Murderers’ Rights And Moral Order

In his consistent opposition to the reinstatement of the death penalty, Professor George Devenish cites the Makwanyane judgment, which asserted that capital punishment is in conflict with sections of the Bill of Rights (Mercury, September 9).

The trouble with the constitution’s provisions is that terms and conditions are not applicable. In committing a capital crime, the perpetrator shows total disregard for his victim’s right to life and dignity. It is therefore absurd in the extreme that a murderer should enjoy the very rights that he denied his victim. Logically and morally, rights that are disregarded should be forfeited. Yet failure to do so mocks the value of the moral order that Professor Devenish strives to defend.

Arguing for a better criminal justice system and more competent policing may well help in bringing criminals to court. But as long as a murderer knows that his right to life, dignity and equality will be upheld, regardless of the brutality of his crime, and that some legal quirk may mitigate his prison sentence – which, in any case, may see him enjoying parole at some point – violent crime will continue undeterred.

Professor Devenish asserts that there is no conclusive evidence to prove that capital punishment deters violent crime. But given the tsunami of violent crime, what is crystal clear is that imprisonment is not a deterrent. According to Dr David Mulhausen of the Heritage Foundation (2014), there are many studies in the US which recognise the deterrent effect of capital punishment.

Opponents of capital punishment exhibit selective morality. While condemning it as barbaric, they condone imprisonment at great expense to sustain the lives of those who committed barbaric crimes. How does that equate with the pain and tragedy of those murdered? Where is the morality in that?

Of course, the imposition of the death penalty may be subject to human error as has occurred in twelve cases in the US. It is a reality that life is fraught with risk. But if we had to be guided by statistics, then we would have to avoid all forms of road transport because of the high risk of being killed.

The weakest of the six reasons Professor Devenish adduces in opposition to capital punishment is that of racial bias. Given the preponderance of African jurists on court benches and the fact that the Chief Justice is African, the argument of racial bias is a non-starter.

The Makwanyane judgment is paraded as if it is a holy writ that is cast in stone. What its proponents seem to ignore is the relationship between constitutionality and democracy within the context of moral order. It is a two-way relationship that is subject to review and amendment. Given the escalation of crime and violence, it is clear that liberal tolerance has not only failed but is facilitating the onset of anarchy. Circumstances have eclipsed the Makwanyane judgment.

Sent into The Mercury and published, 11 September 2019.

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