The  judgment  found  that  the death penalty was inconsistent with the principles of the constitutional democracy South Africa was incubat- ing. 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. But this decision of the court has consistently  come  under  fire  from a populace frustrated and shocked by the high violent crime rate. This debate continually re-emerges with new fervour, particularly in light of gender-based violence.

exual  violence  is  of  par- ticular  concern.  A  total  of 52 420 sexual offences hav- ing  been  reported  in  the 2018-2019 financial year, according to statistics from the South African Police  Service.  Of  these  reported sexual  offences,  79%  were  catego- rised as rape, which translates to 114 reported rapes a day. It is irrefutable that South Africa has a pathological problem with sexual violence.

Added  to  this,  the  prominently publicised   femicides   of   Anene Booysen (in February 2013), Karabo Mokoena  (who  went  missing  in April 2017 and was later murdered); University  of  Cape  Town  student Uyinene  Mrewetyana  (in  August last  year),  Capricorn  College  stu- dent  Precious  Ramabulana  (who was stabbed 52 times in November last year) and 18-year-old Gomolemo Legae  (who  was  stabbed,  doused with   petrol   and   set   alight   in December  last  year)  have  left  the nation reeling with shock, anger and the desire for an immediate end to excessive levels of violence against women and children.

The argument for the return of the death  penalty  largely  follows  two streams of logic: It would act as a deterrent for crime; and
l  It  provides  proportional  and adequate retribution for the crime committed,  that  is  the  “eye  for  an eye” principle.
Apart  from  the  accompanying international and localised constitu- tional jurisprudence on the right to life and dignity as well as the human rights of accused and convicted per- sons in general, the trajectory of the South African constitutional democracy  cannot  and  does  not  endorse sanctioned murder by the state.

Instead, the state recognises that criminality should be met with suf- ficiently  proportionate  punitive measures. Rape, as the most violent, brutal and egregious sexual offence has  a  prescribed  mandatory  mini- mum sentence of at least 10 years imprisonment,  under  extenuating or mitigating circumstances, as contemplated by the Criminal Law Amendment Act 105 of 1997, if section 51(2)(b)(i) is applied in conjunc- tion with Part III of Schedule 2 of the Criminal Procedure Act.
The  mission  of  the  department of  correctional  services,  according to its website, is: “Contributing to a just, peaceful and safer South Africa through effective and humane incar- ceration of inmates, rehabilitation and social reintegration of offend- ers.” In other words, the department should keep society safe by remov- ing criminal elements and rehabili- tating  such  offenders  so  that  they can be integrated back into society. But imprisonment or incarceration serves a punitive function as well.

For the department to achieve its mission of punishing, removing and rehabilitating offenders, those who commit sexual offences need to be convicted  and  brought  to  justice. This mission is unobtainable in the current, realistic context.
A  report  titled  Rape  Justice  in South  Africa:  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 National Prosecuting Authority,  proved  that  conviction rates for sexual offences are shockingly low.

The  sample  consisted  of  3 952 dockets  opened  at  police  stations in 2012 in response to a complaint or an incident of rape. The sample revealed that only 57.8% of the cases were considered for prosecution. Of the cases reviewed for prosecution, it was decided by prosecutors not to proceed with a further 23.3% cases. Therefore only 34.5% of cases were accepted  and  placed  on  the  court roll. A further 16% of the initial cases were dropped before the trial started. Shockingly, in only 8.6% of the initial cases, the trial concluded with a ver- dict of
guilty of a sexual offence.

Unless a major shift has occurred in the past seven years, it is clear that perpetrators of sexual offences are not held to account. Even with a gen- erous view, as to include capital punishment as a viable punitive option for sexual offences, it is ineffective as a deterrent, if only 8.6% of
reported sexual offenders are convicted and thus could be potentially executed.
An argument for the implementa- tion of the death penalty does not take into account that judicial offic- ers may also exercise their discretion and  may  not  hand  down  a  capital punishment  sentence.  According to  the  Death  Penalty  Information Centre,  the  average  time  spent between sentencing and execution for death row inmates in the United States  stood  at  186  months  (15.5 years — the equivalent of the average sentence for rape).

ltimately, it should be clear that  for  women  and  girls to be safe from sexual vio- lence,  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 the state, civil society, faith- based  groupings,  business  and  all sectors  of  society,  including  chapter 9 institutions (such as the South African Human Rights Commission and  the  Commission  for  Gender Equality), is to end patriarchy and create 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.

Gushwell Brooks is the communica- tions co-ordinator at the South Afri-
can Human Rights Commission

Source: Mail and Guardian