Authored By: Swaartbooi Sekho
University of Fort Hare
ABSTRACT:
This article explores the effectiveness of the death penalty as a deterrent to crime, with particular reference to South Africa’s legal position following its abolition in S v. Makwanyane1. Using International and South African resources including the Constitution of the Republic of South Africa, the Criminal Procedure Act 51 of 1977, the Criminal Law Amendment Act 105 of 1997, and relevant academic studies, this paper evaluates the deterrence rationale in both theory and practice. It argues that despite its moral and political appeal, deterrence is not empirically supported as a justification for capital punishment. The article concludes that the death penalty violates constitutional values of dignity, life, and equality, and recommends a continued emphasis on rehabilitative and preventive justice rather than retributive execution.
- INTRODUCTION:
The death penalty has long been justified on grounds of deterrence, retribution, and societal protection. Proponents argues that it dissuades political offenders from committing serious crimes such as murder, treason, rape, and terrorism. In contrast, abolitionists contend that the death penalty does not deter crime but rather degrades the value of human life. In South Africa this debate was definitively settled in S v Makwanyane, where the constitutional court abolished the death penalty as unconstitutional2. However, the question persists: was the death penalty an effective deterrent to crime, and would reinstating it serve justice or public safety?
- THE CONCEPT OF DETERRENCE AND CAPITAL PUNISHMENT:
Deterrence theory rests on the assumption that potential offenders act rationally, weighing the costs and benefits of their conduct. If the perceived cost of punishment outweighs the potential benefit of crime, offenders are deterred. The death penalty being the harshest form of punishment, is said to provide the ultimate deterrent. Yet empirical studies consistently show otherwise. According to the National Research Council’s 2012 report, research “does not provide scientifically valid evidence that capital punishment deters homicide”3.
Similarly, The Death Penalty Project found no correlation between the presence of the death penalty and lower homicide rates, noting that countries which abolished it (including South Africa) experienced declining murder rates thereafter4. Amnesty International has also dismissed the deterrence argument as a “myth”, observing that countries such as Canada and the United States have seen no significant deterrent effect from capital punishment5.
- SOUTH AFRICA’S LEGAL FRAMEWORK AND ABOLITION OF DEATH PENALTY:
3.1 PRE-1994 LEGAL CONTEXT:
Before 1994, the death penalty was authorised under the Criminal Procedure Act 51 of 1977, section 277 allowed execution for a crime such as murder, treason, rape, and etc.6. Judges had discretion to impose the sentence, often guided by aggravating or mitigating factors.
Under the Criminal Procedure Act, sentencing was largely discretionary: courts could impose the death penalty where they found no mitigating circumstances. In S v Nkwanyana, the Appellate Division held that the death sentence was mandatory for murder unless the accused proved mitigating factors7. This principle created what legal scholars called a “presumption of death” in sentencing, burdening the accused with demonstrating why their life should be spared.
Additionally, the Internal Security Act and earlier Terrorism Act authorised execution for politically related offences, allowing the apartheid state to suppress resistance under the guise of lawful punishment8. Between 1910 and 1989, over 4,200 executions were carried out in South Africa, the majority for murder, but many for crimes linked to racial and political Internal Security Act 74 of 1982 and earlier Terrorism Act 83 of 1967 protest. In 1987 alone, South Africa executed 164 people. One of the highest per capital execution rates in the world8.
The procedural safeguards for capital trials were minimal. Although section 316 of the Criminal Procedure Act allowed appeals, indigent defendants often lacked access to competent legal representation. The Race and legal inequality of the time meant that Black South Africans were disproportionately sentenced to death. According to official prison statistics of the late 1980s, over 90% of those executed were Black males, reflecting the racialized enforcement of the law10.
In 1989, under increasing international and domestic pressure, President F.W. de Klerk imposed a moratorium on executions, pending the outcome of constitutional negotiations. This marked a turning point in South African penal history. By the early 1990s, the South African Law Commission had initiated studies recommending abolition, noting that deterrence arguments were “unconvincing and inconsistent with human dignity”9.
The Interim Constitution of 1993 (Act 200 of 1993) enshrined for the first time the right to life (section 9) and protection from cruel, inhuman or degrading punishment (section 11(2)), laying the groundwork for constitutional scrutiny. When S v Makwanyane and Another, reached the newly established Constitutional Court, the historical abuse of the death penalty was a crucial factor in its abolition.
