The death penalty debate is not dead

Graham McIntosh responds to Mondli Makhanya's take on the matter

In City Press on 9 September 2019 an article by Mondli Makhanya appeared under their “Voices” columns entitled “The Death Penalty Debate is already Dead”.

The debate is most definitely not dead. How can it be when we are seeing the number and type of murders? Minister Ronald Lamola understands that. Common sense from all our communities (Makhanya describes them as a “mob”) shouts out that our South African criminal justice system without a death sentence after a fair trial and the right to appeal, is seriously and irresponsibly deficient.

The death penalty, a killing and murder are three completely different events. The death penalty follows arrest, investigation, a rigorous court process, including cross examination, pleas in mitigation, the right to appeal to a higher court and then to the State President. The murder victim is not granted those rights and privileges. To use the word “kill” to describe all three, is a careless even mischievous use of language.

Nonetheless, Makhanya’s input must be taken seriously and for two reasons. He is an eminent journalist and editor and has shown over two decades that he really cares about justice and integrity. In that sense he has lived up to his surname, which translated into English roughly means “shedding light”. Makhanya has helped to bring light into the dark places of life in our democratic dispensation.

The second reason is because of his own involvement as a participant in political violence on 11 February 1990. In an article published in the Weekly Mail in 1991 headlined “My Life as a Comrade” and written under the pseudonym of Oscar Gumede, Makhanya describes his involvement in an incident of political violence on 11 February 1990 when the ANC and IFP were at war. He could have been an accessory to murder. Murders and killing, in proven politically motivated violence, should be severely punished but not with a death sentence.

Nonetheless, with respect, Makhanya’s serious arguments around the death sentence, are not new. Sadly, he ignores, with skilful disdain, the crisis of governance around our type and number of murders. The incidence of pre-meditated murders and many that also are grossly violent, is staggeringly high. The assassinations, not only of politicians, but of business rivals, taxi bosses, spouses, as well as muti murders, are all planned carefully and for financial gain. The murders of so many Policemen is a plain and simple assault on the state. The killings in the gang wars in the Western Cape are a disgrace to our criminal justice system. The murders that seem to be a regular feature of strikes by COSATU aligned unions and AMCU are a planned and deliberate tactic. The violent rapes of women and children, often including the murder of the victims, as well as the violence and killing that is so often part of home invasions and vehicle hi-jackings are an outrage. A responsible nation and Government must address the issue. 

Extra-judicial community killings of people believed to be criminals and the murder of suspected witches have to be stopped. The SAPS recorded 789 “popular executions” (lynchings) in the years 2018-2019. That figure should set alarm bells ringing. No wonder that Minister Lamola is concerned. A death sentence after due process represents a just response to murder and violent crime. It will almost certainly stop most, if not all, extra-judicial executions because communities will see that justice is being done by the State, which is responsible for the safety and quiet lives of its citizens.

As Makhanya points out, Chaskalson expressed his important views in 1996 on behalf of the Constitutional Court. That does not mean that Parliament cannot pass a law that re-instates the Death Penalty. A Death Sentence is not nullified by the Chaskalson ruling, despite many, including Makhanya, clutching onto it. Those who are fundamentalists about no Death Sentence do, however, raise important concerns.

If there is one miscarriage of justice in a murder trial and in the subsequent appeals, and the wrong person is executed, the fundamentalist abolitionists motivate that that absolutely and always rules out any death penalty. It is not only Mondli Makhanya, quoting the USA case of Charles Ray Finch, who has the fundamentalist approach but Stephen Grootes (Daily Maverick Analysis - 12 September 2019) and John Kane Berman of the IRR, who reject, on that basis, the reasonable argument for a death sentence in the South African context. As awful as any miscarriage of justice is when a person’s life is at stake, it is the courts that can and should be trusted to make that decision. Even so, if the deterrent effect of the death sentence dramatically reduces the number of murders, then that is the context in which the low risk of an innocent person being found guilty must be evaluated.

Following on from the abolitionists’ opposition, even horror at a death sentence, is the clear implication that a death sentence is in fact a deterrent. A death sentence brings finality. The murderer brought finality, often horribly, to his or her victim but unilaterally and arbitrarily, not through a careful judicial process. The finality is what abolitionists resist but also why criminals fear it, as famously described by Dr Samuel Johnson in 1791. “Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”

It requires only common sense to know that a death sentence imposed through a court process will be a deterrent. Everybody knows that once one person is executed for killing a Policeman or for a killing in the Cape Flats gang wars or for assassinating a combi taxi boss, the murder level will drop. 

The ghoulish relish with which the abolitionists like to describe the death cells, depict the hanging room and graphically dwell on the process of execution, is proof that a death sentence is indeed a deterrent. They gloss over the horrors of the victim’s death. The dead victims cannot join the debate. The energy with which friends and relatives seek to appeal a death sentence and have it set aside, is further proof of how effective a deterrent it is.

Generally speaking the SAPS do a thorough job of investigations. They understand that a murder is a most serious crime. In the many farm murders, for example, there are very few where the SAPS have not made arrests and achieved convictions. In almost all those murders a death sentence would have been a just punishment. A death sentence should only be imposed after there has been an arrest by the SAPS, a court process and after the sentence has been imposed.

The first Oscar Pistorius sentence was flawed but then there was an appeal and the court imposed a sentence which seemed more appropriate. That affirmed the South African judicial process with the guilty person’s right to appeal. In the case of a death sentence the appeal can move through higher courts and ultimately to the President. Minister Lamola and the Department of Justice could provide more generous Legal Aid for murder accused when they have appealed successfully to a higher court. That will deal with the unproved claim that it is the poor who are executed. 

Although it may seem contradictory or a paradox, the death penalty is a clear signal from society that it so values the lives of all of its citizens, that any other citizen who arrogates to herself the right to take the innocent and God-given life of another person, must know that the courts may impose a death sentence for that crime. 

Furthermore, after an execution, the convicted murderer will not able to commit crime again. There are a number of rare examples of convicted murderers who re-offend when they have served their sentences. Many fewer have been wrongly convicted of a murder that they did not commit, than those who have re-offended.

Furthermore, the families and the dead victims are entitled to justice. The murdered people cannot enter the debate with abolitionists like Makhanya, Grootes and Kane Berman. . South Africans of all races feel the same. Some people have a racist response and say that most of the executions would be of black people, as though that is an excuse for having no death sentence. To take the life of any human being is a crime against all of us.

It would be a first prize to live in a society without the death penalty. It may take a generation or even two, to reach a level of law, order and a shared social contract, before we can then do away with a death penalty finally in South Africa.

Graham McIntosh was a member of Parliament from 1974-2014.