[222]Implicit in the provisions and tone of the Constitution are values of a more mature society, which relies on moral persuasion rather than force; on example rather than coercion. In this new context, then, the role of the State becomes clear. For good or for worse, the State is a role model for our society.[1] A culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the State must take the lead. In acting out this role, the State not only preaches respect for the law and that the killing must stop, but it demonstrates in the best way possible, by example, society's own regard for human life and dignity by refusing to destroy that of the criminal. Those who are inclined to kill need to be told why it is wrong. The reason surely must be the principle that the value of human life is inestimable, and it is a value which the State must uphold by example as well. As pointed out by Mr Justice Schaefer of the Supreme Court of Illinois:[2]
"The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilisation may be judged."
[223]The ethos of the new culture is expressed in the much-quoted provision on National Unity and Reconciliation which forms part of the Constitution. Chaskalson P quotes the various components of it in paragraphs 7 and 130 of his judgment. It describes the Constitution as a "bridge" between the past and the future; from "the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, … for all South Africans …"; and finally, it suggests a change in mental attitude from vengeance to an appreciation of the need for understanding, from retaliation to reparation and from victimisation to ubuntu. The Constitution does not define this last-mentioned concept.
[224]The concept is of some relevance to the values we need to uphold. It is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all. It is perhaps best illustrated in the following remarks in the judgment of the Court of Appeal of the Republic of Tanzania in DPP v Pete,[3]
- ↑ Brandeis J in his dissenting opinion in Olmstead v United States, 277 US 438, 485 (1928) put it succinctly: "Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole of our people by its example."
- ↑ In his Oliver Wendell Holmes lecture at the Harvard Law School, reprinted under the heading Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956). The passage was referred to with approval in Coppedge v United States, 369 US 438, 449 (1962).
- ↑ [1991] LRC (Const) 553 at 566b–d, per Nyalali CJ, Makame and Ramadhani JJA.
