THE ABOLISHMENT OF DEATH PENALTY

INTRIDUCTION

The death penalty has historically constituted one of the most contentious modalities of criminal punishment, eliciting significant legal, ethical, and human rights concerns. While advocates contend that capital punishment functions as a deterrent to serious offenses and embodies the principles of retributive justice, its ongoing implementation has come under heightened scrutiny within In recent decades, there has been a notable global trend advocating for the abolition of the death penalty1, a movement that has been largely influenced by the evolving standards of human rights, the demand for judicial accountability, and the principles of fairness and proportionality in the administration of punishment. At the center of the discourse is the fundamental right to life, which is acknowledged as a basic human right in various international human rights instruments2.

The implementation of the death penalty fundamentally contravenes this principle, especially when the state exercises irrevocable authority over an individual’s life. Furthermore, the potential for wrongful convictions constitutes a significant concern, as miscarriages of justice become irreparable once an execution has been performed. A multitude of cases globally has illustrated the fallibility of judicial systems, thereby rendering the death penalty an inherently irreversible and unjust form of punishment. Furthermore, empirical investigations have not produced definitive evidence indicating that capital punishment serves as a more effective deterrent to criminal behavior than life imprisonment3. This situation prompts critical inquiries regarding the necessity and efficacy of its implementation within criminal justice systems.

The implementation of the death penalty has been demonstrated to disproportionately impact marginalized and vulnerable populations, highlighting systemic biases related to
race, socioeconomic status, and the availability of sufficient legal representation4. Such disparities undermine the foundational principles of legal equality and the guarantees of a fair trial. Globally, there exists a discernible and increasing trend toward the abolition of the death penalty, as evidenced by numerous nations either removing it from their legal systems or instituting moratoriums. This transformation signifies a comprehensive dedication to the principles of human dignity and rehabilitative justice of capital punishment, alternatives such as life imprisonment prioritize rehabilitation over retribution, thereby aligning penal practices with contemporary human rights standards and principles of restorative justice.

RIGHITS OF LIFE AND DIGNITY

This legal research endeavors to conduct a critical examination of the justification for the abolition of the death penalty by investigating its implications for human rights, the risks associated with irreversible judicial errors, its ambiguous deterrent effects, and the disparities inherent in its application.

Moreover, this research undertakes an examination of international trends pertaining to the abolition of capital punishment. It aims to evaluate feasible alternatives to such punitive measures, ultimately advocating for a justice system that emphasizes the principles of human dignity, equity, and rehabilitation, rather than resorting. The Court additionally determined that the rights to life and dignity constitute the paramount human rights, serving as the foundation for all other personal rights delineated in Chapter 3 of By committing to a society founded on the recognition and realization of human rights, the State is obligated to prioritize these two rights above all others.

Furthermore, it must manifest this prioritization through its actions, including the administration of justice and the punishment of offenders. The objective of deterring crime would not be realized through the depersonalization and execution of individuals convicted of murder, even when presented as a punitive measure to dissuade others Beyond the fundamental principle that vengeance lacks the constitutional weight of the rights to life and dignity, the court remained unconvinced that capital punishment would serve as a more In this context, President Chaskason, articulating the prevailing viewpoint of the majority, concluded that. The imposition of the death penalty fundamentally undermines the sanctity of life, which is unequivocally safeguarded by Section 9 of our Constitution.5

Furthermore, it significantly erodes human dignity, as enshrined in Section 10.The enforcement of the death sentence reveals elements of arbitrariness, and its effects are irrevocable. I am convinced that, within the framework of our Constitution, the death penalty constitutes a form of punishment that is inherently cruel, inhumane, and degrading. It appears that the reference you provided, “6, lacks accompanying context or content to evaluate or rephrase. Please provide the text or information you wish to have rewritten in an academic tone for me to assist you effectively.

