S v Makwanyane and Another/Kentridge AJ

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S v Makwanyane and Another
Concurring judgment of Acting Justice Kentridge by Sydney Kentridge

[191]Kentridge AJ: I agree with the order proposed by Chaskalson P and with the reasons for it contained in his judgment and in the judgment of Didcott J In view of the importance of the issue and in deference to the forceful submissions of Mr von Lieres SC, the Attorney-General of the Witwatersrand, I add some remarks of my own.

[192]Capital punishment is an issue on which many members of the public hold strong and conflicting views. To many of them it may seem strange that so difficult and important a public issue should be decided by the eleven appointed judges of this court. It must be understood that we undertake this task not because we claim a superior wisdom for ourselves but, as Chaskalson P has explained in his judgment, because the framers of the Constitution have imposed on us the inescapable duty of deciding whether the death penalty for murder is consistent with Chapter Three of the Constitution. It should not be overlooked that a decision holding the death penalty to be constitutional would have been just as far-reaching an exercise of judicial power as the decision to strike it down.

[193]Some public commentators on the question before this court have supposed that any doubt as to the unconstitutionality of the death penalty was foreclosed by section 9 of the Constitution, which proclaims in unqualified terms that every person shall have the right of life, read with section 33(1)(b), which provides that no statutory limitation on that or any other constitutional right shall "negate the essential content of the right in question." The execution of a condemned prisoner, it is suggested, must negate entirely his right to life and must therefore ipso facto be in conflict with the constitution. For my part, I do not believe that this supposedly simple solution bears examination. Although the right to life is stated in unqualified terms its full scope and implications remain to be worked out in future cases. Certainly, as the President of the Court has pointed out, the right to life must accommodate the right to kill in lawful self-defence of one's own life or the lives of others, as well as the right of the State to defend itself against insurrection. The right to life may also be seen as entailing a duty on the State to protect the lives of its citizens by ensuring, as far as it is able, that unlawful killing is visited with condign punishment. That punishment like any other, must fall within the limits imposed by section 11(2) of the Constitution. As to section 33(1)(b), I agree with Chaskalson P that our decision in this case can be reached without requiring the Court to give an authoritative interpretation of that clause. We did, however, hear argument on the clause and I should like to state briefly why I do not think that it provides the short answer to the problem of the constitutionality of the death penalty.

[194]The source of section 33(1)(b) is presumably the similar provision in the Constitution of the Federal Republic of Germany. As far as I am aware the German Constitutional Court has never given any definite interpretation to that clause. Varying constructions of it have been suggested by the authors cited by Chaskalson P in the footnotes to paragraphs 108 and 132 of his Judgment; see also the discussion by Rautenbach in 1991 TSAR 403. For present purposes it is sufficient to mention two possible interpretations of section 33(1)(b). The first is that it requires one to consider the effect of any State action on the individual concerned—sometimes called the subjective approach. On this basis the infliction of the death penalty must conflict with section 33(1)(b) because in destroying life it must negate the essence of the right to life. I do not find this so-called subjective interpretation convincing. It cannot accommodate the many State measures which must be necessary and justifiable in any society, such as long-term imprisonment for serious crimes. It is true that a prisoner, even one held under secure conditions, retains some residual rights. See Whittaker v Roos 1912 A.D. 92, 122-3, per Innes J. But I find it difficult to comprehend how, on any rational use of language, it could be denied that while he is in prison the essence of the prisoner's right to freedom (section 11), of his or her right to leave the Republic (section 20) or to pursue a livelihood anywhere in the national territory (section 26) is not negated. Many other examples could be given which in my view rule out the subjective approach of the sub-section.

