LME3701 - Legal Research Methodology ( ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA: A HISTORICAL PERSPECTIVE) Assignment 3.

LME3701 - Legal Research Methodology ( ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA: A HISTORICAL PERSPECTIVE) Assignment 3. 1. INTRODUCTION In 1935, South Africa reduced the harshness of the common law mandatory death penalty for murder with the passage of the doctrine of extenuating circumstances.1 A judge was permitted to substitute a lesser sentence if the accused proved the existence of a mitigating factor at the time of the offence. The doctrine however lacked the analytical rationality of an American or Indian-style discretionary death penalty, which required a judge to articulate an aggravating factor in order to sentence an accused to death, with the burden of proof on the prosecution. The doctrine has now been abolished in South Africa and other countries among them Namibia, Papua New Guinea, Swaziland and Zimbabwe, and modified in Botswana and Lesotho.2 The decline of the doctrine of extenuating circumstances accords with the international consensus that the death penalty should be restricted only to the most serious crimes and only based on the circumstances of the individual offence and the characteristics of the individual offender. Death penalty is prohibited in South Africa. Historically, hangings took place in South Africa prior to the unification of the two Boer republics and the two British colonies in 1910 and they continued after Union. Between 1910 and 1975, altogether 2,740 people were executed, and another 1,100 between 1981 and 1989. This would bring the total to around 4,000, yielding an average of 50 a year over 80 years. 3 The death penalty was later found to be cruel, inhuman, degrading and an affront to human dignity.4 The death penalty was inconsistent with the right to life entrenched in the Constitution.5 One of the criticisms against death penalty is that it cannot be corrected in the case of an error.6 South Africa is a constitutional democracy. Constitutional provisions will be highly relied on as part of this research. This research seeks to unmask reasons behind the abolition in South Africa. The historical developments that led to the abolition of the death penalty in South Africa will also be considered. Primary focus is thus exposing the constitutional reasons 1 Cronje F Capital Punishment in South Africa, was abolition the right decision? Is there a case for South Africa to reintroduce the death penalty? South Africa Institute of Race Relations 2016, 14. 2 Novak A Guilty of Murder with Extenuating circumstances: Transparency and the death penalty in Botswana Boston University International Law Journal (2009) 180-182. 3 Cronje 2016 Capital punishment in South Africa 3-4. 4 Novak 2009 Guilty of Murder with Extenuating circumstances 2-3. 5 Section 11 Constitution of the Republic of South Africa 1996. 6 Raphaely C The Human Cost of judicial Error The Star 15. 5 mainly, underlying the abolition of the death penalty in South Africa. Relevant legislation and case law will also be taken into consideration. This research’s findings intend to interrogate and find out whether the abolition of the death penalty is consistent with constitutional provisions and can as well be used as learnings for other countries which, still to date, have death penalty as punishment. As part of the exploration process, the researcher will critically investigate and analyse selected provisions of the Constitution of South Africa. 7 The Criminal Procedure Act will also be considered.8 Due regard is also going to be given to decided cases such as S v Makwanyane 1995 (2) SACR 1 (CC) especially in light of the constitutionality of the selected provisions. Is abolition of the death penalty still in the best interests of justice, or that circumstances have changed, or that it has not resulted in intended outcomes thus calling for a revision of the position? 2. PROBLEM STATEMENT Some countries still have death penalty as a punishment for serious criminal offences. This includes some countries that are considered to have made genuine progress in recognising and respecting human rights such as Texas, a state in the United States of America. Has the South African law developed faster and better than that of counterparties across the globe? What was the rationale of abolishing death penalty in South Africa in the first place? Has the abolition of capital punishment resulted in desired outcomes? Is it time that this position be revisited? The research seeks to unearth the reasons behind abolition of the death penalty in South Africa and proffer recommendations on the way forward. 3. HYPOTHESIS Death penalty is unconstitutional. The Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.9 Everyone has a right to life.10 This is centred on the interpretation of section 9, section 10 and section 8(1) of the interim Constitution 7Section11 Constitution of the Republic of South Africa 1996. 8 Section 276 Criminal Procedure Act 1977. 9 Section 2 Constitution of the Republic of South Africa 1996. 10 Section 11 Constitution of the Republic of South Africa 1996. 6 (the corresponding provisions in the 1996 Constitution are sections 11, 10 and 9(1)). Any punishment should meet the requirements in section 11 of the Constitution. These requirements should accord meaning to s 11(2) of the interim Constitution, which prohibited ‘cruel, inhuman and degrading treatment or punishment’ (section 12(1) (d) and (e) of the 1996 Constitution). It has also been decided that the death penalty is against Ubuntu.11 More so, The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.12 The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.13 The researcher is of the view that the death penalty for is unconstitutional, lacks Ubuntu and that it is cruel, inhuman or degrading punishment. The death sentence is an affront to human dignity, is inconsistent with the unqualified right to life entrenched in the Constitution. 14 The death penalty cannot be corrected in case of error or enforced in a manner that is not arbitrary, and capital punishment negates the essential content of the right to life and the other rights that flow from it. 15 4. POINTS OF DEPARTURE AND ASSUMPTIONS The Constitutional law perspective was adopted in this research, with primary focus on the Bill of rights and right to life in particular. The Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.16 South Africa is one, sovereign, democratic state founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms.17 The Bill of Rights is a cornerstone of 11 S v Makwanyane 1995 (2) SACR 1 (CC). 12 Section 7 Constitution of the Republic of South Africa 1996. 13 Section 8 Constitution of the Republic of South Africa 1996. 14 Article 3 of the Universal Declaration of Human Rights provides that everyone has the right to life, liberty and security of person. 15 About deterrence as justification for death penalty, a report by the National Research Council, titled Deterrence and the Death Penalty, stated that studies claiming that the death penalty has a deterrent effect on murder rates are “fundamentally flawed” and should not be used when making policy decisions. 16 Section 2 Constitution of the Republic of South Africa 1996. 17 Section 1 Constitution of the Republic of South Africa 1996. 7 democracy in South Africa. It enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.18 Everyone has right to life as provided for in the Bill of rights. This research is centred on the abolition of death penalty in South Africa. Capital punishment in other countries that are not South Africa is not going to be considered. This research will take the position that South Africa is a constitutional democracy. This research will also assume that South Africa enjoys judicial independence. Ongoing cases in the courts of South Africa that might be there challenging the abolition of the death penalty were not included in this research. The administrative and procedural law perspectives were also not taken into account as part of this research. A historical approach is going to be applied in this research. 5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES 5.1 Right to life Everyone has the right to life.19 The same stance is further supported by other legal scholars.20This research looks at the reasons of abolishing death penalty in South regardless of the gravity of the offense committed by the offender and other factors. Above the right to life, everyone also has right to liberty and security of person.2