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Raoul Wallenberg Institute of Human Rights and Humanitarian Law REPORT No. 23

The Abolition of Death Penalty in South Africa Summary of the Makwanyane Case by Agneta Lindelöf Introductory Remarks by Johann van der Westhuizen

Lund 1996

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Raoul Wallenberg Institute of Human Rights and Humanitarian Law REPORT No. 23

The Abolition of Death Penalty in South Africa

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Raoul Wallenberg Institute Printed in Sweden 1996 Reprocentralen, Lunds universitet ISSN 0283-085X

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SA CASE: S V MAKWANYANE - BY JUDGE AGNETA LINDELÖF INTRODUCTORY REMARKS by Johann van der Westhuizen (Professor of Law and Director of the Centre for Human Rights, University of Pretoria; Member of the Independent Panel of Constitutional Experts, Constitutional Assembly of South Africa). 1.

PARLAMENTARY SOVEREIGNTY AND APARTHEID

The symbolical significance of the judgement discussed below, in addition to its obvious legal, constitutional and political implications, is considerable. Not only was it the first case to be heard by South Africa's new Constitutional Court, but it abolished the death penalty, which had been perceived as integrally linked to the apartheid system. Following two and a half centuries of colonization, hostilities between European settlers and the indigenous African people as well as between the African speaking descendants of the Dutch and the British empire, and the establishment and demise of several traditional, colonial and republican regimes, the Union of South Africa came into being in 1910, under a system of parliamentary sovereignty. The black majority of the country was excluded from the vote and any other meaningful political participation and racially discriminatory laws and practices which had by then come into being, were further enforced and entrenched. Especially during the 1950s a plethora of harsh apartheid laws were enacted by the National Party Government, which came to power in 1948. In 1961 South Africa became a Republic and left the British Commonwealth. The constitutional dispensation remained largely the same. In 1983 a new Constitution was adopted, providing for limited political participation by the Coloured and Asian population groups, but still excluding Africans and thus the vast majority of the population. The 1983 Constitution enjoyed very little political legitimacy. It also did not embody constitutionalism and a constitutional guarantee of fundamental human rights. The essence of apartheid was the denial of equality, which was necessarily linked to the oppression, exploitation and exclusion from South African society of millions of people and thus to the violation of their human dignity. In addition to its devastating socio-economic effects, it had extremely negative consequences for the legal system. Because it was implemented by

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state bureaucrats through legal mechanisms, apartheid had to be legally institutionalized. The common law of South Africa (a hybrid Roman-Dutch and English body of law) as well as statutory law became contaminated by apartheid to the extent that South Africa law was perceived by many as above all an apartheid legal system. In spite of many aspects of the law and the courts that were as good or as bad as the legal system of any other country, apartheid resulted in what was often referred to as a serious legitimacy crisis of the legal system. The police and the courts were viewed by many as little more than apartheid instruments. Several laws were seen as foreign and imposed upon the African majority. In some cases the punishment ordered by criminal courts was seen as too severe and unfair to the perpetrators, and in others as too light, disregarding the dignity of the victims of crime. Resistance developde along with apartheid. The African National Congress (ANC) was formed in 1912; more active resistance started to emerge during the 1950s; an armed struggle was embrarked on in the early 1960s when the liberation movements were banned and went underground; large scale children's and students' protest erupted in 1976 and the United Democratic Front and several other resistance movements (aligned to the liberation movements in exile) were formed in reaction to the adoption of the 1983 Constitution. In an attempt to curb the inevitable resistance, numerous often draconian "security laws" were passed, especially during the 1960s. In addition to existing common law criminal offences, new crimes such as "terrorism" and "communism" were created and several procedural rights were violated inter alia by the legal provision for lengthy and often indefinite periods of detention without trial. In practice these resulted in murder, torture and similar abuses by police officials. With a few exceptions, South African courts willingly and sometimes enthusiastically implemented discriminatory and security laws. This happened because of the absence of any justiciable constitutional guarantee of fundamental human rights, together with an attitude amongst lawyers that they simply had to mechanically apply technically valid laws, but also because judges and magistrates protected the status quo, either unconsciously as a result of their backgrounds, or because they believed that they should contribute to a fight against an evil onslaught. Thus the legal administration, and especially the criminal law, played an important role in the maintenance of apartheid as a political, legal and social order. However, the law also used as a vehicle to attack and dismantle the

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system. Some significant victories were won in the courts with the assistance of human rights organizations. Furthermore, political activists often used court proceedings to publicly express their views, even when not accepting the legitimacy of the applicable laws. 2.

