New judges must ensure death penalty remains dead and buried
Candidates should remember nothing is more important than the sanctity of life
THOSE of us who are serious about our country succeeding in all its endeavours were relieved the Judicial Service Commission, entrusted with the selection of our Constitutional Court judges, will have another chance next month to select five to fill the positions of our retiring chief justice and four of the other 11.
The most important aspect that our apex court has ever dealt with since its inception after the dawn of our democracy in 1994, is the issue of the death penalty.
Nothing else can ever be more important than the sanctity of life, and acting against the taking of life.
All 11 of them, at the time, did our country, and indeed the world, a great service by setting the bar so high when they decided unanimously with an 11-0 vote that the scourge should have been abolished long ago.
It was found to be unconstitutional, degrading, a crime against humanity, an inhumane and cruel punishment, and should never ever be reinstated in our country.
Those 11 heroes of our nation, some deceased, were: Chief Justice Arthur Chaskalson, Justice Laurie Ackermann, Justice John Didcott, Justice Sydney Kentridge, Justice Johann Kriegler, Justice Pius Langa, Justice Tholakele Madala, Justice Ismail Mahomed, Justice Yvonne Mokgoro, Justice Catherine O'Regan, and Justice Albie Sachs.
However, when one reflects on what happened in 1975 when the issue came before the Supreme Court of the US, the verdict was the exact opposite: a split 6-5 vote, in favour of the return of the death penalty to any of its 50 states that so wished, with, unfortunately, the devastating predicament it brought about to the world's most powerful nation.
Dozens of executions resumed in 1976.
In the preceding decade, there was no death penalty in any of the 50 states.
The interesting thing is more than half the number of states, especially southern states, brought it back with venom, Texas and Florida leading that notorious pack.
Today there are 36, where it is retained, some never enforcing it, and 14 that opted for its abolition.
The interesting aspect is that crime has not decreased where it was retained – in fact it increased and in states where it was abolished it decreased significantly.
If we look back in our history, since 1910 when our country became a union, only 4110 people were executed by hanging.
Up to 1935, hanging took place all over the country, but thereafter it was done only in the then named Central Prison in Pretoria.
Of this number, more than 90% were of the black and coloured communities.
If we take that figure of 4110 and divide it by the number of years, up to the year 1989 when former president FW de Klerk placed a moratorium on executions, we arrive at an average annual figure of 52 executions.
Today, the murder rate alone has ballooned to more than 21000 annually, with an average of 56 daily.
For this reason, more and more people call for its reinstatement, never able to say how any country can kill such a lot of people, if they are all caught and convicted, and if our prisons can house them all.
In 1989 when apartheid was in its death throes, only Iran executed more people than South Africa. There were 453 people on death row, now serving life imprisonment.
It should be remembered that all the death penalty judges, many of whom were branded “hanging judges”, were white men. However, in the '80s, women could also become judges and the first one sentenced nine people to death in one go.
All the judges had an unsavoury record, especially those who sentenced the 131 political activists to death.
Of these, Ramon Leon, the father former DA leader Tony Leon, sentenced Andrew Zondo to death, and Judge Johan Theron sentenced Solomon Mahlangu to death, which must never be forgotten.
Our icon Madiba, together with the other seven Rivonia trialists, also faced the death penalty, but Judge Quartus de Wet, under divine intervention some believe, sentenced them to life imprisonment on Robben Island.
To avoid being branded hanging judges, some of them would call the state president in the small hours of night, pleading with him to reprieve certain death sentences.
Mostly, the death sentences of white and Indian convicts would then be commuted, whereas the lives of black and coloured convicts would rarely be spared.
Little research has been done about the death penalty in our country, especially the role of judges, prosecutors, advocates and attorneys, the clergy, academic folk and so on, for this thing to be kept on our statute books for so long. Therefore, it is crucial that the right people are placed in these positions.
Second, it is just as important that those chosen to conduct their interviews are unbiased, of high integrity, and are themselves clear on the matter.
It makes a mockery of our judicial system when there are people on that commission whose parties and they themselves are vehemently in favour of the death penalty, mostly to gain the votes of a fearful and gullible electorate.
All candidates should be asked the salient question of whether they support the death penalty.
We can never have a situation in future, should this issue be tested in our highest court again, that those 11 judges will come up with a split vote, plunging us into a similar mess the great American nation finds itself in from which it will never emerge and thereby rejoin the civilised world.
Our country is seriously in need of a Death Penalty Information Centre.