It seems that a significant portion of South African society is calling for the death penalty to be re-enacted in the country. Social media and public interactions reflect a growing demand for the death penalty in South Africa as conditions of crime and violence in the country continues to worsen. The recent murder and rape of UCT student, Uyinene Mrwetyana in the Clareinch Post Office have triggered nationwide uproar, even sparking the creation of a Twitter account dedicated to naming and shaming people who are alleged to be rapists or perpetrators of other forms of sexual assault. Furthermore, many in the Western Cape continue to complain of persisting gang-violence and innocent lives being lost daily, despite the deployment of the South African National Defence Force into gang-ridden areas.

Calls for a referendum

National spokesperson for the Inkatha Freedom Party (IFP), Mkhuleko Hlengwa says that there’s an urgent need for a national discussion on the matter.

“Quite fundamentally, this is a political question which needs to be anchored in by the will of the people,” said Hlengwa.

“A referendum is an option which should be taken and it’s not without having duly considered the prevailing reality that stems out of the fact that South Africans are living a life of fear – particularly women and children.”

Hlengwa indicated that he tabled a motion for debate in parliament on the issue of the death penalty.

‘Unconstitutional’

Expert on constitution-making and democracy-building, Edward Shalala argues that re-enacting the death penalty in South Africa is impossible.

“People are traumatised and I can understand that there’s an enormous amount of emotion and a sense of ‘enough is enough’ – hence the desperation in the call towards violence. But our constitution prohibits it, everyone has the right to life.”

“The constitution doesn’t say ‘No death penalty’ but the Constitutional Court of South Africa ruled on this and it is outlawed…It’s impossible to bring it back. The Constitutional Court is the highest court in the land, the constitution is supreme and they’ve ruled on the matter. Everybody in South Africa is under the constitution and there are no exceptions,” said Shalala.

Shalala added, however, that he feels South Africa fits the description of a “sick society”. He expressed concern around the lack of ethics and values in the country.

“We are a very traumatised, disturbed and crisis-ridden society and perhaps the overriding cause is that we have a massive crisis of ethics and values,” said Shalala.

“I’m not aware of one of the key values of our constitution being in place across our society – I’m just not aware of it. We have this situation and this is leading to a tsunami of crime, especially against women.”

Despite the “tsunami of crime” however, Shalala says that there’s no evidence to suggest that enacting a death penalty in the country would be an adequate crime deterrent or successfully combat gender-based violence.

“We still had a high crime rate under Apartheid [during which the death penalty existed] and there’s no evidence to suggest that the death penalty was ever a deterrent. Cape Town was the crime capital of the world in the early 80’s yet it had the death penalty at the time,” he said.

“So, there’s no evidence as a deterrent looking at that aspect of it and the essence of our constitution is humaneness – it exists as a response to the crime against humanity that was Apartheid.”

Education and awareness are not enough to combat gender-based violence and crime in South Africa and the country needs drastic and dramatic steps to be taken while complying with the constitution, according to Shalala.

Islamic perspective

President of the United Ulama Council of South Africa, Shaykh Ihsaan Taliep explained that while sharia law does make provision for the death penalty in some cases, Islamic teachings and practices always promote adherence to the path of justice while accounting for unique circumstances and different contexts.

“It’s essential for us to understand that our sharia is a system of laws which is contained in the holy Quran and was extended in the Prophet’s (SAW) teachings…We have a very rich body of jurisprudence that has been deduced, derived and formulated by our jurists. We also have, in addition to that, processes of legislation. The processes of legislation are also processes which, like in our context [in South Africa] are undertaken by people who are lawmakers…They have to take into consideration the all-important thing of context,” said Shaykh Taliep.

“Now, it could be that somebody calls for something that they see in the holy Quran, but in a context where if it is applied, it can actually lead to injustice. We have very famously heard how during the different epochs of leadership, application of what is known as the fixed punishments [such as amputation for theft] had been suspended for various reasons. The underlying cause for this [a suspension of the fixed punishments] is that if it had been applied in those contexts, it would’ve led to injustice.”

Shaykh Taliep explained that with rape being understood as it is in today’s time, it is regarded as a crime against a fellow human being as well as a crime against their and Allah SWT’s rights. For this, Shaykh Taliep indicated that the crime would trigger the death penalty.

With that said, however, Shaykh Taliep reiterated the need for context to be considered and emphasised that one must account for the state of the society even when applying sharia law.

“Today, it [rape] is more commonly seen as a crime against a fellow human being, so it is the rights of human beings and of Allah [that are violated]…” said Shaykh Taliep before explaining that such violations would invite the penalty of death.

“It is a contextual thing, however. If you know the society is sick, you don’t apply laws that are meant to be applied under normal circumstances. When you hypothesise if it [the death penalty] would be the case if the country was governed by sharia law, it would have to be considered in attendance of a whole lot of other things. The whole idea of calling for the death penalty would be the outcome of research in determining what would ultimately bring about just solutions.”

Meanwhile, Minister of Justice and Correctional Services, Ronald Lamola has said that the death penalty is something that could be taken to cabinet for discussion and further engagement.

“We’ve got a high level of repeat offenders. The prevailing narrative of saying everyone has rights is true, but all rights come with responsibilities,” Hlengwa said.

“We have people who are prepared to deliberately and intentionally go out into the world and actually undermine the lives of others, but then somehow society is expected to respect their right to life. The fundamental issue is that the system just doesn’t seem to be helping – people are going to prison today and coming out tomorrow, breeding this lawlessness.”

Contrary to the views expressed by Shalala, Hlengwa says that constitutions are fluid and that accordingly, re-enacting the death penalty is possible.

“In the face of tragedy and lawlessness, nothing is impossible. We cannot be bound by decisions of the past that are not suited to the current realities. All constitutions and all societies are fluid.”

VOC