CAPITAL PUNISHMENT

In terms of the Criminal Procedure Act of 1977 - before the reforms referred to below - the death penalty could be imposed not only for murder, but also for treason, rape, kidnapping and child stealing, as well as for robbery and housebreaking, or attempted robbery and housebreaking. in the case of robbery it was mandatory - a court was compelled to impose it unless mitigating circumstances were found to be present, in which case it was discretionary. For robbery and kidnapping it could be imposed if aggravating circumstances were present. In terms of Internal Security Act of 1982 it could also be imposed for terrorism. Execution took place by hanging. Amongst countries in which reliable official statistics were made known, South Africa's execution rate ranked very high. At one stage South Africa was alleged to be responsible for 47 % of the world's executions. Between 1910 and 1989 more than 4200 suffered execution. From 1978 the number of people hanged steadily increased. For example, between 1985 and the middle of 1988 at least 537 executions took place. During the same period the annual number of executions exceeded 100 in every year, except 1983. In 1987 approximately 172 people were hanged the highest number ever in the history of the country. In February 1988, e.g., 267 people were under the sentence of death, waitingto be hanged. In virtually all societies where capital punishment exists, the majority of those who are sentenced to death are members of politically, socially or economically disadvantaged or marginalized groups. Some judges are also alleged to impose the death sentence more easily than others, because of their personal disposition. In South Africa proportionally much larger numbers of black people were executed than white people. Glaring statistical evidence and the prevailing official policy and culture of apartheid caused many to believe that a blatantly discriminatory attitude on the past of judges was responsible for this fact, in addition to the expected effects of socioeconomic inequality. For example, 81 blacks were convicted of murdering whites during the period June 1982 to June 1983. Of these 38 were hanged. During the same period 52

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whites were convicted of murdering whites and one was hanged, while 21 whites were convicted of murdering blacks, but none was hanged. Of 2208 blacks convicted of murdering blacks, 55 were hanged. Of the abovementioned 172 people were hanged in 1987, nine were white. The existence and application of capital punishment in South Africa were often criticized and actively opposed by human rights lawyers and others, and sentences and executions were monitored. The Society for the Abolition of the Death Penalty was quite vociferous and Lawyers for Human Rights often applied to the courts for last minute stay of execution orders. The ANC leadership expressed a clear abolitionist policy. In the late 1980s political pressure increased, together with the rising number of people sentenced to death for politically motivated activities, related to the intensification of the liberation struggle.1 3.

NEGOTIATING A CONSTITUTION

As a result of ongoing struggle action inside South Africa, increasingly uncontrollable contact and cooperation between activists in the country and the liberation movements in exile, and mounting international pressure, covert contact between representatives of the governing regime and leaders of the liberation movements started taking place during the 1980s. After the unbanning of political organizations in February 1990, official meetings between De Klerk government and the ANC commenced, leading up to the start of official constitutional negotiations late in 1991. The debate about constitutionalism and a constitutionally entrenched Bill of Rights gained momentum in the mid 1980s. However, as the concept started to gain acceptance in the white establishment and even in governments circles, an understandable scepticism emerged. Inter alia because some of those who advocated a new Constitution with a Bill of Rights failed or refused to conduct the debate within the context of the transfer of political power and the transformation of South African society, activists amongst the black youth asked why the white establishment, who had previously been strongly opposed to the very concept of human rights, suddenly called for the constitutional protection of rights. A Bill of Rights came to be suspected by some as but another legal trick and an instrument to protect and protect white privilege, at a point in time when it became clear that political power was about to shift to the majority. On the other side the struggle for liberation had also been recognized as a struggle for human rights. 1

