Between the constitutional idea and the reality falls a shadow

NO social issue — with the possible exception of South Africa’s liberal abortion laws which continue to roil certain sections of the population —has been as contentious as the death penalty, especially in light of the escalating crime rate.

Retiring the hangman was the first major decision by the Constitutional Court about two decades ago. In forceful and unambiguous language, the court found capital punishment to be “cruel, inhuman and degrading” and therefore inconsistent with a commitment to human rights. It forbade the state to carry out any more executions.

It was a ground-breaking decision and announced the court as a determined bulwark against abuse of any kind.

What made the decision more palatable was the fact that the previous government had used the noose as a weapon against its political opponents. As former justice Zak Yacoob put it: “My whole body is repulsed by the very notion of the representative of our people coldly killing people.”

But the court’s decision merely put a lid on the subject. It has been left to simmer, away from public view. To express acceptance of the death penalty in polite company nowadays is to attract sneers.

A report this week by the South African Institute of Race Relations seems to chip away at the court’s contention that death by hanging is cruel and unusual. It argues that society is entitled to a measure of retribution, and arbitrariness is not unique to capital punishment.

Despite the firm ruling by the Constitutional Court, indications are that a vast majority of citizens are in favour of capital punishment. It seems a significant part of society has been left behind on a whole raft of social issues, despite the progress we’ve made on paper. Evidence suggests a majority is uncomfortable with, if not outright hostile to, gay rights and legal abortion. The ban on corporal punishment in schools and in the home also continues to be a source of unhappiness.

When society changes, its values also have to change. But in our case, a majority seems to have been left behind. On all these matters, our constitution is far more liberal than the society it purports to represent. Ours is still a deeply conservative society. We remain prisoners of our past.

But if society is still stuck in the past, why is the constitution — or the Constitutional Court as its interpreter and guardian — streaking way ahead of it? Whose constitution is it anyway?

If democracy is to mean anything, shouldn’t the constitution be a reflection or depository of a society’s wants and wishes?

“Liberty,” the celebrated US jurist Learned Hand once observed, “lies in the hearts of men and women; when it dies there, no constitution, no law, no courts, can save it.”

The two, society and constitution, need to get to know each other. They need to embrace and love each other. At the moment the constitution seems to be leading society as its beacon, rather than being a reflection of it.

That’s no bad thing. It’s a pointer to an idyllic destination, our Canaan, rather than a marker of where we are. The constitution therefore is not so much the reading or reflection of current temperatures but an encapsulation of our destiny.

And society cannot simply be turned over, like flipping a coin.

It is an arduous journey, a constant conversation, moving forward, sideways and even backwards, to eventually make those tiny steps of progress.

The problem is that this sort of conversation is not taking place. Or if it does, it is in rarefied environs, away from the little man and in a language he hardly understands.

The constant call for the death penalty, for instance, is informed by ordinary people’s reality on the ground where they live in constant fear of violent crime. They’re trapped like prisoners even in their own homes as criminals roam the streets unchallenged. They see a state hopelessly failing to come to their rescue.

The government seems to have a blasé attitude to crime, regarding it as an elitist preoccupation. The police were used to enforce oppressive laws in the past; as a result, the ANC has often regarded them with suspicion and has sought to keep control by appointing managers who are clueless even about basic policing.

The criminal justice system has been all but gutted — shorn of any credibility and racked by instability. If attempts to suspend Shaun Abrahams succeed he’ll be the seventh head of the National Prosecuting Authority in seven years to leave office before his term ends.

To an outsider, it often seems as though criminal syndicates are running our criminal justice system. It simply cannot be trusted to do right by the public, which has no alternative but to call for blood, and vigilantism becomes an attractive option. People take the law into their own hands, and arguments about the cruelty of the death penalty simply fall on deaf ears.

People’s values will line up with those of the constitution only when their circumstances change for the better.

The call for the death penalty is informed by people’s reality on the ground