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Time to abandon death penalty debate

Publish date: 10 February 2020
Issue Number: 859
Diary: IBA Legalbrief Africa
Category: Criminal

The seminal 1995 Constitutional Court ruling in State v Makwanyane and Another found that the death penalty was inconsistent with SA’s principles of the constitutional democracy. ‘It was one of the most significant events in the development of our constitutional jurisprudence that separated us from the brutality of prior colonial and apartheid regimes’, says the Human Rights Commission’s Gushwell Brooks. However, despite the trajectory of the South African constitutional democracy – that it cannot and does not endorse sanctioned murder by the state – there are constant calls for the reintroduction of the death penalty. In his analysis in the Mail & Guardian, Brooks cites the report titled Rape Justice in SA: Retrospective Study of the Investigation, Prosecution and Adjudication of Reported Rape Cases from 2012 – based on a study by the Medical Research Council on behalf of the NPA – which proved that conviction rates for sexual offences are ‘shockingly’ low. Only 8.6% of rape dockets which were opened at police stations resulted in a guilty verdict following a trial. ‘It is clear that perpetrators of sexual offences are not held to account,’ says Brooks, noting that if only 8.6% of reported sexual offenders are convicted – and thus could be potentially executed – the return of the death penalty would be ineffective. He adds: ‘It should be clear that for women and girls to be safe from sexual violence, we need to accept the fundamental principles of our human rights framework within a context of equality, dignity as well as freedom, and abandon the recurring debate on the death penalty. What is needed, he says, is an end to patriarchy and the creation of a safe and conducive environment where women and girls can truly enjoy their constitutionally guaranteed equality. ‘The first way to address this is by dealing with the glaring inefficiencies of the criminal justice system that sees 91.4% of accused sexual offenders go free.’

Rape Justice in SA: Retrospective Study of the Investigation, Prosecution and Adjudication of Reported Rape Cases from 2012

State v Makwanyane and Another

Full analysis in the Mail & Guardian