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Draft constitutional guidelines and bills of rights had been published before negotiations commenced. In 1988 the ANC published its Constitutional Guidelines for a Democratic South Africa, building on its African Claims in South Africa of 1945 and especially its Freedom Charter, adopted in 1955. The Freedom Charter was essentially a blueprint for a democratic South Africa, embodying the political aspirations of the time, but could also be regarded as a declaration of human rights. In the 1988 Constitutional Guidelines, the ANC committed itself to the adoption of a constitutionally entrenched and justifiable Bill of Rights. In 1990 the ANC published its draft Bill of Rights for the New South Africa. After strongly opposing the idea of a constitutionally entrenched Bill of Rights up to the mid 1980s, the South African government instructed the South African Law Commission in 1986 to investigate especially the protection of group rights and the possible extension to individual rights. In 1989 and 1991 the Commission issued reports, accepting the idea of the constitutional protection of fundamental human rights. The South African Government published its own draft Bill of Rights early in 1993. Drafts also emerged from the Democratic Party, the KwaZulu Natal Indaba and private legal and academic groups. The Convention for the Democratic South Africa (CODESA) was launched in December 1991 to negotiate a democratic transition and a new constitutional dispensation. CODESA collapsed in mid-1992, but the Multiparty - Negotiating - Process (MPNP) convened in 1993 and the Interim Constitution was completed by the negotiators in November and passed by the South African Parliament in December 1993. 4.

THE CONSTITUTIONAL COURT AND JUDGES

Until the years immediately preceding constitutional negotiations, the idea of a specialized Constitutional Court had not been a familiar one in South Africa, where the structure and hierarchy of the courts and the legal profession resembled the British system. The highest court in all criminal and civil matters was the Appellate Division of the Supreme Court in Bloemfontein, headed by the Chief Justice. The Supreme Court furthermore consisted of provincial divisions, each headed by a Judge-President, and some local divisions. Magistrates Courts, operating on a regional district level, are the lower courts. No tradition of separate hierarchies of specialized courts existed.

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When it became clear that South Africa was likely to have a Constitution with a Bill of Rights, the question as to which court should be entrusted with guarding and enforcing the new Constitution became highly topical: the ordinary courts of the country, with the Appellate Division of the Supreme Court having the final word, or a specialized and separate Constitutional Court. The jurisprudence of the American Supreme Court was well-known amongst constitutional lawyers and the Canadian and Indian examples increasingly attracted attention. However, the impressive record of and apparent public respect for the German Federal Constitutional Court, as well as a few other Continental Constitutional Courts were also quite influential. The main arguments in favour of the existing court structure included a recognition of the existence and expertise of judges, the fear that a Constitutional Court would be highly politicized and the view that all courts rather than a specialized court should be involved in constitutional and human rights issues, for the purposes of developing a strong human rights culture. Arguments for a specialized Constitutional Court included the recognition of the need for a new constitutional jurisprudence and indeed legal philosophy to be developed speedily by a single source of authoritative decisions (rather than having conflicting decisions by different courts during the early years of the new Constitution). The existing courts, staffed by white male judges appointed during the apartheid era, could not legitimately be entrusted with the power to enforce the new democratic Constitution in which people have to gain confidence, many also argued. The ANC, several legal academics and lated the Government's negotiators supported the idea of a Constitutional Court, with the main opposition coming from the organized establishment legal profession. Negotiators eventually agreed on a new specialized Constitutional Court, with its seat in Johannesburg, which would be the highest court in constitutional issues and the only court with jurisdiction to declare Acts of Parliament invalid. Other courts would remain in existence, with limited jurisdiction in constitutional matters. The appointment of judges to the Constitutional Court was a serious point of contention in the negotiations. Judges to the Supreme Court had previously been appointed by the State President, from the ranks of senior practising advocates. Attorneys and legal academics could not be appointed to the Bench, and in a small number of instances judges were controversially appointed from the ranks of government law advisors or state advocates

