Simone Lawson
South Africa's death penalty was abolished in 1995 by the ruling of the Constitutional Court in the case of S v Makwanyane. This ruling came after a five-year and four-month moratorium that had been in effect since February 1990. Despite the abolition, opinion polls suggest significant public support for the death penalty's reinstatement, with a 2014 poll finding that 76% of South African millennials support its reintroduction. This paragraph will explore the constitutionality of the death penalty in South Africa, considering the arguments and legal precedent surrounding this issue.
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What You'll Learn
The death penalty was abolished in South Africa in 1995
The death penalty was abolished in South Africa on June 6, 1995, following a ruling by the Constitutional Court in the case of S v Makwanyane. This ruling came after a five-year and four-month moratorium on capital punishment that had been in effect since February 1990, when it was declared by President De Klerk. The last executions carried out by the South African government took place in 1990 and 1991 in the nominally independent "homelands" of Boputhatswana and Venda, which were almost universally considered parts of South Africa at the time.
The standard method for carrying out executions in South Africa was hanging, sometimes of several convicts at the same time. The mandatory death penalty for murder was abolished in 1935, similar to the act passed in the United Kingdom in 1957. Before this reform, large numbers of people were sentenced to death, but only a small percentage of these sentences were carried out. The reform gave judges greater discretion in sentencing, allowing for the consideration of extenuating circumstances.
International criticism of South Africa's use of the death penalty had been mounting, particularly in cases involving the political execution of anti-apartheid activists convicted of violent crimes. Most verdicts resulting in death sentences were for homicide, but other capital crimes included rape under aggravated circumstances and crimes under anti-terrorism legislation. Race played a significant role in the imposition of the death penalty, with skewed verdicts and sentencing disproportionately impacting Black South Africans.
Despite the abolition of the death penalty in 1995, there is significant public support for its reinstatement, particularly among the Millennial generation of South Africans. Several political parties in South Africa also support the return of the death penalty or a referendum on the issue. However, the unqualified right to life in the South African Constitution has been interpreted as prohibiting "cruel, inhuman or degrading treatment or punishment," which has been extended to include the death penalty.
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Public opinion is divided on the death penalty
Public opinion in South Africa is divided on the death penalty. While the country abolished capital punishment in 1995, opinion polls suggest significant public support for its reinstatement. A 2014 poll found that 76% of millennial South Africans supported the reintroduction of the death penalty.
South Africa's history with the death penalty is complex and fraught with racial inequality. In the 1980s, during a period of incremental constitutional change and the lessening of apartheid provisions, there was a rapid increase in the number of executions, with 164 in 1987—a tally higher than any other country, including the People's Republic of China and Iran. Of the over 100 South Africans executed in 1988, only three were white, all sentenced for the murder of whites.
Despite the abolition of the death penalty in 1995, several political parties in South Africa continue to support its return. These include the African Christian Democratic Party, the African Transformation Movement (ATM), Patriotic Alliance, African Covenant, Alliance of Citizens for Change National Conservative Party of South Africa, Freedom Front Plus, and the National Party South Africa (2008). Other parties, such as the Inkatha Freedom Party (IFP), the National Freedom Party, and former president Jacob Zuma's party, MK, support a referendum on the issue.
The debate surrounding the death penalty in South Africa is influenced by the country's constitution, which establishes a new order entrenching human rights and democracy. While the constitution does not deal specifically with the death penalty, it prohibits "cruel, inhuman or degrading treatment or punishment." This provision has been central to the legal debate around the constitutionality of capital punishment, with the Constitutional Court ultimately ruling in 1995 that the death penalty was inconsistent with the country's supreme law.
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The death penalty was used to target anti-apartheid activists
The death penalty in South Africa was abolished on 6 June 1995, following a ruling by the Constitutional Court in the case of S v Makwanyane. This came after a five-year and four-month moratorium that had been in effect since February 1990. The standard method for carrying out executions was hanging, and the death penalty was widely used as a tool of oppression and social control during the apartheid era.
During the apartheid era, the death penalty was used to target anti-apartheid activists. The 1980s, a period of incremental constitutional change and a lessening of some apartheid provisions, saw a decline in the rule of law and a rapid increase in the number of executions. There were 164 executions in 1987 alone, a higher official tally than any other country, including the People's Republic of China and Iran. Since 1959, the South African government has officially performed 2,949 hangings, with 1,123 of those occurring in the 1980s. Of the over one hundred South Africans executed in 1988, only three were white, and all three were sentenced for the murder of whites.
