Judges Don’t Kill, I Allow It — Signed, Botswana’s Constitution

Capital punishment has been the subject of vehement debate for centuries. The purpose of this article is not to convince anyone whether it should be abolished or not. Rather, it is to remind participants in this discourse where the authority to settle this debate lies.

Capital Punishment as a Deterrent

Perhaps the most common argument in favour of the death penalty is that it deters individuals from committing certain crimes, but numerous studies seem to prove that this justification has no merit. When South Africa’s Constitutional Court banned capital punishment, it noted there was nothing to suggest this penalty is more effective at deterring murder than life imprisonment. It is also not applied consistently. Factors like the effectiveness of an accused person’s attorney, the particular judge handling the matter, and how well the state attorney argues in court all have a bearing on whether an accused person will be sentenced to death. Thus, the Constitutional Court found that the arbitrariness of the death penalty’s application, when combined with the lack of evidence that it is an effective deterrent, renders it an unlawful infringement of the right to life.

Parroting the same arguments, various groups in Botswana have contended that capital punishment is unconstitutional. It is, however, difficult to find any support for these pleas within the Constitution itself, as it explicitly lists the death penalty as a permissible limitation on the right to life. Moreover, Justice Clarence Thomas, a judge on the United States Supreme Court, once counselled that “[r]elying on [academic] studies to determine the constitutionality of the death penalty fails to respect the values implicit in the Constitution’s allocation of decision-making in this context.”

This point is often forgotten. What he meant is that all the drawbacks of capital punishment are completely irrelevant for purposes of determining its constitutionality; it is not up to the courts to decide. The unpopularity of this simple truth may signal confusion as to what exactly a Constitution is.

The Constitution

Botswana’s Constitution is its supreme law. Any provisions of law that contradict it are legally invalid. As such, it is crucial that the population agree about its content. Think of it like a contract. All contracts are entered into with consent. The Constitution is the same way. We consent through Parliament, which then has the responsibility of ensuring that it mirrors the wishes of the majority.

When our Constitution was adopted, we, through Parliament, decided to allow the death penalty. Some view this as a problem, and if it is, it is one only Parliament can fix. Informed critics may be quick to point out that the involvement of the public was limited at the time the Constitution was drafted. That is readily conceded but nevertheless has no bearing on this discussion. The ideal solution to the conundrum we find ourselves in is not unprincipled judges who shape the Constitution into their own image, but effective advocacy.

As it is the people who decide what the Constitution contains, it is the people who must be convinced to amend it and outlaw the death penalty. This is the painful lesson of democracy.