The court reiterated its dedication to the principle of constitutionalism, emphasizing constitutional values such as freedom, dignity, and equality, by rejecting the “arbitrary and capricious” nature of the death penalty. This commitment was clearly articulated by Justice Ackermann in his judgment. The transition from a historical context marked by arbitrariness and inequality in the application of the law to a contemporary and prospective framework defined by constitutional governance signifies a critical evolution. In this constitutional state, state actions are required to be subject to rational analysis and justification.7

The concept of the constitutional state entails a framework whose functionality can be subjected to rational evaluation relative to established legal norms. Arbitrariness, by its intrinsic characteristics, stands in conflict with the foundational principles of our emerging constitutional framework. Neither arbitrary actions nor laws or regulations characterized by inherent arbitrariness, or that necessarily result in arbitrary application, can be adequately evaluated in relation to the precepts or principles Etienne Mureinik indicates that, should the new Constitution serve as a transition away from a culture characterized by authority, it is evident that it must also serve as it is imperative that this initiative fosters a culture of justification wherein every exercise of authority is anticipated to be substantiated.8

Furthermore, if the Constitution is to serve as a conduit toward this objective, it is evident that the Bill of Rights must function as its primary support structure. In its judgment rendered on June 6, 1995, the Constitutional Court reached a unanimous decision declaring the death penalty to be unconstitutional. The Court determined that capital punishment infringes upon several constitutional rights, notably the right to life as stipulated in Section 11, the right to human dignity under Section 10, and the prohibition against cruel, inhuman, or degrading punishment, which was articulated in Section 11(2) of the Interim Constitution.9

Furthermore, the Court dismissed assertions that the death penalty could be justified on the grounds of deterrence or public opinion, underscoring the principle that constitutional rights cannot be subordinated. The findings indicated that empirical evidence did not support the assertion that capital punishment possesses a greater deterrent effect compared to life imprisonment. Furthermore, the Court underscored the arbitrary and discriminatory nature of the application of the death penalty, noting that variables such as race, socioeconomic status, and the availability of adequate .As noted by the Court, “at every stage of the process there is an element of chance.”10 Significantly, the Court acknowledged the irreversible nature of capital punishment, underscoring that the execution of an innocent individual would be an irrevocable act.

Given the intrinsic nature of human error within the criminal justice system, the associated risks have been deemed unacceptable in the context of a constitutional democracy. Each of the eleven judges of the Constitutional Court authored individual concurring judgments, which collectively reflect a consensus opinion, albeit derived from varied lines of reasoning.11 The collective judgments affirmed that the imposition of the death penalty is fundamentally incongruent with South Africa’s commitment to the principles of human rights, dignity, equality, and reconciliation. In a seminal ruling, the Constitutional Court of South Africa unanimously declared the death penalty unconstitutional in the case of S v Makwanyane.12

This decision represented a significant departure from the penal practices prevalent during the apartheid era in South Africa and firmly established the constitutional supremacy of the rights to life drawing upon a substantial body of international human rights law and comparative jurisprudence Particularly the ongoing debates concerning capital punishment in the United States the Court determined that the practice of state-sanctioned executions lacks legitimacy within the framework of a constitutional democracy.13 The judgment emerged within the framework of South Africa’s constitutional transition following the apartheid era. Following several decades of systemic racial oppression, the Interim Constitution of 1993 established a justiciable Bill of Rights; however, it left the issue of the constitutionality of the death penalty unresolved. 14The inquiry was intentionally delegated to the judiciary. The Constitutional Court was established in February 1995, which occurred approximately five years subsequent to the implementation of an execution moratorium. Makwanyane constituted the Court’s second decision; however, it established a definitive normative framework for the emerging democratic order.15

In evaluating the constitutionality of capital punishment, the Court undertook a comprehensive analysis of its inherent defects in application, which encompassed issues of inequality, cruelty, and arbitrariness. This examination was compared with arguments advocating for its efficacy in deterrence and its role in retributive justice. Central to the Court’s rationale was the acknowledgment that South Africa’s historical context of repression necessitated a transformative interpretive framework16. The Court noted that “the values urged upon the court are not those that have informed our past,” thereby underscoring the necessity for constitutional interpretation to be governed by principles of freedom, equality, and open democracy, rather than by the norms established during the apartheid era.

