Johannesburg - South African lawmakers have no appetite to restore the death penalty, despite growing calls globally for the reinstatement of capital punishment, as a crime deterrent.
According to joint Constitutional Review Committee Chairperson, Enock Mthethwa, this was not a straightforward matter, since no research had been conducted to prove that the death penalty was an effective deterrent that may curb crime rates.
Mthethwa made the comment during a virtual meeting of the Review Committee comprised in the National Assembly and National Council of Provinces, which annually reviews the Constitution.
The committee which met on November 27, 2020, was responding to a call from a member of the public Waseela Jardine, who asked the committee review section 11 of the Constitution in order to provide for the death penalty.
In her submission, Jardine said a return of capital punishment would reduce the number of senseless murders and rapes, and added that it was unfair for murderers and rapists to relax in jail and secure parole for good behaviour, when considering the bizarre number of women and children that are being sexually molested.
Despite a global move that seeks alternatives to prison sentences, an increasing number of countries are calling for the reinstatement of capital punishment as a crime deterrent, according to the 2020 Global Prison Trends report. More than 20 000 people are detained on death row worldwide, living in inhumane detention conditions and often following unfair trials, said the report, published by Penal Reform International (PRI) and the Thailand Institute of Justice (TIJ).
Capital Punishment was abolished in South Africa on June 6, 1995, by a ruling of the Constitutional Court.
ANC MP Nxola Nqola added that the matter of the death penalty had been in the public discussion for quite some time, in relation to the rise of gender-based violence (GBV).
But, Nqola opined that the discussion was precisely on the legal prescripts; it was more of an emotional response, because society was angry about GBV.
Since, South Africa has a history of bloodshed, the restoration of the death penalty has been used as a reactionary response to a movement by people of South Africa.
He expressed doubt and dissent that the reinstitution of the death penalty would be in line with the spirit of the Constitution.
Wounds must be healed. Therefore, he did not agree with the submission that the committee must review section 11 of the Constitution and reinstate the death penalty.
Seeking alternatives to prison time
“It was a reactionary type of conduct. The South African Government must not be associated with killing people in response to whatever had been done. We must not give up on our people such that we kill them as the state.” He wished to convince the committee not to agree with that submission.
At adjournment the committee resolved to search for an alternative to the death penalty.
“A sector of the community was talking about the killing of farmers. It had always been the view and the feeling of individuals in society that South Africa needed to bring back the death penalty. The ANC was in charge, and the ANC policies were used to govern the country. The Constitution reflected a conscious view taken by South Africa that killing people did not bring any solution to the problems that the country had,” said Maseko-Jele.
She said, previously when the death penalty was used, many people were killed, and innocent people were killed.
“All of these views expressed in the meeting would be relevant when the submitters appeared before the Committee. It would have to give the reasons why the Committee’s views were for restitution and rehabilitation.”
Joint Chairperson Mathole Motshekga said that he supported the comments of Maseko-Jele and Nqola. Motshekga reminded the committee that on April 18, 2002, the late President Nelson Mandela launched the Moral Regeneration Movement.
“He had realised that the legacy of the past has led our people to behave in a beastly way, and that we have to overcome that legacy”. To say, at this stage, that South Africa should be killing people when it had not addressed this moral degeneration and associated ills was “not on” he said.
Motshekga said that the Moral Regeneration Movement had disappeared, and that perhaps, it should be revived via the Department of Sports, Arts and Culture because with the rise in GBV, citizens had begun to suggest castration as an alternative deterrent to gender-based violent crimes, “which means we are sinking deeper into moral degeneration”.
He said the committee needed to review the moral regeneration programme, to strengthen it, and improve the character of South Africa’s people and how they related to one another.
At adjournment the committee resolved to search for an alternative to the death penalty.
More countries consider bringing back the death penalty
Despite a global move seeking alternatives to prison sentences, an increasing number of countries are calling for the reinstatement of capital punishment as a crime deterrent, according to the 2020 Global Prison Trends report.
More than 20 000 people are detained on death row worldwide, living in inhumane detention conditions and often following unfair trials, said the report, published by Penal Reform International (PRI) and the Thailand Institute of Justice (TIJ).
The report said that while some initiatives have emerged in recent years to address the lack of comparative data on the number of people serving non-custodial sentences, as well as on their use by type of measure, more nations were considering bringing back the death penalty.
Alarmingly, 90 countries retain the death penalty in their legislation. As a result of the continued use of capital punishment in several countries, it is estimated that at least 690 people were executed in 2018.
The global movement towards universal abolition of the death penalty made progress last year. Angola ratified and Armenia signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, the only binding global instrument on the abolition of the death penalty. Gambia commuted the death sentences of the last remaining 22 people on death row in the country to life imprisonment.
In Uganda, the mandatory death sentence was removed from several laws 10 years after the Supreme Court ruled that capital punishment should not be mandatory in murder cases.
This year in Ghana, the president announced a willingness to consider the abolition of capital punishment, at least for five of the six offences.
On the positive side, the report said available data shows huge national and regional variations in the proportion of people convicted and serving non-custodial sanctions compared to prison sentences.
Most countries in Europe, North America and Oceania have a higher proportion of people receiving non-custodial sanctions than prison sentences. For instance, the report said that across 36 member states of the Council of Europe, there were more than 1.76 million persons under supervision of probation services in January 2018 – representing an average rate of 202 people on probation per 100 000 inhabitants.
This is almost double the rate of people in prison at 102 per 100 000 inhabitants. Suspended sentences, however, remain one of the most commonly used non-custodial sanctions globally, involving the dismissal of the sentence after a certain period if the person convicted successfully fulfils specific conditions and does not commit further crime.
Gambia, Kenya, Malawi, Nigeria, and Tanzania, and 15 of 28 European countries regularly suspend sentences for drug-related offences, the report said.
In terms of alternatives proposed, the report said other common non-custodial sanctions include supervision by a probation officer, electronic monitoring, house arrest, verbal sanctions, economic sanctions and monetary penalties, confiscation of property, restitution to a victim, participation in rehabilitation programmes and community service orders.
In Kenya, Uganda and Tanzania, the Penal Reform International found that community service orders involving unpaid work make up most non-custodial sanctions, followed by probation orders requiring supervision by a probation officer. There is also a range of sanctions and diversion measures that take victims of crime into account.
Dr Kittipong Kittayarak, the executive director of Thailand Institute of Justice, and lorian Irminger, the executive director of Penal Reform International, said the report was published at a crucial time, with prisons and justice systems facing unprecedented challenges, alongside their communities, brought on by Covid-19.
They said that despite widely documented challenges in creating fair and effective criminal justice systems, there had been positive steps taken towards the practical implementation of international human rights standards related to criminal justice, such as the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules).
“It is clear that non-custodial measures and sanctions should be part of wider reforms to limit the reach of the criminal justice system. Crime prevention, decriminalisation of certain offences and diversion schemes, all aim to limit the number of people coming into contact with the criminal justice system to begin with.”
Kittayarak and Irminger noted that the few countries with low numbers of people in prison showed that it was possible to prevent crime without using custodial sentences as a primary tool. But the countries remained an exception with many nations reporting incredibly high rates of prison overcrowding.
The global report also noted that pre-trial detention has a devastating effect on those subjected to it, their families and communities.
* Edwin Naidu writes for the Wits Justice Project (WJP) . Based in the journalism department of the University of the Witwatersrand, the WJP investigates human rights abuses and miscarriages of justice related to SA’s criminal justice system.