Can the death penalty still be considered a “cruel, inhumane and degrading punishment” in the face of South African prison conditions?

Abstract

The use of the death penalty as a form of punishment can be traced back to the earliest human civilisations. South Africa was no stranger to this punishment, and it was only abolished here in 1995. South Africa accepted this form of punishment through its colonisation by the English. The union of South Africa made use of hangings throughout the 1900s; an average of 4 000 executions were implemented over an 80-year period (Cronje (ed) “Capital punishment in South Africa : was abolition the right decision? Is There a case for South Africa to reintroduce the death penalty?” South African Institute for Race Relations 2016. In 1989, President FW de Klerk placed a moratorium on the physical implementation of executions during the negotiations of the convention for a Democratic South Africa (Cronje South African Institute for Race Relations. The constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) was adopted during these negotiations; while it contained a comprehensive bill of rights, it did not address the use of capital punishment. The fate of the death penalty was left to the courts to address in 1995 in the landmark case of S v Makwanyane and Mchunu ((1995) 6 BCLR 665). Chaskalson J stated that section 277(1)(a) of the Criminal Procedure Act (51 of 1977) was unconstitutional with reference to the following rights: section 9 (life); section 10 (dignity) and section 8(1) (equality before the law). He stated that the reasoning for this decision was that the imposition of the death penalty amounted to a cruel, inhumane or degrading punishment inconsistent with the right to life and human dignity. Moreover, this punishment cannot be reversed in the case of error or enforced in a manner that is not arbitrary. However, in the 28 years since this decision was made, South Africa has experienced an escalation in violent and sexual crimes, including murder, robbery with aggravating circumstances, rape and kidnapping. With this in mind, South Africans are left to question whether our courts should be implementing more serious sentences for these crimes and whether the decision made by Chaskalson J was correct.