As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
South Africans who campaign for a re-introduction of the death penalty usually advance one of two arguments. First, they argue that reintroducing the death penalty would deter criminals from committing murder. Second, they support the death penalty to satisfy the need of society to take revenge on violent killers.
There are many valid reasons to punish those found guilty of crime. Revenge (or retribution) is indeed one such reason. As Justice Chaskalson remarked in S v Makwanyane, “the righteous anger of family and friends of the murder victim, reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance”.
But it seems to me society as a whole is demeaned where we allow the state itself to become a killer in order to give effect to the understandable urge of society to take revenge on the perpetrators of heinous crimes.
Executing a prisoner is a brutal and violent act. Whether a man or woman is hanged, beheaded, injected with poison or shot, this violence and brutality will be perpetrated by the state in our name and on our behalf. To endorse the death penalty is to endorse state violence and the brutality that necessarily forms part of premeditating killing. The death penalty thus brutalises the whole of society and implicates us all in the kind of violence that we wish perpetrators to be punished for.
Besides, as Justice Chaskalson remarked in S v Makwanyane:
[C]apital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the Biblical injunction of ‘an eye for an eye, and a tooth for a tooth’… The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.
The argument against revenge as an appropriate justification for imposing the death penalty, is an ethical one. I understand that individuals with different ethical commitments than myself may not, in principle, be opposed to brutality and violence if it is meted out by the state and if they believe those on the receiving end of the violence and brutality deserve it.
But it would be more honest for those who support the death penalty because they have no ethical problem with state-sanctioned brutality and violence in pursuit of vengeance, to say so, and not to claim their support for the death penalty is based on its supposed deterrent effect. This is so because there is absolutely no evidence to support the argument that the imposition of the death penalty deters violent criminals from committing murder.
I have yet to see any evidence of a violent criminal modifying his or her behavior because of the remote possibility that he or she would be convicted and executed by the state. To assume otherwise would be to assume that violent criminals always make perfectly rational choices. It would also assume that violent criminals actually believe that they will be caught, tried and convicted for the crimes they commit.
But in South Africa only a small minority of violent criminals are actually caught, convicted and punished for their crimes. To the extent that such criminals make rational decisions about their actions at all, they might well look at the criminal justice system and assume they will never be caught. As Justice Chaskalson pointed out in Makwanyane:
The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the state must seek to combat lawlessness.
To address the causes of violent crime and to improve the effectiveness of the criminal justice system is a long-term project. It requires resources, political commitment and more than a bit of wisdom. It requires the de-politicisation of the SAPS and the improvement of Police management; it requires the retraining of police officers and prosecutors; it requires the appointment of competent detectives; it requires the police to take steps to gain the trust of the society whose co-operation they need and whom they are tasked to protect.
Re-introducing the death penalty will not address these systemic problems: it will give the appearance of doing something about violent crime while not doing anything about it (much like the talk of “shoot to kill” did).
In the South African context there is, of course, another profoundly important reason why the imposition of the death penalty is unconscionable. Because race and class play a role in the quality of the legal representation that an accused person receives, it is likely that a disproportionate number of poor black people will be sentenced to death. In South Africa (as in the USA) the death penalty is therefore inherently racist.
People of all races commit violent crime – only racists like Sunette Bridges and Steve Hofmeyr believe otherwise – but not all violent criminals receive the same quality of justice.
The outcome of a case may dependent upon factors such as the way the case is investigated by the police (the richer and more famous the victim, the better the investigation is likely to be), the way the case is presented by the prosecutor, how effectively the accused is defended and the personality and particular attitude to capital punishment of the trial judge.
As Chaskalson pointed out in Makwanyane:
Most accused facing a possible death sentence are unable to afford legal assistance, and are defended under the pro deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and if this is the case, usually has to consult through an interpreter. Pro deo counsel are paid only a nominal fee for the defence, and generally lack the financial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence. Accused persons who have the money to do so, are able to retain experienced attorneys and counsel, who are paid to undertake the necessary investigations and research, and as a result they are less likely to be sentenced to death than persons similarly placed who are unable to pay for such services.
There is one kind of justice for the rich and another for the poor. This means that the imposition of the death penalty will at least partly be influenced by factors that have nothing to do with the relative blameworthiness of the criminal.
To allow for the imposition of the death penalty where a person’s race or class, or the race or class of his or her victim, will potentially play a role in whether the murderer lives or dies, flies in the face of the most basic values enshrined in our Constitution.
Of course, it is not only when the death penalty is imposed that the criminal justice system does not treat all people the same. It is imperative that the state and the judiciary begin to grapple with this grave injustice and start addressing the inherent inequalities in the system.
But the injustice is more severe when the death penalty is imposed and where a person is executed. The death penalty is final and if a mistake is discovered after a person has been executed there is no way of even beginning to rectify the mistake.
Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable.
Campaigns to reintroduce the death penalty are counter-productive. They detract attention from the true causes of violent crime – including unconscionable inequality and deprivation, and ineffective policing – and create the false impression that there is a magic bullet to deal with violent crime in our society. Instead of clamouring for the return of state-sanctioned killing, citizens should demand that the state speed up the eradication of inequality and improve the manner in which crime is investigated and prosecuted.
Pity so many citizens are blinded by their desire for revenge and cannot see that their talk of reintroducing the death penalty give our politicians a free pass.