The good, the bad and the ugly - Part 2

Execution of South African citizen – Janice Bronwyn Linden

Linden

At 04h30 hours the Chinese government predictably executed a South African citizen, despite high level pleas by our government and human rights groups. Janice Bronwyn Linden, 35, from KwaZulu-Natal was executed for being caught carrying three kilograms of crystal methamphetamine at an airport in that country in November 2008. Her crime was the attempted smuggling of this dangerous drug into China. Under Chinese law the penalty is death by lethal injection, unless the accused is prepared to admit and express contrition, then clemency is considered. Janice refused to accept responsibility or express remorse.

No reasonable person can resist being flooded with emotion about the cold blooded putting to death of another human being. It always grates one’s inner spirit. We feel deeply disturbed. This is because we are human. It is inherently offensive to our nature that another human be killed in cold blood. The other reason is that we are “hot wired” to simply forget the plight of the victim at the moment in time that the issue is raised. In our mind’s eye we do not see the victim lying in his/her grave, often in mutilated state. We don’t think of little children orphaned after their mother had been raped and decapitated.

Still, all this begs the fundamental issue of whether or not there are some who deserve to be deprived of their lives. The debate on this matter, usually referred to the “abolitionist debate” has raged on for decades. I have sentenced 5 murderers to death. I have had plenty of time to think about this issue, not as an academic imbued with esoteric/exotic theoretical notions of justice, righteous morality and pontifical intellectualism, but as a person with a highly developed Christian conscience, who has had to listen to, and live through, the evidence in which one person purposefully decides that another be gratuitously and cruelly killed, sometimes in circumstances of utmost depravity, as when a baby is raped and strangled … slowly!

In my book “The Other – without fear, favour or prejudice”, I examine the arguments propagated by the abolitionist camp. The reality is that they simply fall down badly when subjected to logical, philosophical and moral scrutiny. For instance I point out that there is no dispute that I am entitled to kill a person I find raping and strangling my wife or child. It then becomes quite impossible to draw a line in the sand and say that “well at this point/stage you are no longer entitled to kill him”. However, this still does not mean that capital punishment should be practiced. In my view, it should not! However this is not for the reasons conventionally advanced which, as said, do not stand up to scrutiny.

What I want to also draw attention to is how fickle and hypocritical most of us are on this issue, no doubt! See --- http://coginito.blogspot.com/2011/05/osama-bin-laden-some-are-good-even-bad.html where just about the whole world was exposed in this regard. The post unarguably proves that the ancients were indeed right in their adage of an “eye for and eye, a tooth for a tooth…” howsoever much we may imagine that we now too “civilized” for such conduct. We are not! We are as barbaric as ever.
I concluded this in my book published last year and have just be proved right once again quite spectacularly The media is reporting that Saudi Arabia has just beheaded a woman after convicting her of practicing sorcery and witchcraft!? It is mind-boggling that one of the richest nations on this planet can do something so depraved and barbaric.

Janice Bronwyn Linden did not kill anybody. We also do not know if she was guilty. The standards of procedural and substantive justice in China are highly questionable. So this post does not judge her. We are all in sympathy with her family whose grief must be quite unimaginable.

What can be observed is that drug dealers, distributors and suppliers are responsible for untold human suffering and the terrible deaths of millions of our young folk in particular. To me this is not theory. I have been personally confronted with these truly heinous consequences. They don’t care tuppence how many lives are ruined or lost, as long as they can make money. The toll that they exact on humanity is unquantifiable. The Chinese logic is that they will take a life to save lives.

What is also pertinent to point out is that the Chinese have stated that under their law all are equal. For that reason Janice stood to suffer the same punishment that ordinary Chinese folk are subjected to. To that extent the Chinese cannot be faulted, if she was guilty.

This raises an analogous issue that has been in the media, the case of Shrien Dewani. A British Court has decided that he be extradited to South Africa to face charges involving the murder of his bride. The presiding judge was moved by a guarantee proffered by the SA government that, if convicted, Dewani would not be subjected to the same prison conditions as other SA prisoners. ???????

Put jurisprudentially, the British judge was prepared to subscribe to, support, connive and collude at persons beings being “unequal under law”. This is obviously highly offensive to any reasonable mind.

