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Date: Sun, 9 Jul 1995 21:01:54 -0200
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Subject: Mayibuye July 1995

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Mayibuye, Editorial, Vol. 6, no. 3, July 1995

If the NP ever needed to develop a strategy for the new South Africa, it was last month. South Africa's constitutional court - the instrument designed specifically to uphold democracy and protect the constitution the NP helped to write - last month unanimously ruled that capital punishment was unconstitutional. It was an historic ruling, which brought to an end a barbaric practice which should have been outlawed long ago. It was hailed from several quarters, including by number of international observers, as a judgement which heralded the start of a new culture of respect for human rights and dignity. After the euphoria of the first democratic election, South Africans had demonstrated their commitment to building a new, better society.

The judgement also provided an opportunity for political parties to assert their support for the new South Africa, and its new-found respect for basic human rights. It was an opportunity for parties like the NP to shed some of the vestiges of their repressive past. It was an opportunity to entrench their 'new' NP image.

However, the party which for many years had been setting and breaking world records for hanging people was not quite ready to quit one of its dirtiest habits. The NP slammed the court's decision and called for a referendum to be held on the issue. While this move confirmed that the NP still has a long way to go before it manages to fathom out what a basic human right is, more disturbing is what the NP is saying about the legitimacy of the constitutional court and the supremacy of the constitution.

Whether the NP would be able to win a referendum on this issue is questionable. If the ANC and the democratic movement were to mobilise their resources around the abolition of the death penalty, it would most likely be able to convince the majority of South Africans that the death penalty is both inhuman and a wholly ineffective deterrent to crime. That, however, is not the point.

The point is that the Bill of Human Rights contained in the interim constitution is an expression of those fundamental rights which all people should be afforded irrespective of where they live; what their situation is in society; or in what age they live. Just because a majority of people at one point in history feel that it is right to murder someone for specific crimes, does not mean that one can automatically disregard that person's right to life and dignity. A nation's constitution should establish certain rights as inalienable, which the constitutional court must be bound to uphold no matter who challenges it.

Given the NP's slight on the legitimacy of the constitutional court - and by extension the basis of our democratic state - does not bode well for the future. Are they, for example, going to question the court's capacity to rule on the whether the final constitution satisfies the constitutional principles outlines in the interim constitution? Are they going to ask parliament to overturn all constitutional court decisions which they aren't happy with? The NP might not have got the hang of democracy, but there's no reason why they should impose their old-worldliness on the rest of the country.

Death Penalty Debate Shows NP Up

The NP's challenge to the constitutional court's death penalty ruling, undermines the constitution of South Africa and the independence of the courts, writes Duncan Harford.

Calls by the National Party for a referendum on the death penalty, after the constitutional court found it to be unconstitutional, was an attempt to gain political ground for itself and undermine the legitimacy of the constitutional court.

The decision was an affirmation of the right to life, as contained in the bill of rights in the interim constitution. Constitutional court president Arthur Chaskalson said: "everyone, even the most abominable of human beings, has the right to life and capital punishment is therefore unconstitutional."

In a move described by justice minister Dullah Omar as "highly irresponsible", the NP however called for a referendum to test public opinion on the question of capital punishment. In a parliamentary snap debate, Omar said the NP was "exploiting the anger and concern of the public with regard to crime and is doing so for cheap party political gain". He said it was whipping up emotions, fears and prejudices because it was the only way it could win votes.

ANC MP Johnny de Lange said the NP's call was an attack on the independence of the judiciary. The NP wanted through parliament to reverse a decision which only the constitutional court was obliged to make.

The NP move sought undermine the legitimacy of the constitution which they helped to write in multi-party negotiations. "The problem with the NP is that to them a Constitutional State and a Bill of Rights is not something that has been internalised and for which they are even prepared to die, but it is just something you see as curbing the powers of the majority party and therefore and instrument you use and manipulate as political expediency dictates," De Lange said.

Chaskalson said that "the very reason for establishing the new legal order and for vesting the power of judicial review of all legislation in the courts was to protect the rights of minorities who cannot protect their rights adequately through the democratic process". The constitutional court, he said, "cannot allow itself to be diverted from its duty to act as an independent arbiter of the constitution by making choices on the basis that they will find favour with the public".

Omar said the core values of the constitution should be beyond the reach of temporary majorities, although he doubted whether a majority of South Africans would support the death penalty if the democratic movement campaigned and mobilised against the death penalty.

The judgement handed down by the Constitutional Court has brought South Africa in line with contemporary civilised norms, it will re-establish the sanctity of human life, based on the notion that it absurd to expect citizens of a state to have any moral qualms about murder if the state itself is free to kill its citizens.

"The judgements represent a breath of fresh air over an apartheid polluted, violence ridden South Africa. The various judgements seek to lay the foundations for a new rights based approach and a human rights culture," Omar said.

Death Penalty No Deterrent

While the National Party was arguing that capital punishment was the only answer to South Africa's crime problem, the eleven constitutional court judges were unanimous in their view that there was no proof whatsoever that the death penalty was an effective deterrent.

In its judgement, the court said the high incidence of violent crime could not simply be attributed to the failure to carry out the death sentences imposed by the courts. It said the upsurge in violent crime came at a time of great social change associated with political turmoil and conflict. The court said there was nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of criminals.

Constitutional court president Arthur Chaskalson said the capital punishment debate was often dealt with as if there was a choice to be made between the death sentence and the murder going unpunished. This, he said, was not so. "The choice to be made is between putting the criminal to death and subjecting the criminal to the severe punishment of a long term of imprisonment which, in an appropriate case, would be a sentence of life imprisonment," he said.

Justice minister Dullah Omar said the NP, through its approach to the death penalty, was diverting the attention of many people from the real issue of what steps could be taken to prevent crime: "The death penalty has become a substitute for discussing concrete steps to fight crime."

He said steps taken by the government, such as the community safety plan, had already produced positive results. He said these efforts needed to be linked with efforts to improve the ability off the courts to bring criminals to justice.

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