Perhaps SA should take a new look at death penalty
THERE is little doubt that, should a referendum on the return of the death penalty be held, there would be a resounding vote in favour of it. For example, a recent study by the European Union Foundation for Human Rights in SA found that 73% of people believed it was a mistake to ban the death penalty. Another study, by Research Surveys, claims that in 1997 no less than 84% of black women wanted capital punishment reinstated, up from 50% in 1995. Jody Kollapen, a member of the Human Rights Commission, said last year that "in 1994 60% of people supported it (return of the death penalty); now it is close to 90%".
Clearly the horrific incidence of murder and rape in SA has turned public opinion sharply. Our murder rate is almost 10 times the international average while rape is a national epidemic.
In a penetrating analysis of the death penalty, the eminent jurist, Rex van Schalkwyk, quotes Judge Walsh of the European Court of Human Rights: "In a democracy the law cannot afford to ignore the moral consensus of the community. If the law is out of touch with the moral consensus of the community, the law is brought into contempt."
Evidence of this contempt can be easily seen in the increasing propensity of South Africans to take the law into their own hands. The Pagad phenomenon and township justice are only two examples. At the funeral of the noted economist, Ronnie Bethlehem, who was brutally murdered by car hijackers, a voice of no less moral and spiritual authority than that of Rabbi Norman Bernhard, the nation's chief rabbi, said it was time for law-abiding citizens to ask themselves whether they should take the law into their own hands since the government has failed to protect lives and property.
"What depths of despair," asks Van Schalkwyk, "had been plumbed by the unfortunate rabbi, to have issued a warning so fundamentally at odds with his calling, so provocative and, ultimately, so futile?"
There are millions of ordinary South Africans of all races who, like the distinguished rabbi, find themselves supporting the return of the same death penalty which was so grievously abused by past white administrations.
It is difficult not to sympathise with the stance of President Nelson Mandela when he correctly points out that historically it is blacks who have been the recipients of the vast bulk of death sentences handed down by our courts. However, the judiciary is being transformed. More and more black judges are taking their seats on the Bench. Surely they, and their colleagues operating in a democratic system, can be relied upon to apply capital punishment in only the direst circumstances?
Van Schalkwyk, in his book, One Miracle Is Not Enough, applies his mind to the issue of the execution of someone wrongly found guilty. He sees, inter alia, no reason why "the requirement that guilt be proven beyond reasonable doubt should not be superseded by the principle of absolute certainty (with an automatic right to appeal) in all cases where the death penalty is imposed."
One of the problems with life sentences for murderers is that they find it easy to escape from our porous jails. Once out, there is no reason why they should not commit murder again, and large numbers of them do precisely that. They have no downside. What more can society do to them than it already has?
In the US there is a principle called, in baseball parlance, three strikes and you're out. This means that third-time criminal offenders are put away for life. Murderers and rapists, of course, face the death sentence in a majority of states. Perhaps we can look at something like that. A convicted murderer would face death if found guilty, on the principle of absolute certainty and with an automatic right to appeal, for a second murder. In the case of the killing of a police officer, the death sentence could be automatic, again with the provisos outlined. ý Hodder & Stoughton has published a selection of Stephen Mulholland's columns, Another Voice. The book is available from all leading bookshops.