Summary - The NNP’s recent demand that the government appoint a task team to investigate the introduction of the death penalty (which probably signals its intention to use capital punishment as an issue in the elections) raises questions about the role of public opinion in shaping policy on this matter, and about the viability of the government’s abolitionist stance. Capital punishment poses an important test for liberal democracy because it usually sets the liberal and democratic elements in sharp contradiction. Thus in recent decades many governments have abolished the death penalty even though public opinion in their countries supports it. In Britain, for example, where no one has been sentenced to death for half a century, 77 per cent of the population were in favour of capital punishment in 2001. This is slightly higher than the percentage that favours capital punishment in the US, where 38 states enforce the death penalty. The main difference between the US and Britain lies in the fact that in the US the principle of majority rule is incontrovertible. It is likely that public opinion in South Africa is at least as favourable to capital punishment as it is in Britain and the US, if not more so. Thus the ANC’s refusal even to debate the issue suggests that the party is less populist than some of its critics believe. Its stance is similar to that of British governments, which have refused to bow to public opinion on this matter. The South African government received institutional support from the Constitutional Court, which ruled in 1995 that the death penalty contradicts the right not to be subject to cruel, inhuman and degrading punishment. The Court acknowledged that public opinion was in favour of the death penalty but asserted that this should not outweigh other principles. This judgement insulated the issue from public opinion; however, the educational role that the debate has had elsewhere is missing here. It may be difficult for the ANC to maintain its abolitionist policy if opposition parties win votes by advocating the introduction of capital punishment. Black opinion on this issue is largely untested, but the high incidence of vigilantism suggests that the death penalty is acceptable to many black South Africans. Our high levels of serious crime may reinforce the sentiment that draconian penalties, including capital punishment, are needed.
The ANC's reluctance to debate the death penalty deprives it of an opportunity to educate the public.
The New National Party (NNP) has demanded that the South African government appoint a task team to investigate the introduction of the death penalty.
The demand was made after several particularly unpleasant murders and in the context of high levels of violent crime. Other groups have subsequently climbed in on the act, and a High Court judge recently declared his belief in the deterrent effect of the death penalty.
The NNP was probably signalling its intention to use capital punishment as an issue in the 2004 general elections.
The government replied that it refused to reconsider its abolitionist stance on the death penalty. The Democratic Alliance (DA) has long been abolitionist (though the NNP has accused it of sitting on the fence).
The African National Congress's (ANC) position on the death penalty
has won it, and South Africa, admiration among abolitionists. When
governor George Ryan of Illinois announced in January 2003 that he
would commute the sentences of all prisoners on death row, he said he
had been strongly influenced by ex-president Nelson Mandela and
Archbishop Desmond Tutu.
Capital punishment poses an important test for liberal democracy,
because it usually sets the liberal element and the democratic element
into sharp contradiction. More governments than ever before have
abandoned capital punishment, reflecting the revulsion of contemporary
liberalism for the barbaric penal practices inherited from a
pre-enlightenment past.
At the same time, it is likely that public opinion in many countries supports capital punishment, including countries where it is not practised.
According to Robert Singh, 76 per cent of respondents in the United States to a 1995 survey were in favour of the death penalty. In 2001 capital punishment was practised in 38 states in the US, but in Britain, where no one has been sentenced to death for half a century, he found that a marginally larger proportion (77 per cent) favoured capital punishment.1 Cynically perhaps, Ian Gilmour suggested that if public executions were brought back in Britain, "the crowd would be bigger than at a Wembley cup final; ticket touts would make a killing".2 The difference between the United States and Britain lies not so much in the level of public support for capital punishment as in the strength of the principle of majority rule. "The difference," wrote Robert Singh, "is the incontrovertibility of the principle of majority rule in the US".
I am not aware of a survey of attitudes on the issue in South Africa. But public opinion here is as likely to be favourable to capital punishment as it is in the United States and Britain.3 To judge from readers' letters to the press and the widespread practice of a murderous vigilantism, it could be more so.
The issue raises questions about the place of public opinion in shaping policy on this issue, and about the long-term viability of the government's abolitionist stance.
The ANC's resistance even to debating the issue may suggest that the ANC is less "populist" than some of its critics believe. Perhaps its leaders are afraid that a debate would open a Pandora's box, and that the weight of internal opinion might force it to change its position on an issue on which it has taken a principled stand without, as far as is known, having discussed it. On this issue ANC government behaviour is similar to that of British governments, which refused in this instance to accept the incontrovertibility of public opinion.
The South African Constitutional Court decided in S vs. Makwanyane, (1995), that the death penalty contradicted the right stated in Section 11(2) of the Constitution "not to be subject to cruel, inhuman and degrading punishment". This decision gave the South African government institutional support that British governments, in the absence of a constitutional court, do not enjoy. It had the advantage of insulating the issue from public opinion.
On the other hand the educational role which the debate has had elsewhere is missing here. The issue was exhaustively debated in Britain for decades before the death penalty was suspended experimentally for five years. Although debate on the death penalty there has never been foreclosed, neither of the major parties seems to want to restore it.3
The issue is vigorously debated in the United States, with opposing groups weighing in with masses of evidence to support their positions. The abolitionist case has gained enormous support there since the 1950s: 13 states are abolitionist, and most executions are carried out in a handful of southern states.
