Constitutional Hill

George Bush

On the death penalty and Jacob Jughead

Mar 7th, 2008
by Pierre De Vos.
20 comments

I see Jacob (“Jughead”) Zuma has been at it again – telling people from various communities and interest groups what they want to hear. (Does he have any opinions of his own, I wonder?) On Wednesday night, speaking to leaders of the Jewish community, he again raised the possibility of having a referendum on the death penalty, presumably as a precursor to bringing back the death penalty as a punishment for all those black men who murder soapy stars.

But it would not be that easy for South Africa to reinstate the death penalty. It would also be a very, very, very irresponsible and stupid thing to do. First, the Constitutional Court found in one of its first cases that the death penalty infringed on the right to life as well as the right against cruel, inhuman and degrading treatment and punishment.

This means the death penalty could only be reinstated by changing the Constitution and inserting a clause explicitly allowing for the death penalty. This can only be done if two thirds of the members of the National Assembly and at least six of the nine provincial delegations in the National Council of Provinces vote for it. Given the fact that many in the ANC are not in favour of the death penalty, it is not clear that enough of the ANC MP’s would attend a sitting of the National Assembly to achieve such a two thirds majority.

Second, South Africa has signed and in 2002 ratified the Optional Protocol to the Covenant on Civil and Political Rights, which explicitly forbids us to reintroduce the death penalty. This international agreement now binds the Republic and we have an obligation to adhere to it in terms of our own Constitution.

If we don’t, it would mean that we are in flagrant breach of one of the international agreements we have agreed to and it would cast doubt on our sincerity and commitment to International law. Like the Zimbabwe, Pakistan, Sudan and the USA, we would be seen as a country who has no respect for the international law and our standing would drop in the eyes of the so called “international community”.

But apart from these legal arguments, the reinstatement of the death penalty is also wrong on moral and practical grounds. As the Constitutional Court pointed out in the Makwanyane decision, people are deterred from committing crimes not because they fear the death penalty, but because they fear getting caught and being punished severely in whatever way.

Crime in South Africa is out of control for a variety of complex reasons, including because of the huge gap between “haves” and “have-nots”, the racial history of our country and the disintegration of family life because of the migrant labour system. And most people who kill correctly think that they will never be caught because the police are too lazy or stupid to catch them.

But, of course, it is far more difficult to actually instill values of respect for human life in our society or to teach members of the police to read, write and investigate crimes properly, than it is merely to make populist noises about the death penalty. That is why callers to radio stations always go on about the death penalty – it look like a quick fix. We know, however, that there are never quick fixes for anything – especially not crime.

The only reason to bring back the death penalty would then be retribution and revenge: they killed someone, so we can kill someone as well. That would place the state on the same level as the criminals and would turn us all into bloodthirsty criminals. I am not sure I want to live in such a state. They do that kind of thing in Texas and look what it spawned – George W Bush.

Changing the Constitution in this way is also dangerous because it opens the door for other changes to the Bill of Rights. If we are going to have a referendum on the death penalty, why not also on property rights (yes, the majority want white people’s property rights to be abolished so let’s go for it); why not on the rights of gay men and lesbians (let’s scrap that clause and throw all gay men and lesbians in concentration camps); why not on the right to free speech (those newspapers just criticise the government so why not just shut them all down).

No, this is a dangerous and stupid idea – no wonder Mr Zuma is amenable to it. Decent people of all races and all political parties should stand up and protest against such a misguided attempt at currying favour with a few reactionary winos. Sadly, we know that even great Liberal Tony Leon is in favour of the death penalty so we cannot expect too much from that quarter. Hopefully the good people who remain in the ANC will make sure that this remains no more than talk.

Thabo Mbeki = George W. Bush?

Jul 20th, 2007
by Pierre De Vos.
1 comment
In idle moments I have often wondered whether – despite the obvious ideological differences – there are not perhaps remarkable similarities between President’s George W. Bush and Thabo Mbeki. Both have a messianic streak and both seem to have a tendency to ignore difficulties that do not fit into their ideologically tinted world view. Both also seem incapable of admitting a problem or a mistake, perhaps because they think they alone have a grip on the “Truth”.

President Mbeki for a long time tried to get people to rethink the link between HIV and AIDS because it was untenable for him to admit that many South Africans would die because they had sex with lots of people (as if that in and of itself was a bad thing). Bush is still pretending things are going well in Iraq, which makes one fear for his sanity, really.

I was struck again by the possible similarities, reading Paul Krugman’s column (subscription needed) in the New York Times this morning. Money quote:

I wrote about the Bush administration’s “infallibility complex,” its inability to admit mistakes or face up to real problems it didn’t want to deal with, in June 2002. Around the same time Ron Suskind, the investigative journalist, had a conversation with a senior Bush adviser who mocked the “reality-based community,” asserting that “when we act, we create our own reality.”

People who worried that the administration was living in a fantasy world used to be dismissed as victims of “Bush derangement syndrome,” liberals driven mad by Mr. Bush’s success. Now, however, it’s a syndrome that has spread even to former loyal Bushies.

Yet while Mr. Bush no longer has many true believers, he still has plenty of enablers — people who understand the folly of his actions, but refuse to do anything to stop him.

In South Africa, the media and commentators have not often focused on the enablers who have made it possible for Presidnet Mbeki to get away with his flirtation with Aids denialism, for example. Yes, Manto Tshabalala-Msimang have rightly been vilified, but what about all the other cabinet ministers – including Trevor Manual, darling of the chattering classes – who at the height of the Aids debate refused the answer the question of whether HIV caused Aids. We forgave him because he cut our taxes.

And do we hear enough about Mbeki’s advisers who clearly do not always confront him with the hard facts needed to make clear headed decisions? In a way we are all President Mbeki’s enablers because we vote for his party and we treat him with respect because he is our head of state.

For those of us who are white, it may be even more difficult not to show respect because given our racist history, showing disrespect to the country’s leader may easily be interpreted as showing disrespect towards all black people.

I am often torn between an impulse to show respect for my President and all the good things he has done, and shouting at the rooftops at the dangerously arrogant and denialist actions of my President who may well have contributed to the death of hundreds of thousands of South Africans from Aids related illness.

If one keeps quiet, does one not merely act as an enabler to a dangerous man? If one shouts and screams, does one not merely align oneself with the white whiners yearning for the return to apartheid?