Discrimination (during imprisonment)

A notable element of the Court’s analysis pertained to the racially discriminatory implementation of the death penalty during the apartheid era. Evidence presented before the Court indicated that during the 1980s, South Africa ranked among the foremost practitioners of capital punishment globally, with approximately 1,100 executions conducted between 1981 and 1990.17The final execution was conducted in November 1989.It is important to highlight that 95% of individuals sentenced to death were of African descent, whereas all judges responsible for imposing these death sentences were of European descent. Patterns of sentencing revealed a significant bias in favor of white victims; approximately 50% of Black individuals executed during specific time frames had been convicted of homicides involving white victims.

In contrast, there were no recorded executions of white offenders convicted for the murder of Black victims. The Court underscored the inherent arbitrariness associated with capital punishment, asserting with clarity that [a]t every stage of the process there is an element of chance. This arbitrariness is manifest throughout all phases of capital cases, encompassing the stages of investigation, prosecution, sentencing, and appeal. Class and race have been identified as particularly significant determinants, particularly regarding access to legal representation.

Defendants who could afford experienced legal counsel were notably less likely to receive death sentences in comparison to their indigent counterparts, who frequently found themselves represented by young, inexperienced, The Court recognized that, while constitutional reforms may serve to alleviate certain disparities, persistent systemic limitations in financial and human resources will continue to place poor defendants at a disadvantage. In cases involving capital punishment, such arbitrariness is considered particularly unacceptable due to the irreversible nature of wrongful executions, wherein the life of an innocent individual may be unjustly terminated. Significantly, the Court determined that the arbitrary and capricious application of the law rendered any resulting death sentence a form of punishment that is cruel, inhuman, and degrading.18

This conclusion is consistent with international human rights standards as well as comparative jurisprudence. Throughout the proceedings, the South African government refrained from offering a defense of the death penalty. Instead, it acknowledged that capital punishment constitutes a form of cruel, inhuman, and degrading treatment, warranting its declaration of unconstitutionality. The principal justification for the death penalty was articulated by the Attorney General of the Witwatersrand, who underscored the concepts of deterrence, retribution, and the endorsement of the public. These arguments closely resemble those typically put forth by retentions states, which frequently assert that capital punishment is essential for effectively addressing violent crime.

The inability to reverse wrongful convictions and the absence of demonstrated deterrent effects. This case highlights the significant violations of fair trial principles that often lead
to wrongful convictions and serve as key arguments in the global discourse against the death penalty. While this case did not involve the death penalty, the circumstances closely
resemble the systemic failures highlighted by the courts particularly the South African Constitutional Court in S v Makwanyane.

Right to a Fair Trial

At the heart of this case lies the issue of coerced confessions, extracted through extended, misleading, and abusive interrogation tactics employed by law enforcement on
two minors. Boles was restrained with handcuffs, deprived of sleep, subjected to physical and verbal mistreatment, and misled by detectives, which led to a confession that was
neither freely nor voluntarily made.19 This behavior constitutes a clear breach of the right to a fair trial, which encompasses the rights to remain silent, to have legal counsel, and to be protected from Additionally, the prosecution’s failure to reveal exculpatory evidence, such as witness statements that challenge the timeline of the confession and a forensic report that calls into question crucial trial testimony, further infringes upon the guarantees of a fair trial.

These undisclosed pieces of information hindered the defense’s ability to question the validity of the confession and the dependability of the prosecution’s case, resulting in a
miscarriage of justice. The importance of this case goes beyond discussions of wrongful convictions and strongly supports abolitionist arguments against capital punishment. In
the case of S v Makwanyane, the South African Constitutional Court highlighted that there exists an element of chance at every stage of the process and pointed out. This case
serves as a clear illustration of that apprehension.

If capital punishment had been an option, Mr. Collins was at risk of execution due to misleading confessions, questionable forensic evidence, and unethical behavior by the
prosecution. The situation illustrates how a combination of systemic issues such as oppressive policing, racial prejudice, insufficient legal support, and mistakes in forensic
analysis can lead to irreparable injustices.20 These specific risks were fundamental to the Makwwanyane Court’s determination that the death penalty is inconsistent with the
constitutional principles of dignity, life, and equality.Both defendants were African American teenagers, a demographic that has consistently proven to be particularly susceptible to coercive interrogation techniques and the risk of providing false confessions. This aligns with research in death penalty law indicating that capital punishment is applied disproportionately to marginalized communities. This situation highlights the way race, youth, and poverty converge to disrupt equity within the criminal justice system, a significant issue emphasized by abolitionist courts and global human rights organizations. This case emphatically illustrates how shortcomings in fair trial processes can be disastrous within capital punishment frameworks. Boles and the gentleman Collins reinforces the Constitutional Court of South Africa’s caution in S v Makwanyane, highlighting that no judicial system is without flaws and that permanent penalties.

