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.
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.BACK TO TOP