15 DECEMBER 2011

Speech by: Advocate George Bizos SC

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'The struggle of man against power is the struggle of memory against forgetting'

– Milan Kundera

We stand in a place some called a "factory of death" where hundreds of men and women were executed during the darkest years of our country's history.

Until 1958, the death penalty could be imposed for only three crimes: murder (without extenuating circumstances); treason; and rape. It was imposed in a number of murder cases. It was imposed in only a few rape cases, but almost exclusively where the complainant was a white woman and the accused a black man. It was rarely imposed in treason cases, not even in cases against those who betrayed their country South Africa during the Second World War. Judges regularly imposed the death penalty, but as a result of the Governor-General's frequent exercise of mercy, only a very small percentage of convicts were actually executed. Instead, they were sentenced to lengthy terms of imprisonment.

The adoption of the United Nations Declaration of Human Rights in 1948, which guarantees the right to life, combined with the numerous campaigns to abolish the death penalty, persuaded a number of countries in the late 1940s and 1950s to do just that.

Not so in South Africa.

Following the accession to power of the apartheid regime, between 1958 and 1967, the number of capital offences went from three to eleven, including robbery, house-breaking with aggravating circumstances, sabotage, kidnapping, participation in terroristic activities, receiving training that could further the objects of communism or advocating abroad economic or social change in South Africa by violent means through the aid of a foreign government or institution where the accused is a resident or former resident of South Africa, and others. The average number of hangings per year increased from 21 per year between 1910 and 1947 to 93 per year between 1948 and1968. During the 1980s, more than 1,100 men and women were executed in South Africa with the greatest number of hangings per year reaching over 115. Needless to say, the prerogative of mercy was rarely exercised.

Most of those convicted were poor and uneducated young black men who had left their homes in impoverished rural areas to search for a better life in the cities. Upon arriving, they would find themselves alone, unemployed and were often compelled to commit crimes in order to survive. They were defended by young, inexperienced counsel without the assistance of an attorney and without the benefit of expert witnesses in relation to the cause of death or other elements of the offence.

Their parents would only hear about the serious situation of their sons after they had already been convicted and sentenced to death. The police would send a black framed photograph of the young man with an execution announcement to the police station nearest to the parents' home to inform them of their son's forthcoming execution. Families would be forced to sell their cattle or borrow money to visit their sons on death row or to find some lawyer to intervene on their behalf to stop the execution. Unfortunately, the American practice of stopping executions was frowned upon by our legal system and such attempts in South Africa were rarely successful. There was hardly anything we could do for any one of them.

Shortly after the Sharpeville Massacre in 1960, the government declared a state of emergency and thousands were subject to detention without trial. The massacre led to the banning of the PAC and the ANC. In response, Poqo, the military wing of the PAC, and Umkhonto we Sizwe (MK), the military wing of the ANC, were founded. Those detained without trial were compelled to make statements implicating political activists and trade unionists.

On May 10th 1963, three prominent trade unionists and ANC members from the Eastern Cape, Vuyisile Mini, Zinakile Mkaba and Wilson Khayinga, were arrested and charged with 17 counts of sabotage and other political crimes, including killing a state witness.

The three were offered their lives in exchange for information. They rejected the offer. Mini wrote:

'I am presently awaiting execution at Pretoria Central Gaol having been sentenced to death at the beginning of the year. On October 2, 1964, Captain Geldenhuys and two other policemen came to see me. They asked me if I had been informed that my appeal had been dismissed. I told them I was not interested to know from them what my advocate said.

They then said there was still a chance for me to be saved as they knew I was the big boss of the movement in the Eastern Cape. I must just tell them where the detonators and revolvers were, and they would help me. I refused. They then asked me about Wilton Mkwayi (subsequently sentenced to life imprisonment) and whether I was prepared to give evidence against Mkwayi, whom they had now arrested. I said no, I was not. When they asked would I make the Amandla Ngawethu salute when I walked the last few paces to the gallows, I said yes.'

They were all convicted on the uncorroborated evidence of a witness who was an informer. The judges found as corroboration the mere fact that they were political activists. During those years, this was enough.

I had the great pleasure to meet these men. We did not act for them during their trial, but Harold Hanson and I were asked to argue the appeal. It was my first ever visit to death row and the experience was shocking. They had been on death row for many months, but were hopeful that both the death sentence and their conviction would be set aside.

For the chief warder in charge of death row at the prison, it was a very ordinary day. He kept us waiting for some time while he debated the composition of the prison warders' rugby team that would play the following Saturday.

