Cabinet will discuss death penalty but it — is unconstitutional
WIM TRENGOVE, COUNSEL FOR MAKWANYANE IN THE LANDMARK CASE, SAID THE DEATH PENALTY WAS ‘BARBARIC’
Amatter that was settled by the Constitutional Court almost 25 years ago flared up again this week after justice minister Ronald Lamola agreed in a media briefing to take the discussion on the death penalty to the cabinet.
Some political parties and social media users have called for the death penalty to be brought back after the murder and rape of Uyinene Mrwetyana, a 19-year-old University of Cape Town student, and the murder of a young boxing champion, Leighandre “Baby Lee” Jegels.
Lamola and minister in the presidency for women Maite Nkoana-Mashabane faced journalists in Cape Town on Tuesday evening in a briefing on genderbased violence.
One question addressed to Lamola was “is the government prepared to entertain a referendum on the return of the death penalty for crimes of serious violence against women?”
He replied: “Whether we are open to a referendum or not, I think at this stage I can’t really say we are open or not open. It’s something that we can still take further for discussion.”
It had been agreed to take the discussion to the cabinet on issues “which might need further deliberation and approval”.
On Wednesday, the ministry of justice & correctional services sought to clarify Lamola’s comments, saying that he merely meant that cabinet discusses current affairs confronting the country and that it was conceivable that cabinet would discuss these sentiments.
While Lamola’s initial comments were quickly followed by a call for a referendum on the death penalty by the African Transformation Movement, with the IFP saying it would table a motion in parliament to debate its reinstatement, outrage swiftly ensued, mainly because capital punishment is unconstitutional.
In its three-page statement, the justice & correctional services ministry said the bill of rights could not be subjected to a referendum because the basis of SA’s constitutional order was built on the need to protect those who may not necessarily be protected if it came down to sheer numbers.
“Today, we will subject the prohibition of the death penalty to a referendum. Tomorrow it will be to recriminalise abortion and then later it will be to take away the protection accorded to the LGBTIQ community.
“This is the effective dismantling of constitutional supremacy and the vision of building a new society,” the ministry said.
On June 6 1995 then Constitutional Court president Arthur Chaskalson handed down a landmark judgment, known as S v Makwanyane, declaring sections of the Criminal Procedure Act, as it related to capital punishment, unconstitutional.
The court held that retribution cannot be afforded the same weight under the constitution as the right to life and the right to dignity the most important of the fundamental rights.
The court held that there was no evidence that the death sentence would deter or prevent murder more than the alternate sentence of life in prison.
Public opinion was taken into consideration, but the court then said the question was not what the majority of South Africans believe a proper sentence for murder should be, it was “whether the constitution allows the sentence”.
James Selfe, the DA’s spokesperson on correctional services, said before there could be any discussion on the reinstatement of the death penalty the criminal justice system had to be fixed.
He said deterrence did not lie in the death penalty, but in the certainty that if you commit a crime, you will be punished.
Wim Trengove SC, counsel for Themba Makwanyane in the landmark case, said the death penalty was “barbaric” and it had never been proved that it was a more effective deterrent than long-term imprisonment.
“A referendum is anathema to fundamental rights in the constitution, because the very purpose of the fundamental rights is to protect vulnerable minorities against the majority.
“So to say the majority is in favour of the death penalty, or to say the majority is in favour of the abolition of the ban of race discrimination, would all make nonsense of the constitution, because its purpose is to protect vulnerable minorities against the majority,” he said.