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.
What happened to this :-
http://constitutionallyspeaking.co.za/?p=222
http://constitutionallyspeaking.co.za/?p=345
Khosi
Yes the luxury of a Blog is perhaps that one can change one’s mind or at leas alter it marginally. I am still wondering myself whether Mr Zuma will be a good President or not (although I am on record as saying I do not necessarily support him because of his legal troubles). But when he tells people just what they want to hear he worries me and when he seems to support the reintroduction of the death penalty – something I passionately oppose – I cannot but criticise him.
Pierre,
I know, I know. You cannot like everything that comes out from his mouth.
But like I always say, there is more coming.
Doesn’t Mr. Z understand that his telling people what they want to hear isn’t doing his cause – which is becoming president of the country – any good at all? Every time he opens his mouth to reassure big business, the Jewish community, white farmers etc., the people who voted for him at Polokwane get the hell in with him. And that is why I think he’s not going to be our next president, trial or no trial.
Pierre, I do not see that the reintroduction of capital punishment would violate PIL, if South Africa duly withdrew from the Second Optional Protocol.
And why should the CC not overrule Makwanyane? Is it your view that the Court is absolutely and irrevocably bound by its prior decisions?
Michael, I suppose we could withdraw from the protocol if it wanted to but it would not look very good, for what that is worth. The CC pays at least lip service to precedent and will be extremely reluctant to overturn such an important, symbolic judgment as this one, I would think. No court is of course ever irrevocably bound by its previous decisions as they can almost always wiggle out of previous decisions by distinguishing later ones on one or other ground. They could argue, for example that crime rate is now higher etc etc. I just do not see it happening and I do not think it should happen easily not only because I am opposed to death penalty but also because I fear if we open that Pandora’s Box in South Africa many of the progressive decisions of the court could be revisited, which would not suit my politics.
Pierre, if I understand you correctly, you concede that it is ultimately for political (moral?) reasons that you would oppose the CC reversing Makwanyane. Yet if that is so, why on earth should your personal political/moral preferences subordinate the preference of a large majority of the South African population?
Your conundrum illustrates the downside of rejecting the separation between law and politics: You thereby forfeit to ability to pretend, when you find yourself in the political minority, that your personal commitments are guaranteed in the legal discourse of the Constitution. I have always thought that the practice of constitutional democracy demands that we indulge the law/politics distinction of liberal jurisprudence — even while acknowledging it is ultimately philosophically unjustifiable.
It will be recalled that the constitutional negotiation, unable to agree on capital punishment, deliberately left the matter to the CC. (The Constitution could have expressly outlawed the death penalty. But it did not.) If govt now sought to restore the death penalty, the political realm would essentially be reclaiming the authority it consciously ceded to the CC in 1993. It would be interesting to see how the CC would respond to that audacious move. Would it re-affirm Makwanyane, effectively daring the govt to amend the Constitution? And could the CC subsequently hold that any such amendment was itself unconstitutional? (This argument was tried, but failed, in the UDM/floor-crossing case.)
This is a very interesting debate – one should also remember that the CC (some of the judges at least) in Mkwanyane left open the question whether the death penalty would or could be justifiable in cases of High Treason. The CC (inter alia per Chaskalson P and Mahomed DP) also said that it would have been easier for the court to come to a conclusion on the constitutionality of the death penalty had the negotiators not left it open to the court to decide – i.o.w. had the Constitution been made to read that the death penalty is totally outlawed or that it is only partially outlawed, subject to a limited number of cases where it might be applicable and constitutional to impose it, the CC might well have come to a different conclusion. The CC also found (inter alia per Chaskalson P) that there is no (binding?) rule of international law outlawing the death penalty and, therefore, the Court was at large to judge the issue according to its own concepts of constitutional justice. I really wonder what will happen if the ruling party at one stage did call for a referendum; if an overwhelming (exceeding two thirds) majority voted for a re-instatement of the death penalty; if both houses of Parliament (National and Provincial) with the requisite two thirds majority decide to amend the Constitution so as to allow exceptions to the right to life, namely that the death penalty might be imposed in certain instances (e.g., for treason, certain murders, robberies and rapes), subject to an automatic right of appeal (or review) to the SCA and the CC. Would the CC still hold that such an amendment is unconstitutional or unlawful?
Anonymous, I doubt very much that the CC would hold an amendment specifically permitting capital punishment to be unconstitutional. The German notion of an “unconstitutional constitutional amendment” has never been embraced by the CC nor, so far as I know, by any court outside of Germany itself.
