The right to life vs. the state's ultimate sanction: abolition of capital punishment in post-apartheid South Africa

Abstract

Although more than ten years have passed since the last execution in South Africa, the controversy over capital punishment continues unabated, and pressure to restore it does not weaken. The South African government, nonetheless, has so far successfully resisted considering reinstatement. The experience with capital punishment under apartheid has shaped the values and ideas of the leadership on what they now consider as a relic of a barbarous past and having no place in a civilised legal system. Addressing how capital punishment was abandoned, on what its decision was based, and who played the key roles, this article identifies the way South Africa sought to embed an international human rights norm in their national consciousness.

Acknowledgments

An earlier version of this article was presented at the 2003 annual meeting of the International Studies Association. I would like to thank Ann Clark, Martyn de Bruyn, Kevin Anderson, Stephanie Lawson and Jonathan Strand for their insights, comments and helpful suggestions.

Notes

Justice Didcott, in The State v. T Makwanyane and M Mchune, South African Constitutional Court Judgement, Case No. CCT/3/94, Heard on: 15 February to 17 February 1995, Delivered on: 6 June 1995 [hereinafter CCT/3/94], paragraph 176.

The Universal Declaration of Human Rights, which was unanimously adopted by the United Nations General Assembly on 10 December 1948 and which even today provides the most authoritative statement of international human rights norms, declared that ‘everyone has the right to life’ (Article 3) and ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ (Article 5).

F. Howard, ‘South Africa's Supreme Court Abolishes Death Penalty’, The New York Times, 7 June 1995.

‘Death Sentence is Abolished by South Africa’, The Times, 7 June 1995.

‘Pretoria has more than confirmed its status this week as the hanging capital of the world with the execution of 21 people here in the last three days’, Pretoria News, 12 October 1978, quoted in J. Mihalik, ‘The Moratorium on Executions: Its Background and Implication’, The South African Law journal, Vol.108 (1991), p.133.

Solomon Ngobeni, hanged on 14 November 1989, is known as the last person executed in South Africa.

C. Boulanger and A. Sarat (eds), The Cultural Lives of Capital Punishment: Comparative Perspectives (Stanford: Stanford University Press, 2005).

Cited in J. Aloth-Nielsen, ‘Legal Violence: Corporal and Capital Punishment’, in B. McKendrick and W. Hoffmann (eds), People and Violence in South Africa (Cape Town: Oxford University Press, 1990), p.89. The African instruments of execution are, for the most part, the noose and the firing squad, although beheading has been used in Mauritania and the Congo Republic, while the Sudan – where the crucified corpses of criminals are sometimes put on display after they have been hanged – still permits the biblical practices of stoning offenders to death. In 2002, a Sharia court in Nigeria upheld a stoning sentence against a woman for having extramarital intercourse and against a man for raping a young girl.

E. Kahn, ‘The Relaunch of the Society for the Abolition of the Death Penalty in South Africa’, (Speech delivered at the University of the Witwatersrand) The South African Law Journal (1989), pp.39–52. This number counted only judicial executions carried out within the ‘proper legal system.’

D. Davis, ‘Extenuation – an Unnecessary Halfway House on the Road to a Rational Sentencing Policy’, South African Journal of Criminal Justice, Vol.2 (1989), pp.205–18; J.H. van Rooyen, ‘Toward a New South Africa Without the Death Penalty – Struggles, Strategies, and Hopes’, Florida State University Law Review, Vol.20 (1993), pp.737–79.

Sixty-nine peaceful protesters were killed by the South African government, stirring an international outcry. The Sharpeville Massacre is considered the one of the first South African events through which international actors opened their eyes about human rights abuse in South Africa.

E. Kahn, ‘Remarks at the Symposium on Capital Punishment’, in Proceedings of the Conference on Crime, Law and the Community 220/221 (1976), p.222.

B. van Niekerk, Annual Survey of South African Law (1967).

N.V. Holt, ‘Human Rights and Capital Punishment: The Case of South Africa’, Virginia Journal of International Law, Vol.30 (1989), p.298.

Mihalik (note 5), p.139.

Holt (note 14), p.315. The death sentences were again handed down at a time of increasing debate in South Africa about the death penalty and sparked mass rallies against capital punishment.

Holt (note 14), pp.301–2; van Rooyen (note 10), pp.737–43.

Amnesty International, When the State Kills … The Death Penalty: A Human Rights Issue (New York: Amnesty International, 1989), p.263.

Holt (note 14), p.303, italics are original.

Report of the Penal and Prison Reform Commission U.G. No. 47 of 1947, § 457; cited in Holt (note 14), p.300.

