Death penalty (absence of) in South Africa

My recent post on death penalty [1] has raised some discomfort, pinpricks, for me. I have been asked why, even as I assert that globally the numbers show that death penalty has not much correlation with crime rates, I have studiously avoided mentioning South Africa; notwithstanding that the country is reeling under a crime wave.

Without defending my position, I will try to explain it in this particular context, taking reference from a book [2] by Justice Albie Sachs of, now retired from the Constitutional Court of South Africa (at the layman level, one gets no higher authority to discuss issues of South African Constitution than this, particularly considering that Justice Sachs was a member of the Constitution Committee that drafted the founding document).

In his individual perspective Sachs says, “[O]nly when we ended apartheid and realigned the law with justice, could I become whole again.” Whether logical or not, I say this is applicable to, beyond individuals, all nations, indeed the global community. This, in my understanding is what Amartya Sen says when he distinguishes Neeti from Nyaya. This is the perspective that informs my position on death penalty, in more ways than one. Neeti is good but Nyaya is better. Nyaya does not reach for the stars at one “giant leap for mankind,” but takes incremental steps.

It is in the transformation of law into justice, death penalty was abjured. It was not the calculation of the efficacy of the instrument, but one of the norms that Sachs thought made up the “sort of Constitution I wish to live under.”

A young soldier of the ANC says, “‘We are fighting for life-how can we be against life?’” Sachs goes on to explain, “He didn’t just mean life as a creature existence, he meant life as an expression of human personality, of human dignity.”

The argument then shifts gears and questions whether a child abuser has any level of humanity at all. A valid question espousing social ethos in the strongest possible terms. Of course, these questions extend to those who manufacture spurious drugs, brew illicit liquor, give sanctions to build thatched roofs in schools, drive BMWs over people sleeping on street pavements, pick up a gun and shoot a bartender, a tollbooth attendant and on and on. There is a method to this madness of equating the criminality of those listed later to those indulging in sexual abuse of children, the most vulnerable in the society.

“Phila Ndwandwe was shot by the security police [the infamous torture-cum-murder unit of the apartheid government of South Africa] after being kept naked for weeks in an attempt to make her inform on her comrades. She preserved her dignity by making panties out of a blue plastic bag [what we call carry bags]. This garment [?] was wrapped around her pelvis when she was exhumed.” That is, if death penalty is on the statute books, it cannot be arrested from a free fall to include anyone who falls within the current fad of what is crime against humanity.” Was Phila a criminal of such stature for not disclosing the names of her co-liberationists? Yet, she was murdered by the police set up. A slippery slope without an exit ramp.

I suppose whoever did that to Phila Ndwandwe had a full basket of humanity and hence he was let go.

The establishment of a constitutional democracy after the regime of apartheid is a miracle “in a country destined for racial bloodbath.”

Just suppose you had death penalty on the cards. The abuser(s) of Phila (if they could have been outed) would have been dead. So could have been the killers – those who sent a parcel bomb – of Ruth First. Those who tortured and killed Steven Biko. Sergeant Benzien who must have been an expert in water torture should be in jail.  

“The Maputo cemetery was filled with people assassinated by South African commandos.” And, that must be only one of many such cemeteries across that nation, as the next sentence reads, “We were surrounded by death.”

‘Henri’, the man who helped in blowing Sachs’s arm (when he was deemed a terrorist and the whole of him was the target) cried about his inhumanity for two weeks, after opening himself to the Truth and Reconciliation Commission (TRC). Would he have done that in prison? I do not know, neither do I want to speculate.

The TRC is not without its critics and detractors. As far as I know, Biko’s family was not in favor of granting amnesty to his torturers and killers, saying pretty much that they got off cheap. There were quite a few others with this revengeful temperament (I say this in the most non-condescending and non-judgmental way I can). Yet, the TRC must have done its bit in reducing the bloodbath (this is open to question). My question is, could TRC have been conceived had death penalty been a part of South African statue books? I think not.

As a detour, with no change in what Sachs was thinking or doing, he was suddenly taken aboard the exalted “non-terrorist” category by the US, in a matter of mere months after declaring him one! So, if the state murders a person on charges of terrorism, he or she becomes un-entitled to be changed into a non-terrorist, even after a regime change!

In a sense, then, death penalty was abolished in South Africa on two counts. One, the normative position of African National Congress that abjured terrorism (but could not control it totally) and two, as an instrument of building a non-bloodbathian society.

I would like to add one more gem of a sentence from Sachs: “For much of their lives at least half of my colleagues on the Court would have been regarded as terrorists, and the other half as defenders of terrorists.” Considering now the labels have changed, the Constitutional Court of South Africa would have sported an empty look! By the way, an irreverent look – had South Africa not abolished death penalty, there was bound to be a huge exodus of whites from that nation, taking with them the country’s economic assets.

OK, now I come to the current situation. Undeniably the crime rate in South Africa has been on a strong uptick. One way to look at it is this: It appears so, only because the apartheid regime did not account for the crimes of its government in its heydays. None has answered for the countless assassinations over the years of regime. Take them in and see how the numbers change. I do not know and do not want to guess.

But the second way is more meaningful. The current crime wave can be seen as a response to the failures of governance in providing for even sustenance livelihood for vast sections of the society. That is, crime is being undergirded by lack of economic opportunities. Now, how would death penalty ameliorate this situation?

The next question: why the failure of governance? I believe when a government is founded by liberationists, it needs strong leadership. In the initial years, the government under ANC with strong support from Congress of South African Trade Unions (COSATU) and the communist party had that and it was also led by people of unimpeachable integrity like Mandela, Tambo, Sisulu and many others. Then, came the economic liberalization efforts by Mbeki and the seeds of disintegration of ANC have been sown, much as ANC may deny. What I am claiming is, as usual without any proof, if you wanted the crime wave to abate, focus on spreading the economic opportunities. Till such time, one has to tolerate the situation.

Simon Jenkins, of The Guardian, says that tolerance is itself a privilege of security. What he means, I suppose, is tolerance arises out of security. But here, I request a directional change. Be tolerant and security may arise. It is the society’s tolerance (TRC) that gave some level of security for the whites in South Africa. And TRC could have arisen only if death penalty had been abjured.

Now, for anyone in power it is going to be a series of pinpricks, a la what Didi and Amma are doing to the Indian government. Governance is now snail paced (Man Mohan Singh riding it). So, who has the time to tackle crime, wave or no wave?

Through the above discourse, I have reduced the irkiness of the pinpricks somewhat. But, I await the next one. Acupuncture helps one to think about the unthinkables, I suppose.

Raghuram Ekambaram

References

<!--[if !supportLists]-->1.    <!--[endif]-->http://nonexpert.blogspot.in/2012/05/utility-of-death-penalty.html

<!--[if !supportLists]-->2.    <!--[endif]-->The Strange Alchemy of Life and Law, Albie Sachs, Oxford University Press, ISBN 978-0-19-957179-6