PART ONE

By Anees Teladia

---

“Will capital punishment [the death penalty] solve South Africa’s crime crisis” is the question many concerned South African citizens have been asking themselves for years. Confusing statistics, academic papers and fancy political speeches aside, there is an almost tangible feeling of lawlessness in the country and citizens are becoming increasingly frustrated with government’s apparent inability to deal with the crisis at hand. Recently, with the #AmINext movement and increasing activism against femicide, sexual assault and gangsterism, growing numbers of the country’s population are calling for the death penalty to be re-enacted…but is it really the way forward?

While an analysis on the death penalty and its pros and cons would be far more suited to an academic journal entry rather than a news feature, there are certain broad themes worth mentioning for public dissemination and consideration – especially in light of the widespread calls for reforms that could impact on society in unintended ways and bring about unexpected, and undesired, outcomes.

The death penalty as a deterrent

Thinking capital punishment to be an effective crime deterrent is intuitive – who wouldn’t be put off committing a crime when faced with the threat of death?

Counterintuitively, however, a significant amount of academics and studies have argued that the death penalty has never served as a reliable deterrent against the most violent of crimes. Furthermore, according to an expert on constitution-making and democracy-building, Edward Shalala, South Africa had capital punishment legislated before and there was no significant deterrent effect.

“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,” said Shalala in an interview with VOC.

READ MORE: Debate heats up on calls for death penalty

In a 2015 article written by the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford University, John Donohue claims that there is “not the slightest credible statistical evidence that capital punishment reduces the rate of homicide”.

Donohue also cited a report by a panel of the National Academy of Sciences which addressed the deterrence question of the death penalty in 2012.

The report stated that “research to date [2012] is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates” once again reinforcing the claim that there was – and arguably is – no credible evidence in favour of the death penalty’s deterrence effect.

Can the death penalty be reconciled with the current constitution?

Shalala argues that re-enacting the death penalty in South Africa is impossible under the current provisions.

“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.

He further argues that the re-enactment of the death penalty would directly contradict the “Right to life” enshrined within our constitution and struggles to imagine how the constitution might be reformulated to accommodate the death penalty.

Numerous op-eds and news features have mentioned several other conflicts with the constitution that the re-enactment of the death penalty would be faced with. These include the right to all being equal before the law with equal protection and benefit, to having inherent dignity and having that dignity respected and protected and additionally the right to not be treated or punished in a cruel, inhuman or degrading way.

Strong arguments can certainly be made that under various conditions, some – if not all – of these constitutionally enshrined rights would be violated with the re-enactment and implementation of the death penalty in South Africa.

In the S v Makwanyane case [the constitutional court case judgement that Shalala referred to as having outlawed capital punishment] as per point 26 of the judgement:

“Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under Chapter Three of the Constitution… In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment…Death is a cruel penalty and the legal processes which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty.”

The very same point in the court judgement found that being sentenced to death as it is understood to occur in most contexts, would effectively result in the stripping of a convicted person’s dignity, redefining said convict as a mere “object” waiting to be “eliminated” by the state.

Furthermore, the concept of equality before the law as it relates to capital punishment is another interesting complexity.

Equality before the law

The outcomes of cases which may eventually incur the death penalty depend on a variety of factors, including the quality of legal counsel, arguably race and prejudice, the personalities of judges, the manner in which cases are investigated, the quality of investigations, the fairness of trial proceedings, public pressure and opinion as well as the way cases are presented by prosecutors. Even poverty has been argued as a factor in determining whether death penalties would be implemented in certain cases.

“The argument that the imposition of the death sentence under section 277 is arbitrary and capricious does not, however, end there. It also focuses on what is alleged to be the arbitrariness inherent in the application of section 277 in practice.

Of the thousands of persons put on trial for murder, only a very small percentage are sentenced to death by a trial court, and of those, a large number escape the ultimate penalty on appeal. At every stage of the process there is an element of chance.

The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors.”

With all these variables, the question then arises as to whether there can indeed be equality before the law when such a decision is made and whether the risk of sentencing and executing someone where equality before the law was not achieved, is acceptable.

