Uyinene Mrwetyana, support has been mounting for the reintroduction of the death penalty. Many of those calling for this penalty have in the past displayed various forms of indignation and outrage at the various failings and scandals committed by the ruling party and government in general. To think that some would want to grant the South African government the power to hold someone’s life in its hands, shows the cognitive dissonance at play.
There are philosophical points that favour the death penalty. If you take away someone else’s life, ought your right to life still be protected and guaranteed by the state? Is your right to life null and void if you take away someone else’s life? On the other hand, should you accept the premise that the state, represented by a judge, ought to have this sort of power in the first place? It may be subject to stringent conditions, but you would be accepting the principle nonetheless, and to me this sets a dangerous precedent.
In 1995, in the case of State v Makwanyane, the Constitutional Court found that the section in the Criminal Procedure Act that allowed for the death penalty was incompatible with the country’s supreme law. In that case, the court found that the death penalty was cruel and inhumane and contravened the rights to life and dignity. The state must demonstrate its recognition and respect for life and dignity in everything that it does, especially how it punishes criminals. The court was also not convinced that the death penalty was more of a deterrent than life imprisonment, and cautioned that error in the enforcement of the death penalty was a possibility.
While we can discuss philosophy and morality in the abstract, none of this happens in a vacuum. We have to contend with the context of human emotions and human mistakes as well. After the news of a gruesome murder, such as that of Ms Mrwetyana, people’s emotions run high and some form of action is demanded: there must always be retribution. It is right and moral to demand justice whenever crime or fraud are perpetuated, as those who infringe upon the rights of others must be held accountable. But often, in the storm of outrage and emotion, people accept things they wouldn’t in the cold light of day. The Patriot Act is a recent example, where Americans surrendered much of their privacy and liberty in exchange for the veneer of security.
Given how much the South African government has bungled through a whole range of issues, can we really bring back the death penalty and entrust government with that power? Always imagine that your worst enemies will gain power, and have at their disposal all the various tools which the state can yield. Given rising xenophobia and political parties blaming racial groups for various social and economic problems (the Economic Freedom Fighters being chief among these) does it truly sit comfortably with you to now give the state the power to punish those it deems criminals with death?
There is no clear correlation between having a death penalty and accompanying lower levels of crime. Much more effective than the death penalty would be effective and accountable policing – where both South Africans and foreigners know they can call on the police when needed and not worry about whether they may have be been bribed to look the other way. A well-oiled police service would do much more to counter the breakdown in law and order we currently see – even if SA had the death penalty, criminals would know they would simply not be caught. We must not take a shortcut on the protection of the right to life because we want solutions and actions “now!”
A fundamental principle of South African criminal law, and the legal systems of all decent, free societies, is that it is preferable for ten guilty criminals to escape punishment than for one innocent person to be punished. This is nowhere more applicable than in the case of the death penalty: there is no watertight guarantee that the convict is in fact guilty, and if it comes to light that they were not guilty, this particular penalty is irreversible.
In Makwanyane, Justice Arthur Chaskalson said that, “It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected”. It is incumbent upon South Africans to exercise restraint when the protection and respect of individual rights are at issue. We must be suspicious of any government action, given government’s history of mismanagement, incompetence, and corruption. And we must have a healthy preference for a stronger over a weakened protection of rights.
* Martin van Staden contributed to the writing of this article.