J. Dugard, Human Rights and the South African Legal Order (Princeton: Princeton University Press 1978), pp.26–7. Whites presently account for about ten per cent of the South African population.

G. Simpson, and L. Vogelman, ‘The Death Penalty in South Africa’, CSVR Working Paper. Centre for the Study of Violence and Reconciliation (Johannesburg 1989).

J. Dugard, Human Rights and the South African Legal Order (Princeton: Princeton University Press 1978), p.128.

Cited in Holt (note 14), p.300.

M. Radelet, and V.M. Margaret, ‘Race and Capital Punishment: An Overview of the Issues’, Crime and Social Justice, Vol.25 (1986), pp.94–113.

Black Sash, ‘Inside South Africa's Death Factory’, Research Report (1989).

H. Giliomee, ‘Hanging Question over SA’, Sunday Times, 22 August 1988.

E. Kahn, ‘The Death Penalty in South Africa’, Tydskrift vir Hedendaagse Romeins-Hollandse Reg. 108/109 (1970), p.12.

S. v van Niekerk 1970(3) SA 655, 656. A considerable number of his respondents believed that blacks stood a better chance of attracting the death penalty than whites, and a substantial proportion of that number thought that that differentiation was ‘conscious and deliberate’. B. van Niekerk, ‘… Hanged by the Neck until You are Dead: Some Thought on the Application of the Death Penalty in South Africa’, The South African Law Journal, Vol.86 (1969); Vol.87 (1970).

E. Mureinik, ‘Caring about Capital Punishment,’ in C. Visser (ed.), Essays in Honour of Ellison Kahn (Johannesburg: University of the Witwatersrand 1989), p.221.

J. Dugard, ‘In Memoriam: Barend van Niekerk’, The South African Law Journal, Vol.402 (1981), p.415.

Mihalik (note 5), p.125.

Holt (note 14). In contrast, the regionally based organisations did not function properly for any human rights related issues in Africa. Since the establishment of the Organisation of African Unity (OAU) in 1961, a system of ad hoc arrangements has been used to deal with inter-state conflict in Africa, while intrastate conflict was largely left to each member state to handle in whatever manner it best saw fit. The OAU Charter of 1964 made provision for a Commission of Mediation, Conciliation and Arbitration to encourage OAU members to settle their disputes peacefully. The Commission, however, remained unused, as the OAU sought merely to maintain the inviolability of its inter-state boundaries at all costs and ignored the gross violation of human rights that characterised many African governments. As Claude Welch points out, the Organisation had seemed to function as a club of presidents, engaged in a tactic policy of not inquiring into each other's domestic practices: ‘The O.A.U. … historically considered human rights largely in the guise of self-determination, through the ending of alien or settler rule … ‘Hear no evil, speak no evil, see no evil,’ typified the views of most O.A.U submitters.’ C.E. Welch, ‘The Organization of African Unity and the Promotion of Human Rights’, The Journal of Modern African Studies, Vol.29 (1991), pp.537–8.

Sechaba [monthly publication of the ANC] (September 1987); quoted in Holt (note 14), p.298.

Mihalik (note 5), pp.134–5.

Mureinik (note 30), p.216; Holt (note 14), p.298.

For instance, the Centre for the Study of Violence and Reconciliation and several other academic groups had set up a research project on the death penalty and its racially discriminatory imposition, and published a variety of writings.

Kahn (note 9), pp.39-52; van Rooyen (note 10), pp.763–5.

Mihalik (note 5), p.127

Mihalik (note 5), p.128.

Mihalik (note 5), pp.126–9.

H. Giliomee, ‘Democratization in South Africa’, Political Science Quarterly, Vol.110 (1995), p.90.

Of course, the changed identity of an individual leader should be examined. In a similar condition, President Botha was not prepared to negotiate with nonwhite parties, whereas his successor de Klerk was willing to explore the possibility of negotiating a settlement supported by both the West and his own constituency.

R. Theron and H. Corder (eds), Death by Decree: South African and the Death Penalty (Cape Town: University of Cape Town 1991).

The New York Times, 3 February 1990. The same month, de Klerk terminated the nuclear weapons programme. South Africa's nuclear policy would become part of his strategy to normalise relations with the West.

BBC Summary of World Broadcasts, ‘South Africa: President de Klerk's Address at Opining of Parliament’, 1 February 1993.

van Rooyen (note 10), pp.781–2.

Technical Committee on Fundamental Rights, Fifth Report, 11 June 1993.

