Writer Narend Ganesh

Opinion - I hold an alternate but opposing view to that of columnist Yogin Devan whose article “An eye for an eye is not the answer” appeared in last week’s POST.

The narrative in recent times, notably with the escalation of capital crime, suggests that society is growing impatient in the apparent kid-glove treatment meted out to heinous criminals who commit gratuitous murders of innocent people with utter impunity and without remorse.

Devan argues that calling for the death penalty is an affront to human rights and dignity.

I beg to differ.

He correctly states that “there is no concrete evidence showing that the death penalty actually deters crime”. 

Conversely, there is no empirical evidence to suggest that a prison sentence will equally deter a criminal from re-offending, especially in terms of murder or rape and those non-capital crimes.

While our constitution guarantees the right to life, it fails consciously to account for those who, with premeditated and deliberate intent, takes the lives of others.

The concept of a life-for-a-life trade-off may appear unpalatable to the moral and religious convictions of those who believe that it is a superior being who should be the only determinant of such an act. 

I then question what of those who unjustifiably usurp such powers by denying another human being of their right to life.

Retributive justice can be distasteful at the best of times, but sadly it becomes a necessary evil when civil society is persistently besieged by acts of gross human rights violations that go against the grain of normalcy and common decency.

Arguing in mitigation against the death penalty in an article in The Mercury, Professor George Devenish, one of the crafters of our constitution, made many points which were adequately challenged by renowned historian and independent researcher, Dr Duncan du Bois.

Devenish puts forward four specific arguments against capital punishment.

First, in Arthur Chaskalson’s view, execution is inconsistent with the prohibition of cruel, inhuman and degrading punishment as set out in section 12(1)(e) of the constitution.

Second, Chaskalson sees the imposition of the death penalty as being subject to “capriciousness” in its application.

Third, the Concourt has found that retribution is vengeance.

Fourth, Albie Sachs has posited that capital punishment is an “illusory solution and as such detracts from really effective measures”.

While Devan corroborates former Chief Justice Arthur Chaskalson’s viewpoint, I am inclined to agree with Du Bois when he states that “Chaskalson’s assertion that capital punishment is degrading and cruel is devoid of context and makes mockery of any claim to moral order for the simple reason that it ignores what murder victims suffer at the hands of murderers.

There is no logic in Justice Chaskalson’s view that society owes a murderer the right to be treated with dignity and respect. Society is only obligated to provide for a fair trial.

The above illustrates the divergent yet complex vagaries of perceptions when we consider the matter of the death penalty but I would be loath to accept the moral and religious rhetoric that “an eye for an eye is not the answer” - simply because it assuages the philosophical nicety of a just society.

While the ultimate sanction of death has to be balanced in all aspects in terms of the final execution of such a warrant, I also accept that there may be problems in human error or deceit that can verify guilt when one is not guilty.

The holding back of exculpatory evidence by unscrupulous prosecutors, for example, may lead to unjust convictions. But given the import of such a sanction, measures will have to be established to eliminate the “human error” aspect so that a guilt conviction is way beyond reasonable doubt and without reprisals.

My advocacy of the death penalty is not so much out of hatred or vengeance, but rather for the dire need to re-establish a society that exists without fear and constant angst.

We must never forget that a murder victim was also entitled to the inalienable right to life - and the deterrence against the brutality and barbaric nature of crimes committed nowadays is being thwarted by the ineffectual imposition of really harsh sanctions.

The moment one makes a conscious and deliberate choice to end the life of another person in cold blood, then any equivocation used to mitigate the ultimate sanction becomes arbitrary, particularly in view of the fact that if the victim could speak, then they would certainly have wanted to live, as we all do.

There can be no gainsaying that the death penalty used in the apartheid era, as described by Devan, was antiquated to the extent that it had malicious and political intent, and did not serve the true precepts of real justice.

It was irrational and salutary only for the benefit of a regime to the extent that it got rid of those, in the main, who were opponents of apartheid.

It is true that Nelson Mandela and his freedom fighters were a whisker away from a fate unimaginable had reason not prevailed, and in the same vein, each case where a capital crime is committed, must be seen in context and not be hastened to execute simply because the sanction is available.

Circumstantial considerations, premeditation and other factors both mitigating and extenuating must be fully exhausted before such a sanction is imposed.

That our law enforcement agencies are desperately strained to combat crime effectively, and there is no suggestion that evinces one to believe that there are prospects of abatement, we are compelled to importunate our criminal justice system to act on our behalf to halt the rampant disutility that crime has become.

Justice tempered with mercy is vital for the well-being of any society, but such mercy must not be held to ransom because we amplify human rights to those who care less about those they massacre.

It was rather disingenuous of Devan, however, to suggest that “calling for the death penalty should be made a punishable offence” - this is anathema to the freedom of speech and thought.

Finally, while I vouchsafe Devan’s stance on this critical call on the re-instatement of the death penalty, I am averse to accept that such a call would blind us as a moral and caring society to the horrific realities of life in South Africa - that at any given moment, anyone of us could become an unwanted statistic of a horrendous murder at the hands of the callous vermin that roam our streets.

* Narendh Ganesh is a political activist.