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(prosecutors). No blacks and only one woman had been appointed since the inception of the Union in 1910. Calls for a more representative Bench, for the opening up of the Bench to academics and attorneys and for an independent appointment mechanism had been going up over a period of time. An agreement was reached and constitutionalized that the Constitutional Court would consist of 11 judges. The President of the Court is appointed by the President in consultation (in order words with the concurrence of) the Cabinet and after consultation with the Chief Justice. Four judges are appointed from the ranks of serving the Supreme Court Judges by the President, in consultation with the Cabinet and the Chief Justice. The remaining six are appointed by the President in consultation with the Cabinet and after consultation with the President of the Constitutional Court, from a list of ten names, put forward by a new body, the Judicial ServiceCommission. The Judicial Service Commission is chaired by the Chief Justice and furthermore consists of the President of the Constitutional Court, the Minister of Justice, representatives of the judiciary, the organized legal profession and law faculties, a Judge President designated by the Judges President, four Senators and four persons (two of whom must be practising lawyers) designated by the President in consultation with the Cabinet. Arthur Chaskalson was appointed as President of the Constitutional Court, crowing a long and distinguished career as an advocate, during which he handled numerous human rights cases. He was one of the junior counsel in the "Rivonia trial" of Nelson Mandela and others in the early 1960s and later established and headed the prominent Legal Resources Centre, specializing in public interest law cases. He was involved in the drafting of the Namibian Constitution, acted as consultant for the Legal and Constitutional Committee of the ANC and was the leading member of the technical committee responsible for the main part of the Interim Constitution during the negotiating process. The four members of the Court appointed from the ranks of Supreme Court judges are judges Mahomed, Ackermann, Madala and Goldstone. As an advocate, judge Mahomed was involved in human rights litigations and in the drafting of the Namibian Constitution. As a South African of Indian descent, he was also the first black (in terms of apartheid legislation) advocate to gain senior status and to be permanently appointed as a judge. Judge Ackermann earlier left the Supreme Court Bench to take up a professorship in human rights, and then returned to the Bench. Judge Madala served on the Bench of

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the Transkei, a previously "independent" homeland. Judge Goldstone gained much prominence as the chair of a Commission which investigated violence, and was then appointed as the chief prosecutor of Bosnian war criminals in The Hague. He has not been available to sit in any cases of the Constitutional Court, as a result of which acting judges have been appointed. In the case under discussion Sydney Kentridge SC acted, who has for many years been one of South Africa's most highly respected senior advocates. He appeared in several human rights cases, including the inquest regarding the death in detention of the prominent Black Consciousness leader, Steve Biko. He also practises as a well-known barrister in England. In order to compile the list of ten names, the Judicial Service Commission decided to call for nominations and to interview candidates in public. Approximately 100 people were nominated and 25 candidates were short listed and interviewed. The six eventually appointed are judges Yvonne Mokgoro ( a researcher and previously a law professor), Kate O'Regan (an associate professor of law specializing in labour, land, constitutional and gender issues, who previously practised as an attorney), Pius Langa (a senior advocate, chair of the National Association of Democratic Lawyers and previously member of the ANC's Legal and Constitutional Committee), John Didcott (a judge long known for his liberal leaning judgments and the fact that he had never handed down a death sentence), Johann Kriegler (a judge from the Appellate division, who chaired the Independent Electoral Commission managing and overseeing South Africa's first democratic general elections in April 1994) and Albie Sachs (a well-known author, legal academic, and political activist who lost his arm in a car bomb explosion in Mozambique, previously practising as an advocate). The court is composed of nine men and two women and of seven white and four black members. 5.

THE FINAL CONSTITUTION

A text of the final Constitution was passed by the Constitution Assembly (all the members of Parliament, in other words of the National Assembly and the Senate) of South Africa on 8 May 1996. If the Constitutional Court certifies that this text complies with the 34 Constitutional Principles (attached in a schedule to the interim Constitution), it will become the Constitution of South Africa. The most notable differences between the interim and final Constitution, as far as the issues under discussion are concerned, relate to the court structure

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and the appointment of judges, but the concept of constitutional supremacy and the role and status of the Constitutional Court will remain untouched. The issue fo capital punishment and the rights to life was hotly debated, especially following the judgement of the Constitutional Court. The National Party, amongst others, argued in favour of a specific provision for the death penalty for serious offences, under certain circumstances. The Pan Africanist Congress wanted capital punishment to be explicitly abolished. However, in the text passed the right to life is still recognized in the same unqualified way as in the Interim Constitution, which means that the effect of the judgement will remain. Capital punishment could thus only be reintroduced by way of a future constitutional amendment or if the Court at a later stage overturns its earlier judgment by finding that it was wrong or that circumstances have changed to such an extent that the arguments on which the judgment was based no longer apply.

