The Bill of Rights guarantees the right to life, even for murderers
There is no question that the right to life is sacrosanct, with a few caveats, such as when we kill to protect ourselves and members of our families in self-defense.
A provision in the Bill of Rights states that everyone has the right to life.
The killing of another impinges on their dignity and humanity, which is protected by the constitution (section 10).
The country is exposed to horrid killings of innocent people every day. Women get slaughtered and hanged on trees in the veld. Even babies are not spared, with stories of infants who have been disembowelled, their body parts used for multi purposes.
The ruthless murderers act with impunity, with no regard for human life.
[membership level=”1″]Political assassinations are rife. They are normalised and often orchestrated by the izinkabi (hired killers) found in most parts of the country.
Police statistics reveal a harrowing picture of violence that has gripped South Africa.
The difficult question, though, is what needs to be done to curb this scourge of brutality and disrespect for human life?
SA is a constitutional democracy. The courts have to interpret the law to “promote the spirit, purport, and objects of the Bill of Rights”. Because of this, the death sentence has been repealed.
In 1995, in the Makwanyane case, the Constitutional Court declared the death penalty unconstitutional, which was provided for in section 277 of the Criminal Procedure Act.
But in SA, criminals do as they please, without fearing the consequences of their actions.
The danger, though, is that if the police do little to protect the citizens, victims might elect to take the law into their own hands.
The question, which seems hard to answer, is: What should be done?
The police have no credibility, and often enjoy limited successes in bringing perpetrators of crime to book.
The everyday complaint among civilians is that “the police are useless; criminals have the upper hand and have taken over”.
“We want the death penalty back or we will do it ourselves,” they cry.
But no one is allowed to take the law into their own hands. To do so is to usurp the function of the state. But that does not answer the question, if the police fall short of executing their job, how do citizens get justice?
In the midst of a constitution hailed as one of the best in the world, the spectre of violent death is a lived reality for many South Africans.
As a response to the widespread mayhem, could the answer lie in the invocation of the death penalty? But the Bill of Rights states that all have the right to life (section 11), including murderers.
President Cyril Ramaphosa and his executive have to seriously deal with this reality. As a result of police inaction or incompetence, pent-up anger could boil over, and the desire for revenge vigilante-style could be palpable.
Section 12(1)(c) demands that everyone should be protected from all forms of violence. However, if violence, murder, and mayhem take centre stage in communal life and become widespread, this has the effect of rendering constitutional provisions impractical and ineffective.
South Africa is a creature of constitutionalism. The preservation of life is sacrosanct. But voices of those who call for the reinstatement of the death sentence seem to be reaching a crescendo.
Some argue that section 36 of the constitution has a limitation effect, and must also apply to the right to life so that a death sentence could be justified.
But that would be to abuse the intention of the constitutional provision of limitations of rights, even as the country faces a high rate of violent crime. The death sentence does not limit the right to life, it annihilates it, and so fails the test of constitutionality.
But some legal scholars argue that if the rate of violent crime escalates, as it is doing today, the symbolism of the “unconstitutionality of the death penalty” will be eroded, and a case for its return might be successfully made.
- Mdhlela is a freelance journalist, an Anglican priest, an ex-trade unionist and former publications editor of the South African Human Rights Commission journal
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