36. South Africa

South Africa, the beautiful yet haunted land of racist repression most vile, has marched past its Western neighbor the United States. As its highest court, the 11 member Constitutional Court, found the death penalty as applied in South Africa was unconstitutional. Court President, Arthur Chaskalson, ruled there was no proof of the death penalty’s deterrent value and held it violated the interim constitution, which guarantees in Section 9 the right to life. The ruling was unanimous.

The case stemmed from a challenge lodged by lawyers for two men sentenced to death after being convicted of murder. Themba Makwanyane and Mavusa Mchunu, lawyers for the two men, also argued that state executions violate the fundamental principle of equality, again, because all people are supposed to be equal before the law, but in reality, they are not.

A similar challenge made in the infamous American case, McClesky vs. Kemp, raised similar issues of racial disparity. But what was found unconstitutional in South Africa was found perfectly fine in the USA. South Africa continues to fascinate us in the U.S., for it is, in a sense, a dark mirror through which we see ourselves as both lands are driven by racial conflict. Both nations are settler nations created by European invasions of non-European territories. Both nations utilize the legal process to steal native lands, disinherit native peoples, and dislocate native populations.

Indeed, the hated Bantustan system, by which Africans were restricted to tribal homelands, has its intellectual and legal genesis in the American reservation system, where so-called “Indians” were sent. Both native peoples corralled in their own national birthlands, to the poorest, most worthless bits of Earth imaginable. For the better part of a century, weren’t U.S. Blacks relegated to ghettos because of restrictive covenants and housing laws?

After such a wretched history, only South Africa appears to be moving incrementally in the right direction, at least on this issue. South Africa, still one of the most violent nations on Earth, turned away from 350 years of capital punishment, in one opinion, issued by the Constitutional Court. Is the right to life more constitutional in South Africa than in the United States of America? It would seem so.

Seen from this light, South Africa once so roundly condemned by the world community walks in step with a world majority who have damned the practice of capital punishment. Not so, in the USA where words on an age-stained document hold little meaning at all.

From death row, this is Mumia Abu-Jamal.