14 On June 6 1995 the Constitutional Court of the Republic of South Africa delivered judgment in the matter of the State v T Makwanyane and M Mchunu (Case No CCT /3/94). The unanimous order of the Court declared all provisions of legislation sanctioning capital punishment, which were in force in any part of the territory, to be inconsistent with the Constitution of the Republic of South Africa, 1993 and accordingly to be invalid. By the order the state and all it's organs were forbidden to execute any person already sentenced to death under any of the provisions thus declared to be invalid.2 The judgment is of great importance and interest, not only in that it declares capital punishment to be unconstitutional, but also in that it lays down fundamental guide-lines for constitutional interpretation. Given the importance of the matter at hand, and considering the fact, that the reasons given by the President of the Court, in the main judgment, in some basic respects, differ from the reasons given by his fellow-judges in their concurring opinions, I have elected to include the individual opinions of all members of the Court. Background The Constitution of the Republic of South Africa, 1993 (Act 200 of 1993) came into force on the 27th of April 1994. It is an interim constitution, which will only last for five years and then come to an end. Parliament will fulfil the role of a so-called Constitutional Assembly, which will have the task of drafting and adopting the final constitution, to come into effect when the said transitional period ends. The Constitution establishes a new order in South Africa; an order in which human rights and democracy are entrenched and in which the Constitution shall be the supreme law of the Republic, and any law or act inconsistent with it's provisions shall, unless otherwise provided expressly or by necessary implication in the Constitution, be of no force and effect to the

The order also declares that all such persons will remain in custody under the sentences imposed on them, until such sentences have been set aside in accordance with law and substituted by lawful punishments. 2

15 extent of the inconsistency ( Section 4 (1) ). The said provision is backed up by the constitutional jurisdiction of the Constitutional Court and the Supreme Court which are given jurisdiction to uphold the entrenched rights of the Constitution. Chapter 3 of the Constitution contains the Bill of Rights, which enshrines and entrenches the fundamental human rights and freedoms of the subjects of the Republic. As has been said above, the Bill of Rights is justiciable and the entrenched fundamental rights and freedoms are accordingly protected and enforced by the courts. The fundamental role of the judicial authority in terms of the constitutional system, which is introduced by the new Constitution, marks a radical departure from the previous system which was based upon the principle of parliamentary sovreignty.3 The present case was the first case heard by the Constitutional Court. -----------------------------------------------Facts The two accused in the matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggrevating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appelate Division of the Supreme Court against the convictions and the sentences. The Appelate Divison dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law. Section 277 (1) (a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. The Appelate Divison invited counsel for the accused to consider whether this provison was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11 (2) of the Constitution. The Appelate Divison dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issuses were decided by the Constitutional Court. Judgment Chaskalson P: South Africa inhereted this so-called Westminister constitutional system from the British in 1910 (when the British Parliament passed the Souh Africa Act, 1909). A system based on this constitutional principle rejects any constitutional testing of the content of parliamentary Acts by the judicial organs. The underlying principle is that Parliament represents the democratic will of the people. In South Africa, however, Parliament was never democratically elected. Even when the 1983 Constitution was inroduced, the majority of the population were expressly excluded from representation in Parliament.

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16 Two issues were raised in the present case: the constitutionality of section 277 (1) (a) of the Criminal Procedure Act, and the implications of section (241) (8) of the Constitution.4 5 Chaskalson regrets that the framers of the Constitution have not specifically stated whether the death sentence is a competent penalty or if it may be permissible in circumstances sanctioned by law. In not doing so they left it to the Constitutional Court to decide whether the death penalty is consistent with the provisions of the Constitution. The Relevant Provisions of the Constitution 8 Chapter 3 of the Constitution sets out the fundamental rights to which every person shall be entitled under the Constitution and it also sets out provisions by which the chapter is to be interpreted by the Courts. As stated above it does not deal specifically with the death penalty, but in section 11 (2) it prohibits "cruel, inhuman or degrading punishment". It is up to the Constitutional Court to give meaning to these words. 9 In a previous case ( S v Zuma and Two Others )5 the Court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in Chapter 3. It approved of an approach which, whilst paying due regard to the language that has been used, is "generous" and "purposive" and gives expression to the underlying values of the Constitution. In this context it should be noted that the Post-amble, which contains the provison on National Unity and Reconciliation shall, for the purpose of interpreting the Constitution, be deemed to be part of the Constitution and shall have no lesser status than any other provision in the Constitution. 10 Chaskalson points out that section 11 (2) must not be construed in isolation, but in it's context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter 3 of which it is part. It must also be construed in a way which secures for individuals the full measure of it's protection. Rights with which section 11 (2) is associated in Chapter 3, and which are of particular importance to a decision on the constitutionality of the death penalty are included in Section 9 "every person shall have the right to life", Section 10 "every person shall have the right to respect for and protection of his or her dignity" and Section 8 "every person shall have the right to equality before the law and to equal protection of the law". Punishment must meet the requirements of the given sections; and this is so whether these sections are treated as giving meaning to Section 11 (2) or are treated as prescribing separate and independent standards with which all punishments must comply. In Chaskalson's analysis sections 9, 10 and 8 are treated together as giving meaning to Section 11 (2).

