The hostile response by the leadership of the African National Congress (ANC) and the SA Communist Party (SACP) to the decision of the Constitutional Court that Janusz Waluś should be released on parole reveals how far today the ANC has departed from the humane principles laid down for it by its own history.

I hold no brief for Waluś. I am not going to rummage in my vocabulary to construct pejorative phrases which are sturdy enough to carry the weight of my dislike for the man and what he did. I wonder — does he appreciate how ironic it is that the Constitution whose emergence he tried to prevent not only kept him from the gallows to which he was sentenced under the law as it stood at the time, but has actually set him free on parole?

Nor does it greatly please me that he is on parole, though I am persuaded by the Constitutional Court’s reasons that he should be paroled. I acknowledge and accept that he now has the right to breathe the free air that I do.

Waluś was sentenced to death for the murder of Chris Hani, but his execution was stayed. The constitutionality of the death sentence was at the time being considered by the courts in the light of the Bill of Rights. Until it had been determined whether the death penalty was still permissible, it would have been an atrocity to execute Waluś.

In the event, the Constitutional Court concluded that the Bill of Rights had the effect of rendering the death sentence unconstitutional in South African law.

The case that decided this is S v Makwanyane and Another. This decision is easily accessible to anyone in the world who cares to read it. It is not difficult to read and at worst the Wikipedia page provides a fair summary. In simple English, the Constitutional Court provided a clear explanation of what it is to have a Constitution, and how it is intended that a Constitution should work.

Blood-soaked mantra

Those who want the restoration of the death sentence in South Africa simply ignore the case. They repeat their blood-soaked mantra based on vengeance and the illusion that the death sentence has the effect of reducing the incidence of crime. These are matters considered in Makwanyane, yet those who would continue to hang make no attempt to give their case even a threadbare semblance of reasoning worth responding to. They simply ignore Makwanyane and make no attempt to show where the Constitutional Court’s reasoning went awry. As Mumia Abu-Jamal commented in his book “Live from Death Row”, written while wrongfully on death row:

“One of the most widespread arguments in favour of the death penalty is that it deters crime. Study after study has shown that it does not. If capital punishment deters anything at all, it is rational thinking. How else would it be conceivable in a supposedly enlightened, democratic society? Until we recognise the evil irrationality of capital punishment, we will only add, brick by brick, execution by execution, to the dark temple of fear. How many more lives will be sacrificed on its altar?”

Waluś’s case must be seen through the lens of Makwanyane because life imprisonment is not merely a substitute for the death sentence in South Africa. The Constitutional Court said specifically that the trial court statements when sentencing Waluś to death because of the gravity of his crime could not be taken into account when considering parole. This was because the trial judge did not contemplate that Waluś would ever be returned to society.

Life imprisonment cannot, therefore, be assumed to mean imprisonment to the end of their natural lives for those criminals who might otherwise have been hanged. As the Constitutional Court explained in Waluś’s case, this may happen but there can be no assumption that life prisoners will be locked up till they die. This being so, there must be an expectation that they will be released in time.

In Waluś’s case, the Constitutional Court noted that the Correctional Services Act — legislation passed at the initiative of the ANC itself — states that “a sentence of imprisonment has the objective of enabling the sentenced prisoner to lead a socially responsible and crime-free life in the future”. In a detailed examination of the matter, the Constitutional Court concluded that Waluś met the factual considerations which entitled him to be considered for release on parole — facts which were found to exist by the minister of correctional services himself.

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One can understand that the family of Chris Hani might not be able to accept the overtures made to it by Waluś. However, their feelings are a quite separate and personal matter from the political stance taken by the ANC and the SACP, though one wonders whether Hani himself would have agreed with it. It would have been extraordinary had he not supported the ANC’s opposition to the death penalty, which was a fundamental element of the apartheid attempts at political control.

The ANC welcomed the decision in Makwanyane’s case, stating that “never, never and never again must citizens of our country be subjected to the barbaric practice of capital punishment.”

However, by raising a hue and cry over the Constitutional Court’s decision that Waluś must be granted parole, the ANC has neatly put itself into the same category as those advocating for the return of the death penalty. It is a safe prediction that the ANC will soon be discussing the restoration of the death penalty, a step which would probably be well supported in South Africa. However, the Constitutional Court considered this in Makwanyane’s case and said:

“Public opinion may have some relevance to the inquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.”

ANC abandons fundamental principles

By objecting to the release of Waluś on parole the ANC is abandoning the fundamental principles for which it fought. The Constitutional Court went on to say:

“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 and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.”

By their response to the parole of Waluś, the ANC and the SACP have reduced themselves to the same callous level as apartheid justice minister Jimmy Kruger, who remarked on the death of Steve Biko that it left him cold. Kruger noted that Biko had sustained head injuries which the police had claimed were self-inflicted, and remarked: “I often think of banging my own head against a wall.”

The Constitutional Court referred to the report by the minister for Correctional Services that Waluś had shown remorse, among other factors in his favour. Nonetheless, the minister refused to grant Waluś’s parole on the grounds that “the crime of murder committed by the offender was the cold-blooded assassination of a prominent political leader, for which careful preparations were made well in advance. The act committed was not only intended, but also had the potential to bring about a civil war within the Republic at the time.”

The Constitutional Court pointed out that, as this always would be the case, the consequence was that Waluś would never be released on parole. Life imprisonment is not a substitute for the death sentence. The Correctional Services Act states that “the implementation of a sentence of imprisonment has the objective of enabling the sentenced prisoner to lead a socially responsible and crime-free life in the future”.

So how long, in the opinion of the ANC and the SACP, is long enough?

Instead of parading their hatred and lust for revenge, they would have done better to have read the Constitutional Court’s reasons and commented on the irony — after abolishing the death sentence, Waluś could not be hanged and he was finally paroled by the society whose emergence he tried to prevent by murdering Chris Hani. DM