A protester supports the death penalty at a march. Picture: BRAM LAMMERS/THE TIMES
A protester supports the death penalty at a march. Picture: BRAM LAMMERS/THE TIMES

The debate about bringing back the death penalty is stillborn. The constitution prohibits it, finish and klaar. If South Africans value this hard-fought-for constitutional dispensation, the death penalty should not even feature in our debates.

It is instructive to look back to the early 1990s, when the constitution was being written.

During the constitutional negotiations the death penalty was neither sanctioned nor excluded, and it was left up to the newly established apex court to decide whether the death penalty was a competent sentence for murder and other crimes in terms of the Bill of Rights, which was then contained in chapter 3 of the interim constitution.

In the landmark case of S v Makwanyane in 1995, the-then president of the Constitutional Court, Arthur Chaskalson, wrote the judgment that abolished capital punishment in SA.

The reasons were simple: it violated both the right to life and the right to dignity, which are absolute rights. There was also no proof that the death penalty had a greater deterrence value than, for instance, life imprisonment.

The then attorney-general, Klaus von Lieres und Wilkau, argued before the court that what is cruel, inhuman or degrading punishment depended to a large extent upon contemporary attitudes within society, and that SA society does not regard the death sentence for extreme cases of murder as a cruel, inhuman or degrading form of punishment.

Chaskalson was, however, clear in response to this argument: "The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the constitution allows the sentence."

The constitution is indeed expressly there to protect the rights of minorities, even if the majority willed it otherwise.

Which brings us to calls for a referendum on the death penalty, which the African Transformation Movement, a duly represented party in parliament, has asked for.

The department of justice & correctional services had it just about right after it weighed in to clean up the mess caused by justice minister Ronald Lamola’s blundering statement that he would take the debate to cabinet for discussion.

"We cannot subject our Bill of Rights to a referendum," the ministry said in a statement. "The basis of the constitutional order we are building is premised on the need to protect all those who may not necessarily be protected adequately through a democratic process where sheer numbers will determine the extent of that protection.

"Today, we will subject the prohibition of the death penalty to a referendum.

"Tomorrow it will be to recriminalise abortion and then later it will be to take away the protection accorded to the LGBTIQ community.

"This is the effective dismantling of constitutional supremacy and the vision of building a new society."

Herein lies the problem — where will it end once we start fiddling with the rights accorded by our constitution?

The populist, nonsensical chant in favour of the death penalty is anathema to SA’s constitutional order. It must be swiftly rejected.

Perhaps the reason why we as a nation cannot resolve our problems is that we tend to debate the non-issues.

The real solution to the crisis of violence facing SA lies in fixing the criminal justice system, from the police to the National Prosecuting Authority. And for this worthy and imperative cause, there appears to be little righteous fervour.