11 The representative of the South African Government stated that the Government accepts that the death penalty is a cruel, inhuman and degrading punishment and that it should be declared unconstitutional. The Attorney General of the Witwatersrand took the view that the death penalty is a necessary and acceptable form of punishment and that it is not cruel, inhuman and degrading within the meaning of Section 11 (2). He argued that if the framers of the Constitution The Court did not find it necessary to deal with the provisions of Section 241 (8) in the present case. 4

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Constitutional Court Case No CCT /5/94 (5 April 1995)

17 had wanted to make the death penalty unconstitutional they would have done so and that their failure to do so indicated the intention to leave the matter for Parliament to be dealt with in the ordinary way. He held that it was for Parliament to decide whether or not the death penalty should be repealed and Parliament had not taken such a decision. Legislative history 12 The written argument of the Government dealt with the debate which took place in regard to the death penalty before the commencement of the constitutional negotiations. It was argued that this undisputed backgound information formed a part of the context within which the Constitution should be interpreted. 16 Chaskalson states that the question in point concerns the interpretation of the Constitution, which is no ordinary statute. He ascertaines that in countries in which the Constitution is the supreme law, as it is in South Africa, it is not unusual for the courts to have regard to circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. He also states that the European Court of Human Rights and The United Nations Committee on Human Rights allow their deliberations to be informed by travaux préparatoires. Chaskalson finds the reports of the technical committees, that assisted the Multy - Party Negotiating Process, on the drafts of the Constitution to be equivalent to the travaux préparatoires relied on by international tribunals. They can provide a context for the interpretation of the Constitution, and when they serve that purpose there is no reason to exclude them. Background evidence may be useful to show why particular provisions were or were not included in the Constitution. Where the background material, as in the present case, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a court in interpreting the Constitution. These conditions were satisfied in the present case.6 20 Capital punishment was the subject of debate before and after the Constitution making process and Chaskalson holds it to be clear that the failure to deal specifically in the Constitution with this issue was not accidental. In light of the legislative change and the discussions that lead to the imposition of the moratorium, in 1992, a moratorium in respect to the carrying out, not the imposition of the death-sentence, and the fact that the issue was not dealt with in the constitutional negotiations Chaskalson concludes that the death sentence was, in terms, neither sanctioned or excluded, and it was left to the Constitutional Court to decide whether the provisions of the pre-constitutional law, making the death penalty a competent sentence for murder and other crimes, are consistent with the Constitution. Section 11 (2) - Cruel, Inhuman or Degrading Punishment 26 Chaskalson states that the death penalty, without doubt, is a cruel, inhuman and degrading punishment in the ordinary meaning of these words. He emphasizes that the task of the Court is, however, to decide whether the death penalty is a cruel, inhuman or degrading punishment within the meaning of Section 11 (2) of the Constitution. The accused, who relied on the stated section, carried the initial onus for establishing this proposition.

Chaskalson does not find it necessary or desirable, at this stage of the development of South African Constitutional law, to express an opinion on whether it might also be relevant for other purposes or to attempt to lay down general principles governing the admissability of such evidence. 6