The doctrine of Common Purpose, instituted by the apartheid government, rendered accomplices liable for criminal or political offences by association. All parties committing a crime together were to face the same consequences, regardless of their specific actions or knowledge of each other's intent. This doctrine was used to sentence anti-apartheid activists to death, including Solomon Mahlangu, who was executed in 1979. Mahlangu was a member of the armed wing of the African National Congress (ANC) and was arrested and charged with murder and terrorism after a shootout between the police and ANC operatives in 1977. Despite evidence suggesting that Mahlangu did not personally kill the victims, he was convicted under the principle of "common purpose". His case led to an international campaign by the ANC to mobilise governments to pressure South Africa to halt his execution, but these pleas fell on deaf ears.
Another example of an anti-apartheid activist being targeted by the death penalty is that of Benjamin Moloise, a South African poet and anti-apartheid activist. Moloise was convicted of murdering a police officer in 1982 and sentenced to death, despite maintaining his innocence throughout his trial. He claimed that he had been framed by the apartheid regime due to his political activities.
The application of the death penalty during apartheid was marked by significant racial disparities, with Black and Coloured individuals far more likely to be sentenced to death than their white counterparts, even for similar offenses. This was attributed to factors such as biased judicial proceedings, inadequate legal representation, and the disproportionate targeting of non-white individuals by law enforcement.
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The death penalty was ruled inconsistent with the Constitution
On 6 June 1995, the Constitutional Court of South Africa abolished the death penalty, ruling that capital punishment was inconsistent with the country's 1994 constitution. This ruling came after a five-year and four-month moratorium on capital punishment that had been in effect since February 1990.
The case in question, S v Makwanyane, centred around the constitutionality of Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977, which prescribed the death penalty as a competent sentence for murder. The Appellate Division invited the counsel for the accused to consider whether this provision was consistent with the Republic of South Africa Constitution, which had come into force after the conviction and sentence by the trial court.
The counsel argued that Section 277(1)(a) was inconsistent with Sections 9 and 11(2) of the Constitution. Section 11(2) prohibits "cruel, inhuman or degrading treatment or punishment," while Section 9 states that "every person shall have the right to life." The Court agreed with this interpretation, ruling that the death penalty violated these fundamental rights enshrined in the Constitution.
This ruling established a new order in South Africa, where human rights and democracy are entrenched and where the Constitution is the supreme law. While the Constitution does not deal specifically with the death penalty, the Court interpreted the prohibition of cruel, inhuman, or degrading punishment to include capital punishment. This interpretation was influenced by the history and background of the Constitution's adoption, particularly the provisions of Chapter Three, which emphasize the protection of individual rights and equality before the law.
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The death penalty is still used in some African countries
In South Africa, capital punishment was abolished on June 6, 1995, by the ruling of the Constitutional Court in the case of S v Makwanyane. This ruling followed a five-year and four-month moratorium that had been in effect since February 1990. The death penalty was abolished in part due to the Constitution's prohibition of "cruel, inhuman or degrading treatment or punishment."
Despite this, as of 2023, the death penalty is still implemented in 30 African countries. In 16 of these countries, no executions have been carried out in the last decade. However, 14 countries regularly implement the death penalty, including Nigeria, Botswana, Zimbabwe, Somalia, Uganda, the Democratic Republic of the Congo, Ethiopia, South Sudan, Sudan, Egypt, and Libya.
Some African countries have recently abolished the death penalty for ordinary crimes, including Ghana, Zambia, and Equatorial Guinea in 2022, and Zimbabwe in 2024. Sierra Leone and the Central African Republic abolished capital punishment in 2021 and 2022, respectively, for all crimes.
While some African countries are moving towards abolition, others still maintain the death penalty in law and practice.
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Frequently asked questions
No, the death penalty was abolished in South Africa on 6 June 1995 by the ruling of the Constitutional Court in the case of S v Makwanyane.
The case examined the constitutionality of section 277(1)(a) of the Criminal Procedure Act, which prescribed that the death penalty is a competent sentence for murder, and the implications of section 241(8) of the Constitution.
The Constitutional Court ruled that capital punishment was inconsistent with the country's 1994 constitution, specifically with sections 9 and 11(2) of the Constitution, which prohibit "cruel, inhuman or degrading treatment or punishment."
