Kutlo Motseta
28th November 2025
There has been parliamentary talk about the review of the constitution most notably the issue of the death penalty.
This is a very polarising and a widely misunderstood topic. People who oppose the death penalty are often misunderstood as being sympathetic to murderers. However legal research, which culminated in the abolition of the death penalty in many countries globally, has shown that the issue is more complex.
There are many reasons for its growing universal abolishment, but the most compelling reason is judicial error. The fundamental significance of my argument is that once a court makes a mistake and executes a person, it is impossible to bring that person back to life.
However, when a person receives life imprisonment, it is possible to reverse an erroneous decision, release the individual and compensate them for what they have lost during those their years of confinement. This was the case with the late Mr. Andrew Mallard, a West Australian whose case declared a miscarriage in justice after he had spent 12 years in jail.
He was awarded AUS$ 3.25 million in damages, but relocated from his home because he felt members of his community treated him like a murderer[i].
A prevailing problem is that once a person is accused of a crime, people tend to believe that person is guilty. This is human nature, once a person is accused of something people become suspicious. I am no an exception to this. Unfortunately, the saying ‘there is no smoke without fire’ is a misnomer. It says more about human nature or a human way of thinking than the events that lead to the charge and the realities of criminal law practise.
South Africa abolished the death penalty in a well written constitutional court judgement in 1995, State v Makwanyane. South Africa had just amended the constitution when its apex court dealt with the capital case. In its judgement the court said: “While this court has the power to correct constitutional or other errors retroactively…it cannot, of course, raise the dead, ” citing the foreign persuasive authority of Suffolk District v Watson[ii].
This highlights the reality of judicially error. Two cases of judicial error come to mind in the United Kingdom. Firstly, Mr. Peter Sullivan who spent 38 years in jail for a murder he did not commit.
The now 68-year-old, who was once dubbed the ‘The beast of Birkenhead’ was released from prison earlier this year. His release speaks to the reasoning in the Makwanyane and Watson cases, something that Batswana should bear in mind when engaging with tier parliamentarians. Secondly, Mr. Andrew Malkison spent 17 years in jail for a rape he did not commit. The now 59-year-old’s conviction was quashed in 2023. Both men were exonerated through DNA evidence.
Unfortunately, many people were mistakenly executed before the advent of DNA technology and exonerated after they had lost their lives. There are many registers of these unfortunate people.
Some may have been advocates for the death penalty themselves, until they were mistakenly convicted. Thereafter they found themselves agonising on death row … ‘Why me?’ Before they were hanged or electrocuted as they smelt their own cooked flesh permeate the air as they suffered the irreversibility of the death penalty.
In Makwanyaane the court also raised other important issues, such as the quality of legal representation. Many people who face the death penalty do not have the means to afford expensive legal fees. Thus, many people on death row cannot afford high earning and well-resourced lawyers who are concerned with rent, office utility bills etc. as is the case with any business person.
The State is funded by the tax payers. Its lawyers can throw kitchen and sink at the accused and can afford the luxury of giving a case their undivided attention without worrying about the upkeep of the office, utility bills etc. That’s part of the reason why capital cases are not attractive for many legal professionals in the private sector, especially in a third world economies.
The infamous case of the late Mr. O.J. Simpson exemplifies this. Simpson was a wealthy hall of fame athlete and Hollywood actor. He contracted some of the most reputed lawyers in the United States of America. They were dubbed the ‘Dream Team’ and were led by the late Johnny Cockerill.
The evidence was damming, the infamous police helicopter chase, the bloody glove found in his house, it looked like a walk in the park for the State. Many had prejudged the case, until it split the country along racial lines because of the police department’s notorious racial history. Against all odds Simpson won the case.
However, if he had not had the resources to pay for the ‘Dream Team,’ it’s a near foregone conclusion that he would have lost and possibly been executed.
Whether he had committed the offence is another issue, but making legislation is not about what happens to one person, but rather what would happen if the ordinary resident was to face the law. If you were faced with the evidence that Simpson faced, you probably would have been hung regardless of your innocence because of Simpson’s wealth and resources fell within a small percentile of the national and global population.
With regards to the issue of deterrence, as argued in Makwanyane, nobody commits a crime with the idea of spending 30 years in prison in the event that they are caught. People commit crimes with the expectation that they will not get caught. They cover their tracks, they lie, they evade the law. If capital punishment is a deterrent why do countries still execute people, when the criminals knew beforehand that they would be hanged if they were caught. The same applies to corruption, white collar crime carries extremely heavy jail sentences. Nobody wants to trade ‘Luis Vuitton’ for prison orange overalls, but that has not stopped corruption from flourishing.
This argument challenged the idea that capital punishment deters criminals. It is does not deter criminals but endangers the lives of innocent people who may one day face damming evidence which appears to properly condemn them in the pursuit of the truth.
According to the Human Rights Chief at the United Nations, Volker Türk: “Evidence strongly suggests that the death penalty has little or no impact on deterring or reducing crime. A number of studies have demonstrated that countries that have abolished the death penalty have seen their murder rates unchanged or even decline”.
“The existence of the death penalty in countries that maintain it — as well as the threat of its use — can be turned to improper purposes, such as instilling fear, repressing opposition, and quashing the legitimate exercise of freedoms.” said Türk[iii].
Other arguments raised are the degrading nature of the execution process. To buttress the foregoing argument, an inmate spends years on death row, knowing fully well that he is a dead man walking.
In order to appreciate the implications of this argument, one needs to place themselves in the shoes of an innocent convict.
To a commentator that unwanted death represents one in a hundred cases, but when you are on the receiving end, statistics mean nothing, the phrase “lies, damned lies and statistics” has a ringing truth. It’s not one hundredth or 1% of your world that’s facing death … you are facing 100% certain death.
It makes more sense to give all convicts work to do in jail and use their skills grow the economy instead of endangering innocent people who may find themselves on the receiving end of judicial mistakes. Courts are manned by people, if a court decides 5-4 against a party, given the difference in legal opinion, the latter being the operative word, it clearly implies if one judge had not been on leave for a case, the court may have reached a different decision and released an accused.
When reviewing the constitution, the death penalty and the public should bear in mind that the law represents the best method humans have continued to develop and address social conflict. But that does not mean that the legal mechanisms are flawless. The truth does not always come out in court. Where humans have done their best to reveal the truth, the law should make room for judicial mistakes. The death penalty does not provide this review mechanism for mistakes.
[i] What was Andrew Mallard accused of doing and how did he prove his innocence? – ABC News
[ii] Suffolk District v. Watson and Others, 381 Mass. 648, 663 (1980)(Hennessy, CJ.)
[iii] HC: Death penalty should be abolished in the 21st century | OHCHR
