Authored By: Lumka Ama Acheaw
Boston City Campus
Abstract
This article explores the current discussion about the death penalty in South Africa, examining whether reintroducing capital punishment aligns with the nation’s constitutional values and human rights. It reviews the historical use of the death penalty, the constitutional rationale for its abolition, the primary arguments for and against its reinstatement, and alternative approaches to tackle violent crime. The article concludes that capital punishment does not align with South Africa’s democratic ideals of dignity, life, and equality, and that reducing crime effectively requires focusing on social and systemic reforms rather than capital punishment.
Introduction
South Africa continues to grapple with a high rate of violent crime, with over 27,000 murders recorded in the 2023/2024 financial year, according to the South African Police Service. These figures have reignited public debate on reinstating the death penalty as a deterrent to violent crime. Proponents claim that capital punishment could restore justice and public safety, while opponents argue that it violates the Constitution’s commitment to human rights. This article argues that, despite growing public dissatisfaction with violent crime, the reintroduction of the death penalty would contradict South Africa’s constitutional values of dignity and life, and that there is no conclusive evidence of its effectiveness as a deterrent. By examining the legal, ethical, and social aspects of capital punishment, this study advocates for the continued abolition of the death penalty and suggests alternative strategies for crime prevention.
Historical Background and Legal Context
The death penalty was part of South African law for much of the twentieth century, applied extensively during the apartheid era, often in politically motivated cases. Following the transition to democracy in 1994, the new Constitution sought to establish a rights-based legal order grounded in human dignity, equality, and the sanctity of life. In S v Makwanyane and Another 1995 (3) SA 391 (CC), the Constitutional Court declared the death penalty unconstitutional, finding that it violated sections 10 and 11 of the Constitution, which protect dignity and life. The Court held that capital punishment constituted cruel, inhuman, and degrading treatment inconsistent with a democratic society founded on respect for human rights. The judgment drew on international law, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, both of which emphasize the right to life and the progressive abolition of the death penalty.
Arguments for Reinstatement
Prior to the abolition of the death penalty, South Africa had one of the highest execution rates globally. Under apartheid, capital punishment was not only applied to punish violent crimes but also used as a political tool to suppress dissent. The Constitutional Court, in the S v Makwanyane case, rejected this history, asserting that state-sanctioned killing conflicts with the values of a society aspiring toward justice, compassion, and respect for human life. Chief Justice Chaskalson highlighted that the deliberate taking of life by the state diminishes its moral authority and undermines the foundations of a democratic society.
Despite this constitutional stance, arguments for reintroducing the death penalty persist. These include deterrence, retribution, and public opinion. The deterrence argument claims that the fear of execution deters potential offenders from committing serious crimes. In contrast, the retributive argument posits that certain crimes are so severe that death is the only appropriate punishment. Public opinion polls also show that many South Africans support the reintroduction of capital punishment in response to high crime levels (South African Police Service, 2024). While emotionally compelling, these arguments do not stand up to legal or empirical analysis. The Constitutional Court in S v Makwanyane rejected public sentiment as a valid basis for limiting fundamental rights, emphasizing that constitutional interpretation must be guided by principle, not populism. Furthermore, retribution conflicts with the Constitution’s commitment to restorative justice and the rehabilitation of offenders, rather than vengeance.
Arguments Against Reinstatement
Empirical studies have also weakened the argument that the death penalty acts as a deterrent. The National Research Council (2012) found no credible evidence that executions reduce homicide rates more effectively than life imprisonment. Similarly, a global study by the Death Penalty Project (2022) confirmed that countries with the death penalty do not experience lower murder rates than countries that have abolished it. The lack of reliable evidence of a deterrent effect makes the argument for reinstatement weak, especially considering the irreversible nature of execution.
From a constitutional and human rights perspective, reintroducing the death penalty would directly violate the Bill of Rights. Section 11 of the Constitution guarantees the right to life, while Section 10 enshrines the right to human dignity. These rights are non-derivable, meaning they cannot be suspended or limited, even in times of emergency. The death penalty, by its very nature, violates both. The Constitutional Court has consistently held that the protection of life cannot be achieved through deliberate state killing. Internationally, the United Nations General Assembly and the African Commission on Human and Peoples’ Rights have repeatedly urged member states to maintain moratoria on executions, recognizing that capital punishment undermines the global commitment to human dignity.
Another fear is the chance of convicting someone who is actually innocent. Even the best legal systems can make mistakes. In places where there are unfair treatment and not enough good lawyers, it’s possible that an innocent person could be put to death. The death penalty can’t be undone, so making a mistake like this is very wrong. Also, carrying out the death penalty costs a lot of money. It takes long court cases, repeated appeals, and requests for mercy. These resources could be more effectively used to improve policing, enhance forensic capabilities, and support victims of crime.
Alternatives and Broader Policy Considerations
The alternative to reinstating the death penalty is addressing the structural causes of violence. The Correctional Services Act 111 of 1998 already provides for life imprisonment without parole, which achieves the goals of incapacitation and protection of society without violating constitutional rights. Moreover, research by the Institute for Security Studies demonstrates that crime prevention strategies focusing on poverty reduction, education, and community development are far more effective in promoting long-term safety. Strengthening investigative capacity, improving access to justice, and ensuring fair trial standards can also restore public confidence in the criminal justice system.
The fight against crime should therefore be grounded in justice and human rights rather than retribution and fear. South Africa’s constitutional democracy was built on the rejection of cruelty and the affirmation of human dignity. The reinstatement of the death penalty would represent a profound step backward, undermining the very principles that distinguish the new South Africa from its past.
While the anger and fear that drive calls for capital punishment are understandable, such measures would ultimately betray the constitutional promise of life, equality, and human dignity. The Makwanyane judgment remains a binding authority that defines South Africa’s moral and legal identity. Empirical research has consistently demonstrated that the death penalty does not deter crime, while its irreversible nature and potential for injustice render it an unfit tool for a democratic state. Upholding the abolition of capital punishment reaffirms South Africa’s commitment to human rights and the rule of law. A safer and more just society will emerge not through executions, but through social reform, equitable development, and the unwavering preservation of life.
Conclusion
The debate over the death penalty in South Africa reflects deep public concern about violent crime and the need for justice. However, reinstating capital punishment would violate constitutional rights, contradict international human rights standards, and fail to provide proven deterrence. The Makwanyane judgment remains a cornerstone of South Africa’s constitutional democracy, affirming that even in the face of high crime rates, the State must act within the boundaries of dignity, equality, and life. Reinstating the death penalty would represent not progress but regression, a return to punitive practices inconsistent with the nation’s democratic ideals. Empirical research has consistently demonstrated that the death penalty does not deter crime, while its irreversible nature and potential for injustice render it an unfit tool for a democratic state. Upholding the abolition of capital punishment reaffirms South Africa’s commitment to human rights and the rule of law. A safer and more just society will emerge not through executions, but through social reform, equitable development, and the unwavering preservation of life.
Reference(S):
Constitution of the Republic of South Africa, 1996 (ss 10 and 11). Available at: https://www.justice.gov.za/constitution/SAConstitution-web-eng.pdf (Accessed on: 15 October 2025).
Correctional Services Act 111 of 1998 (S. Afr..), Available at:
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International Covenant on Civil and Political Rights, Art. 6 (1966). (Accessed on: 16 October 2025).
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United Nations General Assembly, Moratorium on the Use of the Death Penalty, GA Res 77/222, UN Doc A/RES/77/222 (Accessed on: 15 October 2025).