[195]The other approach (sometimes, not altogether appropriately, called the objective approach) is to examine the law which is sought to be justified under section 33. That section states that rights entrenched in Chapter Three may be limited by laws of general application provided that such limitation complies with the requirements of paragraph (a) of sub-section 1 and provided further that it does not negate the essential content of the right in question. What must pass scrutiny under section 33 is the limitation contained in the law of general application. This means in my opinion that it is the law itself which must pass the test. On this basis a law providing for imprisonment for defined criminal conduct, cannot be said to negate the essential content of the right to freedom, whatever the effect on the individual prisoner serving a sentence under that law. Similarly such a law would not negate the essential content of the right of free movement. Those are general rights entrenched in the Constitution, and a law which preserves those rights for most people at most times does not negate the essential content of those rights. An example of a law which might negate the essence of the right to freedom of movement would be a law (such as the Departure from the Republic Act, 1955) under which no person may leave the Republic without the express or implied consent of the Government. Another possible example could relate to the right of freedom of speech. A law providing for general censorship of all publications would on the face of it negate the essence of the right to freedom of speech. On the other hand a law providing penalties for what is colloquially referred to as "hate speech" would not, I think, negate the essence of that right. (Whether or not it would meet the other criteria of section 33 is a different question.)

[196]It follows that in my opinion that the true issue for decision is whether or not the death penalty for murder is a "cruel, inhuman or degrading punishment", although the entrenched right to life, like the right to dignity and to equality of treatment, does illuminate the issue. As both Chaskalson P and Didcott J have emphasised, capital punishment is qualitatively something quite apart from even the longest term of imprisonment. It entails the calculated destruction of a human life. Inequalities in its incidence are probably unavoidable. In the infliction of capital punishment judicial and executive error can never be wholly excluded nor, of course, repaired. With regard to the uniquely cruel and inhuman nature of the death penalty I would refer to the ample citation of American authority by Didcott J in paragraphs 6 and 7 of his Judgment and to the various decisions of international tribunals cited by Chaskalson P. I would add to these the judgment of Blackmun J in Callins v Collins 114 S. Ct. 1127 (1994). The statement of Stewart J in Furman v Georgia 408 US 238 at 306 cited by Scalia J in Harmelin v Michigan 501 US 957 (1991), also deserves repetition:

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity."

The "death row" phenomenon as a factor in the cruelty of capital punishment has been eloquently described by Lord Griffiths in Pratt v Johnson [1994] 2 AC 1 and by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney General Zimbabwe 1994 (4) SA 329. Those were cases of inordinately extended delay in the carrying out of the death sentence, but the mental agony of the criminal, in its alternation of fear, hope and despair must be present even when the time between sentence and execution is measured in months or weeks rather than years.

[197]It may be said that if the punishment is cruel so was the act of the murderer. That cannot and should not be denied. In the present case the Appellants committed murders of horrifying callousness motivated by nothing but greed. In some of the cases summarised in the Attorney-General's written submissions, all of them cases in which the Appellate Division had confirmed the sentence of death, the accused had, if that were possible, committed even more revolting acts of cruelty against their victims. I agree with Chaskalson P that proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. But that does not mean that the State should respond to the murderer's cruelty with a deliberate and matching cruelty of its own. As Simon Jenkins said in a recent article on the death penalty in "The Times" (London), that would imply that punishment must not merely fit the crime, but repeat the crime.

[198]Section 35 of the Constitution requires us to "promote the values which underlie an open and democratic society based on freedom and equality." We are thus entitled and obliged to consider the practices of such societies. That exercise shows us that most of the countries which we would naturally include in that category have abolished capital punishment as a penalty for murder, either by legislation or by disuse. These countries include the neighbouring States of Namibia, Angola and Mozambique. The principal exceptions are the great democracies of India and the United States. In each of those countries the written constitution expressly contemplates the legitimacy, subject to safeguards, of the death penalty. Thus the Fifth Amendment to the Constitution of the United States begins with the words, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..." There are similar express indications of the acceptability of the death sentence in Article 21 of the Constitution of India. It is therefore understandable that the Supreme Courts of those two countries have found themselves unable to hold that the death penalty is per se unconstitutional. Nonetheless, in our attempt to identify objectively the values of an open and democratic society what I find impressive is that individual judges of great distinction such as Brennan J in the United States and Bhagwati J in India have held, notwithstanding those constitutional provisions, that the death penalty is impermissible when measured against the standards of humanity and decency which have evolved since the date of their respective constitutions. Similarly, courts to which considerable respect is due, such as the Supreme Court of California in People v Anderson 493 P.2d 880 (1972) and the Supreme Judicial Court of Massachusetts in District Attorney for the Suffolk District v Watson 381 Mass 648 (1980) have held the death penalty to be a "cruel and inhuman punishment" and therefore in conflict with their respective State constitutions. In the California case that decision was arrived at notwithstanding clauses in the State Constitution which, like the United States Constitution, recognised the existence of capital punishment. (See Anderson's case at 886-7).

