By Annalise Kempen
Every now and again, and especially following the death of a well-known person, such as after the murder of Bafana Bafana captain Senzo Meyiwa, there seems to be renewed calls for the reinstatement of the death penalty. But the question is whether, if such emotional pleas led to the taking of this very controversial step, it would contribute to a decrease in South Africa's high violent crime rate.
In searching for some answers, Servamus turned to the South African Institute of Race Relations (IRR)’s thought-provoking paper entitled Capital punishment in South Africa: Was abolition the right decision? Is there a case for South Africa to reintroduce the death penalty? which was published in November 2016. Despite many people holding the view that our high crime rate - especially in terms of violent crimes - will decrease if the death penalty is reintroduced, there is much more to consider when addressing this topic.
On 14 November 1989, Solomon Ngobeni was the last person to be executed by the government of South Africa. Solomon was one of the 1100 people who were executed between 1981 and 1989. In the years between 1910 and 1975, 2740 people were executed, bringing the total number of executions to 3840 - an average of around 50 per year for an 80-year period.
On 2 February 1990, former State President F W de Klerk told Parliament, during one of the most historically significant speeches made in South Africa's history, that "the death penalty should be limited as an option of sentence to extreme cases, and specifically through broadening judicial discretion in the imposition of sentence; and that an automatic right of appeal be granted to those under sentence of death" (www.sahistory.org.za/archive/fw-de-klerk%E2%80%99s-speech-parliament-2-february-1990).
I wonder how many people know that, when capital punishment was legal in South Africa, it was implemented not only for murder, but also for rape, housebreakings, robbery or attempted robbery with aggravating circumstances, sabotage, training abroad to further the aims of communism, kidnapping, terrorism and treason.
The 1995 Constitutional Court decision
The Constitutional Court (CC), which is the highest court in South Africa, was born in 1994 out of the country's first democratic Constitution. This court outlawed capital punishment in the case of State v Makwanyane and Mchunu, which was heard in February 1995, judgment being handed down in June 1995. In this case, the two accused were sentenced to death in terms of the Criminal Procedure Act 51 of 1977 ("the CPA") on each of four counts of murder. Although the Interim Constitution of South Africa of 1993 (which was in force at the time) prohibited "cruel, inhuman or degrading treatment or punishment", the Constitution did not define this, so the Constitutional Court had to do so.
In delivering the unanimous judgment, Judge Arthur Chaskalson, the President of the CC, said: “The carrying out of the death sentence destroys life, it annihilates human dignity, elements of arbitrariness are present in its enforcement and it is irremediable ... I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.”
The point was further raised that the value of the death sentence as a deterrent, as a form of retribution, and as a means of preventing further crime, had to be weighed against alternative measures available to the State, particularly life imprisonment. It had not been shown that the death sentence was materially more effective than life imprisonment, with the result that the requirements of the limitations clause (found in section 36 of the current Constitution) were not met. It was found that the CPA and any other legislation sanctioning capital punishment were "inconsistent" with the Constitution and therefore "invalid". The State was therefore "forbidden to execute any person already sentenced to death" under any law now declared invalid - such persons were to remain in custody pending the imposition of another punishment.
It came as no surprise that the overwhelming majority of public opinion was in favour of the retention of the death penalty, but Judge Chaskalson noted that the Constitution outweighed public opinion.