Based on the rule that any party winning at least 80 seats in parliament is to designate an executive deputy president, Nelson Mandela shared power with de Klerk of the NP. The result of the elections was as follows:

• Table

BBC Summary of World Broadcasts, ‘Mandela on White Perceptions of the ANC, the Death Penalty and Education’, 27 November 1993.

M. Shaw (ed.), Policing the Transformation (Halfway House, SA: Institute for Security Studies 1997), p.8.

C. Schuler, ‘South Africans Back ‘Horrific’ Cops’, Christian Science Monitor, Vol.91, No.111 (1999), p.5.

Shaw (note 51).

A. Ginsberg, South Africa's Future: From Crisis to Prosperity (London: Macmillan 1998), p.39.

Schuler (note 52).

Ginsberg (note 54), p.39.

Sunday Independent, 1 September 1996, quoted in G. Mills, War and Peace in Southern Africa: Crime, Drugs, Armies, and Trade (Cambridge: World Peace Foundation 1996), p.1.

C. Schuler (note 52), p.5.

C. Schuler, ‘Mob-rule Justice Rises in South Africa’, Christian Science Monitor, Vol.91, No.176 (1999), p 1.

M. Sandy, ‘Attitudes toward capital punishment: preference for the penalty or mere acceptance?’ Journal of Research in Crime and Delinquency, Vol.32 (1995), pp.191–213; A. Parekh and C. de la Rey, ‘Public Attitudes Toward the Death Penalty in South Africa: A Life or Death Decision’, Acta Criminology: Southern African Journal of Criminology, Vol.9 (1996), pp.108–13; K.J. Cook, Divided passions: public opinions on abortion and the death penalty (Boston: Northeastern University Press, 1998).

Parekh and de la Rey (note 60).

The factual background of the case is discussed in the Appellate Division opinion, S.v Makwanyane, 1994 (3) SA 868.

As a member of the Johannesburg bar, Chaskalson had been involved in the defence of Nelson Mandela during the Rivonia trial that ended in his conviction and sentence to life imprisonment on Robben Island.

For profiles of the justices of the Constitutional Court, The Star, 13 February 1995.

They are seven whites, three blacks and one Indian. Two of them are women.

Case No. CCT/3/94.

Case No. CCT/3/94, para 151.

Case No. CCT/3/94, para 146.

Case No. CCT/3/94, para 278.

Case No. CCT/3/94, para 182.

Case No. CCT/3/94, para 119–20.

Case No. CCT/3/94, para 51.

Case No. CCT/3/94, para 49.

Case No. CCT/3/94, para 54.

The Times (note 4).

The New York Times (note 3).

CCT/3/94, para 87.

CCT/3/94, para 87.

CCT/3/94, para 88.

M.A. Burnham, ‘Constitution-Making in South Africa’, Boston Review: Bottom Dog Press Working Lives Series (December 1997/January 1998), p.4.

‘South Africa Shows the Way’, The New York Times, 10 June 1995.

J.H. van Rooyen and L.C. Coetzee, ‘How Easily Could the Death Sentence be Introduced in South Africa?’ Codicillus (Pretoria), Vol.37 (1996), p.10.

F. Zimring and G. Hawkins, Capital Punishment and the American Agenda (New York: Cambridge University Press, 1986), pp.10–15; 21–2.

Schuler (note 52), p.5.

Voice of America, 9 September 1996.

John Carlin, ‘Nelson Mandela: My life; Fifth Years after the Universal Declaration of Human Rights, the President of South Africa Talks to John Carlin about Reconciliation’, The Independence, 6 December 1998, p.2.

van Rooyen and Goetzee (note 82).

T.D. Sisk, Democratization in South Africa: The Elusive Social Contract (Princeton: Princeton University Press 1995).

M.M. Corbett, ‘Speech to Johannesburg Bar’, Consultus 73 (1989), p.75.

Mihalik (note 5), p.137.

C. Boulanger, ‘Between the Rule of Law and the Rule of the Majority: Can Courts Bring about Abolitionism?’ Unpublished manuscript (2000).

Burnham (note 80).

W.A. Schabas, ‘South Africa's New Constitutional Court Abolished the Death Penalty’, Human Rights Law Journal, Vol.16 (1995), p.147.

CCT/3/94, para 12–28.

CCT/3/94, para 40.

CCT/3/94, para 387.

Amnesty International, ‘Africa: A New Future without the Death Penalty’, AI index: AFR 01/03/97 (New York: Amnesty International 1997), p.3.

Amnesty International, ‘Abolitionist and Retentionist Countries’, at http://web.amnesty.org/pages/deathpenalty_countries_eng accessed 2 May 2003.