The constitution rules, even when we don’t like it

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IOL  Lulu Xingwana0

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Women, Children and People with Disabilities Minister Lulu Xingwana

Cape Town - Words seem inadequate to describe the rape and murder of Anene Booysen.

Most media reports routinely add the adjective “brutal” to these nouns, and in this particular instance “terrible”, “appalling”, “heinous”, “horrific” and even “inhuman” would all also have seemed appropriate, if still inadequate.

But many years ago, a senior editor made a lasting impression when I heard him instructing a sub-editor to remove the word “brutal” from a reporter’s description of a rape, pointing out – rightly, I believe – that all rape is brutal. Similarly, every murder is horrific, although perhaps the word has lost much of its potency in our society with its frightening propensity for extreme violence and a sky-high murder rate.

However one chooses to describe it, the horrifying circumstances of the final hour or so of the 17-year-old Bredasdorp youngster’s life have touched a collective nerve among people everywhere. Even the UN in South Africa felt compelled to speak out, describing violence against women as a human rights violation and a manifestation of wider discrimination against women.

People are deeply angry, so the strong reaction from Minister Lulu Xingwana and her Department of Women, Children and People with Disabilities, who have a duty of care for people like Anene, was understandable, indeed welcome.

Unfortunately, they used language that, while undoubtedly pleasing to the gallery at large and emotionally satisfying because of the circumstances, did nothing to help the situation – and, in fact, clearly violated the letter and spirit of the constitution that Xingwana has sworn to uphold.

Speaking in Bredasdorp, where she attended the court appearance of two suspects, she correctly pointed out that violence against women and children was a gross violation of their constitutional rights. “Violence against women cannot be tolerated… We are here to say: ‘Enough is enough!’ Women and children demand to walk the streets without fear of being raped or brutally assaulted…”

No problem with that, of course, and the minister was also completely within her rights to demand that courts impose “the harshest and heaviest possible punishment” against those found guilty of crimes against women and children. “This will send a clear message to all would-be perpetrators that our society and justice system will not tolerate these crimes,” she said. She also legitimately asked the court to consider not granting the suspects bail.

Unfortunately, the minister added: “We believe that those who derive pleasure from abusing women and children must rot in jail.” The sentiment dominated an earlier statement by her department. Headlined “Rapists must rot in jail, says department”, its opening paragraph read: “The Department of Women, Children and People with Disabilities has urged the courts to ensure that those responsible for the brutal rape of murder of Anene Booysen rot in jail.”

The constitution applies “to all who live in it (South Africa)”, even to those who offend against it, however difficult that is to accept at times. While the justice system is designed to deal with offenders, it is not predicated on vengeance of the kind conjured up by the notion of being left to “rot” in jail.

Indeed, section 35 of the constitution makes specific provision for “arrested, detained and accused persons… including every sentenced prisoner”, and rights here include “conditions of detention that are consistent with human dignity”.

The Correctional Services Act sets this out: “The purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by… detaining all prisoners in safe custody whilst ensuring their human dignity; and promoting the social responsibility and human development of all prisoners and persons subject to community corrections.”

The Correctional Services Department is legally obliged to provide amenities that will “create an environment in which sentenced prisoners will be able to live with dignity and develop the ability to lead a socially responsible and crime-free life”.

Last July, when President Zuma announced remissions of sentences, Correctional Services Minister Sibusiso Ndebele said: “We have moved away from the legacy of the past of serving solely as an instrument of retribution to actively pursuing lasting solutions to the societal challenge that is crime by showing those in conflict with the law that there are alternatives to a life of criminality and self-destruction.”

The Council for the Advancement of the South African Constitution welcomed the concern expressed by Xingwana and her department and their efforts to address the “crisis of rape, sexual violence and gender-based violence”, but it also urged all stakeholders and leaders – including political leaders and the government – to be “very circumspect in this time”.

“It’s important that as we seek the best and most effective response to rape and abuse, we emphasise… the constitution both in spirit and letter. We must affirm the values of human dignity, the rights of every person in our society,” said spokeswoman Nomboniso Gasa.

“These are trying times in our society, but caution must be exercised even as we call for justice. It is unfortunate that the department has said that ‘rapists must rot in jail’. The language used in the statement, whilst it speaks to the frustration of people, is simply not appropriate with the constitution and the society we want to build.

“That is a statement we would expect to hear on the streets and hopefully government office bearers and leaders are able to discern what is appropriate and what is not.”

We can’t claim respect for, and the need to uphold, constitutional values in some instances but reject them in others. The constitution is South Africa’s lodestone, and we must follow the sure course that it indicates, however hard that may be in circumstances like the tragic death of Anene Booysen.

* John Yeld is a senior journalist at the Cape Argus.

Cape Argus


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