Thus, pre-1994 South Africa reflected a penal system deeply shaped by apartheid ideology, racial discrimination, and political repression, rather than one genuinely aimed at deterring crime. The legal and moral excesses of that era ultimately strengthened the constitutional commitment to human dignity, equality, and life, values now central to South Africa’s postapartheid legal order.
3.2 CONSTITUTIONAL PROHIBITION AND S V MAKWANYANE:
With the adoption of the Constitution, the Bill of Rights introduced protections for human rights, such as the right that everyone has inherent dignity and the right to have their dignity respected and protected10, the right that everyone has the right to life11, and the right that everyone has the right to freedom and security of the person, which includes the right not to be treated or punished in a cruel, inhuman or degrading way12.
In S v Makwanyane, the Constitutional court declared the death penalty unconstitutional, holding that it violated the right to life and dignity13. Justice Chaskalson stated that the death penalty “destroys life, which is protected by the Constitution, and annihilates human dignity”. The court also rejected deterrence as a valid justification, finding no empirical evidence that executions prevent crime more effectively than imprisonment14.
3.3 CURRENT LEGISLATIVE POSITION:
The Criminal Procedure Act now limits sentences to imprisonment, fines, or correctional supervision15. The Criminal Law Amendment Act 105 of 1997, introduced minimum sentencing guidelines for serious offences, including life imprisonment for certain categories of murder, replacing the previous death sentence with harsh but constitutional alternatives.
- JUDICIAL INTERPRETATION AND COMPARATIVE JURISPRUDENCE:
South African courts have repeatedly affirmed the principle that punishment must align with human dignity and proportionality. In S v Dodo, the court held that sentencing should respect human rights and that excessive punishment violates section 12(1) (e) of the Constitution16, which provides that everyone has the right to freedom and security of the person, which includes the right not to be treated or punished in a cruel, inhuman or degrading way.
Internationally, the same reasoning has been adopted in Furman v Georgia, and Gregg v Georgia, where the U.S Supreme court wrestled with arbitrariness and cruelty in capital sentencing17. The European court of human rights, in Soering v United Kingdom, further held that extradition to face execution breached Article 3 of the European Convention on Human Rights18. These judgments reinforce the global consensus that the right to life and freedom from cruel punishment supersede utilitarian claims of deterrence.
- EMPIRICAL EVIDENCE: DOES THE DEATH PENALTY DETER CRIME?
Research across multiple jurisdictions suggests that the deterrence effect of the death penalty is unproven.
❖ The National Academies Press (2012) concluded that “the existing evidence provides no reasonable basis to assert that capital punishment affects homicide rates19.
❖ The Death Penalty Project (2021) found that homicide rates declined in states and countries after abolition, including South Africa, Poland, and Canada20.
❖ Amnesty International (2008) similarly reported that “the death penalty has no unique deterrent effect” and may in fact “brutalize society” by legitimizing violence21.
According to statistics South Africa, murder rates have fluctuated due to socio-economic factors, policing efficiency, and inequality not the absence of capital punishment. Criminological theories, including strain and social disorganization theories, attribute violent to poverty, inequality, and weak institutions, factors unaffected by the existence of capital punishment.
- CRITICAL ANALYSIS:
The argument that the death penalty deters crime assumes rational criminal decision-making. However, most violent crimes are committed impulsively, under emotional distress, or due to socio-economic deprivation. As Amnesty International notes, “many crimes are committed on the spur of the moment,” making deterrence largely ineffective22. Moreover, deterrence cannot justify a punishment that risks executing the innocent. The wrongful conviction of an innocent person, an irreversible outcome, undermines both justice and public confidence in the legal system.
The Constitutional Court in Makwanyane rightly recognised that deterrence cannot outweigh human rights considerations. The Court adopted a rights-based approach, emphasizing that the state cannot violate the very rights it seeks to protect. In addition, cost and administration further weaken the deterrence argument. Capital trials are expensive and protracted, and evidence from the U.S. indicates that maintaining death row costs more than life imprisonment.
- RECENT DEVELOPMENT AND PUBLIC OPINION:
Despite abolition, calls to reinstate the death penalty occasionally resurface in South Africa particularly following violent crimes and gender-based violence. Political figures have argued that fear of execution could reduce crime. However, surveys show that public support for the death penalty decreases when life imprisonment without parole is offered as an alternative23.
Moreover, South Africa’s commitment to international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), which restricts the death penalty to “the most serious crimes,” strengthens its abolitionist stance. Globally, the trend is toward abolition. As of 2024, over two-thirds of UN member states have abolished the death penalty in law or practice. The African Commission on Human and Peoples’ Rights has also called on member states to adopt a protocol on abolition.
