The Right to Life vs. the State’s UltimateSanction: Abolition of Capital Punishmentin Post-Apartheid South Africa

SANGMIN BAE

Department of Political Science, Butler University, Indianapolis, USA

ABSTRACT Although more than ten years have passed since the last execution in South Africa, thecontroversy over capital punishment continues unabated, and pressure to restore it does not weaken.The South African government, nonetheless, has so far successfully resisted consideringreinstatement. The experience with capital punishment under apartheid has shaped the valuesand ideas of the leadership on what they now consider as a relic of a barbarous past and havingno place in a civilised legal system. Addressing how capital punishment was abandoned, on whatits decision was based, and who played the key roles, this article identifies the way South Africasought to embed an international human rights norm in their national consciousness.

The proclamation of the right and the respect for it [life] demanded from the state

must surely entitle one, at the very least, not to be put to death by the state deliber-

ately, systematically and as an act of policy that denies in principle that value of the

victim’s life.1

In a landmark decision on 6 June 1995, Arthur Chaskalson, President of the Constitutional

Court of South Africa, declared, ‘Everyone, including the most abominable of human

beings, has a right to life, and capital punishment is therefore unconstitutional.’ The

11 justices of the new Constitutional Court unanimously decided to remove the death

penalty from its criminal code and commuted the death sentences of some 450 people

to life imprisonment. The Constitutional Court’s opinion, one of the first ever worldwide

to abolish the death penalty based on its substantive inconsistency with ‘the right to life’

and other fundamental human rights, signalled a new development in the international

movement to end the use of capital punishment.2 Archbishop Desmond Tutu, the head

of the Anglican Church and leading campaigner against apartheid, welcomed this

decision, stating that: ‘It’s making us a civilised society. It shows we actually do mean

business when we say we have reverence for life’.3 Amnesty International remarked:

‘This historic court ruling puts Africa and South Africa in the forefront of the international

International Journal of Human Rights

Vol. 9, No. 1, 49–68, March 2005

Correspondence Address: Sangmin Bae, Department of Political Science, Butler University, 4600 Sunset

Avenue, Indianapolis, IN 46208, USA. Email: sbae@butler.edu

ISSN 1364-2987 Print=1744-053X Online=05=010049–20 # 2005 Taylor & Francis Group LtdDOI: 10.1080=13642980500032305

movement to abolish the death penalty’.4 Given that Pretoria was once called ‘the hanging

capital of the world’, the Constitutional Court’s ruling took its own constituency and the

world by surprise.5 By choosing the death penalty as the first case the post-

apartheid Constitutional Court ruled on, the justices underscored the importance of that

issue in shaping the New South Africa’s arrangement of rules, values and identities.

Yet the ruling did not sit well with all South Africans, prompting outrage among the vast

majority who felt that the upsurge in crime and violence had devalued these very rights to

‘life and dignity’. Deputy President Frederik de Klerk of the Afrikaner National Party

(NP), the predominantly white minority political party that shared power with President

Nelson Mandela’s African National Congress (ANC), stated that he would find all possible

means to reinstate the death penalty. At present, more than ten years after the last

execution in South Africa, controversies have continued unabated with regard to

whether the death penalty abolition was a good decision for the well-being of the New

South Africa.6 The impact of capital punishment is not limited to the political and legal

aspects, but has a pervasive effect on constituting culture as well.7

The purpose of this article is to examine a variety of aspects concerning the history of

the death penalty abolition in South Africa and its controversies. The article is organised as

follows. I first describe how the death penalty was abused under the apartheid years,

emphasising the fact that state authorities at that time viewed the death penalty not just

as a weapon against common crime but also as a political tool for enforcing the system

of racial separation. Next, I focus on the tension surrounding the interaction between

the use of capital punishment and the ongoing political transition which ultimately

played a role in driving both the judiciary and the government as they reached their

decisions to abolish the death penalty. Last, I show how South Africa struck down the

decades-old practice of executions in such seemingly unfavourable years of political

turbulence. I examine the process of abolition via judicial review, especially focusing

on State v. Makwanyane and Mchunu with which the new Constitutional Court of

South Africa outlawed the death penalty. I conclude by addressing the major actors

who played key roles in the abolition.

Capital Punishment under Apartheid

The method of execution employed in South Africa was death by hanging. Dr. Christian

Barnard, a famous heart surgeon, portrayed this method of killing as ‘slow, dirty, horrible,

brutal, uncivilised and unspeakably barbaric.’ He described the process, which may take

up to twenty minutes before ‘the end’, as follows:

The man’s spinal cord will rupture at the point where it enters the skull, electro-

chemical discharges will send his limbs flailing in a grotesque dance, eyes and

tongue will start from the facial apertures under the assault of the role and his

bowels and bladder may simultaneously void themselves to soil the legs and drip

onto the floor.8

For 46 years of apartheid and nearly 350 years of systematic discrimination against non-

whites, South Africa’s system of capital punishment had violated norms of customary

international law in many ways. More than 4,200 people have been executed since

50 S. Bae

South Africa’s political independence from the United Kingdom and the creation of the

Union of South Africa in 1910. Norms of procedural fairness were routinely breached in

capital cases as about half of all executions were carried out between 1978 and 1988, at

the height of the anti-apartheid struggle.9 Death sentences and executions per se were

arbitrary and unequal, and circumstances surrounding executions and conditions on

death row in South Africa certainly violated international norms against cruel and

inhuman treatment.

As the death penalty became a socio-political institution of repression, the number of

capital crimes rose. The high number of capital crimes became a major reason for the

sharp rise in executions in South Africa. In 1958, for example, the legislation was

amended to extend the range of offences; as a result offences such as kidnapping, child-

stealing, treason, rape, robbery with aggravating circumstances, and even housebreaking

with aggravating circumstances, which had never before attracted the ultimate sanction,

became capital crimes. For the crime of murder, it became mandatory for judges to

impose the death penalty. The Criminal Procedure Act of 1977 (CPA) provided that

unless the offender is under the age of 18, or unless extenuating circumstances are

found to be presented during the commission of the crime, the court has no option but

to sentence an accused to death for murder. In practice, it was only rarely that fresh evi-

dence was introduced in order to advance the accused’s case that extenuating circum-

stances existed, mainly because of the poor quality of legal representation.10 Judges in

this condition had no other options but to impose a death sentence.