It is therefore likely that capital punishment will be formally reintroduced, if the political will is strong enough. On the other hand, I suspect that the penalty would never actually be implemented. The CC would strangle the process by insisting on every procedural and evidentiary right imaginable. There would be endless appeals., and virtually every trial would be re-opened on one basis or another.. (My experience working on capital defence in Georgia taught me that an imaginative lawyer can always find “new” evidence when her client is on the way to the death chamber).
As has happened in some U.S. states, capital punishment, though formally on the books, would for all practical purposes be abolished by judicial solicitude for the rights of defendants facing the ultimate punishment.
P.S. Constitutional lawyers should be enthusiastic supporters of reinstatement; there will be a virtually unlimited amount of work for them.
Pierre you said:
“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.”
Correct me if I’m wrong but the CC found that there is no evidence that the death penalty acts as a deterrent. By implication leaving the door open that if there were evidence, it could be a way to challenge the decision.
Someone please correct me if I’m wrong, but I was under the impression that a 75% majority vote was required in order to change anything in the Constitution.
66% ordinarily; 75% in case of s. 1 (“founding provisions.”)
Michael, I have never been good at pretending… but the mere fact that one does not recognise a bright line boundary between law and politics does not mean one has a nihilistic view of law. Judges are constrained in many ways in what they decide – including by precedent and the text of the Constitution and the need for acceptance and legitimacy of their work. In that context, it would be unwise – I argue – for judges to overturn the Makwanyane case only 12 years after they handed it down because it would affect their legitimacy.
Pierre, if your jurisprudential claim goes no further than pointing out the obvious — that the line between politics and law is very fuzzy, the implication betoing that they are nevertheless in principle distinct — how is your account different from the standard liberal account? (Even the most hard line neo-postivist today reject the naive dichotomy of classical postivism.)
What I thought was exciting and novel about the CLS approach was that the law/politics distinction was entirely deconstructed. Do you not associate yourself with that more radical view? And what would be the via media?
Michael
‘The German notion of an “unconstitutional constitutional amendment” has never been embraced by the CC nor, so far as I know, by any court outside of Germany itself.’
Can the dictum in Premier, KwaZulu-Natal & Others v President of the RSA & Others 1996 (1) SA 769 (CC) at para [49] not be such an approach by the CC? = “It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, moight not qualify as an ‘amendment’ at all.” This was in essense following the Indian jurisprudence in Kesavananda v State of Kerala AIR 1973 SC 1461, 1859-1860 at para 1437. However, the CC might still follow the German jurisprudence in this regard as well, not so?
Anonymous, yes, we cited this dictum of Mahomed DP in the UDM matter, but to little effect. (The statement is, of course, obiter dicta.) In any event, if even s. 1 is expressly made subject to amendment, what would be beyond the pale?
Michael
I get your point – the system is therefore open to serious abuse?
This might be a real stupid question but what about restricting the death penalty to repeat offenders? IOW to someone who has been found guilty in two seperate instances of the same act e.g. murder?
Good point Frank – Oh, what to do where proof exists that prison sentences do not deter, prevent nor rehabilitate? Can society really be held ransom by the fundamental rights of those who kill its members? Can one really say that the death penalty has no preventative (joke) or deterrent value? Has it been proven that deterrence of criminals only lies in the prospects of being caught and facing the possibility of criminal sanction (‘life’-long prison sentence or less)? Can one really say that the death penalty is barbaric, and intrinsicallyy unfair when measured against the perpetrator’s barbaric action that brought it about? Many words still have to be spoken in this regard, especially in the light of the ever escalating crimes of violence in this country (dating from more or less the time that FW de Klerk imposed a moratorium on the execution of the death penalty).
I have never been a Zuma favourite. But since i have regard for the rule of law amongst other things, my distaste for him was forcefully changes. Now, i am a Zuma man cause i think it is sensible to be. Reason being, what happened in polokwane was at the heart of it a democratic proccess. The fact that he outsmart Thabo was out of this world, i mean how did Zuma manage that, it was indeed a democratic process. That is why i became a Zuma man, which i am going to wisper from now onwards because; how did he come up with the thought to have the death penalty reinstated. If that is to happen than he will be the first one to go to jail cause his legal woes never seem to stop. I mean does he knows why it is legally appropriate for his legal team to try and to what want to in the constitutional court as we speak. Becuase there was this alleged infringement of his rights. Now if the dead penalty is to be reinstated we may just as well scrap the word human rights. Cause in order to enjoy and have this rights invoked you must be alive. In my view the right to life assembles the constitution.