A matter of life and death
S v Makwanyane & Another (1995)
Is the death penalty compatible with the right to life clause in the Constitution?
Is it appropriate for the Constitutional Court to take a decision on the abolition of the death penalty, or is it a matter for Parliament to decide?
Background
The first case heard in the Constitutional Court was literally one of life and death. Between 1910 and 1975, South Africa had executed 2 740 people, and then another 1 100 between 1981 and 1989. In 1995, 400 people were still on death row.
During negotiations, the African National Congress (ANC) wanted the interim Bill of Rights to abolish capital punishment. The government wanted to retain it. Negotiators decided to leave it to the new Constitutional Court to decide whether the death penalty was compatible with the Bill of Rights.
The two accused in this matter, Themba Makwanyane and Mvuso Mchunu, had been convicted on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. They had been sentenced to death on each of the counts of murder, and to long terms of imprisonment on the other counts. The two accused, following the adoption of the Interim Constitution, challenged the constitutionality of the death penalty.
Path to the Constitutional Court
The accused parties, Themba Makwanyane and Mvuso Mchunu, were convicted in the lower courts of the charges against them. They were sentenced to death for the killing of four people during an armed robbery at Coronation Hospital in Johannesburg in terms of section 277(1) of the Criminal Procedure Act, which prescribed death as a sentence for murder.
The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. The matter then proceeded to the Appellate Division. The Appellate Division postponed the further hearing of the appeals against the death sentence until the constitutional issues were decided by the Constitutional Court.
On 15 February 1995, the 11 Justices took their seats to hear the case, the first to be heard in the newly established Constitutional Court. Large crowds of lawyers and observers packed the newly inaugurated courtroom for the three days of arguments.
The Court now had to consider whether the death penalty provision was consistent with the Interim Constitution of 1993, which had come into force subsequent to the applicants’ conviction and sentence by the lower court.
The question the Justices had to ask was whether the death sentence contravenes the meaning of section 11(2) of the Interim Constitution which prohibits ‘cruel, inhuman or degrading treatment or punishment’.
Some of the Arguments
The South African Government
The South African government accepted that the death penalty is a cruel, inhuman and degrading punishment, and that it should be declared unconstitutional. However, the Attorney General of the Witwatersrand, whose office is independent of the government, contended that the death penalty is a deterrent and a necessary and acceptable form of punishment, and that it is not cruel, inhuman or degrading.
Themba Makwanyane and Mvuso Mchunu
The applicants argued that the death penalty was inconsistent with the right to life enshrined in the Interim Constitution. The Legal Resources Centre, which was acting pro deo in this matter, also arged that the death penalty violated the right to life, the right to dignity, and the right to be free from torture and cruel punishment as enshrined in the Interim Constitution.
What did the Constitutional Court decide?
In a unanimous judgment, the Court ruled that the death penalty was unconstitutional. The Court forbade the government from executing death row prisoners, and ruled that these prisoners should remain in prison until new sentences were imposed. The Court held that the carrying out of the death sentence:
- Destroys life, which is protected without reservation under section 9 of the Interim Constitution;
- Annihilates human dignity which is protected under section 10 of the Interim Constitution;
- Is arbitrary in how it is enforced and thus irremediable;
- Doesn’t allow for rehabilitation which cannot happen if you kill a person;
- Doesn’t show that the death penalty was more of a deterrent than a long prison sentence.
How was the concept of ubuntu introduced into the judgment?
Justice Mokgoro introduced the notion of ‘ubuntu’ and defined it as ‘humaneness’. Umuntu ngumuntu ngabantu describes the significance of group solidarity for survival. She explained how the concept envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms, and collective unity.
Mokgoro found that the Interim Constitution, unlike its predecessor, is value-based, and that the spirit of ubuntu supports the right to life and
human dignity.
Was the death penalty consistent with the provisions of the Interim Constitution?
The Court stated:
It would no doubt have been better if the framers of the Constitution had stated specifically whether the death sentence is a competent penalty or not;
Given that it had been left to the Court to decide, this determined the extent and limit of the Court’s power in this case.
Should the Court adopt public opinion on the death penalty?
The Court stated:
Capital punishment is not a matter for a referendum because the purpose of the new legal order is to protect the rights of minorities, including social outcasts, and to ‘place them beyond the reach of majorities’; and
Public opinion may hold some degree of relevance, but by itself it is no replacement for the duty vested in the judiciary to interpret the Constitution and to uphold its provisions without fear or favour.
The death sentence is undoubtedly … an inhuman punishment for it involves, by its very nature, a denial of the executed person’s humanity, and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state.
Justice Arthur Chaskalson
from the Makwanyane Judgment, 6 June 1995
If public opinion were to be decisive there would be no need for constitutional adjudication.
Justice Arthur Chaskalson
from the Makwanyane Judgment, 6 June 1995
The death sentence is undoubtedly … an inhuman punishment for it involves, by its very nature, a denial of the executed person’s humanity, and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state.
Justice Arthur Chaskalson
from the Makwanyane Judgment, 6 June 1995
Impact and Significance
This was the Constitutional Court’s first judgment, and one of its most politically important and controversial rulings. The Constitutional Court abolished the death penalty at a time when opinion polls showed that most South Africans supported capital punishment because of South Africa’s high crime rate.
Nobody, however abominable their deeds, should be killed by the Court.
Justice Yvonne Mokgoro
2019
This case was the beginning of the Court saying, business is not going to be business as usual, we are now moving and changing our mind-set into the future.
Justice Bess Nkabinde
2011
The Makwanyane case provoked an outcry. Opposition leaders criticised the judgment as out of touch with public opinion, and even some senior members of the African National Congress (ANC) called for a referendum. The National Party (NP) and other groupings declared that they would campaign to have the death penalty reinstated.
Another interesting result of this case is that the media reporting was so poor that it contributed to the confusion and controversy in the public domain. This led directly to the current Constitutional Court’s practice of issuing a non-binding summary of its judgment for the use of the media and better public engagement.
There was no email at the time of this case. Justice Arthur Chaskalson’s main judgment was distributed on slightly yellowish legal pad paper to the ten other Justices who then wrote their own opinion.
The Makwanyane judgment comprised eleven separate but concurring judgments. Each emphasised the value of human dignity and life, but also emphasised different aspects of the debate. In this way, the Court demonstrated its awareness of the importance of the issue.