Anti-apartheid political strife was another direct cause of the considerable number of

executions for several decades. In the wake of outlawing the ANC and the Pan-Africanist

Congress (PAC) after the Sharpeville Massacre in March 1960,11 and the abandonment of

nonviolence by the liberation movement, the apartheid government started to define both

violent and non-violent political acts as capital crimes. The broadly defined crime of

‘sabotage’ was added to the list of capital crimes in 1962, followed in 1963 by ‘undergoing

training or obtaining information that could further an object of communism’ and ‘advo-

cating . . . economic or social change in South Africa by violent means through the aid of a

foreign government and institution’.12 Operated by both the ‘ordinary’ criminal justice

system and the draconian state security machine, which became known as the Drastic

Process, the sizeable wave of political executions was carried out. Amongst these were

executions of about 60 members of the PAC military force in the mid-1960s. As

Van Niekerk revealed in the late 1960s, South Africa in those years accounted for

almost half of the world’s known executions.13

Politically motivated death sentences were repeated until the late 1980s as in the

cases of the ‘Sharpeville Six’ and the ‘Upington 26’. When a township official was

killed by a number of people during a political protest in Sharpeville in 1984, the

‘Sharpeville Six’ had taken no action related to the victim’s death. Nevertheless they

were convicted of murder under the ‘common purpose’ doctrine, which means that they

were allegedly associated with the acts of a political motivated crowd despite no direct

involvement in the killing. In other words, the ‘Sharpeville Six’ had a ‘common

purpose’ with the actual killers.14 Although the international attention that the case

received finally led the government to reprieve the six defendants in November 1989,

five executions for a different case took place that same week.15 Similar is the ‘Upington

26’ case in which a policeman was killed after police teargassed a peaceful assembly in

1989. While one of four persons was believed responsible, 25 people were convicted

Abolition of Capital Punishment in South Africa 51

for the murder under the common purpose doctrine, and 14 of them were sentenced

to death.16

Numerous leading figures of the ANC, the PAC, and other groups of the liberation

movement were sentenced to death and actually executed until the fall of the apartheid

government in the late 1980s.17 According to an Amnesty International survey conducted

between 1985 and mid-1988, more people were executed in South Africa during this time

than in any other country in the world save Iran.18 The underlying motivation of the apart-

heid government in capital cases was clear as Nathan Holt points out,

Capital punishment in South Africa has been viewed as a tool specifically for con-

trolling and punishing opponents of apartheid. These motivations are particularly

evident in the state’s treatment of accused members of banned liberation move-

ments. In 1983, for instance, the execution of three convicted ANC combatants

was timed to coincide with the seventh anniversary of uprisings in the black town-

ship of Soweto.19

The evidence implies that capital punishment in South Africa was the product of neither

procedural justice nor racial neutrality. Even without considering political offences,

ample evidence exists that racial discrimination played a significant role in the adminis-

tration of the death penalty in apartheid South Africa. As early as 1947, for instance, an

official law reform commission stated: ‘Capital punishment could not be abolished in

view of the “barbarism” of eighty per cent of the population’.20 Between 1910 and

1975, 27 times as many blacks as whites were executed.21 According to Simpson and

Vogelman, for the period between June 1982 and June 1983, of the 81 blacks convicted

of murdering whites, 38 were hanged. By comparison, of the 52 whites convicted of

killing whites, only one was hanged, while none of the 21 whites convicted of murdering

blacks was hanged.22 A study of rape sentencing between 1947 and 1969 found no

whites executed for the rape of black women, despite 288 such convictions. During

the same period, 120 black men were executed for raping white women, out of 844 con-

victed for such crimes.23 The Minister of Justice, C.R. Swart stated in 1969 that during

his tenure no black man had received a reprieve for rape of a white woman.24 Radelet

and Vandiver confirm the hypothesis that the likelihood of the death penalty being

imposed was disproportionately higher when the offender is black and the victim is

white, than with any other racial combination of victim and offender.25 In the sample

profiled in the Black Sash Research Report in 1989, 85 per cent of all death row prison-

ers grew up in families that struggled financially.26 The majority of prisoners in the

sample were raised by single parents or by other relatives. The vast majority suffered

disrupted schooling patterns, and most received no further education and skills training

after leaving school. Ninety per cent in the sample were black. It should be difficult to

deny that the prevalence of executions in South Africa is part and parcel of the systemic

social destructiveness of apartheid.

From the early apartheid years to the late 1980s, the number of executions per year con-

tinued to rise almost every year. In the face of increasing momentum for de facto or de jure

abolition of the death penalty in other parts of the world, hangings became so much a part

of the South African way of life during the whole period of apartheid that statistically a

prisoner was hanged almost every other day.27 Force and terror maintained a system of

brutality, and executions became more common than under colonial rule.

52 S. Bae

The Abolitionist Movement and the Role of External Donors

Ellison Kahn notes that abolitionist sentiment in South Africa dates back to at least 1861

when an editorial in The Friends of the Free Press left this remark: ‘We are convinced that

capital punishment does no good, in as much as we believe that the dread of it never

deterred a man from committing murder’.28 Opposition to the death penalty was hardly

tolerated, however, under the apartheid regime. It is often cited that Professor Barend

van Niekerk of Natal University, one of the co-founders (along with Ellison Kahn) of

the Society for the Abolition of the Death Penalty in South Africa (SADPSA), was prose-

cuted in 1970 for ‘contempt of court’ after his two publications in The South African Law

Journal. His crime was that he had asked questions and published answers relating

to racial prejudice and discrimination in the imposition of the death penalty.29

Even though van Niekerk was acquitted for lack of mens rea, academics and reformers

were forewarned that publishing this kind of research would not be tolerated. A commen-

tator stated that ‘there can be little doubt that in the [20 years after the van Niekerk trial]

the warning that the judgement contains has seriously inhibited research into racial dispar-

ities in capital sentencing’.30 The abolitionist cause became a forgotten issue in South

Africa for almost the next two decades, as not only did the van Niekerk trial discourage

any further debates on the subject of capital punishment, but also SADPSA, the first

abolitionist organisation, became moribund in 1981 with the sudden death of van

Niekerk at the age of 42.