Outside of the southern states of the USA, there have been profound changes in the views held among the groups that shape judicial policy-making, particularly sentencing, irrespective of the state of public opinion.
In the Makwanyane case the Court assumed that public opinion was in favour of the death penalty. However, it asserted that while public opinion had a role to play, it ought not outweigh other values and principles.
Section 11(2) of the South African Constitution echoed the Eighth Amendment of the US Constitution, which outlawed cruel and unusual punishment.4 But this Amendment has never precluded US courts from imposing the death penalty, though it may have restrained its use. Following a moratorium on the death penalty, the US Supreme Court decided in Furman vs. Georgia (1972) that existing sentencing guidelines violated the Eighth Amendment. This decision reopened the door to capital punishment, for states like Texas could claim that methods like the lethal injection were not cruel and unusual. Texas restored the death penalty in 1976. (Lethal injection is now thought to be excruciatingly painful.)
Deservedly, the Constitutional Court enjoys enormous authority in South Africa. But this authority is not unlimited, and in areas such as the criminal justice system it might not command public respect were pro-death penalty interest groups to launch a determined attack on current policy, particularly if the current debilitating infighting in the ANC were to continue into next year.
It might be difficult for the ANC to maintain an abolitionist policy
were opposition parties to win electoral support through advocating the
introduction of capital punishment.
Aside from the NNP, a "Death Penalty Party" (DPP) has been formed to
fight the 2004 elections, and an "anti-crime action group" has called
for a referendum on the issue.
While single-issue parties usually fail dismally, the fact that the DPP echoes the demand from the NNP (an ally, after all, of the ANC) might suggest that the issue will not go away. Like the NNP, the DPP's support probably consists mainly of conservative whites, a negligible minority.
Recently Pretoria High Court judge Johan Els added his authority to the movement: "I am convinced that the death penalty has a deterrent effect". But the capital punishment movement should not be discounted simply because its most vocal advocates are whites.
Black opinion is largely untested on the issue. Traditionalist African movements, which have recently been flexing their muscle, and drawing considerable response from the ANC, have not articulated a view on capital punishment, but could very well come out in favour. Witch-hunts followed by cruel executions were endemic in remote rural areas in recent years, which suggests that vigilantism is a well-established feature of traditional society.5 Vigilante slayings of suspects are also common in urban areas, often for non-serious crimes.
The police attribute the high incidence of vigilantism to a loss of confidence in the ability of the authorities to cope with crime. The implication may be that the death penalty is acceptable to a significant element in black South Africa.
The American scholar James Marquant believed that Texans supported the death penalty because they had lost confidence in the criminal justice system.
In South Africa high levels of serious crime, a two-year embargo on the publication of crime statistics, and a long tradition of vigilantism, may reinforce the sentiment that the solution lies in draconian penalties, not only for murder but also for those crimes that feed moral panics, like child rape.
In South Africa, the murder rate was 47.4/100 000 in 2002-03, compared with 6/100 000 in the USA and less than 2/100 0000 in Europe. Serious crime, according to the South African Police Services report tabled in September, was considerably lower than the previous year, but the claim was greeted with scepticism by a wide range of opposition parties.
The high rate of serious crime might lend support to the call for the introduction of the death penalty. In fact, the Homicide and the death penalty in the USA box cites good research that the death penalty does not deter homicide in the United States, and there are some indications that it has the reverse effect.
The reluctance of the South African government to debate the issue at the highest level is understandable, but may by default deprive it of the opportunity to educate the public (and especially party representatives) about the death penalty.
Homicide and the death penalty in the USA: box
- Four recent book-length studies reinforce doubts that the death penalty has a deterrent effect;
- Executions have a brutalising effect measurable in increases in homicides following executions;
- Murders in north-eastern states have decreased by 5 per cent, while murders in southern states increased. Since 1976, 82 per cent of executions have been in the south; one per cent in the north-east;
- Murders in Canada declined after abolition in 1976;
- In the USA, the homicide rate is 6/100 000, compared with under 2/100 000 in six European countries which have all abolished the death penalty;
- The homicide rate is 48 per cent-101 per cent higher in states with the death penalty than in states without it;
- Police chiefs surveyed in 1995 saw the death penalty as last among effective ways of reducing violent crimes.
- Information from the website of the Death Penalty Information Centre. Most information for 2002.
Footnotes
1 Robert Singh, Capital Punishment in the United States: A New
Abolitionism, The Political Quarterly, 71, 3, July-September 2000
2 Riot, Risings and Revolution: Governance and Violence in
Eighteenth-Century England, 1992, p 10
3 The Murder (Abolition of the Death Penalty) Act, 1965, suspended the
operation of the death penalty for an experimental period of five
years, so presumably there is no statutory obstacle to its use. But it
is highly unlikely that it will be reintroduced
4 Myron Zlotnick provides an outstanding analysis of the issue. (The
death penalty and public opinion, Centre for the Study of Violence and
Reconciliation seminar, June 1995.)
5 Isak Niehaus, Witchcraft, Power and Politics, 2001
