September is the start of spring in South Africa, marked by warmer weather and blossoming trees. However, this September was marred by brutal xenophobic attacks and lootings, child abductions and the rape and murder of young, vibrant, beautiful women.
On 12 September, Minister Bheki Cele, released the 2018/19 annual crime statistics revealing an increase in the murder rate to 21,022 and reported sexual offenses to 52,420. The number of murders of women and young girls is especially alarming. In South Africa, one woman is killed every three hours.
Communities of all races, ages and religions have taken to social media and the streets, protesting the status quo with marches, sharing experiences and raising awareness. South Africans are demanding accountability of government agencies, self-defence classes, curfews imposed on men and even the death penalty to combat violent crime.
The public outcry from the tragic events of September and their affirmation in official government statistics sparked over 590,000 South Africans signing a petition calling for the death penalty to be reinstated for crimes against women.
Bringing back the death penalty, despite public demand, is not just a case of instituting a harsher sentence, it is a matter of changing constitutional law. Under the Apartheid regime, convicted criminals could be hanged. After a five year moratorium, the Constitutional Court, under the Interim Constitution, would decide constitutionality on capital punishment.
The drafters of the Constitution neither sanctioned nor excluded the death penalty. The case of S v Makwanyane held firm that the death penalty contravenes the Constitution, violating the right to life, dignity and freedom and security of a person which includes the right not to be treated or punished in a cruel, inhuman or degrading way.
Chaskalson, P held that the death penalty does not only infringe on the dignity of the accused but also on the dignity of all those involved in the process. The application of the death penalty was held to be arbitrary and unequal. Inevitable discrimination would result in the poorest, who would not be able to afford the best defence, being the worst affected. “Only if there is a willingness to protect the worst and the weakest amongst us, that all of us can secure that our own rights will be protected.”
While the majority of the population were in favour of capital punishment, the Court held that “public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution …” The question to be answered was “not what the majority of South Africans believe … [but] whether the Constitution allows the sentence.”
The rights to life, dignity, freedom and security are subject to the general limitations provision allowing limitation only to the extent reasonable and justifiable in an open democratic society based on freedom and equality. Rights to life and dignity are the most important of all human rights as they form the basis for other rights. Justifications that the death penalty acts as a deterrent, preventative or restitutive measure cannot be accorded same weight. It has not been conclusively proven that the death penalty is a more effective deterrent than alternative punishments.
Makwanyane made clear that the death penalty will not solve violent crimes, it would only institutionalise murder, the destruction of life and annihilation of dignity. Further, for South Africa to reinstate capital punishment would be against the international trend of abolition.
Calling for brutality to end brutality does not address the root cause of the violence. Energies must be directed towards combatting violent crime against women, children and indeed any person in South Africa. We need to transform South Africa into a country in which women, children and men are respected and protected simply because they are human beings, with the law and authorities being resourced and empowered to deal with both perpetrators and victims.
It is hoped that the proactive measures announced by President Ramaphosa on 18 September will help tackle Gender Based Violence. These, coupled with institutional willingness and education at all levels of society, will help to ensure that the constitutional rights and values of life, dignity and freedom are a lived reality.