It is true that there was a marked drop in the number of executions in the years immedi-

ately following the van Niekerk case. Concerning this, some argued that the publicity sur-

rounding van Niekerk’s prosecution ‘gave the greatest impetus ever to the abolitionist

cause’.31 Yet the rate of executions began to rise again from 1975, and then the govern-

ment even started omitting information about executions. As Janos Mihalik points out,

the temporary drop in executions was perhaps not the result of public protest: ‘The only

reasonable conclusion about this marked drop in executions is that public opinion has

very little effect on the number of offenders (if any) who are to be executed in a

country. . . . The number of executions depends on the judiciary and can be influenced

by the executive, which appoints the judiciary and as a last resort may commute sentences

if and when the rate of executions seems to it to be too high’.32

Pressure from outside Africa to promote human rights and the rule of law continued to

grow. From the Sharpeville massacre in 1960 and the Soweto uprising in 1976 to a series

of the more recent events of racial repression including the Uitenhage massacre in 1985,

the South African government kept provoking international protests, thereby resulting

in the aggravating economic and moral sanctions. In response to human rights pressure

and the shifting attitudes among white South Africans, the government became

increasingly concerned with the legitimacy and long-term stability of its apartheid

regime. A few reprieves in the 1980s such as in the cases of ‘Sharpeville Six’ and ‘Paul

Setlaba’ were made in the face of strong international human rights pressure.33

At the domestic level, the abolitionist cause and calls for an investigation of the death

penalty, dormant after Niekerk’s trial, reemerged in the late 1980s. As at least 172 people

were executed in 1987, which is South Africa’s highest annual figure ever, domestic

protest against capital punishment exploded. The South African Youth Congress, a new

anti-apartheid organisation, launched a campaign in 1987 focusing on saving the lives

of 32 political prisoners on death row.34 A variety of professional organisations joined

Abolition of Capital Punishment in South Africa 53

the abolitionist movement by pressuring the government. In 1989 alone, Lawyers for

Human Rights, the Death Penalty Monitoring Project, the Institute for Race Relations,

the Association of Law Societies, the Society of University Teachers of Law, the

General Council of the Bar, and even the Medical Association of South Africa issued state-

ments pleading for a stop to the use of capital punishment. Most of these bodies had urged

the government to investigate ‘disturbing aspects of capital punishment’ and to place a

moratorium on executions.35 The Families of People on Death Row maintained a high

level of campaigning on behalf of all prisoners on death row.36 The prestigious human

rights organisation, Black Sash, published a large number of articles on capital punishment

through which public awareness was stimulated. Most prominently, SADPSA was

relaunched in 1988, under the national directorship of Professor Dennis Davis, after the

long stagnation following the van Niekerk prosecution. With the leading role of

SADPSA, the aforementioned groups worked jointly in a loose alliance in favour of

abolition. They mostly encouraged and produced ‘advocacy scholarship’,37 conducted

practical legal aid, and organised picketing. They thought that, from a strategic point of

view, persuading two persons was crucial to win the battle for abolition: President de

Klerk and Minister of Justice Kobie Coetsee. They were targeted by telephone, mail

and fax, and received a large number of comments and articles produced by abolitionist

groups. Members of SADPSA appeared in a number of radio and television programs

related to the death penalty and its controversies, and published their comments and

research articles in various newspapers and journals.38

Around this time, the issue of the death penalty was revived in parliament. In 1988, the

Opposition Spokesman for Justice in parliament asked for an investigation into capital

punishment, pointing out that even the last Director General of the Department of

Justice had called for such an inquiry. Although rebuffed, opponents of capital punishment

renewed their request for an inquiry during the 1989 session of the Black Houses of

Parliament, which was the first time in the history of South Africa that coloured parliamen-

tarians spoke on the death penalty in parliament.39 In that session, members of the Labour

Party, represented in the ‘coloured’ House of Representatives, called for a commission of

inquiry and, ultimately, abolition of capital punishment. Arguing that a high incidence of

executions is a form of uncivilised and primitive justice, members of the department of the

Democratic Party, represented in the ‘white’ House of Assembly, joined their call for the

appointment of a commission of inquiry. A Nationalist parliamentarian took an ambiva-

lent stance only stating: ‘various views and proposals regarding the death penalty can

be exchanged in a positive way’.40 The Minister of Justice repeated that the death

penalty system should remain, even though certain proposals such as the abolition of

the mandatory death sentence and the granting of an automatic right of appeal could be

accepted after more discussion.41 There was no grand consensus in the 1988 and 1989 par-

liamentary debates on the death penalty; yet, with these controversies in parliament, public

awareness was stimulated and the abolitionist cause gained momentum. This renewed

interest coupled with mass demonstrations against executions placed tremendous pressure

on the government to reform capital punishment.

The Moratorium on Executions

Towards the end of the 1980s the apartheid system could no longer withstand the

onslaught of escalating social conflict and the costs of international economic sanctions

54 S. Bae

and diplomatic isolation. The crisis of the apartheid state deepened with the successful

‘ungovernability’ campaign of the United Democratic Front. In the general election of

September 1989 the ruling NP lost support to both left-wing and right-wing opponents

and was facing a serious threat to its 40-year dominance of white politics. Negotiations

with black leaders within an apartheid framework had come to a dead end. More crucially,

there was little chance of the ideological and diplomatic sanctions being lifted. The

majority of whites continued to desire acceptance in the Western world. If apartheid sat-

isfied their material desires, it increasingly left unrequited the yearning of people for rec-

ognition of their own worth and value. Whites in South Africa knew that democratic

reform had become the price of admission to the Western world.42 De Klerk became con-

vinced that continued coercion was not the solution: only a new political strategy could

ensure stability and survival. These conditions partly or fully explain how de Klerk

made his decision whether the apartheid regime should be maintained.43

An almost unbroken upward trend in the annual number of executions during the 1980s,

which reached at least 100 a year, changed in 1989: ‘only’ 53 people were executed, and it

was the last year of executions in South Africa. The dramatic reduction in executions in

1989 was to a large extent achieved through presidential reprieves, which numbered

66 that year.44 In his speech to parliament on 2 February 1990, President de Klerk

announced that responding to ‘the intensive discussion [of the death penalty] in the

recent months’, the death penalty legislation would be revised to limit its imposition to

extreme cases, to allow the establishment of a special committee to investigate the

death penalty, and to allow an automatic right of appeal for those sentenced to death.

De Klerk added that: ‘all executions have been suspended and no executions will take

place until parliament has taken a final decision on the new proposal’.45 With this

announcement, the execution of 443 death row prisoners was suspended indefinitely,

even though death sentences continued to be passed until 1995 for murder with aggravat-

ing circumstances. In the same speech, de Klerk announced the unbanning of the ANC,

PAC and other opposition groups that had been struggling for freedom. At the same

time, he announced the impending release of ANC leader Nelson Mandela. Nine days

later, Mandela was finally released from prison and there began the tortuous process of

negotiating the framework for a common future.