[199]The reference to "evolving standards of decency" is taken from the judgment of Warren CJ in Trop v Dulles 356 US 86 at 101 (1958) where, speaking for the Court, he adopted as the measure of permissible punishment under the Eighth Amendment of the United States Constitution "the evolving standards of decency that mark the progress of a maturing society." Commenting on this dictum in Thomson v Oklahoma 487 US 815 (1988) Scalia J (dissenting) said at 865:

"Of course, the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views."

This is a pertinent warning which I have, I hope, kept in mind. I believe, nonetheless, that there is ample objective evidence that evolving standards of civilisation demonstrate the unacceptability of the death penalty in countries which are or aspire to be free and democratic societies. Most democratic countries have abandoned the death penalty for murder. Even in countries which have the death penalty on the statute books there is a decline in its use. Although one cannot say that the death penalty is as yet contrary to international law, Chaskalson P has demonstrated that that is the direction in which international law is developing. I shall come later to the question of public opinion and the guidance to be obtained from it, but what is clear to my mind is that in general in civilised democratic societies the imposition of the death penalty has been found to be unacceptably cruel, inhuman and degrading, not only to those subjected to it but also to the society which inflicts it. Simon Jenkins, in the article which I have already quoted, says that the State is (or should be) "institutionalised civilisation." I would agree, and add that this is especially true of the State created by our new Constitution. The deliberate execution of a human, however depraved and criminal his conduct, must degrade the new society which is coming into being.

[200]In the course of argument before us much was said about public opinion on the death penalty in South Africa. Both Chaskalson P and Didcott J have shown that public opinion, even if expressed in acts of Parliament, cannot be decisive. If we were simply to defer to public opinion we would be abdicating from our constitutional function. Yet, were public opinion on the question clear it could not be entirely ignored. The accepted mores of one's own society must have some relevance to the assessment whether a punishment is impermissibly cruel and inhuman. In Furman v Georgia 408 US 238 (1972) Brennan J at 277 said that one of the principles inherent in the constitutional prohibition of cruel and unusual punishments was that "a severe punishment must not be unacceptable to contemporary society." Much earlier, in Weems v United States 217 US 349, 378 (1910) the United States Supreme Court had held that that provision of the Constitution was "not fastened to the obsolete", but might "acquire meaning as public opinion becomes enlightened by a human justice." I would, with all respect, suggest that the principle propounded by Brennan J may give too much weight to prevailing opinion - an opinion which may swing with public moods and varying public concerns. But in any event, whether or not a punishment is acceptable to contemporary society is not to be judged by the results of informal public opinion polls, still less by letters to the press. In People v Anderson (supra) Wright CJ speaking for the Supreme Court of California said at 893–4:

"Public acceptance of capital punishment is a relevant but not controlling factor in assessing whether it is consonant with contemporary standards of decency. But public acceptance cannot be measured by the existence of death penalty statutes or by the fact that some juries impose death on criminal defendants. Nor are public opinion polls about a process which is far removed from the experience of those responding helpful in determining whether capital punishment would be acceptable to an informed public were it even-handedly applied to a substantial proportion of the persons potentially subject to execution."

