Death penalty referendum should be preceded by vigorous public debate – EU envoy

04 Mar 2018

Asked to name his favourite Bible verse, candidate Donald Trump gave a response that, based on the latter’s very public human relations track record, the interviewer should have known all along.

“An eye for an eye,” said Trump, referring to Exodus 21:24.

Morally, the United States president is evidently not fully evolved and to have your actions described with the same language that he embraces automatically means that you are on wrong side of morality and history and certainly not Heaven-bound. An eye for an eye is the very same language that the European Union Ambassador to Botswana and SADC, Alexander Baum, uses to describe the death penalty which would mean means that as a death-penalty jurisdiction, Botswana would be on wrong side of morality and history and could incur God’s wrath. Baum holds the conviction that the death penalty is an essentialisation of revenge as contemplated in that biblical verse and is never ever morally justified. His use of “revenge” is interesting on the basis of scholarship that precisely decouples that impulse from motivation for retributive justice.

“Do not confuse retribution with revenge,” says Professor Robert Blecker, an American scholar who is one of the leading proponents of the death penalty. “Revenge can be limitless and misdirected or collectively applied to many who don’t deserve it. Retribution is limited, proportionate and directed only at the morally culpable actor.”

Baum rejects this reasoning by counter-arguing that the values behind retributive justice are effectively rooted in revenge. In the final analysis, he says, the issue is one of values which evolve over time. The organisation that he works for wants Botswana to examine its values as regards the death penalty. The starting point that the EU proposed when the state executed Joseph Tselayarona is a vigorous public debate to lay bare all the pertinent issues around the death penalty. The second argument Baum rejects is that a debate is basically an academic exercise in which those on the wrong side of history and morality can effectively marshal sufficient Machiavellian wit and win a debate. The issue, he contends, is not of individuals winning or losing but of the better argument winning.

From where the EU and Baum stand, the better argument is that the death penalty is never justified and that all the arguments advanced by people such as Professor Blecker have been proven wrong. But this is the tricky part. Each side in death penalty debate relies heavily on a wealth of scientific research evidence that has been amassed over decades to argue its case. And indeed, scientific research is a fickle mistress who is all too ready and ever willing to franchise out her affections to the first wooer who happens along. For example, each side has deployed scientific evidence to either prove or disprove that the death penalty works as a deterrence.

Baum’s own conviction is that the scientific research results “are not blatantly contradictory” and that “the evidence has been fairly consistent.”

Death penalty in Botswana has peculiar circumstances around it. Under President Sir Ketumile Masire, the country held a referendum in which an overwhelming majority of the voting population endorsed it. In one too many instances, the government has referred to this referendum to justify why it retains a form of punishment that most countries around the world find deplorable and have dispensed with. While he prefaces his response to this particular point by stating belief that the results of that referendum were genuine, Baum hastens to add that the results of a referendum are only as good as the voters’ depth of knowledge about the issue being voted on. A public debate such as the EU proposes would lay bare all the pertinent issues and when voters go into the booth on D-day, would be likelier to make an informed choice.

He gives a quite interesting example that could have the effect of swaying some. Evidence from all death-penalty jurisdictions across the globe is that the death penalty disproportionately affects the poor. Part of the reason is that justice, like a can of Coke, is a commodity that can be bought. Rich people who can afford excellent and high-priced lawyers have avoided the hangman’s noose. On such basis, death penalty has become an extension of discrimination against the poor. Baum’s argument is that in order to eliminate such discrimination, then death penalty should be abolished.

Less a vigorous debate that would illuminate issues around the death penalty, Baum says that referendum voting would be merely based on emotion – which lack objectivity. In like manner, he is worried about proclivity on the party of political leaders to “manipulate” the outcome of referenda for political purposes.

The other, more crucial point that Baum makes is that societies and their values evolve, that there is no cast-iron guarantee that the outcome of a vote held more than 20 years ago would be replicated. If it is, he stresses the importance of giving future generations an opportunity to independently appraise the issue. His impression is that Botswana’s values are continuously evolving.

All in all, Baum has misgivings about the use of referenda on certain sensitive issues because there are times when the views of the majority may be odds with what is morally right.

“Majority rule shouldn’t be applied to basic principles of human rights,” he says, buttressing his assertion with an example of how a German majority supported the persecution of Jews during the Third Reich.

If “envy” is the right word, there actually are people in the SADC region who envy Botswana’s retention of the death penalty. Some years ago, when a group of South Africans staged protest marches in Johannesburg over the killing of a member of their community, some placards beseeched of authorities: “Send them to Botswana.” Indeed some South Africans have called for the reinstatement of the death penalty. One of the reason they give is that ever since South Africa abolished the death penalty in 1994, people kill others with impunity because they know that they won’t be hanged themselves as happened under apartheid.

Baum says that this “simple analysis” doesn’t account for the fact that even after apartheid, violence is still a strong element of South African society. On the basis of the latter, abolishing the death penalty hasn’t accounted for much in terms of bringing crime rates down.

“I would caution simple analysis. Even after apartheid, South Africa has maintained a high level of violence,” Baum says.

Bringing back the death penalty would essentially mean that the violence spikes, with the state being among the culprits through its application of an eye-for-an-eye justice.