18 27 The prinicipal arguments of counsel for the accused in support of their contention were that the death sentence is an affront to human dignity, is inconsistent with the unqualified right to life entrenched in the Constitution, can not be corrected in case of error or enforced in a manner that is not arbitrary and that it negates the essential content of the right to life and other rights which flow from it. The Attorney General argued that the death penalty is recognised as a legitimate form of punishment in many parts of the world, it is a deterrent to violent crime, it meets society's need for adequate retribution for heineous offences and it is regarded by South African society as an acceptable form of punishment. He asserted that it is, therefore, not cruel, inhuman or degrading within the meaning of Section 11 (2) of the Constitution. International and Foreign Comparative Law 34 In the course of arguments the Court was referred to books and articles on the death sentence, and to judgments dealing with challenges to capital punishment in the courts of other countries and international tribunals. Chaskalson concludes that international and foreign authorities are of value because they analyse arguments for and against capital punishment and show how courts of other jurisdictions have dealt with the issue. Such sources may also have to be considered because of their relevance to Section 35 (1) of the Constitution, which states: "In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic societey based on freedom and equality and shall where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law." 35 Customary international law and the ratification and accession to international agreements is bindning within South Africa (Section 231). In the context of Section 35 (1), public international law would include non-binding as well as binding law. They may both be used as tools for interpretation. International agreements and customary international law accordingly provide a framework within which Chapter 3 can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, The Inter-American Court on Human Rights, and the European Court of Human Rights may provide guidance as to the correct interpretation of Chapter 3. 36 A fact that has to be taken into consideration when deciding whether the death penalty is cruel, degrading or inhuman punishment within the meaning of Section 11 (2) is that capital punishment is not prohibited by public international law. International human rights agreements however differ from the South African Constitution in that where the right to life is expressed in unqualified terms they either deal specifically with the death sentence, or authorise exceptions to be made to the right to life by law. When challenges to the death sentence in international or foreign courts and tribunals have failed, the constitution or the international instrument concerned has either directly sanctioned capital punishment or has specifically provided that the right to life is subject to exceptions sanctioned by law. It is telling that the Hungarian Constitution doesn't have such express provisions and that in Hungary the challenge succeeded and the death sentence was declared unconstitutional.

19 Chaskalson points out that comparative "bill of rights" jurisprudence will be of interest in South Africa, particularly in the early stages of transition when there is no indigenous jurisprudence in this branch of the law to draw from. It is however to be noted that Section 35 (1) does nothing more than provide a possibility for the Court to have regard to foreign case law in interpreting the Constitution, but there is no injunction to do more than that, and Chaskalson emphasises that such law will not necessarily offer a safe guide to the interpretation of Chapter 3. The Court may derive assistance from international public law and foreign case law, but is in no way bound to follow it. 39 The South African Constitution expresses the right to life in an unqualified form, and prescribes the criteria that have to be met for the limitation of entrenched rights, including the prohibition of legislation that negates the essential content of an entrenched right. Chaskalson stresses that, in dealing with comparative law, the Court has to consider that it is required to construe the South African Constitution and that that has to be done with due regard to the legal system of South Africa, South African history and circumstances, and the structure and language of the Constitution. Arbitrariness and Inequality 43 In relying on the decision of the U.S. Supreme Court in Furman v Georgia, counsel for the accused argued that the imprecise language of Section 277 of the Criminal Procedure Act, and the unbounded discretion vested by it in the courts, make it's provisions unconstitutional.7 Chaskalson notes that from the beginning the United States Constitution held capital punishment to be lawful. The Fifth Amendment refers in specific terms to capital punishment and impliedly recognises it's validity. The Fourtheenth Amendment obliges the state not to "deprive any person of life,liberty or property, without due process of law" and it too impliedly recognises the right of the states to make laws for such puproses. The argument that capital punishment is unconstitutional was based on the Eight Amendment, which prohibits cruel and unusual punishment. Although challenges under state constitutions to the validity of the death penalty have been successful, the federal constitutionality of the death sentence as a legitimate form of punishment for murder was upheld by the Supreme Court in Gregg v Georgia.8 Both before and after this case , decisions upholding and rejecting the death penalty have divided the United States Supreme Court. The decisions have ultimately turned on the votes of those judges who considered the nature of discretion given to the sentencing authority to be the crucial factor. In sum, if there is no discretion, too little discretion, or an unbounded discretion, the provision authorising the death penalty has been struck down as being contrary to the Eight Amendment; where the discretion has been "suitably directed and limited so as to minimise the risk of wholly arbitrary or capricious action" the challange to the statute has failed. 45 Chaskalson notes that under the South African Court system questions of guilt and innocence, and the proper sentence for those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggrevating circumstances relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal to persons sentenced to death. If 7

408 U.S. 238, 290 (1972)

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428 U.S. 153, 176 (1976)