OPINION: The state has no business administering the death penalty

Neither the death penalty, nor a state of emergency can curb the savage violence that society appears to have licensed. Only a restoration of values and an effective state can, writes Ebrahim Fakir.       

The past few days have seen renewed calls for the reintroduction of capital punishment and the imposition of a "state of emergency" in response to the wanton brutality, criminality and impunity of the recurrently xenophobic, but more properly, generalised criminal violence and theft.

The long scourge of brutal rape of and violence against women, which culminated this past week in the rape and murder of Uyinene Mrwetyana have intensified these calls.

The death penalty and a state of emergency are considered by some of its proponents locally as an antidote to the inability of authorities to effectively police recurrent outbreaks of criminal looting and xenophobic violence and the seemingly constant savage criminality that South Africans have to live with. Those who want the imposition of capital punishment or the declaration of a state of emergency believe that it will also serve to curb the scourges that society's public morality and civic ethics have failed to contain and miraculously restore them.

Surprisingly, calls for both feign ignorance of South Africa's horrendous apartheid past, which eroded all sense of public ethics but worse, when these were used - not as instruments of effective policing and social control, but - as instruments of political oppression and socio-economic marginalisation and exclusion. 

My concern here is two-fold. Apart from being inhumane and ineffective, capital punishment is premised on a society anchored in unmediated vengeance, victimisation and retribution rather than reconciliatory rehabilitation.

Apart from the moral problematic, the administration of capital punishment and its utility as a deterrent is entirely dependent on capable and effective policing and the efficient administration of justice. States of emergencies extend the power of the repressive instruments of the state in extraordinary ways, which, to be a means for the restoration of social order, requires reasonable levels of state capacity, especially in the criminal justice cluster. This can't be said of South Africa at present, which would render both these measures moot, except to entrench the well-known impunity with which an incapable, inept and corrupted security establishment behaves and further license the impudent unaccountability of the political class in charge of them.

A memorial to mark the 39th anniversary of Solomon

For good reason, capital punishment was scrapped in 1995. Instrumentally, the re-imposition of capital punishment will require a two-thirds majority in the National Assembly and the support of six of the nine provinces in the National Council of Provinces (NCOP). This implies that six of the nine provinces will need to resolve in favour of capital punishment at provincial level and instruct their delegations to the NCOP to support a resolution in favour of it. This is an unlikely prospect. But the elaborate and practical legislative process impediment ought to be less serious a consideration. The values of society and the use of these instruments as effective modes of deterring criminal barbarism and social control are.

On this score, the evidence is that in South Africa this is unlikely to be prudent, or effective.

Globally, there is no proof that capital punishment is effective as a deterrent to abhorrent violent crime. In South Africa this is compounded by the manifest and serious weaknesses and failings in the police and justice systems. These need to be prioritised in an effort to reduce violent crime and combat gender-based violence.

If there is no guarantee that a person committing a crime will be caught and apprehended, or that real detective capacity exists to gather intelligence, detect and thoroughly investigate, that prosecutions are properly handled, and appropriate and fair sanctions and punishment is handed down that befit, then the basic requirements for the threat of capital punishment to work as a deterrent are absent, then capital punishment will be ineffectual and make no difference.

With its imposition being irreversible, and confidence in the competence of the security and justice cluster low, coupled with a lack of trust, the fear of incorrect conviction, manipulation of justice processes to victimise, is a real one. There are many examples, particularly in the US, of suspects being put to death only for their innocence to be proven years later on the basis of new information coming to light.

It is astounding therefore that there are calls for capital punishment when the basic functions of the criminal justice system upon which its effective administration and its deterrent ability depend, is widely derided as being incapable and untrustworthy.

After all, for the death penalty to be administered, the criminals have to be caught. The SA Police Service is known for many things. Apprehending criminals is not one of them.

What the SAPS is known for, apart from its sloth ineptitude and ineffectiveness, is inappropriate and heavy-handed police brutality. Declaring a state of emergency licenses this purported impunity and sanctions the police brutality that is widely, justifiably feared. States of emergency provide the police and security services with greater powers and functions, exercised with less transparency, reduced accountability and limited supervision and oversight over them. After all, the police and security agencies become the agents of administering the state of emergency on behalf of the politicians who decide on it.

As such security agencies can be easily used, abused and manipulated by politicians. This mode of behaviour is precisely what South Africans have been bemoaning about the last two decades of institutional and process manipulation by the ANC and its deployed cadres in orienting public institutions, through abuse and manipulation, to serve private ends rather than the public interest.

How much worse would this be, when the raft of the whole security establishment is given over to craven politicians who, as will be the case in a state of emergency, suspend all normal constitutional procedures, conventions and curbs on power. That means the dilution of the separation of powers, loosening the limits on the use of authority, no curbs on the exercise of executive power.

Can you imagine these powers in the hands of someone like Jacob Zuma, who with South Africa's magnificent constitutional architecture and regulatory and procedural infrastructure, managed with the help of the ANC and its party apparatus, to bend the state to the arc of his and his malevolent friends' corrupt will?

That President Cyril Ramaphosa may appear to be better than Zuma doesn't mean that these extraordinary powers will be wisely used, or that they should be afforded to him – and extended to the politicians that surround him. An ANC which has lost influence and in power four metros, would love nothing more than access to the unfettered power and authority that a state of emergency affords, so that they can continue (ab)using authority and power through means foully acquired and appropriated, rather than fairly and legitimately contested and won.

Dealing with the scourge of brutal violent crime and the social psychosis manifested in racism, xenophobia and other forms of intolerance means rooting out the sloth, ineptitude and corruption in the security and intelligence services and other public institutions. It also requires rehabilitating a society which appears to have lost its basic values and given way to its savage instincts.

In this context it makes no sense extending the powers, and burdening an incapable state or imposing measures which have no hope of success because the basic preconditions for its success are wholly absent.                     

** Ebrahim Fakir is the Director of Programs at the Auwal Socio Economic Research Institute and serves on the Board of Directors of Afesis-Corplan, an NGO in the Eastern Cape.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.