By Melusi Simelane
The issue of the death penalty is a highly controversial one, with varying opinions on either reinstating it or upholding it across different societies and cultures. It involves various considerations, from legal frameworks and human rights perspectives to the effectiveness of the death penalty as a crime deterrent.
It is important to note that no constitutional or superior national court or international tribunal has deemed the mandatory death penalty to be legal or compatible with fundamental human rights, at least to my knowledge.
Given the high incidences of crime in the Southern Africa region, coupled with cases of repeat offenders and a decline of trust in law enforcement, it is not surprising that some may support the use of deadly force by police during apprehension or even call for the death penalty.
However, it is worth noting that while South Africa no longer has the death penalty, there is work in other countries to repeal it. We are also continuously working with the criminal justice systems in the region to assess the effectiveness of correctional services and facilities in rehabilitating offenders or holding them for life if necessary. However, we need to reach a consensus that human rights are universal and exist to protect us from ourselves.
The death penalty cannot be considered a necessary tool to deter crime, nor can it bring justice for those affected by crimes, no matter how heinous. We should remember that even within the criminal justice system, mistakes, political interference, and bias exist. Article 5 of the African Charter states that everyone has the right to be treated with dignity and respect and recognised as a legal person. This means that all forms of exploitation and degradation of people, including physical and mental torture and cruel, inhuman, or degrading punishment and treatment, are strictly prohibited.
This declaration has led to the African Commission passing Resolution ACHPR/Res.544, which calls on all member states to abolish the death penalty. The resolution also urges the African Union to adopt the Additional Protocol to the African Charter on the Abolition of the Death Penalty in Africa 3 , which was drafted and adopted by the Commission in 2015.
Despite increasing crime rates across the continent, this move towards realising fundamental human rights for all is a positive development for Africa.
The question we must ask ourselves is how can we address crime without resorting to the arbitrary and inhumane use of the death penalty? Our society needs to examine the criminal justice system to prevent crime, protect the public, rehabilitate and reintegrate offenders, and, above all, hold wrongdoers accountable.
Do we have an exemplary and effective criminal justice system in our region? Are we confident that we have utilised the criminal justice system to prevent crime and safeguard the public, or has it increasingly become a tool for gaining political advantage during elections or silencing opposition? There are many issues to consider.
I understand that some are suggesting a need for a more realistic approach towards fighting crime in the region. Let’s focus on the role that each one of us can play in mitigating these terrifying crime statistics. The death penalty is not a solution to fighting crime. The root causes of criminal activity are complex and varied and include socio-economic and mental health issues that disrupt people’s lives. For instance, the Covid-19 pandemic has caused significant disruptions to people’s social livelihoods and jobs.
Building a thriving society requires addressing significant issues, such as child-focused ‘early childhood’ campaigns that aim to shape our children into the people we want our society to be. If we ignore these issues, we will be forced to consider shortcuts like the death penalty, which will not help solve our most significant social problems.
It is essential to highlight that political influence in the criminal justice system would convert the death penalty into a political tool. This is in addition to the human rights framework against the death penalty. Amnesty International reports that approximately 40% of all executions are drug-related. In contrast, in some countries, people are put to death for protesting against their governments. This practice should never be allowed in our region. The problem lies in justifying one death sentence for one crime, which may lead to further justifications and, ultimately, an opportunity for misuse.
*Simelane is a Civic Rights Programme Manager at the Southern Africa Litigation Centre
**The views expressed do not necessarily reflect the views of Independent Media or IOL