We put forward a strong argument as to why there was insufficient evidence to convict them. But we lost the appeal and had to tell these three men of the outcome. They accepted their fate even though they maintained that they were innocent and had nothing to do with the murder. They were brave, decent and principled human beings. Mini went to the gallows singing freedom songs, some of which he had composed himself. Ben Turok, a previous co-accused of Mini's in the 1956 Treason Trial, was serving a three-year term in Pretoria prison for MK activities at the time of Mini's execution. He described the last moments of Mini, Khayinga and Mkaba in Sechaba, the official ANC journal:

'The last evening was devastatingly sad as the heroic occupants of the death cells communicated to the prison in gentle melancholy song that their end was near [Senzeni na? (What have we done?) was the favourite song of the innocent]... It was late at night when the singing ceased, and the prison fell into uneasy silence. I was already awake when the singing began again in the early morning. Once again the excruciatingly beautiful music floated through the barred windows, echoing round the brick exercise yard, losing itself in the vast prison yards. And then, unexpectedly, the voice of Vuyisile Mini came roaring down the hushed passages. Evidently standing on a stool, with his face reaching up to a barred vent in his cell, his unmistakable bass voice was enunciating his final message in Xhosa to the world he was leaving. In a voice charged with emotion but stubbornly defiant he spoke of the struggle waged by the African National Congress and of his absolute conviction of the victory to come. And then it was Khayinga's turn, followed by Mkaba, as they too defied all prison rules to shout out their valedictions. Soon after, I heard the door of their cell being opened. Murmuring voices reached my straining ears, and then the three martyrs broke into a final poignant melody which seemed to fill the whole prison with sound and then gradually faded away into the distant depths of the condemned section.'

By the middle of the 1980s, the international and local pressure on the apartheid regime not to execute convicted persons increased. The local pressure was spearheaded by lawyers, journalists, and academics, including acclaimed jurist Barend van Niekerk who brought to the public's attention the patent discrimination and inequality in relation to the imposition of the death penalty.

By the late 1980s, the pressure increased and reached an all time high after Nelson Mandela's release in February 1990. It became apparent that the new order in South Africa would insist that the death penalty should be abolished. Some judges still imposed the death penalty, but there was a moratorium on executions. Minister of Justice Kobie Coetsee eventually bowed to the pressure.

During the writing of the Constitution, there were differing opinions between the liberation movements and the apartheid regime. As there was no consensus, it was agreed that the Constitution would not directly abolish the death penalty but that it would guarantee the right to life to everyone. We were confident that the newly constituted Constitutional Court would, under that provision, interpret the Constitution in such a way that the imposition of the death penalty would be declared to be unconstitutional.

In the landmark 1995 judgment of the Constitutional Court in S v Makwanyane, the Court drew a number of conclusions with respect to the death penalty. The Court held that, in practice, there was an element of chance at every stage of the process of implementing the death penalty:

'The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors.'

The Court rejected the Attorney General's argument that the death penalty acts as a greater deterrent than life imprisonment:

'[The Attorney General] contended that it is common sense that the most feared penalty will provide the greatest deterrent, but accepted that there is no proof that the death sentence is in fact a greater deterrent than life imprisonment for a long period. ... [T]he fact that there is no proof that the death sentence is a greater deterrent than imprisonment does not necessarily mean that the requirements of section 33 cannot be met. It is, however, a major obstacle in the way of the Attorney General's argument, for he has to satisfy us that the penalty is reasonable and necessary, and the doubt which exists in regard to the deterrent effect of the sentence must weigh heavily against his argument. "A punishment as extreme and as irrevocable as death cannot be predicated upon speculation as to what the deterrent effect might be..."'

The Court further held that the rights to life and dignity were the most important of all human rights. President Chaskalson (as he then was) wrote:

'The carrying out of the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable. ... I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.'

Even after this decision, in recent times, some have called for a referendum on the death penalty. Others rely on religious grounds for the imposition of the death penalty ignoring the primary teachings of mercy and forgiveness and forgetting that after Cain killed his brother Abel, God Himself did not impose a death sentence on Cain, but rather banished him from his land and put a mark on him to protect him from others who might wish to kill him.

Approximately 140 countries in the world have effectively abolished the death penalty. Nevertheless, there are still many countries, including a number of our neighbours, who still execute convicted people. Let us be hopeful that this once "factory of death" will honour those who sacrificed their lives for the freedom of others and will serve as a constant reminder to other countries that the death penalty is one of humanity's most tragic examples of our capacity for inhumanity.