A Criminal Law Amendment Bill (B93-30) published in consequence of the President’s

announcement embodied fundamental reforms to the death penalty system. The new legis-

lation reduced the list of capital crimes to murder, treason in wartime, robbery or

attempted robbery with aggravating circumstances, kidnapping, child-stealing and rape.

Housebreaking was no longer a capital crime. The imposition of the death penalty

became discretionary in all cases where the death penalty was competent, that is, the

bill envisaged that the death penalty was only imposed after a judicial determination of

all aggravating and mitigating factors. In addition, the mandatory death sentence for

murder where no extenuation is found to be present, and the onus of proof, which

rested on the accused to prove extenuating circumstances, fell away. The new statute

also required a mandatory review by the Appellate Division of the Supreme Court for

any death sentence, which was not the case before that time. Five-and-a-half months

after de Klerk’s announcement, on 27 July 1990, the Criminal Law Amendment Act,

which included the Death Penalty Act, was published in the government gazette. This

new act introduced executive and judicial reconsideration whenever the death sentence

is passed.

Abolition of Capital Punishment in South Africa 55

Yet the government views and the abolitionist sentiment still seemed irreconcilable.

While the issue of the death penalty was being negotiated, the government attempted to

end the moratorium and announced the imminent execution of 17 condemned prisoners.

De Klerk, who played an important role in reforming South Africa’s death penalty

policy in the spring of 1990, attempted to push for its restoration exactly three years

later. He addressed the opening of parliament in 1993:

At present a moratorium on carrying out death sentences is in force, with a view to

negotiating a bill of fundamental rights. The wave of heinous crimes and murder, the

prevailing disrespect for human life and the delays in negotiation make it extremely

difficult for the government to allow this moratorium to continue indefinitely. The

government is determined . . . to do everything in its power to strengthen the

hands of our courts by providing adequate sentencing opinions, in order to

express properly society’s aversion to these crimes and to ensure effective

application of sentences.46

This announcement met with strong criticism; even pro-capital punishment parties argued

that it would be better to wait for a new dispensation to decide the question. De Klerk suc-

cumbed to the pressure and soon announced that the moratorium would remain in effect.47

The issue was sent to the Technical Committee on Fundamental Rights, the drafting com-

mittee for the multiparty Bill of Rights. The first suggested draft allowed for the continu-

ation of the death penalty statute, but provided that no sentence should be carried out until

the commencement of the permanent Bill of Rights which would be adopted by the elected

constitution-making body.48

Even after fully democratic elections were held for the first time on 27 April 1994,

which formally brought the apartheid era to an end and brought a legitimate national gov-

ernment to power, the controversy over the death penalty did not end.49 The power-sharing

government was split on the issue of capital punishment. The predominantly black ANC

opposed the death penalty, charging that it was selectively applied to blacks. Since the late

1980s, leaders of the ANC continued to call for a halt to politically motivated death sen-

tences as an essential condition for negotiations with the white minority government.

Before he was in power, ANC leader Mandela already stated, ‘the death penalty could

not be divorced from the policy of apartheid because statistics indicated more blacks

had been executed’.50 On the other hand, De Klerk’s party claimed that, given the remark-

able increase in crime rate, the death penalty should continue to be enforced. Contrary to

Mandela’s belief that the death penalty is ‘a barbaric form of punishment’, which had not

succeeded in reducing crime anywhere in the world, De Klerk argued that the death

penalty could deter crime and violence more effectively than other punishments. Due to

the difference in perspectives on the death penalty between the major parties, there was

no certainty of a reprieve under the new administration.

Political Transformation and Criminal Society: ‘Crime is Out of Control!’

Throughout the apartheid years, violence was strategically used to continue and fortify

the privileged position of whites. A radicalised authoritarian order, by necessity, required

the use of violent coercion, with security forces serving the state rather than the law – as

56 S. Bae

witnessed in the murder and torture of political detainees and infamous massacres. As

Shaw put it, crime and politics in South Africa have been closely intertwined: ‘in the

era of racial domination, apartheid offences were classified as crimes; conversely, those

people engaged in ‘the struggle’, particularly from the mid-1980s onwards, justified

forms of violence as legitimate weapons against the system’.51 Crime in South Africa,

at the same time, reflects social and economic inequality. According to Schuler, the

major cause of crime has to do with haves and have-nots: ‘We have to solve some

social problems before we can solve the crime problem’.52

Political liberalisation after apartheid did not bring about better conditions for curbing

the crime rate, however. In social theory, crime can be seen as one of the common symp-

toms of the loss or dissolution of a broad social order – as exemplified by the former

Soviet countries. South Africa had been awash in crime even though the new and nonracial

forms of government struggled toward full democracy and greater equality. While the

growth of crime in South Africa began in the early 1980s, it peaked in the early and

mid-1990s. While political violence – excluding parts of KwaZulu-Natal – had ended,

all types of ordinary crimes characterised the transition era. The violence in the transition

period claimed far more lives than did the fight against apartheid itself – over 16,000 lives

were lost between 1990 and 1994.53 Ginsberg describes the crime situation in South Africa

as follows:

A serious crime is committed every 27 seconds in South Africa, a murder every half

an hour, a housebreaking every two minutes, and an assault every three minutes. At

present only 77 people are arrested for every 1,000 crimes committed. A mere 22%

of reported crimes are ever prosecuted. Our prisons cannot even cope with those who

are convicted. With more than 4 in every 1,000 citizens in jail, South Africa qualifies

as one of the nations with the highest proportion of people in jail.54

Social and political controls were loosened and spaces opened which allowed growth in all

types of criminal activities. As change proceeded, society and its instruments of social

control were reshaped, and new areas, which were bolstered by the legacies of the past,

opened up for the development of crime. According to Schuler, reported rapes have

gone up 23 per cent and violence assaults 13 per cent in the post-apartheid era.55

Murder has reached the rate of 50 killings per 100,000 people, which is seven times

higher than the murder rate of the United States and ten times higher than the worldwide

average. Johannesburg alone records the highest murder and rape rates per capita in the

world.56 In September 1996, President Mandela admitted for the first time that crime in

South Africa is ‘out of control’.57

Some of those who believe that the official justice system failed to deter or punish offen-

ders have taken the law into their own hands. Extra-state mechanisms of law and order

grew in conjuncture with a declining confidence among citizens in the power of the

state and the police to fulfil its traditional responsibilities to secure a safe environment.

Forms of self-protection varied from contracting with the private security sector for the

wealthier components of society to organising vigilantes for less fortunate communities.

