Is South Africa ready for the death penalty?

Heavy.

Listless, and tired, and heavy.

My mind was still, yet it was still with the vibrations of a troubled eye. How could I be here, dressed in full black, black as the deafness of the night that descended on my country, shouting at the top of my lungs in front of a state building when before I had never even wheezed?

My mind could not answer to the burdens of my own question.

My country, for the past week, has been experiencing unimagineable amounts of tension: the rape and murder of first year university student Uyinene Mrwetyana has highlighted the scourge of Gender Based Violence (GBV) in the country, whilst Xenophobic attacks and countrywide strikes have threatened the stability of the nation. Given this, there have been various cries for the death penalty to be instituted as a means of instilling a sense of criminal justice in the country: of reminding convicts of the virtue of consequence, and of ensuring that there are consequences for certain acts that, according to my Uber driver, are ‘desecrating the sacredness of human life’.

However, in our calls for the death penalty to be instituted, we should not confuse ourselves with believing that it’s institution would be synonymous with an increased efficacy of the justice system, as there are still multiple factors to be taken into consideration, such as whether the plight of our country is due to a disputed definition of justice, to a lack of fear, or to a general lawlessness.

My first problem is weather we have made an accurate diagnosis of the situation: is the lawlessness due to a lack of fear of the consequences, or is the lawlessness due to an inefficient justice system that does catch those who commit heinous crimes, or does not prescribe the penalties efficiently, such that the consequences can not be seen?

As motions have been made by the public to introduce the death penalty, we can assume they’ve been made under the belief that the lawlessness is due to a lack of fear of consequences, and even under this assumption, I still have several problems with this suggestion.

First, we should consider the efficiency of the South Africa judiciary. The current nature of most state-run or state-influenced institutions is that they are backlogged, and given South Africa’s high crime rates (with the murder rate increasing by 3.4% in 2019), instituting a death penality would not fix this grass-roots issue. One scenario that comes into mind is an overworked judge who, by the impulses of human nature, categorises the cases in his mind by basic grades of severity, using the death penaly to hasten the process: premeditated murders die and attempted murderers stand trial for a little while longer.

The image becomes more grim when we consider that human nature is such that we all have bias. The case of High Court Judge Mabel Jansen who, in 2016, declared that rape is part of black culture, evidences that even those individuals who are learned and experienced in law and the legalities of certain penalties still can not escape a stereotyped way of thought. By vesting these individuals with the ability to make a decision regarding the fate of a human life, we neglect that their decision might not be entirely cognitive in nature. If one is truly ferverent about instituting the death penalty, perhaps one could advocate for it in a way that it insures that judges only grant this when a case reaches a certain level and has been reviewed by judges from different walks of life that can thus bring to the table different perspectives. Although this offers a remedy, one can’t expect this debate to take an hour, and so we add to a backlogged system yet another backlog. Furthermore, with a history of Apartheid and discrepancies in education among racial lines, how does one gaurantee that you will have enough judges from a certain backround to allocate to all death penalty cases?

Secondly, we have to consider whether our constitution is ready to be entrusted with such a burden when we are still trying to decipher exactly how much of it was progressive and how much of it was reactionary. The case of Former President Zuma’s looting brilliantly illustrates this: I remember listening to a political analyst explain that our constitution didn’t have a protocol for such an incident because when we crafted the constitution we looked to Mandela as an example of a President, not realising that his moral grace was not necessarily a definition of the nature of every South African president. Whilst I do not mean to belittle this nation’s rude awakening to the fact that Gender Based Violence is a problem, I think we need to be mindful of whether our constitution is suited for such a law- and make careful consideration of the political and societal conditions under which we call for this law.

On the matter of the constitution- some say that the Death Penalty contravenes the right to life, but I don’t think it’s a valid moral argument, although it may be valid technically. When we examine the validity of a law, we should never say ‘this good law contravenes this bad law so we can’t institute the good law’. Changes, technically, could be made to accomodate the death penalty.

But who’s to say that if we make the death penalty law, that that law will be implemented? And what if putting the death penalty into place shifts the constitution from being reactionary to being progressive? Have our current ideas of the Right to Life stood the test of time? Is time even necessary to justify the efficacy of a law? I digress…

My final problem is with the principle of the death penalty itself. I find it unfathomable to suggest that as a human, I have the capcity to decide on another human’s fate depending on the severity of his sin. On a moral level, I personally do not think I can imagine myself raising that Thor-like hammer of justice, letting it strain my arm with the weight of my sins, and then letting it fall under the suspense of gravity as if this is not my decision and the law is binding me to commit an act that is not of my choosing. As I write this, I contrast a criminal that stole a pack of bread with one that is a serial rapist with 4 dead bodies in his yard, with the audacity to rape and murder and first year univeristy student. When I rotate the planet of this argument to this light, I understand, but I also can not shy away from acknowledging the weight of the responsibility that will fall on those executing these laws, from acknowledging the irony that comes with making people oath to tell ‘the whole truth and nothing but the truth’ with the white of their palm hands down on a religious text before I sentence them to death as if suddenly court rooms are the Parthenons of God, and of acknowledging that we live in a democracy where people have a freedom of expression and that if such a duty (prescribing death penalty) falls upon a religious individual, that they can refuse it, the same way doctors can refuse to administer an abortion.

So in the end are we actually going to have enough judges willing to carry out these orders?

I think instead we must preoccupy ourselves with why these crimes occur in the first palce. What are the social, economic and psychological contexts in which they are occuring? The death penalty won’t tell us the answers from graves. It won’t address the fact that police officers sometimes don’t follow procedure when it comes to collecting and preserving evidence that will be used in the court against you, that they sometimes don’t file cases in the correct time frames, and that they sometimes laugh rape-victims out of police offices. Yesterday I heard a story of a man who, after being arrested, asked if he could give his blood-stained shirt to his relative to be washed.

So the blood was lost first at the crime scene when someone’s child died, and then again as evidence, and we’ll never know exactly what transpired at the time of this alledged murder but we do know that a menace to society may have walked free not because he recieved a lenient punishment but because out justice system fails to operate at the most basic levels.

Furthermore, if you have the audacity to violate someone or kill someone, would you care if you faced death thereafter?

In tenth grade I read Chinua Achebe’s Things Fall Apart twice: once because I didn’t finish it and twice because I wanted to see what lay beyond the boundaries of the first time. I couldn’t help but be fascinated by how Okwonkwo (the main character) beat his wives, but when he was faced with the threat of being conquered, hung himself in the end. I called it ‘Toxic Masculinity’, and I can’t help but imagine him as the archetype of those who are perpetrators of Gender Based Violence. Okwonkwo didn’t kill himself to avoid being killed by another person, nor did he kill himself out of fear, but he killed himself because he was already dead on the inside, reduced to a hollow of his former self.

Tell me: is there a point in me killing you if you are already dead on the inside?