The death penalty - Let the people decide

Summary - The Constitutional Court outlawed capital punishment in 1995 in State v Makwanyane and Mchunu, reasoning that while capital punishment is not prohibited per se by the constitution, it is incompatible with several core constitutional values and is cruel, inhuman and degrading. The Court further stated that capital punishment is not a matter for referendum because the purpose of the new legal order is to protect the rights of minorities, including social outcasts, and ‘place them beyond the reach of majorities…’ Nearly ten years later, however, the debate about whether capital punishment should be referred to a referendum persists, largely because criminals have felt more secure since its abolition. Tony Leon, for example, has changed his mind and now supports a referendum on the issue. Some may argue that the ANC’s massive election victory should lay this matter to rest, since the parties that advocated a referendum did badly. However, that is as convincing as suggesting that Cosatu’s electoral support for the ANC indicates that it agrees with the party’s economic policies. The Constitutional Court ruling may be a bulwark against a referendum, but it is also the Achilles heel of the anti-referendum lobby because of its assertion that ‘it would have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law’. The only possible inference from this is that it was possible for the people, via the Constitutional Assembly, to determine ab initio that capital punishment should be sanctioned in certain circumstances. If that is granted, it is hard to see why a referendum shouldn’t still be possible where there is doubt that the question has been resolved in a manner compatible with the views of most South Africans. Essentially, all arguments against a referendum boil down to a distrust of the population’s rationality. However, even if the death penalty were re-instituted by popular demand, the question of whether the sentence should be imposed in a given case would still be determined, one hopes rationally, by the courts.

In 1995 the Constitutional Court outlawed capital punishment in the oft-quoted case of State v Makwanyane and Mchunu. While the court conceded that the constitution does not outlaw capital punishment per se, it reasoned that the death penalty is incompatible with some of the core values of the constitution in that it is undoubtedly a cruel, inhuman and degrading punishment. One of the Justices of the Constitutional Court also found that capital punishment is incompatible with ubuntu, to which the 1993 interim constitution bound South Africa, as lawyers put it, in the post-amble.

The court, however, did not rest its case at the point of finding capital punishment incompatible with the stated constitutional core values. It proceeded and stated that the constitutionality of capital punishment is not a matter for a referendum. It argued that the purpose of the new legal order was to protect the rights of minorities, including social outcasts, who cannot protect their rights adequately through the democratic process.

Borrowing from Justice Jackson in the celebrated case of West Virginia State Board of Education v Barnette, the Constitutional Court stated "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy [and] to place them beyond the reach of majorities…"

Almost ten years on, the debate about whether capital punishment should not perhaps be referred to a referendum persists. Part of the problem is that, whether politicians and judges want to admit it or not, after the abolition of capital punishment criminals felt a lot more secure than before. In a sense they are part of the reason why the debate is not withering away.

People who were previously coy about appearing to be in support of the death penalty are now blatantly in support. I have memories of a televised debate in 1996 where I was arguing not so much the retention of capital punishment as the right of South Africans to publicly express an opinion on the matter. On the opposite side sat Kadar Asmal and Tony Leon. They both not only argued against the death penalty, a proposal I was not arguing, but against a referendum on the matter as well. In time, Tony Leon has gone to the other extreme. Indeed, one of the parties involved in the 2004 elections unwisely campaigned on the single platform of capital punishment.

In the elections the ANC was silent on the matter and received a resounding electoral victory, whereas those who raised the issue came out rather badly. It will be tempting for some to now argue that South Africans have spoken and that, therefore, any further talk about a referendum on capital punishment must be laid to rest.

I think there are some obstacles that must be overcome before such a proposition becomes intellectually unassailable. First, the elections were about who will govern South Africa, and all other issues were peripheral. To argue that the elections have resolved the question of whether there should be a referendum on capital punishment would be just about as convincing as suggesting that Cosatu's electoral support for the ANC indicates its acquiescence to the ANC's economic policies.

Further, one has to bear in mind that, although the ANC received an overwhelming majority in the 14 April election, its majority amounted, as analysts have indicated, to a mere 39,5 per cent of eligible voters in South Africa, with 60,5 per cent either not registering or, having registered, not voting on election day.

But those arguing for a referendum on capital punishment also have some serious obstacles to negotiate. There is a formidable weight of opinion they have to overcome before they can be heard, and part of that opinion is embedded in the Constitutional Court's judgement in the Makwanyane case.

If the Constitutional Court's opinion is a bulwark against a referendum on capital punishment, it is also, on consistent and honest intellectual scrutiny, the Achilles heel of the anti-referendum lobby. In deciding that capital punishment is unconstitutional, the Constitutional Court stated that: "It would have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty; or that it is permissible in circumstances sanctioned by law".

One must infer that if the drafters of the constitution had stated explicitly that capital punishment is constitutional where the law sanctions it, the Constitutional Court might arrive at a different conclusion in the Makwanyane case. The primary reason we had a Constitutional Assembly draw up the 1996 constitution was that everyone recognised the need for the constitution to have the consent of South Africans for it to be legitimate.

But to then decide that the population could mandate every aspect of the constitution except the aspects that some leaders feel strongly about is in reason untenable. It is also hypocritical. The leaders could then just as well have stayed with the 1993 constitution, which everyone understood was making no claim to popular endorsement.

The effect is that it was possible, even on the approach of the Constitutional Court, for the population to determine ab initio that capital punishment should in certain circumstances be sanctioned. If that is granted, it is hard to see why that should not still be possible where there is doubt that politicians have resolved the question in a manner compatible with the views of those on whose behalf they acted. Then, too, one must bear in mind the humility aired by Justice Sydney Kentridge that the justices of the Constitutional Court do not claim special wisdom in arriving at the conclusion they reached.

There are further arguments that are made against a referendum on the death penalty. Space considerations don't allow for them be fully canvassed here. Stripped to their essentials, however, they amount to a distrust of the population's reason and assertion that it is better that the death penalty issue be determined rationally by the courts.

If that were granted, it would remain possible to argue that, if the constitution provided for the death penalty by popular demand, the question whether the sentence should be imposed in any given case would still be determined, hopefully rationally, by the courts. I am alive to the criticism of the rationality of courts previously in imposing or not imposing the death penalty. In my view that is a different debate and I am not required to address it here.