Africa, Crime & Justice, Headlines, Human Rights

RIGHTS-SOUTH AFRICA: Death Penalty Referendum Call – Critics Cry Populism

Stephanie Nieuwoudt

CAPE TOWN, Mar 12 2008 (IPS) - Jacob Zuma, the president of the African National Congress (ANC), the ruling party in South Africa, has of late been called a chamaeleon who adapts his speeches to what his audience wants to hear. It&#39s a tactic that has proved controversial, not least when Zuma took up the issue of the death penalty.

Since his recent election as head of the party in December, Zuma has indicated that he is in favour of opening a debate on the issue of capital punishment. The death penalty was scrapped from the law books in 1995, but many are now calling for its reinstatement to help curb the high crime rate.

South Africa was in crisis and required "radical laws" to deal with crime, Zuma said during a speech at a forum hosted Mar. 4 in Johannesburg by Chief Rabbi Warren Goldstein. Zuma indicated that if he became the country&#39s next president, he would try to persuade the ANC to start a debate on holding a referendum to sound out public opinion on bringing back hangings.

His comments echoed a speech made in December in which he called for a renewed discussion about the death penalty.

However, these are the words "of a populist leader who says what the people want to hear," Pierre de Vos, a professor of constitutional law at the University of the Western Cape, told IPS.

"For the death penalty to be reinstated, a two-thirds majority of the national assembly (the lower house of parliament), as well as six of the nine provincial delegates to the national council of provinces (the upper house of parliament), have to agree to the change."

The present constitution, which outlaws the death penalty, was adopted after South Africa&#39s first democratic elections in 1994.

"There is no indication from the rest of the ANC leadership that they are in favour of bringing back capital punishment," De Vos added.

"Even if a referendum is held, it is only a test of the views of the population. Although the outcome of a referendum may place a moral obligation on the leadership, there is still no legal obligation to change the constitution."

De Vos noted further that it would be extremely dangerous to start "tinkering with the constitution".

"It would send a message to the people of South Africa and the rest of the world that the country is willing to change laws for short-term political gains."

And, bringing back capital punishment offered no guarantee that crime would decrease, he said.

Ebrahim Fakir, senior researcher at the independent Centre for Policy Studies, based in Johannesburg, shares this view; he noted that "globally there is no proof that capital punishment is effective".

In addition, there were serious failings in the police and justice systems in South Africa which needed to receive priority in efforts to reduce crime.

"There is no guarantee that if a perpetrator does wrong, he will be apprehended. Nor can one bank on it that cases will be thoroughly investigated, prosecutions properly handled, and appropriate sentences handed down and served," Fakir told IPS.

"These are basic requirements for the threat of (capital) punishment to work as a deterrent. If these things are lacking now, reinstating the death penalty will make no difference," he said.

"Besides, the death penalty is irreversible, which is problematic…We have many examples – in the U.S. and other places – of suspects being put to death only for their innocence to be proven years later on the basis of new information coming to light."

Steven Friedman, a political analyst at the Institute for Democracy in South Africa, a non-governmental think-tank, agreed with De Vos that the rest of the ANC would not support a call for a referendum on the death penalty.

"Although I do think that Zuma says what people want to hear, it is still too early to really know if he is serious or not. He can make certain statements now, but he does not have the real power to make a difference. He is the leader of the ANC, but he is not at this stage a member of parliament," Friedman told IPS.

"Should he become the leader of the country – something which will be determined in the general elections in 2009 – he will have to put his words to the test. He will have to make choices. As a leader, one cannot be everything to everybody."

Deon Geldenhuys, a political lecturer at the University of Johannesburg, called Zuma a "man of all seasons" on the death penalty issue.

"He adapts what he says to his audience, but he is very careful not to say that he will make constitutional changes. He chose his words carefully, saying that he will open a debate," Geldenhuys told IPS.

"People expect moral statements from him as leader of the ANC, and crime in South Africa is a moral issue. By making these kinds of statements, he proves that he is a grassroots politician who takes the concerns of the ordinary citizen seriously," he added.

"This stands in contrast to President Thabo Mbeki, who is often seen as distant and arrogant. The problem with a populist leader who blows with the wind, though, is that it creates uncertainty about his ability to make sound decisions."

Fakir doubts that Zuma really wants to bring back capital punishment. "Zuma himself would have been subject to the death penalty 25 years ago if he had been caught by the then apartheid regime in South Africa," he said.

Zuma was a senior leader in Umkhonto we Sizwe, the underground military wing of the ANC, during its armed struggle against apartheid. Umkhonto we Sizwe is a Zulu term meaning "spear of the nation".

Zuma&#39s statements on the re-instatement of the death penalty should be seen as a a way of telling South Africans that "he hears them and is responsive to their concerns," Fakir added.

According to De Vos, South Africa would not want to risk damaging its world standing by backing out of its international treaty pledges never to use the death penalty.