- SUGGESTIONS AND WAY FORWARD:
❖ Strengthen Prevention and Rehabilitation: Instead of punitive executions, South Africa should focus on crime prevention through socio-economic reform, education, and youth empowerment.
❖ Enhance the Criminal Justice System: Effective policing, witness protection, and fair trials increase public confidence more than executions.
❖ Public Education: Authorities must counter the myth of deterrence through transparent data and human-rights education.
❖ Regional Leadership: South Africa, as an abolitionist state, should continue advocating for abolition within the African Union and Southern African Development Community (SADC).
❖ Restorative Justice Approaches: Incorporating victim–offender mediation and community reintegration aligns with Ubuntu and constitutional values.
- CONCLUSION:
The death penalty cannot be justified as a deterrent to crime. Empirical research, judicial reasoning, and human-rights principles converge on this conclusion. South Africa’s constitutional commitment to life and dignity makes the reintroduction of capital punishment incompatible with its democratic values. As the Makwanyane Court held, the measure of a society’s civility is not in how it punishes its worst offenders, but in how it protects the fundamental rights of all people, even those who have transgressed.
In sum, deterrence remains a moral illusion; justice must be pursued not through death, but through life-affirming and rehabilitative means.
BIBLIOGRAPHY:
BOOKS:
❖ National Research Council, Deterrence and the Death Penalty (Daniel S. Nagin & John V. Pepper eds., Nat’l Academies Press 2012).
LEGISLATION:
❖ Constitution of the Republic of South Africa, 1996.
❖ Criminal Procedure Act 51 of 1977.
❖ Criminal Law Amendment Act 105 of 1997.
❖ International Covenant on Civil and Political Rights, 1966.
❖ Internal Security Act 74 of 1982.
❖ Terrorism Act 83 of 1967.
CASES:
❖ S v Makwanyane and Another 1995 (3) SA 391 (CC).
❖ S v Dodo 2001 (3) SA 382 (CC).
❖ Furman v Georgia 408 U.S. 238 (1972).
❖ Gregg v Georgia 428 U.S. 153 (1976).
❖ Soering v United Kingdom (1989) 11 EHRR 439.
❖ S v Nkwanyana and Others (52/90) [1990] ZASCA 95; 1990 (4) SA 735 (AD). REPORTS:
❖ The Death Penalty Project, Deterrence and the Death Penalty (2021).
❖ Amnesty International, The Death Penalty: The Ultimate Punishment (ACT 50/006/2008).
❖ South African Law Commission, Working Paper on the Death Penalty (1991). ARTICLES:
❖ Pius L. Chaskalson, The Abolition of the Death Penalty in South Africa, (1995) 112 S. Afr. L.J. 153.
1 S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (6) BCLR 665.
2IBID.
3 National Research Council, Deterrence and Death Penalty (Daniel S. Nagin & John V. Pepper eds., 2012).
4 The Death Penalty Project, Deterrence and the Death Penalty (2021).
5 Amnesty International, the Death Penalty: The Ultimate Punishment (Act 50/006/2008).
6 Section 277 of the Criminal Procedure Act 51 of 1977.
7 S v Nkwanyana and Others (52/90) [1990] ZASCA 95; 1990 (4) SA 735 (AD). 8
8 South African Law Commission, Working Paper on the Death Penalty, 1991. 10 IBID
9IBID
10 Section 10 of the Constitution of the Republic of South Africa, 1996.
11 Section 11 of the Constitution of RSA, 1996.
12 Section 12 (1) (e) of the Constitution of RSA, 1996.
13 S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (6) BCLR 665.
14 Chaskalson P., “The Abolition of the Death Penalty in South Africa,” (1995) 112 South African Law Journal 153.
15 Section 276 of the Criminal Procedure Act 51 of 1977.
16 S v Dodo 2001 (3) SA 382 (CC).
17 Furman v Georgia 408 U.S. (238) 1972, and Gregg v Georgia 428 U.S. (153) 1976.
18 Soering v United Kingdom 1989 (11) EHRR 439.
19 National Research Council, Deterrence and the Death Penalty (Daniel S. Nagin & John V. Pepper eds., 2012).
20 The Death Penalty Project, Deterrence and the Death Penalty (2021).
21 Amnesty International, The Death Penalty: The Ultimate Punishment (ACT 50/006/2008).
22 IBID
23 IBID.