Vigilante groups – whose members consist of both blacks and whites, young and old,

conservatives and communists – are widely known for the harsh punishment including

whipping, clubbing, and at times the killing of alleged criminals, thereby causing

another controversial source of security.58 For instance, John Magolego’s group,

Abolition of Capital Punishment in South Africa 57

Mapogo a Mathamaga, grew from a band of 100 frustrated businessmen in 1996 to an

organisation with 90 branch offices and some 40,000 members in 1999.59

Although violent crime was a major source of fear among all sectors of the community,

public opinion on the issue of the death penalty yielded statistically significant differences

mainly in the variables of race and income level. Statistics show that people with higher

incomes much more frequently favoured a broad application of the death penalty than

those on the lower end of the spectrum.60 Apparently, higher income groups feel more vul-

nerable and therefore respond in a more authoritarian fashion to the death penalty. Simi-

larly, one would expect race groups that have historically been more privileged under

apartheid to show a similar response pattern. To be sure, the country’s white population

is much more in favour of the death penalty than blacks, although a majority of blacks

has also favoured capital punishment. While whites complained of a spreading sense of

impunity, many blacks reacted by noting that they had been disproportionately made

victims of the death penalty in the past through wrongful arrests and convictions. With

death sentences much more likely to be applied to blacks than to whites under apartheid,

the issue of capital punishment had become as emotionally powerful for many blacks as

crime has become for many whites. In a survey, among those against the death penalty,

quite a few respondents (45 per cent), both blacks and whites, agreed that the death

penalty should be abolished because blacks are more likely to be sentenced to death

than whites.61

The Constitutional Court’s Ruling on the Death Penalty

On 31 August 1990, six people attempted to rob a bank security vehicle in Johannesburg.62

During the robbery, two occupants of the bank vehicle were killed, and a third seriously

wounded. The robbers also killed two police officers in an accompanying vehicle. Because

three of the suspects were later killed by the police, and another managed to escape from

police custody, Themba Makwanyane and Mavusa Mchunu were the only two defendants

at the subsequent murder trial. On 14 April 1992, the trial court found the two defendants

guilty of four counts of murder, one count of attempted murder, and one count of

attempted robbery. Two weeks later, they were sentenced to death. As provided for

under the new legislation, the Appellate Division automatically reviewed the death

sentences, and concluded that the death penalty was indeed ‘the only proper sentence’.

However, the Appellate Division referred the case to the Constitutional Court for a

determination of whether the death penalty was consistent with the Constitution.

At the time of the Makwanyane referral, the Constitutional Court only existed on paper

as its justices had not yet been selected. President Mandela, who had the power to select

and appoint the President of the Constitutional Court, soon chose Arthur Chaskalson, one

of his former lawyers and a veteran of the struggle against apartheid, as the President of the

Constitutional Court.63 Prior to this appointment, Chaskalson was the director of the Legal

Resources Centre, one of South Africa’s most distinguished non-governmental organis-

ations. Mandela then appointed four sitting justices as members of the Constitutional

Court: Justice Richard Goldstone, former Chair of the Commission of Inquiry regarding

Public Violence and Intimidation, and a prosecutor at the Hague International Criminal

Tribunal dealing with war crimes in the former Yugoslavia; Justice Ismael Mahommed,

a highly respected judge, who continues to be Chief Justice of Namibia and

President of the Lesotho Court of Appeals; Justice Lourens Ackermann, an authority on

58 S. Bae

international human rights law; and Justice Tole Madala, one of the first black justices of

the Supreme Court of South Africa. In 1994, President Mandela chose the final six justices,

and those are all well known for their strong stance on civil and human rights.64 Each of

the 11 justices – racially diverse and reflecting the population’s heritage – had to some

extent been an agent for change in the long struggle against apartheid.65

After the three-day hearing of the Makwanyane case, the Constitutional Court unani-

mously held the death penalty to be unconstitutional. The decision cannot be taken to

appeal, and thus any attempt to change the constitution, restoring the death penalty,

would be struck down. In a strong show of support for the ruling, each of the court’s 11

justices issued a written opinion backing the decision on State v. Makwanyane and

Mchunu, which was based on a belief that the right to life and dignity is the most basic

of all human rights and the source of all other personal rights in the Bill of Rights.66

‘With effect from the date of this order . . . the State and all its organs are forbidden to

execute any person already sentenced to death,’ Constitutional Court President Arthur

Chaskalson declared in a written statement.67 Justice Chaskalson added, ‘Retribution

cannot be accorded the same weight under our Constitution as the right to life and

dignity. It has not been shown that the death sentence would be materially more effective

to deter or prevent murder than the alternative sentence of life imprisonment would be’.68

Justice Mahommed suggested that the death penalty affects not only the dignity of the

person about to be executed, but also the dignity of the society as a whole: ‘Very arguably

the dignity of all of us, in a caring civilisation, must be compromised, by the act of repeat-

ing, systemically and deliberately, albeit for a different objective, what we find to be so

repugnant in the conduct of the offender as a whole’.69

The justices shared their view that there was no proof the death penalty was an

effective deterrent. As opposed to the traditional public belief that the death penalty is

a unique deterrent force and that society is safer with the death penalty than without

it, Justice Didcott argued that the statistics tendered in evidence actually demonstrate

that the moratorium had no effect whatsoever on the murder rate.70 Noting that the

high incidence of violent crime could not simply be attributed to the failure to carry

out the death sentences, President Chaskalson wrote that the crime wave in modern-

day South Africa was explained by a number of factors, including political violence,

homelessness, unemployment, poverty and the frustration consequent upon such

conditions.71 Chaskalson stated that the most effective deterrent is the knowledge that

the offender will probably be caught, convicted and punished, not the very existence

of the death penalty.

