The end of the rope

IT CAME that Monday. March 7 1988. The letter. "This is therefore to command you after the receipt by you of a notice, that the State President has decided not to extend mercy to the person under sentence of death ? and to cause the said sentence to be executed upon the said prisoner in the central prison as soon as fitting arrangements can be made for the execution thereof."

The letter came as a relief. A release from nearly four years of mental anguish in his cold, concrete rectangular bunker on Death Row. He then knew he had no hope of reprieve, that all other avenues had been exhausted. This time next week, he knew he would be dead.

Duma Joshua Khumalo, prisoner number V3458. Imprisoned by the apartheid regime in 1984. One of the "Sharpeville Six" charged with "common purpose" for being in a crowd near the scene of the murder that year of a councillor during a rent boycott in Sharpeville. Khumalo insisted he wasn't even there, but the state said their mere presence in a crowd near the murder scene rendered the six guilty. After four years in jail, he was sentenced to death by hanging. Khumalo has many memories of death row in Pretoria Central Prison, but none as vivid as not knowing when he would die.

"I lived next to a grave, watching others being called to execution," he says. Like the other prisoners, he eventually became programmed to die. Prepared for the eventuality, but living with the mental agony of not knowing when it would happen.

That Monday in 1988, Khumalo was told that he and the other five would be hanged on Friday the following week. His neck was measured to determine the size of rope required. They took his underwear, his shoes and his mattress so that he couldn't commit suicide. He had a final meeting with his father.

Khumalo remembers the smell of roast chicken. Before an execution a prisoner would be given a whole chicken to eat for his last meal. Having no appetite, the man often gave it to his friends.

The day before the scheduled execution they brought Khumalo his chicken.

Then, just before 4pm on the same day, March 17 1988, the six were told there wouldn't be an execution after all.

"We went back to our cells; the chicken was still waiting there," Khumalo remembers.

A last meal, a pounding heart ? all figurines in what today's constitutional state of South Africa looks back on as a macabre judicial game of chance.

The last person to be executed in South Africa died on November 14 1989. The death penalty has been outlawed since 1995, when the Constitutional Court ruled that it was inconsistent with one of the Constitution's most sacrosanct provisions ? the right to life. But that has never been the end of it.

The Constitution neither sanctions nor excludes capital punishment. Instead, it prohibits "cruel, inhuman or degrading treatment or punishment". But there has never been any definition of what constitutes this, and it has been up to the courts to interpret the Bill of Rights in order to reach a conclusion.

That 1995 judgment speaks of the mental anguish faced by condemned prisoners. "Death," said the court, "is a cruel penalty, and the legal processes, which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty."

Khumalo has been inside the "death room" at the Apartheid Museum, that steel and granite ode to suffering in the south of Johannesburg, on a number of occasions. Sometimes it is with foreign guests, who, when looking up at the sinewy nooses dotting the ceiling of the room, ask him if he feels sick. "No," he answers, "the cells are worse."

The museum has reconstructed death row cells, so small a grown man cannot stretch his arms out horizontally in them. He looks up at the ceilings of the cells. "The guards would watch us from above, they never left us alone; we could always hear them walking up and down above our heads."

The sound of footsteps tormented the prisoners day and night. Maybe this time the footsteps would be heading for their particular cell. To bring the letter.

Khumalo never rested, even in his dreams. "They were so cruel," he recalls, his nights filled with dreams of life outside, of the things he could not have, of the life he would never lead. The cell on death row still visits his dreams. His wife, Betty, says he still grinds his teeth in his sleep.

The court did indeed find that the death penalty constituted cruel and inhuman treatment. The main judgment read: "It leaves nothing except the memory in others of what has been, and the property that passes to the deceased's heirs. In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment."

The judgment goes into a lengthy explanation of how, at all stages of the legal process, there is the "element of chance".

Like the manner in which the case was investigated, how effectively the accused is defended, courtroom language and even the personality and temperament of the trial judge.

According to Professor George Devenish, an expert on the death penalty, many capital punishment cases in South Africa were presided over by "hanging judges" or judges with reputations for handing out the stiffest penalty provided by law.

Race and poverty were major factors affecting the outcomes of trials; the overwhelming majority of those sentenced to death were poor and black. And with "treason" also punishable by death, many executions were politically motivated.

Khumalo's sentence was eventually commuted to life imprisonment ? he was to languish in jail for several years before being released. The case was never re-opened, and he is still fighting to clear his name. In 1996 he went to the Truth and Reconciliation Commission. It was cathartic, but he says he is still disillusioned. He wants a retrial, saying this is "the only thing that will bring me peace".

On the wall of the "death room" at the Apartheid Museum is a plaque with names and dates of those executed. Khumalo knows that his name could have been on this list. He delicately fingers one of the names. "I knew him, he was my friend."

In today's climate of spiralling crime, agitation for the reinstatement of the death penalty has become a national near-obsession. Reams of editorial space are devoted to it. A plethora of non-governmental organisations has sprung up favouring both sides of the debate. Politicians score cheap points with the issue.

Which is one of the reasons why, legal analysts say, "State versus Makwanyane and others", heard in 1995, ranks as one of the most important judgments of the Constitutional Court.

Not only because of its controversial subject matter, but because of its affirmation of the Constitution ? that it, not the court of public opinion, has the final word.

The two accused in "Makwanyane" were convicted of murder, attempted murder and robbery with aggravating circumstances. They were sentenced to death on each count of murder, and long imprisonment on the other counts.

They appealed against the death sentences handed down in terms of the Criminal Procedure Act. (The Act also sanctioned the ultimate penalty for robbery with aggravating circumstances, kidnapping, rape, child abduction and treason "committed when the Republic is in a state of war").

The Constitutional Court had to decide whether this legislation was consistent with the Constitution. It eventually ruled that it was not ? laying the foundation upon which the illegality of capital punishment has subsequently been based. To this day, the court's decision is the subject of constant scrutiny, criticism and political point-scoring.

According to Devenish, the judgment was a victory for constitutional sovereignty. "It [the Constitution] is an enormously important milestone," he says, adding that judgments that uphold the paramountcy of the Constitution over that of public consensus are vital litmus tests for democracy.

But what is the alternative? Public outcry over the levels of crime often translates into calls for the reinstatement of the death penalty as the only way to teach hardened criminals a lesson. Not so, held the Constitutional Court.

Retribution, though, was addressed. In his judgment, then Acting Justice Sydney Kentridge said: "It may be said that if the punishment is cruel, so was the act of the murderer. That cannot and should not be denied. But that does not mean that the State should respond to the murderer's cruelty with a deliberate and matching cruelty of its own."

The main judgment prescribed a stiff sentence of life imprisonment as punishment. One of the applicants in the original case is still serving a life sentence in Pretoria Central Prison.

Despite his experiences, Khumalo is not a man for retribution. He now works for Khulumani, a support group for victims of apartheid, and tours the world acting in and promoting the play written about him: He Left Quietly. He has just returned from the UK where he took part in a photographic project called The F-word: Images of Forgiveness.

In the book he tells how, at the truth commission, he ran into one of his guards from death row.

During his testimony, he was asked whether this was the guard who had mistreated him while he waited to die. He replied that he wasn't.

"I realised that if I'd implicated him, it would have sent us all back to the execution chamber."