With the ongoing war on women and children in South Africa, many people have called for the death penalty to be brought back. It is not really surprising that people want the death penalty brought back when it is evident that our criminal justice system is failing us. People are desperate to find solutions to overcome this violence and to make perpetrators face real consequences. But there are many reasons why the death penalty is not the answer to this crisis. Here, we will look at three reasons why the death penalty should not be reintroduced in South Africa.

The history of the death penalty in South Africa

Capital punishment (the death penalty) was introduced to South Africa by colonial powers in 1652. Cases involving rape, murder, and treason were subject to the death penalty. It was only on the 6 of June 1995 that the death penalty was finally abolished. Currently, the death penalty goes against many of the rights afforded by South Africa’s Constitution and many other international legal instruments. It is specifically a violation of the rights to life and dignity.

You might be saying to yourself: but rape and murder go against the right to life and human dignity too! And, of course, you would be correct in thinking that. Rape, sexual assault, domestic violence, and murder violate many fundamental human rights. However, we need to remember that we cannot pick and choose to whom human rights should be afforded or which human rights we want to uphold. This was the very foundation of practices like slavery and apartheid.

So, we must think of ways to address violence without resorting to the denial of human rights because when the State starts to deny human rights for some through legal instruments, it becomes very easy to begin to deny human rights for others based on reasons like race, gender, and/or sexuality

#1 Prejudice and the Death Penalty

One of the main reasons we should not want the return of the death penalty is that it was and continues to be a very prejudiced system.

According to the United Nations, poor people are more likely to be sentenced to death than wealthy people. This is because:

  1. They are easy targets for the police,
  2. they cannot afford a lawyer,
  3. the free legal assistance they might receive is of low quality,
  4. they cannot afford to get expert evidence,
  5. and many cannot afford bail and therefore remain in custody before their trials, further hindering their efforts to prepare for a fair trial.

On the other hand, wealthier people can generally afford good lawyers, pay bail, and often avoid trial altogether because of corruption. This means that even when rich people are accused of violent crimes, they are less likely to be sentenced to death than poorer people who have committed the same or even less serious crimes.

Black people and other people of colour are more likely to be sentenced to death. For example, in the United States of America, where some states still have the death penalty, there is a lot of research showing that Black people and people of colour are sentenced to death far more than white people. According to research, 35% of people executed in the last 40 years in the USA have been Black, despite the fact, Black Americans only make up 13% of the general population.

In South Africa, where there is already a long history of violence, abuse, and discrimination against Black people, the death penalty is not an appropriate solution to crime. It will likely lead to further abuse and discrimination against Black people from disadvantaged communities.

#2 The Ineffective South African Criminal Justice System

As most of us are already well aware, the police and legal systems in South Africa are ineffective and, generally, fairly incompetent. The police do not take sexual violence and domestic abuse seriously, they do not investigate cases correctly, and very rarely are they able to arrest perpetrators of crimes. When they arrest perpetrators, and the cases get to trial, evidence is often lost, criminals are let out on bail and continue committing crimes, and cases are struck off court rolls because of ineffective policing and a lack of evidence. In addition, many criminals are easily able to avoid facing the consequences due to the corruption that infiltrates every part of the criminal justice system in South Africa.

Because of this, the death penalty is, again, not a viable solution to the problems in South Africa. Hypothetically, we might see people being falsely imprisoned and sentenced to death because of, for example, bad policing or because the police and prosecutors are trying to create the impression of doing their jobs. Unlike with a life sentence, if someone is executed, the sentence cannot be reversed in instances where judgments were based on reasons like false confessions, insufficient evidence, perjury, official misconduct, and inadequate legal defense.

Jan van Rooyen, a South African law professor, claims, “[The death penalty] is a cheap way for politically inclined people to pretend to their fearful constituencies that something is being done to combat crime.” It’s very important that we think about how the death penalty might not only lead to the death of innocent people but also how it can be used for political and power purposes.

#3 The Death Penalty does not Stop Crime

One of the main reasons not to support the death penalty is that it does not prevent crime. According to Amnesty International,

“There is no credible evidence that the death penalty deters crime more effectively than a prison term. Crime figures from countries that have banned the death penalty have not risen. In some cases, they have actually gone down. In Canada, the murder rate in 2008 was less than half that in 1976 when the death penalty was abolished there.”

The death penalty will not help to deter crime, especially gender-based, sexual, and domestic violence. For one, women are reluctant to report such crimes because they are humiliated and re-victimized by the police. They are often shunned by their communities and face further violence and abuse for reporting crimes committed against them. And, as already mentioned, even when such violence is reported, the perpetrator is rarely arrested or taken to trial.

The death penalty also does not address the social reasons for violence. In other words, the death penalty does not address issues to do with gendered norms and patriarchal control. So, instead of actually dealing with the issues that create a climate in which violence thrives, the death penalty would merely act as a band-aid.

For these reasons (and more), the death penalty will be ineffective at stopping violence. Some argue that using the death penalty to punish the behaviour we condemn actually enhances the idea that violence is a way to deal with problems or punish others, thereby reinforcing and upholding a culture of violence. As Amnesty International says, “Any society which executes offenders is committing the same violence it condemns.”

What do we need to end the high crime rates?

What we need, then, is not an archaic practice like the death penalty that discriminates against those who are already some of the most vulnerable in society. Instead, we need to develop ways to hold the State, including the police, government, and legal system, accountable for implementing policies and procedures that create real change. This might include sensitivity training for civil servants, providing more funding for women’s rights organisations and places of safety, and prison programmes aimed at rehabilitation to prevent repeat offenders.

We also need to all work to address the social conditions that allow for violence to continue with impunity. We need to call out sexism and behaviour that upholds problematic gendered norms and hold men accountable for their words and actions. For example, we need to make it known that rape jokes are not okay! They contribute to a culture of violence against women. We all need to challenge the roles assigned to men and women – roles and ideas that position women as inferior and deem sexual and gender-based violence legitimate ways to punish and control. The responsibility specifically lies with men to call out other men’s sexist and problematic behaviour and language and to change attitudes held toward women.

Overall, social, political, and legal changes are necessary to overcome the violence that women (and children and other minority groups) face in South Africa. But the death penalty is not the way. It is unreliable, discriminatory, and ineffective at preventing violence.