Ivo Vegter: Groenewald doubles down on push to restore corporal punishment

Key topics:Debate over reintroducing judicial corporal punishment in South AfricaConstitutional and ethical arguments for and against corporal punishmentWeighing alternatives to incarceration for minor, non-violent offenders.Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Ivo Vegter*.A lone voice, the minister of correctional services, Pieter Groenewald, again expressed support for reintroducting corporal punishment.This was going to be an easy column to write.I was going to denounce the call by correctional services minister Pieter Groenewald to amend the Constitution in order to reintroduce corporal punishment as a judicial sentencing option.Groenewald entered politics in 1989 as a member of the Conservative Party, which considered the ruling National Party too soft and liberal. His persistent calls for reviving corporal punishment perfectly fit the stereotype of brutal, authoritarian conservatism that South Africa rejected with the transition to democracy.I recall quite a few severe canings in my youth at the hands of people who looked and sounded just like Groenewald.Groenewald was speaking in Parliament, and made it clear he was talking only of judicial corporal punishment, and not of reviving corporal punishment in schools. He would like to see it be a sentencing option for fairly minor offences, for people who cannot afford a fine and end up being imprisoned instead, often in overcrowded prison facilities.Everyone other than the Patriotic Alliance strongly disagreed with Groenewald.So did I..Settled matter.I thought the matter of corporal punishment had been settled (to my satisfaction) way back when by the Constitutional Court. I had not really given its revival any thought since them.In a seminal Constitutional Court ruling in 1995, State v Williams and others, Justice Pius Langa wrote of South Africa’s “progress towards being a more humane and caring society”.That case held judicial caning of juveniles to be unconstitutional, but many of the arguments apply to adults also. It led directly to the total abolition of corporal punishment in prisons and as a judicial sentence for crime in South Africa.Langa wrote: “The process of political negotiations which resulted in the Constitution (was) a rejection of violence.”I agree.“In this context,” he continued, “it cannot be doubted that the institutionalised use of violence by the State on juvenile offenders as authorised by section 294 of the [Criminal Procedures] Act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgement of those values, the Constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands.”He was referencing the Interim Constitution at the time, but the 1996 Constitution remained clear: “Everyone has the right to freedom and security of the person, which includes the right … to be free from all forms of violence from either public or private sources … not to be tortured in any way … not to be treated or punished in a cruel, inhuman or degrading way.”Furthermore, “Everyone has the right to bodily and psychological integrity, which includes the right … to security in and control over their body.”I have always found myself to be entirely in agreement with the sentiments Langa expressed. The apartheid government was brutal, and given to the use of excessive and sometimes arbitrary violence, often for paltry reason. It was not a humane and caring government. It was not a civilised government.The prospect of a judiciary that respected the rights to life, bodily integrity and dignity of defendants seemed to me an essential attribute of the kind of free, enlightened society that I wanted to see in South Africa.It still does, but now I have some doubts..The case against.Besides the expected reactions, that South Africa did not want a return to the kinds of cruel, degrading and inhuman punishment that were such a hallmark of the odious apartheid regime, the Democratic Alliance made another very good argument against Groenewald’s proposal.It warned that changes to the Constitution were a serious matter, and should not be lightly proposed.There are fundamental rights in a free democracy that should not be overturned, even if doing so would satisfy popular demand.Among them is the popular appetite for vengeance and brutal retribution, which would also find expression in demands for the death penalty to be reinstated – making a mockery of the admirably succinct section 11 of the Bill of Rights: “Everyone has the right to life.”A constitutional democracy draws an important line between the protection of individual and minority rights, and populist majoritarianism. South Africa’s Constitution guarantees the former; calls to change the Constitution to satisfy popular demand risk immolating that document in service to the latter.The DA added: “Extremist parties like the EFF and the MK Party have long sought to rewrite our Constitution to destroy the economy, erode property rights, and weaken the rule of law. Groenewald’s comments risk normalising these attacks, and he is opening a slippery slope which he must close immediately.”Although one must concede that a mechanism for changing the Constitution exists for a reason, and not every attempt to use it can be summarily dismissed as a threat to democracy, I do agree with the DA that this is an awesome power that should be exercised only with the greatest consideration and restraint..The case for.When reading up about judicial corporal punishment, I expected to find arguments that supported my own long-established position on the matter: that it is a barbaric and antiquated sort of brutality that has no place in a modern justice system.I did not expect to find a 47-page essay written by a queer philosopher and ethicist in Norway, full of excellent arguments in support of corporal punishment.The essay (PDF download), by Ole Martin Moen, professor of ethics at Oslo Metropolitan University, was written in 2020. It is lucidly reasoned, and demands to be read in its entirety.Moen systematically demolishes the naïve arguments against corporal