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The death penalty is dead

26 March 2012, 19:50

Ever since the abolishment of the death penalty in 1995, most South Africans, white, black, coloured, Durbanites and everyone in between, have been up in arms, calling for its return as the saviour of  justice and the answer to violent crime as we know it.

Most people are of the view that the death penalty acts as a fear instilling instrument, making any hardened criminal think twice before pulling the trigger, or unzipping his pants with the grin of a school bully about to take his lunch.

However, this assumption, albeit the originating reason for the death penalty itself, is no more applicable than hiding your car keys so an 18 month old child doesn’t take the car for a spin.

What very few people know is that the death penalty was abolished in a landmark court ruling by the Constitutional Court, named S v Makwanyane and Another (CCT 3/94), and not an Act in itsself.

Without delving into various semantics surrounding the case, the bottom line was that the Constitution...our Constitution, granted (and obviously still does) the right to life in terms of chapter 3 of the interim Constitution of 1993.

For those that don’t know, Chapter 2 of the Constitution is the Human Rights Charter, and became the single most important document in the history of this country, and for that matter, any following modern democracy, when it officially replaced the charter in chapter 3 of the interim Constitution.

Be that as it may, there are various reasons anyone would want to implement the death penalty in its entirety, and immediately in this country, but none of those reasons, unfortunately, are vested in logic.

The simple reason is that the death penalty cannot, without changing the Constitution, be a sanction that forms part of our legal system, ever again. Even if we wanted to, no one could, as you would require 75% of the National Assembly, as well as 6 of the 9 provinces to change this.

Why not two thirds you say?

Well, the negotiators were wiser than that in the early 90’s , as Chapter 1 and 2, which are by far the most important, require the larger margin, rather than only two thirds.

By the way, Chapter 1 cements the total authority of the Constitution over Parliament, making us a Constitutional Democracy, and I’ve already stated the worth of Chapter 2 previously.

Now, legalities aside, personally, I think you would open Pandora’s box when even considering to go down that route again, simply because that would totally undermine legal development, and not come close to fulfilling the purpose we may embark on, when attempting such a retrospective step.

Criminals simply aren’t flustered at the death penalty at all, and in most instances, actually prefer the death penalty to lifelong incarceration.     

In my mind, there are only two possible reasons one would want to consider the death penalty in any legal system. The one being the obvious scare tactic, and the other being cost effectiveness.

The former refers to criminals that are unable to rehabilitate, such as psychotics, who will only be a burden on the tax payer in prison, as his or her way to financial freedom is paved until their deaths in a lonely cell in C-Max. There is no reason these people should remain in prison, as it would only be fair to the world, and to be honest, to them, to be relinquished of their right to life, as Mr. Makwanyane and Co was so eloquently granted.

On a serious note, the problem we face is not with the effects of a crime committed, but rather with everything that went wrong until such time as it occurred.

Normally, you would expect violent crimes from disturbed psychotics, but in our case, we have created an atmosphere where young thieves and hijackers are conditioned that the taking of a life is part of “business” and purely a means to an end.

We should thus rather focus on breaking this atmosphere of acceptance of all that is violent and pure evil.

Anyone that knows the story of Pavlov’s dogs, knows that positive reinforcement is far more effective than negative reinforcement, especially in the case of let’s say...China or North Korea (which evidently are some of the last remaining promoters of capital punishment), where the outset in passing laws is to instil fear, and rule autocratically.

Now, I know a lot of people will say our Government is totally incapable of positive reinforcement amongst us all...maybe so, but does that mean we should strive to develop systems around an incapable and hapless Government, so they can at least get something done? The innuendo thereto is just as ridiculous as anyone answering “yes” to such a question!

Maybe, we should look at prevention rather than cure and fix the education system. On an interim short term, heavy jail sentences will have to do the trick, and rehabilitation programs for lesser criminals should be increased to make space for the real bad boys behind bars....but that’s just me.

This sounds like old news, but in reality, there simply is no better alternative. Our violent crime problem is not one of policy, but one of execution of policies, which seems to be the trend in all spheres of governance in South Africa.

The illusion of an incompetent legal system has left people yearning for death to protect them, when in fact the contagion of incompetence is squarely to blame for our current predicament.

Maybe, in time, we will all have the guts to stand up to this nest of incompetence, notwithstanding race, and strike where it hits hardest.

On a ballot paper.

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