Also highly problematical about the judge’s approach is a failure to recognize that a government, whose term is limited to some 5 years at a time, is in no position to guarantee what the next government will do, accepting that, if convicted Dewani faces life imprisonment. The next government may well understandably (and correctly in my view) take a stance that it cannot be bound by an agreement in which a foreigner, in particular, is to favoured over its own citizens! Our constitution and laws expressly forbids unequal treatment.

Dewani needs to take the matter right up to the House of Lords. I humbly reiterate my advice that our government liaise with Switzerland, the country of the victim’s domicile, and get Shrien Dewani tried there!

The judiciary as a mistress.

In recent times the judiciary has been lectured, lambasted and repeatedly warned to maintain its place and to refrain from overruling the will of the people, as manifest in our ANC government’s decisions and laws. The President, the ANC Chief Whip and ANC Secretary General have all taken turns at this. This has happened even though the reality is that, if any judge does not understand that a judge must be apolitical, he/she is incompetent and should not be on the Bench. As an Acting Judge in the Eastern Cape I met many judges. I can give the categorical assurance that not one of them needs such lectures or advice. In fact it is grossly insulting. See “South Africa – a Constitutional Democracy under attack..”

There is now also a credible perception that, in addition, ANC leadership is implementing an agenda to “pack” the judiciary with “onside” judges, starting with the controversial appointment of Mogoeng Mogoeng, who was undoubtedly carefully handpicked for the post of Chief Justice, even though he was not the best candidate by a very long way. It is supposed that by having onside judges dodgy legislation, like the now internationally infamous Protection of State Information Bill, will be upheld by the courts.

If this is indeed the agenda, might I humbly, but passionately, advise and counsel ANC leadership to abandon it. It won’t work. It will not work! It will fail! I base my advice on my experiences as a judge and having attended international judicial conferences.

You see, once a human being is appointed as a judge, the psychological climate that he/she is then operating in is incredibly unique and different from that of the rest of us. It is a truism that judges lead lonely lives. Indeed they do, even though it is an incredibly fulfilling life. However it is not fulfilled by anything that any politician is able to offer. Once you appoint a person as a judge there is nothing more that you are able to offer, give or favour him/her with. Judges exist outside the circles in which assets, power and influence are traded in and dispensed.

Like any human being a judge needs personal affirmation on a continuous basis. That affirmation can only come from within judicial circles, not from outside. The judge becomes immersed in a world in which he/she is divorced from the hum drum of ordinary life and becomes preoccupied with developing a love for that which is good, that which is right, that which can be held up as truth for all to see. Truth becomes both the objective and the journey travelled, not polemics.

In addition, the way the system works, ensures that diversion from this path is quickly exposed. It is very difficult for a judge to give a bad judgment without soon knowing that he/she has stepped off the path and is losing the affirmation that we all crave. Your decisions and judgments are necessarily seen, considered and studied by your local and international community of judges, the legal sector, including legal scholars. It is members of this community that will react. You will then know, beyond doubt, whether or not you are in step or starting on a maverick path. Probably the worst maverick path a judge can chose to take is one in which he/she is then seen by his/her peers as beholden to a politician. It is about as reprehensible as incest. The psychological pressure is both overarching and subconsciously enormously insistent.

It was therefore not at all surprising to me when, despite the highly visible and loud warnings, admonitions and counsel, the Supreme Court of Appeal handed down a very keenly worded judgment that the appointment of Menzi Simelane as the Director of the National Prosecuting Authority was unconstitutional for being irrational.

Put simply, once a person is appointed as a judge he/she will feel compelled to start acting like a judge --- not a politician. Ask the previous Nationalist Party that burnt its finger very badly when it tried to “take over the Bench” by appointed “onside” people as judges. In my book “The Other – without fear, favour or prejudice” I explain how I always felt a “dual personality”.  There was Chris Greenland, an ordinary man, pretty terrified of the very Court he was presiding over, and there was Judge Greenland, who carried out a sacred office with due decorum. There were decisions that I handed down, which I did not “personally” support. However, as a judge, I was satisfied that they were right.

Lady Justice

So my appeal to ANC leadership is that, if that is your plan, don’t do it. Appointing people other than on merit will only result in South Africa having a mediocre Bench. As a result all citizens will eventually suffer.

It is not possible to have the judiciary as a mistress. The mistress will find love, comfort and satisfaction elsewhere. There is nothing you will be able to offer to keep her loyal.

Jackie Selebi

Further to what has been posted in Part 1, please read the outstanding article by Sunday Times editor Mondli Makhanya titled “Shame on those who sold our integrity to save their skins”.