Execution is an irreversible act. Accordingly, when individuals are confronted by a justice system that does not and cannot necessarily guarantee equality before the law, is it appropriate to execute based on arguably prejudiced and unfair trial proceedings? These points have all been mentioned in the judgement ruling of the S v Makwanyane case.

Additionally, the argument around the arbitrary implementation of the death penalty comes into question.

“I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences – which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed.

However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence which preserves life differs incomparably from one which obliterates life,” said Justice Laurie Ackermann in point 164 of the S vs Makwanyane judgement report.

With the above statement by Justice Ackermann considered, while a degree of arbitrariness is acceptable in cases where judgement or sentencing can be reversed or rectified, for the most part before death, once an individual has been sentenced to death by implementation of the state and the state has carried out the order, there can be no turning back.

The Constitution of the Republic of South Africa contains and promotes a clear value placed on life and equality. As such, it is difficult to imagine how the constitution would allow for such arbitrary sentencing with capital punishment. The sentencing would, in practice, mean that equality before the law would be violated with fatal consequences and effectively contravene not one, but two more rights enshrined to all South Africans within the country’s constitution.

Wrongful convictions

The fear, and very real danger, of wrongful convictions is arguably one of the most compelling arguments against the re-enactment of the death penalty.

Many in South Africa seem to regard the justice system as deeply flawed, inefficient, unfair and corrupt – no deep academic or statistical study is needed to verify this claim.

However, some statistics from Afrobarometer, a non-partisan, pan-African research institution conducting public attitude surveys on democracy, governance, the economy and society, will serve as useful.

According to Afrobarometer (R7-2016/2018), 41.1 percent of respondents to their public attitude surveys in South Africa indicated that they do not trust police at all, 24.6 percent said they trust the police “just a little” and only 16.7% said that they trusted the police a lot. The remaining respondents were either unsure, refused to answer or indicated that they “somewhat” trusted the police.

When respondents in the country were asked about their trust in the country’s courts of law, the results were different but still reflected a concerning lack of faith.

The results reflected that 21.5 percent of respondents had no trust in the courts of law at all, while only 31 percent indicated that they had a lot of trust in the courts. The remaining respondents mostly only had a little trust or “somewhat” trusted in the courts.

These results clearly suggest that there is an inconsistency and deficiency in public faith in the justice system.

While South African courts have garnered and maintained far more trust than the police services, the percentage of respondents with no trust in neither the courts nor the police arguably reflect inconsistency and inefficiency within the various departments falling under the umbrella of the justice system.

Of further concern is the public response to questions of corruption in the justice system.

When respondents to the Afrobarometer R7-2016/2018 survey were asked how many judges and magistrates they think are involved in corruption, a significant percentage of 46.9 responded by saying some of them are corrupt.

When asked the same regarding the police service, 40.3 percent of respondents said some police officials were, while another 29.7 percent said most police officials were corrupt.

Although statistics on wrongful convictions in the South African justice system are not clearly set out or publicly available in unambiguous terms, there have undoubtedly been cases of wrongful convictions under varying circumstances and within various parts of the country.

One such example of a rape case that reportedly resulted in wrongful conviction was that of Sifiso Cedric Shezi’s. Shezi was convicted and sentenced to prison after his daughter had claimed that he had raped her. Years later, the daughter recanted her claims and made new claims that her mother had guided and coached her into lying so that Shezi would be sent to prison.

It was also reported by IOL that Shezi’s aunt claimed the mother of the child had “molested” the girl and conspired with her boyfriend, who happened to be a police officer, to implicate and convict Shezi.

Had the death penalty been enacted, would Shezi have lived to see his exoneration, or would he have been hastily sentenced to death due to the nature of the allegations levelled against him coupled by an emotional public environment?

This is a TWO-PART feature on the death penalty in South Africa.

PART TWO will explore three more key themes in the death penalty debate: the prevailing theories of justice in South Africa and how these theories relate to the death penalty, the potentially problematic politicisation of capital punishment as well as the Islamic perspective on sentencing convicted criminals to death.

READ PART TWO | PART TWO: Will capital punishment solve South Africa’s crime crisis?

VOC