Most of all, the new Court noted that the death penalty system in South Africa was

seriously flawed, susceptible to error, and unreasonably wide-reaching. President Chaskal-

son addressed, ‘It cannot be gainsaid that poverty, race, and chance play roles in the

outcome of capital cases’.72 ‘Poverty and race’ mean that some are more likely than

others to be condemned to die. Chaskalson highlighted the inadequate legal aid system

of South Africa, under which indigent defendants are very likely to be represented by

inexperienced and poorly-paid counsel. ‘Accused persons who have the money to do

so,’ explained President Chaskalson, ‘are able to retain experienced attorneys and

counsel, who are paid to undertake the necessary investigations and research, and as a

result they are less likely to be sentenced to death than persons similarly placed who

are unable to pay for such services’.73 Although such arbitrariness is inherent in all

criminal proceedings, the fatal consequences of death penalty cases give this problem

Abolition of Capital Punishment in South Africa 59

paramount importance, for any injustice becomes irrevocable: the death sentence cannot

be undone: ‘death is different’.74

The majority of South African whites were not reluctant to show opposition to the

ruling of the Constitutional Court mainly invoking high crime rates. Former President

de Klerk announced that his National Party would campaign to have capital punishment

reinstated. Danie Schutte, justice spokesman for the former ruling National Party stated

that the decision ‘gives out the wrong signal in a country where the crime rate is the

highest in the world for a country not at war’.75 ‘The rights of murderers and rapists are

being held in higher regard than those of their victims,’ claimed another conservative

white group. The day after the constitutional ruling was made, one caller on radio talk

show remarked, ‘Under the ANC, the message is that people can commit any crime and

get away with it’.76

A series of negative responses prompted a question as to whether it was necessary to

consult the people by means of a referendum before a decision was made with regard

to the constitutionality of the death penalty. In this question, the Constitutional Court’s

stance was decisive: public opinion should not be a principle factor that determines the

death penalty decision. President Chaskalson admitted, ‘The majority of South Africans

agree that the death sentence should be imposed in extreme cases of murder’.77 Yet he

stated, ‘the question before us . . . is not what the majority of South Africans believe a

proper sentence for murder should be. It is whether the Constitution allows the

sentence . . . the issue of the constitutionality of capital punishment cannot be referred to

a referendum, in which a majority view would prevail over the wishes of any minority’.78

He ensured that the choice between abolition and retention is a legal decision requiring

judicial review in the courts. Stating that the Constitution protects the rights of minorities

and others who cannot protect their rights adequately through the democratic process includ-

ing ‘the social outcasts and marginalised people of our society’,79 Chaskalson revealed a

view of democracy as a system where the rights of individuals and minorities are protected

against the will of the majority, and which is based on a particular set of values.

The tension between popular democracy and constitutionalism may exist in every

society. In the lengthy individual reasons in support of the unanimous conclusion, all

11 justices of the South African Constitutional Court reflected the sensitivity to the

tension between their role with the newly established democratic dispensation and

popular democratic ideology they should be concerned about. The members of the

Court appeared to believe that their duty was to interpret the Constitution based on its his-

torical context, not to gauge public sentiment. All the justices addressed this issue in their

judgements, and all concluded that the autonomy of the justices of the Court from the will

of the majority or public opinion is fundamental to the Court’s successful operation.

Repealing the death penalty, for them, at the same time, was to join an international

human rights project. The South African jurists were, inter alia, eager to look up inter-

national and foreign law precedents in order to compare and contrast their experiences

with others: ‘They [members of the Court] see themselves as internationalists who can

gain from – and in turn reinforce – the entrenchment of such international norms and

the emergence of a comparative constitutional law’.80 The justices quoted quite a few

judicial decisions of the United States. As The New York Times wrote, ‘The opinion of

the court’s president, Arthur Chaskalson, and 10 concurring opinions owe much to the

writings of American liberal justices, but they also have much to teach the United

States’.81

60 S. Bae

Post-Death Penalty Abolition Years: The Debate Continues

Despite, and perhaps due to the ruling of the Constitutional Court in Makwanyane, the

debate about the death penalty continues unabated. It is mainly about whether the

ruling is beneficial in any sense for the New South Africa, and, if not, whether a return

to the death penalty is necessary. Not surprisingly, reactions are deeply split along

racial lines. ‘It reflects a sober and humane consideration of the issue, and it is in line

with contemporary civilised norms,’ stated Mandela’s African National Congress,

‘never, never and never again must citizens of our country be subjected to the barbaric

practice of capital punishment.’ By contrast, whites criticise what many whites say is a

gradual slide away from law and order. The main organised bodies that support the

revival of the death penalty include the National Party, the Freedom Front, Inkatha

Freedom Party, the Dutch Reformed Church and the South African Agricultural Union.82

The experience of Western Europe suggests that once the abolitionist policy becomes

embedded in the national consciousness, public sentiment in favour of the death penalty

gradually diminishes in the general population and pressure to reinstate it weakens.

When a country has been abolitionist in practice, the death penalty, as the subject of wide-

spread debate, tends to be forgotten among the public.83 In South Africa, despite the ban

on the death penalty for one and a half decades, however, a stronger pro-restoration cam-

paign backed by the major opposition party has still persisted, which became one of the

most vociferous social movements in the post-apartheid era. A national poll in 1999

showed that 91 per cent of whites and 68 per cent of blacks supported reinstating the

death penalty.84 Even some ANC members now support it.

The government has so far successfully refused to consider such a move. Responding in

1998 to public demands for the return to the death penalty as a deterrent to violent crime,

Nelson Mandela remarked, ‘It is not because the death sentence has been scrapped that

crime has reached such unacceptable levels. Even if the death sentence is brought back,

crime itself will remain as it is’.85 The interview with The Independent is worth quoting

some length.

Reporter: ‘When you came out of prison, South Africa, like the United States, was

high up on the international league of legal executioners. When you came into power

one of the first things you did was to abolish the death penalty. But in light of the

high crime rate in South Africa there are people, even within your own organisation,

who mutter about restoring the death penalty in order to combat crime more effec-

tively. What is your position on this issue?’

Mandela: ‘I am totally against the death sentence, because it is a reflection of the

animal instinct still in human beings. There is no evidence that the death penalty

anywhere has brought down the level of crime. What brings down the level of

crime is the knowledge, on the part of criminals, that if I commit an offence

I will end up in jail. In other words, an efficient police system with the capacity

to deter crime, that is what is required. . . so the death penalty is not the answer.

This is also linked to the history of our country. Because the death sentence has

been used as an excuse to slaughter human beings in this country because it

applied most to blacks and did not affect whites to any large scale . . . I don’t

think we will gain anything by bringing the death sentence back. At the back of

Abolition of Capital Punishment in South Africa 61

the minds of the white minority – although there are some blacks who support it – is

the idea that the death sentence is going to be used against blacks, not really against

whites. Because that is the tradition of the country, even if it is one that we have put

behind us now’.86

Although only relatively small proportions of the mass public are willing to put aside their

own preferences and accept the decision of the Court, observers predicted it would not be

easy to reintroduce the death penalty in near future.87 Mandela’s successor, Thabo Mbeki,

who has repeatedly declared his opposition to reconsidering the ban, has to make it work

and deliver the expectations of a better life for the victims of the apartheid era in what he

terms the African Renaissance.

Conclusion: Who and What Played the Major Roles?

