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Why there's no going back to capital punishment

Publish date: 11 June 2018
Issue Number: 777
Diary: IBA Legalbrief Africa
Category: South Africa

Despite an online petition calling for the return of the death penalty gaining more than 54 000 signatures, this will remain an unconstitutional form of punishment unless the Constitution is amended. Without such an amendment, the Constitutional Court would virtually most certainly not depart from its unanimous decision in State v Makwanyane and Another of 1995, says University of KwaZulu-Natal emeritus Professor George Devenish. In an analysis in The Mercury, Devenish notes the principal judgment – delivered by the court's president 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 (then in force). Judge Pius Langa also stressed the relevance of the African indigenous concept of ubuntu: ‘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.’ Devenish argues that this confirms that the abolition of a death penalty is inherent in African culture. '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.' He says the protection of fundamental rights is not subject to majoritarian or popular approval in our constitutional democracy with a Bill of Rights.

State v Makwanyane and Another

Full analysis in The Mercury (subscription needed)