In Gregg v Georgia 428 US 153 (1976) a judgment given four years after Furman v Georgia, supra, Stewart J at 179-180 found that developments during that period had shown that "a large proportion of American society continues to regard it (capital punishment) as an appropriate and necessary criminal sanction." The principal evidence on which Stewart J based this finding was that since the Furman case the legislatures of 35 of the United States had enacted new death penalty statutes. Further, the Congress of the United States had enacted a statute providing the death penalty for aircraft piracy. In addition, he referred to an official State-wide referendum in the State of California adopting a constitutional amendment that authorised capital punishment.

[201]Needless to say, there was no similar evidence before us. Public opinion has not expressed itself in a referendum, nor in any recent legislation. Certainly, there is no evidence of a general social acceptance of the death penalty for murderers such as might conceivably have influenced our conclusions. On the contrary, developments in South Africa point in the opposite direction. It is to be noted that even at the time, during the previous decade, when South Africa had the unenviable reputation for carrying out more executions than any other country in the western world, only a proportion of those convicted of murder were sentenced to death, and of those many were reprieved. The amendment to the Criminal Procedure Act introduced by Act No 107 of 1990 drastically reduced the number of convicted murderers sentenced to death. The subsequent developments described by Chaskalson P including the official executive moratorium on the death penalty announced in March 1992, while not evidence of general opinion, do cast serious doubt on the acceptability of capital punishment in South Africa. In fact, we are informed, since 1989 there has been no judicial execution in South Africa. Thus there has been in this country no indication whatsoever of what Stewart J in Gregg's case referred to as "society's endorsement of the death penalty for murder." In the Constitution itself such endorsement is markedly absent. Consequently, in all the circumstances, the appeal to public opinion could not affect our decision.

[202]There is little I wish to add to what has been said by other members of the Court on the application of section 33. On the question whether a death penalty can be justified by its deterrent effect the statistical and other evidence is inconclusive, as it was bound to be. As the analysis of Chaskalson P shows the statistical evidence comes nowhere near establishing that the death penalty is an effective deterrent against murder. Nor on the other hand can it be shown that it is not a deterrent. As Mr von Lieres pointed out, only those who were not deterred enter the statistics; the number who were deterred cannot be known. In Burns' well-known lines, "What's done we often may compute/But know not what's resisted." The most impressive argument of Mr von Lieres on this aspect of the case was that, statistics aside, the awfulness of the death penalty must in its nature deter some would-be murderers. In the face of the appalling murder rates in this country, he said, we cannot afford to relinquish any possible weapon in the fight against violent crime. That is a powerful argument but, given the cruelty and inhumanity of the death penalty, it is an argument which cannot in the end prevail. It relies essentially on the mere possibility that the death sentence may deter some murderers. That is not a sufficient justification for the continued existence of such an extreme punishment.

[203]I have little to add, too, to what Chaskalson P has said on the element of retribution as an element in punishment. The Attorney-General's argument was that the criminal law including the modes of punishment must adequately reflect the moral outrage felt by society when a vicious and cold-blooded murder is committed. This too I regard as an argument of weight. One can understand in particular the reaction of the families of victims of murderers and the feeling that the culprits "deserve to die". But the choice, as Chaskalson P has pointed out, is not between death penalty on the one hand and the condonation of the murderer's act on the other. The choice is between the death penalty and a long term of imprisonment which might in appropriate cases include life imprisonment in the fullest sense of the term. As a civilised society it is not open to us, in my opinion, to express our moral outrage by executing even the worst of murderers any more than we could do so by the public hangings or mutilations of a bygone time.

[204]In conclusion I would endorse what Didcott J has cogently stated; the striking down of the death penalty entails no sympathy whatsoever for the murderer, nor any condonation of his crime. What our decision does entail is a recognition that even the worst and most vicious criminals are not excluded from the protections of the Constitution. In 1910 Mr Winston Churchill speaking in the House of Commons said this:

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State—a constant heart-searching by all charged with the duty of punishment—a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it."