The death penalty and the Makwanyane judgement


With the escalation of violent crime, many persons and communities are calling for capital punishment to be reinstated. This frequently occurs after a tragic incident such the recent killing of a 9-year old girl, Sadia Sukhraj in a hijack (The Mercury 29 May).   

It was open to the drafters of the interim Constitution either to totally proscribe capital punishment or to sanction it. Instead they chose the metaphorical ‘Solomonic’ solution, and elected to allow the Constitutional Court to adjudicate on this issue resulting in Makwanyane judgment. Popular sentiment in South Africa appears to favour the reinstatement of the death penalty. However, as Judge Albie Sachs explains in his judgment capital punishment offers an ‘illusory solution to crime, and as such detracts from really effective measures’.

The principal judgment, delivered by the President of the Constitution Court, Arthur Chaskalson, held that the provisions of section 277(1)(a) of the Criminal Procedure Act, which authorised capital punishment were inconsistent with the prohibition of cruel, inhuman, and degrading punishment, as set out in section 11(2) of the Interim Constitution. The Constitution Court held that the state had failed to discharge the onus placed on it by the limitation clause, contained in section 33 of this Constitution that the death penalty would be ‘materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be’, thereby justifying the state’s taking of life. The Court held that retribution actually constituted vengeance as a justification for the taking of life. This was unacceptable in our constitutional democracy.

Chaskalson explained that for the purpose of his judgment it was unnecessary to decide whether section 277(1)(a) referred to above, was in conflict with section 8 (equality), 9 (life) or 10 (human dignity) of the Interim Constitution. Whereas all the other ten judges of the Court concurred with the judgment of Chaskalson, there was a measure of divergence of opinion in relation to these other rights.   

Certain judges held that, in addition, the right to life was violated, while others included the violation of the right to dignity. Judges Mahomed and Ackermann went further in their analysis. The former opined that in addition, capital punishment violated the right to equality. Ackermann in his judgment found that the right to life includes the ‘right not to be put to death by the State in a way which is arbitrary and unequal’. 

As explained by Chaskalson the only way of diminishing the capriciousness of the application of death penalty is to emulate the practice of the United States and superimpose a multiplicity of procedural safeguards. This however has led to the unconscionable situation where prisoners are incarcerated on death row for many years, while complex and protracted legal appeal procedures are exhausted.

Judge Mahomed was of the view that whereas the right to life might not be unqualified, when it is infracted in a capricious and inhuman manner that is intrinsic to the imposition of the death penalty, it cannot be constitutionally justified. Judge Langa stressed the relevance of the African indigenous concept of Ubuntu, referred to in the postamble of the Interim Constitution. In explaining why this was a seminal was seminal because of: The value it puts on life and human dignity. The dominant theme of [indigenous] culture is that the life of another person is at least as valuable as one’s own… Treatment that is cruel, inhuman or degrading is bereft of Ubuntu.

What is interesting about the above sentiments is that abolition is inherent in African culture. Obviously the cardinal issue in the Makwanyane judgment was whether capital punishment was justified in terms of the limitation provision in section 33 of the then operative Interim Constitution. The state was unable to demonstrate unequivocally that its justification for limitation of the right was reasonable and justifiable in our democratic society.

The protection of fundamental rights is not subject to majoritarian or popular approval in our constitutional democracy with a Bill of Rights. In contrast the argument for retention is that one of main components from which the nature of the values referred to in the Constitution can be gleaned must be public opinion, which the Constitutional Court recognised as a factor to which the courts must have regard. Ignoring this undermines confidence in the criminal justice system, without which there cannot be sufficient respect for the law.

However unless the Constitution is amended, the death penalty will remain an unconstitutional form of punishment. Without such an amendment, the extant Constitutional Court, if the question of the death penalty were to come before it, would virtually most certainly not depart from its unanimous decision in Makwanyane judgment of 1995. The reason for this that the 1996 Constitution was to a great extent based on the Interim Constitution and it has corresponding provisions relating to human dignity, life and the proscription of cruel, inhuman or degrading punishment, are integral to 1995 Makwanyane judgment.

As a result of the tragic death of Sadia Sukhraj in an abortive hijacking an online petition calling for the return of the death penalty has gained considerable public support with more than 54000 signatures. This merely is an expression of public opinion. Even a national referendum in terms of section 84(1)(g) of the Constitution reinstating the death penalty would only be a powerful expression of public opinion. Only an amendment of the Constitution could actually reinstate it.

The unacceptably high incidence of violent crime in South Africa has resulted in demands in the country for the reinstatement of the death penalty. There are cogent arguments for and against the death penalty which are set out below. The arguments for penalty are:
1. There is according to research no conclusive evidence to prove that the death penalty is more of a deterrent than life imprisonment;
2. The death penalty is an irrevocable punishment. In the United States there are about 12 recorded cases in which innocent persons were unlawfully executed; 
3. The death penalty is a cruel and barbaric punishment that depraves all involved with it;
4. In a heterogeneous country like South Africa and the United States, it has been established that there is invariably a racial bias in the imposition of the death penalty; 
5. The death penalty is arbitrary cannot be imposed with consistency; and 6. The death penalty is morally, philosophically and theologically questionable by such contemporary intellectuals who have profound reservations about it.

A powerful argument in favour of the ultimate penalty is that of retribution. When unspeakable crimes are committed society demands retribution. This can only be satisfied according to its proponents by death. However great the demand for retribution may be, it is submitted that it is manifestly outweighed by the six above arguments against the reinstatement of this penalty.

Most commentators are of the opinion that the reinstatement of this penalty would not instantaneously resolve our serious crime problem. What is required a more effective and well-resourced criminal justice system and a competent a corrupt free police force in order to fight and contain crime in a meaningful way.

George Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.