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INTRODUCTION

Capital punishment in South Africa has a long and unfortunate history. It has always been controversial.

Generally speaking during the apartheid years, whites overwhelmingly supported the death penalty - and they still do. Overwhelmingly blacks opposed the death penalty. They saw themselves as victims of a legal system which discriminated in favour of whites and against blacks. For most of the apartheid years throughout the twentieth century, blacks were excluded from occupying positions as judges and prosecutors. All top positions in the Police were occupied by whites. It is therefore not surprising that generally blacks regarded themselves as victims of the legal system. It is also blacks who were overwhelmingly the victims of the debate of the death penalty during the apartheid years.

By the 1980's, the campaign for the abolution of the death penalty became more and more strident as the number of people on death row increased dramatically. Despite the existence of the death penalty, crime continued to rise. Any deterrent to crime was non existent. The death penalty became a hot political issue which went hand in hand with the anti-apartheid struggle.

By the late 1980's, the situation had reached crisis point. The notorious death row was crowded with hundreds of persons awaiting the hangman's noose. Responding to the crisis, the then Government suspended all executions. The Constitutional negotiations paved the way to the adoption of the Interim Constitution which included a chapter on fundamental rights. So it came about that the right to life became entrenched in the Constitution as one of the fundamental rights.

CONSTITUTIONAL FRAME WORK

The historic settlement in South Africa addressed the aspirations of the majority and the fears of minorities. Hence the Constitutional frame work made provision for majority rule in day to day matters, but placed fundamental or core values which are identified in the Bill of Rights beyond the reach of shifting or temporary or changing majorities.

In respect of such core or fundamental values, the majoritarian principle gave way to Constitutional protection which made the Constitutional Court the final interpreter, guardian and arbiter whose word was final and binding on all, including Parliament. The importance of the Constitutional Court lies in the fact that in respect of core values and fundamental rights entrenched in the Bill of Rights, it has the power to overrule even Parliament, ie majorities. Even a majority decision in a referendum cannot override the decision of the Constitutional Court.

When therefore we are being asked to bring back the death penalty because the majority wants it or to hold a referendum to determine the views of the majority, we are in effect being asked to abandon the Constitutional protection of core or fundamental values because the majority wants it. In other words, we are being asked to replace Constitutional protection with the majoritarian principle. If there is to be a move towards making the majoritarian principle applicable in matters affecting fundamental rights, there will be no role for a Constitutional Court. We will be abandoning the notion of Constitutionalism or a Rechstaat.

The replacement of Constitutionalism with majoritarianism in this way would pave the way for majority decision making - either in Parliament or through a referendum - in all matters, e.g. on land expropriation, language rights, religious rights, detention without trial, regular elections, a multiparty system, etc.

If there is to be a referendum, the issue must be whether we should abandon the current Constitutional frame work and replace it with unbridled majoritarianism to enable majorities from time to time to take decision on all fundamental values. In my view the best course for South Africa is to accept the current constitutional arrangement which provides for majority rule in all matters, save in respect of core values or fundamental rights which must remain entrenched in the Constitution with the Constitutional Court as its final arbiter. We must learn to respect the decisions of the Constitutional Court, because this will help us ultimately to establish the rule of law, and thereby help to eliminate violence and lawlessness from our society.

THE PRINCIPLE OF RETRIBUTION/REVENGE

There are many who want the death penalty to be reinstated because they believe in retribution and revenge. In this regard there are often very strong emotional undertones, sometimes based on racial stereotyping with perpetrators invariably seen as black monsters. In many instances the racial element plays a role. All legal systems in the world, including all religious systems, over a period moved away from vengeance or revenge-the oldest form of justice. They moved away from the notion of an eye for an eye, a tooth for a tooth. I do not believe that we can go back to the eye for an eye principle, for the simple reason that it embraces violence as the core value of society. Violence and counter violence will then become our way of life. Such an approach will see violence not as a problem, but as a solution. This is unacceptable in a democratic society based on respect for human rights.

THE DEATH PENALTY; NO DETERRENT TO CRIME

Many people see the death penalty as a deterrent to serious crime. There is a genuine cry from the heart of many people for an effective deterrent. The call for the death penalty as a deterrent is for many citizens who are victims or potential victims a desperate plea to put into place an effective deterrent to crime in a situation in which there is perceived to be no deterrent in place. It is a cry from the heart - but alas not the head. Why? Because we know from our own history (South Africa) that despite the liberal use of the rope, apartheid South Africa was unable to deter offenders. The crime rate (murder, robbery, rape) continued to soar - even though the media then often maintained a blanket of silence on the crime situation, because of its common interest with the then regime that the security of the State was more important than human beings. The situation in the 1980's reached crisis point - with hundreds on death row - sufficient to compel the then Government to suspend all executions. This was a recognition of the failure of capital punishment and in preparation for a dispensation which would entrench the right to life in our Constitution.

I understand the desperate cry and plea by many men and women in South Africa who are suffering because of the crime situation. Opposition to the death penalty does not mean one must be soft on crime. Indeed, it implies being tough on crime but also addressing the real issues - which is developing an effective deterrent to crime. In South Africa today, even if the death penalty were to be reintroduced, there will still be no effective deterrent to crime. We would then still have to develop such a deterrent. What then is an effective deterrent? An effective deterrent can be said to exist when there is a loud inner voice in the head of a potential offender which tells him that he will not get away - that he will be apprehended and brought to justice. That loud inner voice will not exist where offenders are not even arrested in the first place, and not brought to justice.

The reason that an effective deterrent does not exist in South Africa is because:
1. Many perpetrators of serious crime are not even arrested.
2. Their crimes are not properly investigated.
3. Sometimes prosecutions are conducted in an ineffective or defective way.
4. Bail and sentencing laws have been too lenient.
5. Sentencing and corrections policies at times enable those found guilty of serious crime to get away without having to serve their sentences.
6. Communities including business are too crime tolerant.

The reason that the inner voice in the head of a potential offender tells him that his crime will pay and that he will get away with it, is because he believes that he has a good change of escaping arrest or justice due to one or a combination of the above factors.

All eleven judges of South Africa's Constitutional Court came to the same conclusion after thorough research and considerations, namely that the most effective deterrent to crime is an effective criminal justice system, coupled with a strategy to address the causes of crime.

That is what we need to do in South Africa. Even if the death penalty were to exist, I say that because of the various factors mentioned above, it will not act as any detergent whatsoever, because the potential offender will consider that he will be able to escape justice entirely. When a person is not arrested in then first place, the question of penalty will not even arise. Raising the issue of the death penalty is understandable when it comes from ordinary citizens. When it comes from leaders of political parties and those who should know better, it is playing games with people's anger and emotions because it diverts people's attention away from the real problem and the real solution.

NATIONAL CRIME PREVENTION STRATEGY

What is required in South Africa is a proper understanding of the national crime prevention strategy which requires all role players and communities to work together in a common fight to address crime and the causes of crime. It also requires all role players in the criminal justice system to ensure they perform their line functions properly and that there is proper co-ordination.

One of the major problems which allow people to escape justice is corruption. It is an issue which must be addressed at all levels. The road to a crime free society with an adequate deterrent to crime in place is through our implementing as urgently as possible at every local level the various programmes devised under the National Crime Prevention Strategy.

Thank you.

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