This case provides strong empirical evidence advocating for the abolition of the death penalty and highlights the critical need for comprehensive fair trial protections in all
serious criminal matters. Goals in the abolition of the death penalty is a permanent form of punishment that presents significant constitutional, legal, and ethical issues. To
effectively prevent its utilization, a holistic strategy is essential, anchored in the protection of human rights, equity within the criminal justice system, and compliance with
international legal norms.

Main goal of death penalty abolishment

The goals of eliminating the death penalty offer a distinct structure for discovering effective methods to halt its ongoing use. A key approach to abolishing the death penalty
lies in safeguarding essential human rights, especially the rights to life and human dignity. These rights are broadly acknowledged as essential cornerstones of constitutional
democracies and international human rights law. In the case of S v Makwanyane, the Constitutional Court of South Africa determined that the death penalty infringes on both
the right to life and the right to human dignity. The court asserted that the government should not intentionally end a person’s life as a punishment. As a result, robust
constitutional interpretation and the judicial protection of these rights can effectively prevent the application of capital punishment.

Research indicates that capital punishment is applied in a manner that disproportionately impacts marginalized communities, especially regarding race, socioeconomic status, and
access to competent legal counsel. This inequitable enforcement contravenes the principle of equal treatment under the law and erodes public trust in the justice system.
Abolishing the death penalty eliminates a punishment prone to arbitrary application and bias. Ultimately, advocating for restorative justice presents a positive alternative to the
death penalty. Restorative justice focuses on accountability, healing, and mending the harm caused, in contrast to punitive measures like state-sanctioned executions.

Restorative justice emphasizes reconciliation and considers the needs of victims, offenders, and communities, embodying a compassionate method of punishment that
upholds human dignity and life while effectively tackling serious. In summary, the abolition of the death penalty necessitates a comprehensive strategy that emphasizes constitutional rights, the avoidance of irreversible injustices, rehabilitation, adherence to international law, equality, and the principles Abolition signifies a dedication to justice systems that prioritize humanity, fairness, and the ability to rectify their own mistakes.

REFERENCE(S):

1. v Makwanyane & Another 1995 (3) SA 391 (CC) ¶¶ 144–146.

2. International Covenant on Civil and Political Rights art. 6, Dec. 16, 1966, 999 U.N.T.S. 171; Second Optional Protocol to the ICCPR, Dec. 15, 1989.

3. David C. Baldus et al., Equal Justice and the Death Penalty (1990).

4. United Nations Office on Drugs and Crime (UNODC), Handbook on Restorative Justice Programmes (2020). William A. Schabas, The Abolition of the Death Penalty in International Law 1–5 (3d ed. 2002).

5. S. Afr. Const., 1996, § 11.

6. S v Makwanyane & Another 1995 (3) SA 391 (CC).

7. Soering v. United Kingdom, 11 Eur. Ct. H.R. 439 (1989).

8. Amnesty Int’l, Fair Trials and the Death Penalty 7–12 (2018).

9. Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 5–6 (2011).

10. John Dugard, The Judicial Process, Positivism and Civil Liberty, 88 S. Afr. L.J. 181 (1971); see also Dirk van Zyl Smit, Capital Punishment and the Right to Life, 8 S. Afr. J. Hum. Rts. 355 (1992).

11. U.N. Comm’n on Hum. Rts. Res. 2004/67; Atkins v. Virginia, 536 U.S. 304 (2002).

12. Second Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 15, 1989, 1642 U.N.T.S. 414.

13. Makwanyane, 1995 (3) SA 391 (CC) ¶¶ 35–39.

14. https://en.wikipedia.org/wiki/S_v_Makwanyane#cite_ref-10

15. https://deathpenaltyinfo.org/30-years-ago-south-africa-abolished-the-death-penalty-to prioritize-life-and-dignity

16. https://innocenceproject.org/cases/brian-boles/