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Zonke Majodina
Gender-based violence is once more in the spotlight after the much-publicised murders of Karabo Mokoena and Courtney Pieters. Communities are galvanising themselves into action in search of solutions. Rightly so, as there are many more victims of sexual abuse whose plight we will never know of.
Amid much soul-searching, the public outcry to bring back the death penalty has also resurfaced.
Indeed, the high incidence of sexual assault, and the murder of innocent children and young women, and the brutality with which these acts are carried out, can no longer be ignored.
Drastic action needs to be taken. Calls for bringing back the death penalty are made in the hope that it will solve our urgent social and moral problems by executing perpetrators who are found guilty. The death penalty is therefore seen as necessary and a legitimate means of reducing the ever-growing levels of violent crimes in our communities. Those found guilty and executed for heinous crimes against women and children will then serve as a deterrent to other criminals.
Understandable as this logic may be, nowhere in the world has it been shown that the death penalty brings down high levels of crime. In the US, where the death penalty is still in the statute books, many studies have been done, but there is as yet no credible, convincing evidence that the death penalty is capable of protecting society from crime. Studies done in different countries at different times have failed to show that the death penalty has the capacity to stop those intent on committing serious crimes.
Breaking point
Apart from the deterrent argument, there are those who justify bringing back the death penalty on the basis that criminals deserve to be killed as just retribution for the evil done; that killing women, young children and babies, and dumping their bodies in shallow graves are such inhuman acts that perpetrators deserve to die.
While this argument is emotionally appealing, South Africans should pause and think back to the history of the death penalty under the apartheid regime. Inhuman laws passed during this era compelled courts to impose the death penalty indiscriminately and disproportionately against black people. In the 1980s, more than 1 100 people were executed. In 1989 alone, the apartheid death machine executed 60 people and unknown numbers in the homelands, presumably political activists. Arbitrary judgments led to executions even when there was considerable doubt about the guilt of accused persons. All that is firmly buried in the past since the Constitutional Court declared the death penalty unconstitutional.
This brings up questions for advocates of the death penalty: Do we have an impeccable criminal justice system that will leave no room for miscarriage of justice? Can South Africa afford to go back to those dark days when the death penalty was abused to silence those considered to be undesirable elements in society? For the sake of giving an impression of law and order, can we afford further brutalisation of a country whose social/moral fabric has reached breaking point?
The tragedy of the death penalty is that it can never be reversed when an innocent person is executed because of an error in the criminal justice system. The decision to execute means that the condemned person is eliminated forever and can never be compensated for their punishment.
Abolition
The UN has long declared itself in favour of abolition. In December 2016, its General Assembly passed a new resolution calling for a moratorium or suspension of the death penalty.
For people here at home demanding harsher penalties against perpetrators of gender-based violence, nothing can be harsher than languishing in prison and being isolated for 50 years.
The African Commission on Human and Peoples’ Rights has adopted a draft protocol to the African Charter on the abolition of the death penalty. Countries such as Namibia, Angola and Mozambique have abolished the death penalty already, while others no longer carry out executions. In Zambia, for example, a moratorium has been in place since 1997, meaning that condemned prisoners are not executed. Similarly, in Kenya and Uganda, no death sentences have been carried out for a number of years. Dangerous prisoners are kept safely away from the public and remain incarcerated on death row or have their sentences commuted to life imprisonment. In Chad, the National Assembly recently adopted a new criminal code that abolishes the death penalty.
Disregarding all this progress and calling for the death penalty in South Africa is like trying to turn the tide against the march of history.
In trying to address the huge problem of gender-based violence, let us not hide behind the death penalty. It diverts attention away from the more complex question of what needs to be done.
This question is now the subject of wide-ranging discussions in the media, from government officials telling us that more needs to be done to gender activists saying the criminal justice system is failing us, or that there is no comprehensive national strategy to tackle the problem.
What is clear is that there is no single solution or course of action, but a range of measures targeting all sectors of society.
Bringing back the death penalty is not one of them.
Majodina is a consultant on human rights and former deputy chairperson of the SA Human Rights Commission
