By Anees Teladia
This is the second of 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.
Retribution, Restoration and Reconciliation
The rights to the application of justice in nearly all modern societies rest with the state. In some interpretations of political and social theory, the state would ideally have a monopoly on “the stick” or the use of force. As such, enforcing the death penalty would most likely rest solely with the state and its officials. However, this raises multiple concerns around the concept of “Justice” and its different interpretations or the prevailing theories thereof, namely theories of: Retributive Justice, Restorative Justice (and Reconciliation).
Arguments for both theories have merit and one’s interpretation of justice is ultimately subjective. With that said, however, different theories are suggested to bring different outcomes.
The retributive approach to justice can be summarised as following the logic of “an eye for an eye”. It primarily focuses on the wrongdoing of the convicted or alleged criminal and by achieving justice through punishment.
The retributive argument appeals mainly to those placing emphasis on outcomes centred around fairness and retaliation, and places future effects of punishment or death sentencing as secondary considerations subordinate to the need for punishment, according to a peer-reviewed academic resource on philosophy. As such, retributivism places an emphasis on past conduct and the appropriate punishment that might satisfy any feelings of vengeance that the victim/s of crimes may feel after a crime is committed against them – in this case, such punishment being death.
“A recently revived retributivism about the death penalty builds not on individual rights, but on a notion of fairness in society. Given a society with reasonably just rules of cooperation that bestow benefits and burdens on its members, misconduct takes unfair advantage of others, and punishment is thereby merited to address the advantage gained:
‘A person who violates the rules has something that others have—the benefits of the system—but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage. Matters are not even until this advantage is in some way erased….[P]unishing such individuals restores the equilibrium of benefits and burdens.’,” reads an entry in the Internet Encyclopedia of Philosophy.
As convincing as this sounds, it is also rightly pointed out, however, that the punishment served upon those sentenced to death is arguably not equal to the crime, or crimes, committed.
“…it is also often noted that, even in the case of murder, there is no equivalence between the penal experience of capital offenders and their victims’ suffering in being murdered. Albert Camus, in his Reflections on the Guillotine, makes the point in a rather dramatic way:
‘But what then is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared? For there to be equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months. It is not in private life that one meets such monsters.’
This inequality of experience claim is even more to the point since even [Immanuel] Kant maintains that ‘the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it’.”
Where capital punishment is instituted as a means of achieving equality, it seems that such a pursuit would be in vain.
Conversely, Kant elaborates on the justice provided through retributive action and argues that there can be no “sameness of kind” between death and life, even under the most uncomfortable and miserable conditions, such as prison.
“Judicial punishment… must in all cases be imposed on him only on the ground that he committed a crime.… He must first be found deserving of punishment… The law concerning punishment is a categorical imperative. What kind and degree of punishment does public legal justice adopt as its principle and standard? None other than the principle of equality…. Only the Law of Retribution (jus talionis) can determine exactly the kind and degree of punishment.”
“If… he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and retribution unless the criminal is judicially condemned and put to death.”
While some extreme interpretations of the retributive approach to capital punishment would promote the absolute implementation of the death penalty for a range of different crimes, prevailing logic and legislation would naturally consider context and severity.
As such, the retributive approach can be implemented in a reasonable manner, notwithstanding some of the points mentioned above.
Restoration (and reconciliation)
“Reconciliation, it is sometimes pointed out, refers to the ‘restoration’ of friendly relations after an estrangement. But in contexts of transitional justice there is often, in fact, no prior state of harmony that could be restored.” – stated by Andrew Schaap in an academic journal article, titled Reconciliation as Ideology and Politics.
While the above quote refers to issues relating to transitional justice – fitting the context of South Africa during the transition from Apartheid to the new democracy – it also fits the context of relations between a criminal perpetrating crimes against an unfamiliar family or individual. What kind of reconciliation can be achieved had the victim and the perpetrator not known each other to begin with? Should there be an attempt to then create a more positive relationship, morphing the traumatic one brought about by the actions of the criminal, or should perpetrators of the most heinous crimes be swiftly put to death?
What about the actions of perpetrators known to victims and their families? Would the death penalty apply to these individuals and cases or should restorative justice bringing reconciliation be implemented?
The South African justice system makes provision for the implementation of the restorative justice approach while in some regards maintaining a degree of punitive measures.
According to the Department of Justice and Constitutional Development:
“Restorative Justice is an approach to justice that aims to involve the parties to a dispute and others affected by the harm (victims, offenders, families concerned and community members) in collectively identifying harms, needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident and promoting reconciliation.”
“Restorative Justice sees crime as an act against the victim and shifts the focus to repairing the harm that has been committed against the victim and community. It believes that the offender also needs assistance and seeks to identify what needs to change to prevent future re-offending.”
The benefits of a restorative approach are claimed to include:
- The prevention of re-offending
- The empowering of victims
- The enhancement of community involvement in the dispute resolution process
Furthermore, the principles of restorative justice are argued by the South African government to “promote the dignity of victims and offenders, and ensure that there is no domination or discrimination”.
Essentially, retributive justice seeks to punish wrongdoing and satisfy feelings of vengeance and or unfairness, while restorative justice seeks to rehabilitate offenders and reconciliate relationships, in an effort to create meaningful solutions and repair any damage to people and society.
It is worth noting that while these two approaches differ in their focus, each places accountability upon the offender. Retribution simply focuses on establishing accountability through punishment while restoration focuses on getting the perpetrator to take responsibility for his/her actions and to “repair” any damage done.
The case can certainly be made, however, that re-enacting the death penalty would not necessarily be incompatible with following a more restorative approach under certain conditions and within certain contexts. As with most things in life, there is bound to be a suitable combination of restoration and retribution as far as re-enacting the death penalty is concerned.
The politicisation of the death penalty
The topic of capital punishment is a highly sensitive one, drawing both strong support and objection. As such, it should come as no surprise that the issue is bound to fall victim to politicisation (and manipulation).
You do not need to be particularly astute to notice widespread calls for the death penalty during periods of strife and high crime rates – particularly where and when crimes committed are often violent. As such, politicians vying for public support or prolonged terms are bound to try to garner votes by playing on the hearts and minds of the electorate.
The death penalty debate is a highly politicised one and often comes about as a symptom of an ailing criminal justice system. This ailing criminal justice system brings about a society desperate for justice and perhaps vengeance – a desperation at risk of being utilised by politicians for their own gain.
Is the death penalty really what is required, or is it a means of excusing incompetence within the criminal justice system?
Would South Africans still demand capital punishment if they knew that criminals would be successfully and swiftly apprehended, convicted and held to account with adequate and appropriate dispensing of justice with genuine lifelong imprisonment?
The Islamic perspective
In an interview with VOC, the president of the United Ulama Council of South Africa, Shaykh Ihsaan Taliep explained that Islam always seeks the path of justice, taking all factors and effects of a crime into consideration.
“…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…”
It was later explained that while certain crimes, such as rape, would render the death penalty halaal, hypothesising whether or not the death penalty would always be implemented for severe crimes would have to take into consideration a variety of factors – including the overall state of the society and the pursuit of Islamic justice.
“…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.”
“…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.”