Capital Punishment And Moral Order

In his attempt to assert that capital punishment will not materialise in South Africa (Star, June 6), Dougie Oakes ignores the relationship between constitutionality and democracy within the context of moral order.

Given the increasing impunity of criminals and the lawlessness engulfing the country, public outrage at the callous murder of 9-year old Sadia Sukhraj in Chatsworth and 3-year old Courtney Pieters in Elsies River has renewed demands for the reinstatement of the death penalty.

The standard response of those, like Dougie Oakes, is to cite the 1995 ruling in the Makwanyane and Mchunu case which saw convergent thinking amongst judges abolishing capital punishment on the grounds that it ran contrary to the precepts of a democratic constitution. However, what the adherents to this argument overlook is that whilst the working of democracy is premised upon the constitution, it is a two-way relationship. Constitutions are not cast in stone. They are subject to amendment at the behest of the people. After all, a democracy is supposed to be premised on the will of the people. In a democracy, supreme power is invested in the people.

So the claim that the constitution cannot be amended to make provisions for the death penalty is humbug. Curiously, one does not hear the same people raising that argument now that the ANC has indicated that it may amend the constitution so as to expropriate land without compensation.

Given the cold-blooded and often barbaric way in which murders are committed, it surely is time to recognise that the perpetrators of heinous crimes are not deserving of sections 9,10 and 11 of the constitution which provide for the right to equality, dignity and life. Moreover, to afford such rights to them mocks the value of moral order. In other words, renders it farcical.

The trouble with constitutional rights is that terms and conditions are not applicable. Rights that are not respected should be forfeited. In committing murder, the perpetrator shows total disregard for his victim’s right to life and dignity. It is, therefore, absurd in the extreme that the murderer should enjoy the very rights he denied his victim.

Typically, Oakes cites the harsh reality of death by hanging. Yet he is silent about the suffering of murder victims. While he seeks to premise his case on moral order and democracy, he is indifferent to the denial and violation of those rights where murder victims are concerned. Thus, there is neither logic nor justice in the argument that society owes a murderer the right to be treated with dignity and respect for his life.

Arthur Chaskalson’s claim that “the greatest deterrent to crime is the likelihood that the offender will be apprehended, convicted and punished,” has been eclipsed by the realities of crime in South Africa. Between April 2016 and April 2017, some 19,000 people were murdered. That is 52 murders every day. With only 10% of criminal cases achieving convictions, Chaskalson’s “likelihood” of deterrence is a disastrous failure. Moreover, the reality is that imprisonment is no deterrent.

Excessive liberal tolerance is paving the way for anarchy. South Africa teeters on the brink of anarchy not only as a result of poor policing but, in the main, because of the absence of an intimidating deterrent in the form of the death penalty.

Sent into The Star and published, 10 June 2018.

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