punishment as a judicial sentencing option, goes on to lay out strong arguments in its favour, and then thoughtfully challenges the better objections.He shows convincingly that in spite of its downsides, which he cautions are “real and should be taken very seriously”, “the overall case in favor of using this punishment method is strong”.To be clear, he was talking not about the sort of brutal punishments we see in some Islamic countries, nor about juvenile punishments. Instead, he referenced Singapore as a model: “A crucial feature of this punishment method is that it is very painful, yet it involves only very small long-term health risks. The upper limit of strokes in Singapore is twenty-four; it is carried out on the buttocks; the convict wears protective gear to avoid damage to spine and kidneys; and a medical doctor oversees the process. The punishments take place inside prisons, never in public.”At the heart of his argument is the notion that if we consider incarceration to be a justifiable form of punishment, then we are already conceding that the state ought to have the power to inflict severe physical, mental and emotional harm on a convicted criminal. Many aspects of incarceration can be described as violent, cruel, and degrading.Moreover, the objection that such a sentencing option would “normalise violence” is moot, since we already concede to the state a monopoly on violence, which we agree it is entitled to exercise in certain circumstances, especially in pursuit of law and order.Moen considers corporal punishment to be appropriate mainly in cases where the objective is only to punish, and not to incapacitate a criminal by removing them from society. It would not, for obvious reasons, be an appropriate sentence for someone convicted of violent crime which they were likely to commit again..Improved outcomes.Many of the arguments Moen makes are applicable to South Africa.Incarceration for relatively minor offences, like theft, removes the criminal from their family for an extended period of time, invalidates their rights to bodily autonomy and freedom, subjects them to degrading procedures such as strip-searches and a highly regimented daily life, exposes them to violence and criminal gangs in prison, and has only a limited deterrent or rehabilitative effect.It can be argued that a brief, if painful, punishment would improve outcomes for everyone concerned.The criminal’s family would not be punished alongside the prisoner, since they would not lose a potential breadwinner. The criminal’s children might avoid having to be taken into foster care.The criminal themselves could retain their social and professional connections and would more easily reintegrate into society.The state would incur a far lower cost, and would not be party to turning a petty criminal into a hardened prison-gang associate.Since deterrence depends more on the chance of getting arrested and convicted than on the eventual severity of the sentence, corporal punishment would likely serve a similar deterrent effect as fines or incarceration would.Groenewald raises the problem that many accused petty criminals spend months in prison, unable to raise bail. When they are sentenced, they often have the option of a fine, but cannot afford to pay it, meaning they must serve a custodial sentence.In doing so, they are exposed to organised crime gangs in prison, and emerge either as hardened criminals in their own right, or are manipulated through threats to join the criminal underworld.South Africa’s prisons are also notorious for the violence they inflict upon inmates, including beatings, extortion, and rape – often with life-threatening consequences.Groenewald also raises the problem of prison over-crowding. If petty criminals can be offered a way out of the prison system, that would benefit both them and the prisons..Context.Moen argues that all these problems could be solved by adding corporal punishment to the judicial sentencing toolkit, and it would not violate ethical considerations any more than existing punishment methods already do.They could accompany suspended prison sentences, be ordered as the only available punishment, or be given as one of several choices.I’m not fully convinced that some of the same improved outcomes could not be achieved by more liberal use of community service orders, though they also have the downside that it removes the criminal from society for a period of time, which will have long-term consequences that would make it more difficult for convicts to resume their lives once their debt to society is paid.I’m also not convinced that the South African context, in which we rejected a brutal, authoritarian past in which corporal punishment was frequent and much abused, does not preclude ever considering the reintroduction of corporal punishment.And, of course, the DA’s argument warning against constitutional amendments has merit..Undecided.I expected to look into the judicial corporal punishment argument and find confirmation of my long-held view that it is under no circumstances justifiable in a civilised society. I must concede, however, that Moen makes very compelling arguments in its favour, and very convincingly argues against the objections to corporal punishment.All of which leaves me in the unusual position of being undecided. Groenewald may well have a point, and under the right circumstances, it may well be beneficial to re-introduce corporal punishment as a sentencing option.I wouldn’t like it, but it wouldn’t be the first time that I didn’t like a policy that ultimately turned out to be the lesser of two evils.I used to be sure. I no longer am, and that makes me uncomfortable. If you’re opposed to corporal punishment as a sentence of the court, as I was, I highly recommend reading Moen’s paper in its entirety. It may well change your mind..*Ivo Vegter is a freelance journalist..*This article was originally published by Daily Friend and has been republished with permission.

Ivo Vegter: Groenewald doubles down on push to restore corporal punishment

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