MAKWANYANE THE DEATH PENALTY CASE

Introduction S v Makwanyane and Another is a landmark decision by the Constitutional Court of South Africa in 1995. This case addressed the constitutionality of the death penalty following the end of apartheid, marking a crucial turning point in South African human rights jurisprudence. The Court’s ruling fundamentally shaped the country’s legal stance on the right to life, human dignity, and the evolution of constitutional law. It is widely regarded as a pivotal moment in the development of South Africa’s constitutional democracy.

Facts of the Case The applicants, Makwanyane and Mchunu, were convicted of murder and subsequently sentenced to death by hanging. Their cases were consolidated and brought before the newly established Constitutional Court, arguing that the mandatory death penalty imposed upon them violated fundamental rights enshrined in the Interim Constitution. Specifically, they contended that the death penalty infringed upon the rights to life, dignity, and the prohibition of cruel, inhuman, or degrading punishment. The applicants requested the Court to declare the death penalty unconstitutional and to provide relief by overturning their sentences.

The background of the case is deeply rooted in South Africa’s transition from apartheid to democracy. The Interim Constitution of 1993 enshrined a comprehensive Bill of Rights, which included protection of life and human dignity, laying the foundation for challenging the death penalty on constitutional grounds. The case presented the Court with an opportunity to interpret these new constitutional guarantees in the context of an entrenched legal practice.

Legal Issues

1. Whether the death penalty, as a form of punishment, violates the right to life guaranteed by section 9 of the Interim Constitution.
2. Whether the mandatory imposition of the death penalty constitutes cruel, inhuman, or degrading treatment or punishment in violation of section 11.
3. Whether the death penalty infringes the inherent dignity of the individual, which is a fundamental principle under the Interim Constitution.
4. Whether the death penalty is compatible with the values of a democratic society based on human rights, freedom, and the rule of law.
5. Whether the state has an obligation to consider less severe alternatives, and if the absolute nature of the death sentence undermines judicial discretion.

Arguments Applicants’ Arguments:

• The death penalty fundamentally contravenes the right to life, which is the cornerstone of human rights protection.
• Execution is inherently cruel, inhuman, and degrading, and cannot be reconciled with the principles of human dignity.
• The mandatory nature of the sentence deprives judges of discretion to consider mitigating factors, rendering it disproportionate.
• Alternative punishments such as life imprisonment adequately protect society while respecting constitutional rights.
• International trends and norms are moving away from capital punishment, and South Africa should align with these standards.

Respondent’s Arguments (State):

• The death penalty serves as a deterrent to crime and is necessary to maintain law and order.
• It is a lawful punishment under the Criminal Procedure Act and entrenched judicial practice.
• The Constitution does not explicitly forbid capital punishment, and its abolition should be a legislative, not judicial, decision.
• Life imprisonment may be seen as insufficient to reflect the severity of certain crimes.
• The death penalty ensures justice for victims and their families and serves public interest.

Judgment The Constitutional Court delivered a unanimous judgment declaring the death penalty unconstitutional. The Court emphasized that the right to life is inviolable and that the mandatory imposition of the death penalty was incompatible with human dignity. Chief Justice Chaskalson, delivering the judgment, highlighted that the death penalty, regardless of context, constitutes cruel, inhuman, and degrading punishment. The Court underscored that the Constitution establishes a society based on human rights and freedoms, and no law or state action can undermine these core values.

The Court rejected the argument that the death penalty functions as an effective deterrent, citing insufficient empirical evidence and emphasizing that the protection of constitutional rights outweighs speculative deterrent effects. Furthermore, the Court stressed that the mandatory nature of the sentence removed the possibility of individualized assessment, resulting in an inherently unjust and disproportionate system.

Analysis The Court’s reasoning rests on several key constitutional principles:

• Human Dignity: The judgment placed a strong emphasis on the intrinsic worth of human life and the obligation of the state to respect and protect human dignity. The death penalty, by ending life as a form of punishment, was deemed fundamentally incompatible with this principle.
• Right to Life: The Court affirmed that the right to life is the most basic and fundamental of human rights, serving as the foundation for all other rights. Any law or punishment that undermines this right must meet the highest level of scrutiny.
• Proportionality and Judicial Discretion: The mandatory death sentence failed to account for individual circumstances, including mitigating factors, the age of the offender, and potential for rehabilitation. This lack of proportionality rendered the punishment unconstitutional.
• Democratic Values and Evolving Standards: The Court highlighted that the Constitution requires laws to reflect democratic values and international human rights norms. The global trend toward the abolition of the death penalty informed the Court’s assessment, signaling South Africa’s commitment to emerging standards of human rights.
• Impact on Legal System: The decision not only abolished the death penalty but also set a precedent for rigorous constitutional scrutiny of all punitive measures. It reinforced the role of the Constitutional Court in safeguarding fundamental rights and ensuring that the legal system aligns with democratic principles.

The judgment has been praised for its moral and legal clarity, establishing a strong human rights framework for South Africa. Critics of capital punishment cite this case as an exemplar of judicial courage and principled reasoning in balancing individual rights against public safety.

Conclusion S v Makwanyane and Another remains a cornerstone in South African constitutional law. It decisively affirmed that the death penalty violates the rights to life and human dignity and cannot be justified under any circumstances. The judgment continues to influence legal discourse, guiding policymakers, legislators, and courts in ensuring that punitive measures are consistent with constitutional values. Its legacy extends beyond capital punishment, reinforcing the protection of human rights and the role of constitutionalism in a democratic society.

Reference(S): (OSCOLA)

• S v Makwanyane and Another [1995] ZACC 3.
• Interim Constitution of the Republic of South Africa, Act 200 of 1993.
• Woolman S, ‘The Death Penalty and Human Rights in South Africa’ (1996) 12 SAJHR 200.
• Currie I and De Waal J, The Bill of Rights Handbook 6th ed (Juta 2013).
• Davis D, ‘The Abolition of the Death Penalty in South Africa: A Constitutional Perspective’ (1995) 11 SAJHR 145.
• Liebenberg S, ‘The Protection of Human Dignity in South African Law’ (2002) 18 SAJHR 1.