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South Africa: Give an Angry Country the Rope And Watch Justice Be Hanged
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Business Day (Johannesburg)
OPINION
19 March 2008
Posted to the web 19 March 2008
Bryan Rostron
Johannesburg
DRUMS pound loudly again for the return of the death penalty -- despite SA having such a barbaric record of selective racial justice and sadistic legal injustice, especially in meting out state-sanctioned execution.
This debate is highly emotive and has been stoked by repeated assertions from African National Congress (ANC) president Jacob Zuma that if enough people call for it, there should be a referendum.
Zuma is saying opposite things to different constituencies: one message for capitalists, quite another for workers. So some who support a referendum on the death penalty might pause to think what might happen if he were forced to call a referendum on a subject unpalatable to them.
What if Zuma, to appease his newly assertive supporters, were obliged to suggest we should have a referendum along the following lines: that whites pay a one-off punitive tax in reparation for the benefits that they reaped under apartheid?
Or: given the sluggish pace of land reform, that 30% of white-owned farms should be unilaterally expropriated by, say, 2010 in order to meet the government's stated target for black farmers. On a popular vote, what do you imagine that outcome might be?
The first caveat is: beware of what you wish for. Once you tamper with the constitution, your property might be next. The second caveat: beware Jacob Zuma. He is merely dangling prospects he must know he cannot deliver on.
His death penalty remarks caused a furore and he subsequently issued a "clarification": neither his nor the ANC's views should thwart debate. Yet, in the past, Zuma has claimed that ending the death penalty was decided not by the ANC but by the Constitutional Court. As former cabinet minister Kader Asmal pointed out, "This is totally incorrect. From the Kabwe conference in the 1980s, to the first draft of the ANC's Bill of Rights in 1991, Zuma's organisation has been unremitting in its opposition to this obscene penalty".
Under apartheid our hangman was always busy. In the decade before Nelson Mandela's release, there were more than 1500 executions in Pretoria Central Prison. Sometimes the queue was so long that several people were dispatched at the same time. For this, there were seven gallows all in a row.
When I managed to visit Death Row, to surreptitiously interview an Umkhonto we Sizwe combatant, some of the black inmates waiting to be hanged had been condemned after a one-day trial during which they were represented -- in a language they barely understood -- by a state-appointed defence counsel they had met only that morning. Given the widely acknowledged fact of a dysfunctional criminal justice system, this is not far from what we might still expect today with a return of the death penalty. That may satisfy a blood lust or desire for retribution, but would distract from the central crisis: the inability of police to catch criminals and the courts to sentence them.
One of the major evils of the death penalty is that when tempers run high, almost any sacrificial victim will do. Take the UK in the 1970s and '80s when Irish Republican Army bombs killed dozens of civilians on the British mainland. Justice became more like a lynch mob. In several now- infamous cases, working-class Irishmen had confessions beaten out of them. Later, after many years in prison, it was proved they were innocent. Had the death penalty still applied, they would not have lived to see justice.
The men known as the Birmingham Six took their case to the court of appeal, largely on the basis of evidence (including statements from prison officers) that they had been tortured. Lord Denning, perhaps the most respected British jurist of the 20th century, delivered this extraordinary ruling: "If the six men win, it will mean that the police were guilty of perjury, that they were guilty of threats, that the confessions were involuntary and were improperly admitted as evidence and that the convictions were erroneous. That is such an appalling vista that every sensible person in the land would say, 'It cannot be right that these actions should go any further.'" The court of appeal rejected their case.
With emotions running high in SA, and with our courts regularly unable to cope, how much higher are the chances of such grotesque miscarriages of justice?
Advocates of the death penalty usually argue that it is better a few innocents are sacrificed in order to have this ultimate sanction. Yet they have never been able to show statistically that the death penalty leads to fewer murders.
SA has a long, brutal history of judicial violence. If advocates of the death penalty face up to the logic of their own arguments about deterrence, we should really return to the style of punishment meted out in Cape Town in the 18th century, when executions were a public spectacle.
The body was often dragged through town, then displayed at street corners. "Upon the sand were erected a number of stakes and gibbets, upon which were the remains of upward a dozen malefactors who had been executed at the Cape," wrote one traveller. "Some were suspended by the feet, decapitated: others were laid across the wheel on which they had been wracked, bent double and hanging down on each side; whilst many seemed to preserve, by the attitude by which they were placed, the last writhings of pain and approaching death."
That might be a deterrent; not a secretive hanging away from the public gaze.
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A moratorium on executions was declared in 1990 after the release of Mandela. Shortly after, there were 320 condemned men in "Beverly Hills" (as other inmates at Pretoria Central used to call Death Row); 297 of them were black. Is this really one more persistent inequality Zuma wishes to countenance?
Probably not. Now that he has "clarified" his remarks, he has made one thing clear. He reveals a startling lack of leadership by starting fires he may not be able to put out.
Rostron is a freelance writer.
The imposition, and carrying out of the death penalty is not punishment, but it is the need for the state and the agrieved to "get even." Research has shown that it is not a deterrant to crime, and in fact, those US states (like Texas) that still have the death penalty have more major crimes.
There is no easy answer to this situation of "to execute or not to execute." However, I would implore the people and lawmakers of South Africa not to embark on the very slippery road of reinstating capital punishment.
The failure of our safety and security systems; our legal and justice systems, and our Constitutional watchdog systems, to deal effectively with the scourge of brutal crime and endlessly greedy corruption, is what has led to the increased call for the death penalty. Criminals walk free for the cost of a bribe; the corrupt fill positions across government and big business. There is no place we are safe; and nowhere we can turn to with confidence for justice when things go very wrong. Unless one joins the corrupt. In many ways, justice got hanged the day our government started... [Read Full Text]
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