The long apartheid period has left its imprint on the overall system of social relations

including the law–governmental relationship, which was characterised by complete sub-

ordination of the legal system to the government. The functioning of the criminal justice

system was entirely based on the government’s political objectives. Tied ultimately to the

maintenance of racial apartheid, a severe penal code and extensive use of the death penalty

at the time were seen as necessary instruments to protect the white minority and to

preserve white dominance. The sheer number of those sentenced to death and the apparent

arbitrariness of sentencing clearly characterised the judicial condition of South Africa.

When the apartheid regime had been dismantled, the key socio-political agendas for the

post-apartheid era were: federalism versus unitarism; cabinet post for every 5 per cent of

the vote versus majority rule; property guarantee versus right to carry out land reform;

freedom of speech versus prohibition of racial hate speech; and parliament staying in

Cape Town versus moving to Pretoria or Bloemfontein.88 Also among these was right

to life versus death penalty, an issue that has plagued post-apartheid governments.

It is fair to guess that the unprecedented eruption of violent crime in post-apartheid

society was one of the key reasons of relentless controversies over the death penalty.

Without doubt, the fearful public perceiving that prison is not an insufficient punishment

and asking for heavier penalties for criminals impeded the abolitionist cause. Despite the

complex and violence-stricken social situation, however, the new Constitutional Court

outlawed capital punishment. Its process culminating in the constitutional decision and

the basis for the decision itself contain a valuable lesson for international human rights

advocates concerned with the right to life in particular. This article is concluded with a

brief discussion of the key actors bringing about the change.

First, the role of the two main actors in the late 1980s, President de Klerk and Chief

Justice Corbett, needs to be highlighted. De Klerk ordered an investigation of the

‘whole issue of capital punishment’, which resulted in the moratorium in February

1990. Justice Corbett’s speech to the Johannesburg Bar in 1989 has often been quoted

as evidence of his personal credo: ‘I believe firmly in the importance of . . . human

rights . . . In the gray areas of uncertainty, however, I believe that our common law and

our legal tradition require that the importance of human rights should be kept well to

the fore’.89 Corbett referred to the question of capital punishment shortly after assuming

office. Even though de Klerk’s stance on capital punishment has changed under the power-

sharing government in the early 1990s, his initial attitude to the death penalty reform and

62 S. Bae

the ultimate decision on a moratorium on executions built a social and political environ-

ment where ‘the unconstitutionality of the death penalty’ could mature within five years.

Second, various civic organisations played an important role in breaking the long

silence on capital punishment. Since the late 1980s, a considerable number of South

African civic groups, by mounting various campaigns and producing detailed accounts

of the status of capital punishment in the country, dedicated themselves to the abolitionist

cause. With their relentless abolitionist campaigns, the public became aware of the situ-

ation surrounding the death penalty system in South Africa and joined the abolitionist

movement. It is perhaps not coincidental that in the year of 1989, when the abolitionist

campaign was most vigorous, the number of commutations by the President exceeded

the number of executions for the first time since the early 1930s. As Mihalik aptly put

it, ‘It would be naıve to believe that the high number of commutations in 1988 and . . .1999 was based on considerations of mercy and justice.’ It was in part the result of the

civic groups’ faithful and unyielding campaign against executions.90

Third, the Constitutional Court, as a major political actor in the democratisation

process, took the lead in getting acquiescence to an unpopular decision. As opposed to

the traditional idea of the law–government relationship that courts are impotent and

often subordinated to the government, the South African Constitutional Court demon-

strated its strong initiative and persuasive power. Of course, there are a few conditions

that must be given for the courts’ success. According to Christian Boulanger, the con-

ditions include, first, a particular institutional setting that has to allow for a strong judi-

ciary. It is necessary for courts to have the power of judicial review, that is, ‘the power

to declare law made by the legislature or executive orders to contradict the Constitution,

or judicial precedent.’ Second, courts’ powers of persuasion also depend upon the position

the justices adopt. Their personal experience and political and legal philosophy are there-

fore important to predict the courts’ ability to perform a ‘countermajoritarian’ role. Third,

the presence of a strong social pressure group is necessary to take on the issue and promote

the abolitionist cause among the population. Last, courts need strong support among the

political elite in the executive and legislative branches.91

In a time of political transformation, the South African Constitutional Court was fortu-

nate enough to satisfy these conditions with which it could serve as a protector of a civi-

lised legal system against a determined majority. Reflecting the divergent voices of the

South African society and committing to a vision of judicial activism that can fulfil

the democratic and human rights aspirations, the Constitutional Court became an effective

partner in the social transformation envisioned by the constitution.92 As William Schabas

evaluates, ‘the [South African] Court could do no better than to position itself as the

judicial component of Nelson Mandela’s social revolution’.93 When anticipating the

inevitable public disaffection, in particular, the Court has moved quickly to establish

its voice among the country’s new political structures and engender public support for

its role. The task required for the court jurists was to have courage and conviction.94

Last but not least, the crucial role of the ANC leadership cannot be overstated. Indeed,

the apartheid experience, especially the experience of the ANC leadership as prisoners,

has caused them to reconstruct their ideas on the death penalty, which they now consider

as a relic of a barbarous past and having no place in a civilised legal system. They thought

the cruel punishment should be assessed in light of ‘the evolving standards of decency that

mark the progress of a maturing society’.95 That was beyond a sophisticated calculation

about how the shifts in the death penalty policy and system would affect the nation’s

Abolition of Capital Punishment in South Africa 63

interests. The impact of the value of human personality reached deeper, and it

reconstituted leaders’ identities and preferences around the issue of capital punishment.

Ultimately, legal abolition of capital punishment in South Africa depended upon the

civic, judicial, governmental and moral commitment to respect the sanctity of human

life. Those involved with the movement to end state-sanctioned killings acknowledged

that the death penalty violates the norm prohibiting such fundamental rights as the right

to life, the right to equality, the right to dignity and the protection against cruel,

inhuman or degrading treatment or punishment. As there is a certain relationship

between human misery and constitutional progress, Justice Albie Sachs, a longtime

anti-apartheid advocate, suggested, it may take the experience of such widespread

abuses of human rights before a polity realises the fundamental importance of constitu-

tionally protecting human life and dignity from state-sanctioned killing. Sachs wrote in

his concurring opinion in the Makwanyane case: ‘Germany after Nazism, Italy after

fascism, and Portugal, Peru, Nicaragua, Brazil, Argentina, the Philippines and Spain all

abolished capital punishment for peacetime offences after emerging from periods of

severe repression. They did so mostly through constitutional provisions’.96

Many other countries in Africa still retain the death penalty for certain crimes and resort

to it with varying frequency. Like the rest of the globe, African countries have persisted in

arguing that it is a deterrent against crime and that their people support it.97 In the African

context, in particular, it is easy for those championing the death penalty to argue that the

complexity of life in Africa should take precedence over ‘imported universal slogans’. For

them, African cultural features and economic realities, such as entrenched religio-ethical

attitudes to crime and high infant mortality and maternal morbidity rates, are far more

significant in determining how a human life is valued. Responding to this argument, on

the other hand, abolitionists would point to the endemic violence that has plagued large

sectors of the continent, in precisely those countries where the death penalty is freely prac-

tised. From this point of view, the very existence of the state killing of its own citizens

contributes to the low value Africans appear to hold towards human dignity and physical

integrity. Whichever is correct, South Africa’s action has given some impetus to the debate

over the continued practice of the death penalty in Africa. In the past decade, Gambia,

