This year marks the 30th anniversary of the adoption of our constitution, widely regarded as one of the most progressive in the world.
South Africa arrives at this milestone amid a wave of grief and shock over the recently reported sexual assault of a 12-year-old child by a 58-year-old man in Dobsonville, Soweto. The incident highlights the regrettably high rates of rape and murder shaping daily life in our land.
No trend indicts our society more than the sexual abuse of children. This scourge of rape and murder against children was first prominently highlighted in October 2001 when a nine-month-old girl was brutally raped and sodomised in Louisvale, near Upington. The nation remembers that child as Baby Tshepang. Many more harrowing cases have continued to make the news.
Since then, successive moments of outrage have been coupled with calls for capital punishment for persons found guilty of the rape and murder of children. However, any case for the viability of the death penalty must accord with our Bill of Rights. Beyond mere legal constitutionalism, this is about safeguarding the value and dignity of every person. Those who call for capital punishment often argue that our constitution is insufficiently rooted in African values. Hence, a decolonisation intervention is required.
How do we Africanise basic ideals like human rights? To start, we may ask, in what way have the native cultures of our subcontinent articulated concepts of respect for human life and dignity of all persons? We have a philosophy that says: I am because you are. This is ubuntu, which should be translated as humanhood — not humanity.
Read carefuly, it suggests that no person becomes a “human being” by themselves. A person becomes a human being through communion with other people. Humanhood is not an inalienable quality conferred by the fact of an individual’s birth. The logic of this idea suggests that there are persons who, by the degenerate quality of their behaviour, eject themselves from humanhood.
Imagine a mother who encounters a paroled offender who raped and murdered her child — released on account of good behaviour for having been cordial with other inmates and prison staff
This radical reading of ubuntu has transformative potential for the structure of our human rights regime. It is a departure from the liberal concept of the individual as a “human being”. In my reading of ubuntu, the state of being human is what we become through the merit of our communion with other persons.
Hence, a Setswana or isiZulu speaker would not regard a child rapist, or a murderer, as a “human being”. It is others who confer humanity on one.
It is not too difficult to see how in a human rights regime built on ubuntu, the racist Vlakplaas operatives of the 1980s, who not only killed people but also braaied meat and enjoyed beer while burning the remains of their victims, would not be considered human beings. Similarly, those who are found guilty of raping babies place themselves outside of humanhood.
These individuals could be sentenced to life imprisonment and later become eligible for parole.
It is not hard to imagine how this tenet of our law, though it satisfies the state’s benchmark for justice, is often charged with failing to safeguard the rights and dignity of the offended. Imagine a mother who encounters a paroled offender who raped and murdered her child — released on account of good behaviour for having been cordial with other inmates and prison staff.
This wrestling with ideas of capital punishment, its modern constitutional viability, is alive in the Christian church, too. Consider the remarks of the late Pope Francis, suggesting that capital punishment fuels a “sense of revenge that becomes a dangerous poison for the body of our civil societies”. This is in contrast to the arguments of priests like Fr Gerald Murray, who argues that the death penalty functions as a way to defend the dignity of human life by vindicating the rights of the offended … and that if we say the death penalty is immoral per se, then we’re accusing God the Father of immorality because he commanded it in Genesis 9:6, which states: “Whoever sheds human blood, by humans shall their blood be shed; for in the image of God has God made mankind.”
Though our Bill of Rights does not assume a hierarchy of rights based on the order of mention in the constitution, there is encouraging poetic serendipity in the fact that the right to human dignity is mentioned before the right to life. The indignity caused by the violence of rape against children may be a higher-order offence than murder itself. This is because to be made to endure a life without dignity may be worse than death itself. So that those who offend another’s dignity in this way fail to attain humanhood under the law based on ubuntu, hence limiting their own human rights.
• Mabandu is an artist and writer on cultural issues
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.