Thursday, December 3, 2015

The Oscar Pistorius appeal: justice, the law and mercy


After the Oscar Pistorius trial three things seemed plain to me besides the fact that I personally did not believe his version of events.* The first two had to do with justice and the law.
 
The verdict of culpable homicide was wanting in terms of achieving justice: someone was dead. Mr Pistorius had killed someone, but had been found guilty of a charge carrying a comparatively light sentence. As far as I could judge as a layman, the verdict then must also have been wrong at law.

It was a matter of common sense. Mr Pistorius must have known that shooting four times through a locked door into a tiny confined space was likely to kill whoever was inside. The fact that it turned out to be the world-famous athlete's beautiful lover Reeva Steenkamp made the case a worldwide sensation. But it did not alter the fact that even if the person had been the intruder Mr Pistorius said he feared at that moment, his intention when he fired was to kill. How did it change anything who he killed? Someone was dead.

Against this view, many insisted Mr Pistorius had received justice. He had not intended to murder anyone. Furthermore he had the right to defend himself against a criminal. There was too much crime in South Africa. It was the people trying to interpret the law harshly that were wrong and unjust.

The Supreme Court of Appeal has unanimously concluded that the lawful verdict against Mr Pistorius, and his sentence, are for murder.

In reaching this decision, the SCA is at pains not to be seen as criticising the trial judge, Judge Masipa. Different interpretations of the law are inevitable within the system and she took the view she took as a legal expert applying the law.

Well and good, of course. But it is more Judge Masipa's conduct of the trial that brings the third issue into sharp relief for me. I felt at the time that Judge Masipa, like Portia in Shakespeare's The Merchant of Venice, had been concerned to show mercy in dispensing justice according to the letter of the law. It is hardly something to condemn a person for, especially one presiding so composedly over so highly charged a trial.

The law is proverbially an ass, but perhaps Mr Pistorius's case rather shows the law cannot win whatever it does. The question for us after the SCA's decision is whether justice, with its obvious connection to mercy, has really been better served by enforcing the proper reading of the law.
 
In spite of the disgust and outrage at the abuse of women in what is supposed to be civilised society today, a number of women I know - repeat, women - believe Mr Pistorius has suffered enough and it is awful to make him return to prison after all he has gone through. Do they have a case?
 
What is the balance between the law, justice and mercy? Has it been met? Remember someone is dead.
 
 


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