Mozambique and Namibia removed capital punishment from their Statute books. Follow-

ing those countries, Angola, Guinea-Bissau, Djibouti, Mauritius and Cote d Ivoire joined

the tread towards full abolition.98 It is certainly a remarkable change in light of the fact that

not a single African country fully abolished the death penalty until the early 1990s,

although some used it sparingly or not at all. In this climate, it is very likely that the

debate on whether to reintroduce the death penalty in South Africa could decide the

fate of death row prisoners in other African countries not only because of this country’s

leading role in industry and commerce but due to the impact which Mandela and the

‘miracle’ of South Africa’s liberation have had on the hearts and minds of Africans

everywhere.

Acknowledgements

An earlier version of this article was presented at the 2003 annual meeting of the Inter-

national 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.

64 S. Bae

Notes

1. 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.

2. 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).

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

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

5. ‘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.

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

Africa.

7. C. Boulanger and A. Sarat (eds), The Cultural Lives of Capital Punishment: Comparative Perspectives

(Stanford: Stanford University Press, 2005).

8. 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.

9. E. Kahn, ‘The Relaunch of the Society for the Abolition of the Death Penalty in South Africa’, (Speech deliv-

ered 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.’

10. 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.

11. 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.

12. 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.

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

14. N.V. Holt, ‘Human Rights and Capital Punishment: The Case of South Africa’, Virginia Journal of Inter-

national Law, Vol.30 (1989), p.298.

15. Mihalik (note 5), p.139.

16. 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.

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

18. Amnesty International, When the State Kills . . . The Death Penalty: A Human Rights Issue (New York:

Amnesty International, 1989), p.263.

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

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

p.300.

21. 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.

22. G. Simpson, and L. Vogelman, ‘The Death Penalty in South Africa’, CSVR Working Paper. Centre for the

Study of Violence and Reconciliation (Johannesburg 1989).

Abolition of Capital Punishment in South Africa 65

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

p.128.

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

25. 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.

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

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

28. E. Kahn, ‘The Death Penalty in South Africa’, Tydskrift vir Hedendaagse Romeins-Hollandse Reg. 108/109

(1970), p.12.

29. 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).

30. E. Mureinik, ‘Caring about Capital Punishment,’ in C. Visser (ed.), Essays in Honour of Ellison Kahn (Johan-

nesburg: University of the Witwatersrand 1989), p.221.

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

p.415.

32. Mihalik (note 5), p.125.

33. 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 con-

flict 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.

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

35. Mihalik (note 5), pp.134–5.

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

37. 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.

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

39. Mihalik (note 5), p.127

40. Ibid. p.128.

41. Ibid. pp.126–9.

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

43. 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.

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

University of Cape Town 1991).

45. 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.

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

1 February 1993.

47. van Rooyen (note 10), pp.781–2.

66 S. Bae

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

49. 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:

Popular vote (%)

Parliamentary

distribution

African National Congress

(ANC)62.6 252 seats

National Party (NP) 20.4 82 seats

Inkatha Freedom Party (IFP) 10.5 43 seats

Source: Foreign Broadcasting Information Service, 6 May 1994; Associated Press, 9 May 1994, quoted

in C. Jung and I. Shapiro, ‘South Africa’s Negotiated Transition: Democracy, Opposition, and the New

Constitutional Order’, Politics and Society, Vol.23 (1995), p.176.

50. BBC Summary of World Broadcasts, ‘Mandela on White Perceptions of the ANC, the Death Penalty and

Education’, 27 November 1993.

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

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

53. Shaw (note 51).

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

55. Schuler (note 52).

56. Ginsberg (note 54), p.39.

57. 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.

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

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

60. 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 Atti-

tudes 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).

61. Parekh and de la Rey (note 60).

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

SA 868.

63. 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.

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

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

66. Case No. CCT/3/94.

67. Ibid., para 151.

68. Ibid., para 146.

69. Ibid., para 278.

70. Ibid., para 182.

71. Ibid., para 119–20.

72. Ibid., para 51.

73. Ibid., para 49.

74. Ibid., para 54.

75. The Times (note 4).

76. The New York Times (note 3).

77. CCT/3/94, para 87.

78. Ibid., para 87.

79. Ibid., para 88.

80. M.A. Burnham, ‘Constitution-Making in South Africa’, Boston Review: Bottom Dog Press Working Lives

Series (December 1997/January 1998), p.4.

Abolition of Capital Punishment in South Africa 67

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

82. 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.

83. F. Zimring and G. Hawkins, Capital Punishment and the American Agenda (New York: Cambridge

University Press, 1986), pp.10–15; 21–2.

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

85. Voice of America, 9 September 1996.

86. 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.

87. van Rooyen and Goetzee (note 82).

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

Press 1995).

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

90. Mihalik (note 5), p.137.

91. C. Boulanger, ‘Between the Rule of Law and the Rule of the Majority: Can Courts Bring about Abolition-

ism?’ Unpublished manuscript (2000).

92. Burnham (note 80).

93. W.A. Schabas, ‘South Africa’s New Constitutional Court Abolished the Death Penalty’, Human Rights Law

Journal, Vol.16 (1995), p.147.

94. CCT/3/94, para 12–28.

95. CCT/3/94, para 40.

96. CCT/3/94, para 387.

97. Amnesty International, ‘Africa: A New Future without the Death Penalty’, AI index: AFR 01/03/97

(New York: Amnesty International 1997), p.3.

98. Amnesty International, ‘Abolitionist and Retentionist Countries’, at http://web.amnesty.org/pages/death-

penalty_countries_eng accessed 2 May 2003.

68 S. Bae