Our new Government is seeking to amend our Constitution. It is not doing so to provide you with stronger guarantees of your rights as people of different sexual orientations. It is not doing so to eliminate the half-century-old provisions in the Constitution that currently insulate the buggery law from legal challenges. It is doing so in large part to make it easier for the State to execute people who have been convicted of murder. It is doing so in order to be (or to be perceived as being) responsive to one of the biggest and most widely shared concerns of voters: the nation’s murder rate, and the ineffectiveness of the State in addressing violent crime.
Their legislative proposal is to add a section of about 2,500 words to our 30,000-word constitution laying out in considerable detail at the constitutional level (vs. in a law) procedures, conditions and stipulations regarding the implementation of capital punishment. The result of this would be to make these provisions unable to be challenged in a court. This would significantly reduce legal challenges to executions; and the proposed amendment specifically seeks to circumvent rulings courts have made previously, which have frustrated many, that provide protections from summary execution for people convicted of murder.
The proposal also seeks to implement within the Constitution a UNC bill passed into law ten years ago to have a three-part framework for offences involving killing someone. Conviction of “Murder 1” would require the death penalty and cover seven types of killing, including intentionally killing someone because of their “race, religion, nationality or country of origin”.
But not their sexual orientation. Or their gender. In fact, last month the Government abstained twice on a UN vote that sought to strengthen international vigilance and responsiveness to murders or summary executions of people based on their sexual orientation.
Here’s how the Government explains the provisions we’re highlighting:
This Bill seeks to amend the Constitution in relation to the implementation of the death penalty.
The Bill seeks to alter the Constitution and, in accordance with section 54(3) of the Constitution, needs to be passed by a special majority of three-fourths of the members of the House of Representatives and two-thirds of the members of the Senate in as much as it would amend section 89 of the Constitution.
By clause 2, the proposed Act would come into operation on such date as is fixed by the President by Proclamation.
By clause 3, the proposed Act would be construed as altering the Constitution. Clause 4 would insert into the Constitution a new Part IIA which would make special provisions with respect to capital offences. New sections 6A to 6L contain provisions of the Offence Against the Person (Amendment) Act, 2000 (Act No. 90 of 2000) which has not been brought into force. These provisions pertain to the creation of the categories of murder 1, 2 and 3, the mandatory imposition of the death sentence in relation to murder 1, the circumstances in which the death sentence or life imprisonment may be imposed for murder 2 and other matters connected thereto.
A new section 6M of the Constitution would declare that the imposition of a mandatory sentence of death by a Court or the execution of such a sentence shall not be held to be inconsistent with or in contravention of section 4 or 5 of the Constitution. For the removal of doubts, the new section 6M would further declare that on no grounds whatsoever would the execution of a sentence of death be held to be inconsistent with or in contravention of section 4 or 5 of the Constitution, including any, or any combination, of the following grounds: (a) a delay in the hearing or determination of a charge for a capital offence; (b) a delay in executing the sentence of death; (c) the conditions or arrangements under which a person is held in prison, or otherwise lawfully detained, pending the execution of the sentence of death; or (d) the effect of reading to a person, more than once, a warrant for the execution of the sentence of death on him.
Read the bill in its entirety for yourself, or follow the debate in Parliament. It requires the votes of 32 members of the House (the People’s Partnership has 29 seats); and 21 members of the Senate (the Government effectively has 15 seats; the Opposition 6; and there are 9 Independent Senators).