Chief Justice Arthur Chaskalson and judges Johan Kriegler and Albie Sachs at the Constitutional Court. Picture: Gallo images / Robbie Schneider
Everyone has the right to life.
That’s the full text of chapter 2, section 11 of the Bill of Rights in the Constitution – and the phrases “capital punishment” and “death penalty” do not occur in the document.
According to a 2016 study by the South African Institute of Race Relations (IRR), Is there a case for South Africa to reintroduce the death penalty?, between 1910 and 1975, about 2 740 people were executed and another 1 100 between 1981 and 1989.
The charge for the return of the death penalty began with the Inkatha Freedom Party (IFP) last year and was brought back to life last week by the African Transformation Movement (ATM).
“The last hanging took place in 1989, following which the then state president, FW de Klerk, put a stop to them pending a decision on capital punishment by the Convention for a Democratic South Africa (Codesa),” the IRR study stated.
“Although Codesa adopted a comprehensive Bill of Rights as part of the 1993 constitution, it did not outlaw capital punishment, leaving that matter to the court. When it issued its prohibition on further executions in 1995, possibly as many as 400 people were waiting on death row.”
Until it was abolished, capital punishment had been implemented not only for murder but also for rape, housebreaking and robbery or attempted robbery with aggravating circumstances, sabotage, training abroad to further the aims of communism, kidnapping, terrorism and treason.
The Constitutional Court abolished the death sentence in 1995, with a unanimous landmark judgment penned by then president of the Constitutional Court Arthur Chaskalson.
The judge was deciding on the futures of two accused convicted on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances in S v Makwanyane and Another.
“Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in chapter three,” Chaskalson said before banishing capital punishment.
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