Eight months after a post-Apartheid, multi-racial government elected through universal suffrage, led by Nelson Mandela, took office in May 1994, the Constitutional Court of South Africa was formally inaugurated on 14 February 1995. The very next day it began hearing the case of The State v Makwanyane and Mchunu. The two men at the centre of the case had been convicted of murders, attempted murder and robbery with aggravated circumstances and their appeals against the death penalty had been rejected by the Supreme Court.
South Africa’s interim constitution had not expressly abolished the death penalty. Not because of any oversight. In fact, in the early 1990s, everyone from the then president F.W. de Klerk and later his “justice” minister (the quotation marks are deliberate: what justice under an Apartheid regime?), the South African Law Commission and more importantly, those writing the Interim Constitution had in effect washed their hands of the issue and left it to a future Constitutional Court to decide. Courts handing down the death penalty had also taken note of the fact that South Africa was soon to enter a new era, with the implication that there was a virtual moratorium in effect.
President Mandela’s government, through its counsel George Bizos – who had risen to prominence during the Rivonia Trial of 1963-4, in which the death penalty was perhaps narrowly avoided for Mandela and others – had made it clear that it favoured abolition, but the attorney general of Witwatersrand pressed for the death penalty for the two convicts. And thereby inadvertently did the world a great favour as it led to cascades of some of the most scintillating prose by the likes of Justices Arthur Chaskalson, Ismail Mahomed, Yvonne Mokgoro, Kate O’Regan, Albie Sachs and others. Most importantly the 11 members of the bench unanimously and conclusively established through their brilliant argumentation that the death penalty was inconsistent with the Interim Constitution of South Africa of 1993 (overtaken by the updated one of 1996).
The Constitutional Court consisted of jurists from different races, religions and age groups – Justice O’Regan was 37 when she was appointed to the court. Many of the 11 judges were or are internationally renowned jurists.
Presiding judge Chaskalson noted that no executions had taken place in South Africa since 1989 and that in 1995 as many as 400 people were on death row, some of them convicted as far back as in 1988. At least half of them had been sentenced more than two years earlier. He termed it an “intolerable situation”.
Arguably the most stirring words in the full judgement came from Justice Mahomed:
“The deliberate annihilation of the life of a person, systematically planned by the State, as a mode of punishment, is wholly and qualitatively different. It is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life. It is not performed in a state of sudden emergency, or under the extraordinary pressures which operate when insurrections are confronted or when the State defends itself during war. It is systematically planned long after – sometimes years after – the offender has committed the offence for which he is to be punished, and whilst he waits impotently in custody, for his date with the hangman. In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by … the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death.”
Justice Chaskalson observed that the South African constitution specifically guaranteed the right to human dignity and right to life. (Article 10 of Chapter 2 of the constitution says: “Everyone has inherent dignity and the right to have their dignity respected and protected.” And Article 11 says: “Everyone has the right to life.” Period. (Incidentally, there are no ifs and buts nor any neverthlesses or notwithstandings appended to this six-word sentence. More of this later.)
He then began demolishing the arguments of the Witwatersrand attorney general. The latter had said what is cruel, inhuman or degrading depends on contemporary attitudes and that South African society favoured the death penalty for the extreme case of murder.
"If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected."
Source: Open Democracy, N. Jayaram, June 5, 2015. N. Jayaram is a journalist now based in Bangalore after more than 23 years in East Asia (mainly Hong Kong and Beijing) and 11 years in New Delhi.
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