Ismail Mahomed, Advocate, first Black judge of the Supreme Court of South Africa. South African History Online. Some rights reserved Eight months after a post-Apartheid, multi-racial
\ngovernment elected through universal suffrage, led by Nelson Mandela, took
\noffice in May 1994, the Constitutional Court of South Africa was formally
\ninaugurated on 14 February 1995. The very next day it began hearing the case of The State v Makwanyane and Mchunu. The two
\nmen at the centre of the case had been convicted of murders, attempted murder
\nand robbery with aggravated circumstances and their appeals against the death
\npenalty had been rejected by the Supreme Court. <\/i><\/p>\n
South Africa\u2019s interim constitution had not
\nexpressly abolished the death penalty. Not because of any oversight. In fact, in
\nthe early 1990s, everyone from the then president F.W. de Klerk and later his
\n\u201cjustice\u201d minister (the quotation marks are deliberate: what justice under an
\nApartheid regime?), the South African Law Commission and more importantly,
\nthose writing the Interim Constitution had in effect washed their hands of the
\nissue and left it to a future Constitutional Court to decide. Courts handing
\ndown the death penalty had also taken note of the fact that South Africa was
\nsoon to enter a new era, with the implication that there was a virtual
\nmoratorium in effect. <\/p>\n
President Mandela\u2019s government, through its
\ncounsel George Bizos
\n\u2013 who had risen to prominence during the Rivonia Trial of 1963-4, in which the
\ndeath penalty was perhaps narrowly avoided for Mandela
\nand others \u2013 had made it clear that it favoured abolition, but the attorney
\ngeneral of Witwatersrand pressed for the death penalty for the two convicts.
\nAnd thereby inadvertently did the world a great favour as it led to cascades of
\nsome of the most scintillating prose by the likes of Justices Arthur
\nChaskalson, Ismail Mahomed, Yvonne Mokgoro, Kate O\u2019Regan, Albie Sachs and
\nothers. Most importantly the 11 members of the bench unanimously and conclusively
\nestablished through their brilliant argumentation that the death penalty was
\ninconsistent with the Interim Constitution of South Africa of 1993 (overtaken
\nby the
\nupdated one of 1996).<\/p>\n
The Constitutional Court consisted of jurists
\nfrom different races, religions and age groups \u2013 Justice
\nO\u2019Regan was 37 when she was appointed to the court. Many of the 11 judges
\nwere or are internationally renowned jurists. <\/p>\n
Presiding judge
\nChaskalson noted, in his judgement delivered on 6 June 1995, that no executions had taken place in South Africa since
\n1989 and that in 1995 as many as 400 people were on death row, some of them
\nconvicted as far back as in 1988. At least half of them had been sentenced more
\nthan two years earlier. He termed it an \u201cintolerable situation\u201d. <\/p>\n
Arguably the most
\nstirring words in the full judgement came from Justice Mahomed:<\/p>\n
\u201cThe deliberate annihilation of the life of
\na person, systematically planned by the State, as a mode of punishment, is
\nwholly and qualitatively different. It is not like the act of killing in
\nself-defence, an act justifiable in the defence of the clear right of the
\nvictim to the preservation of his life. It is not performed in a state of
\nsudden emergency, or under the extraordinary pressures which operate when
\ninsurrections are confronted or when the State defends itself during war. It is
\nsystematically planned long after \u2013 sometimes years after \u2013 the offender has
\ncommitted the offence for which he is to be punished, and whilst he waits
\nimpotently in custody, for his date with the hangman. In its obvious and
\nawesome finality, it makes every other right, so vigorously and eloquently
\nguaranteed by \u2026 the Constitution, permanently impossible to enjoy. Its
\ninherently irreversible consequence makes any reparation or correction
\nimpossible, if subsequent events establish, as they have sometimes done, the
\ninnocence of the executed or circumstances which demonstrate manifestly that he
\ndid not deserve the sentence of death.\u201d\u00a0<\/i><\/p>\n
(This quote figures prominently in a\u00a0most useful book for students of human rights,\u00a0The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence<\/em>, by Professor Nihal Jayawickrama, 1096 pages, Cambridge).<\/p>\n Presiding judge Chaskalson, while reviewing \u201cThe differences that exist between rich Noting the \u201cdeath row phenomenon\u201d \u2013 of Justice Chaskalson observed that the South He then began demolishing the arguments of "If public opinion were to be decisive The attorney general argued that countries \u201cWe would be deluding ourselves if we were In one of the most remarkable observations \u201cThe greatest deterrent to crime is the A comparison of the crime figures between As for prevention, the death penalty is not \u201cPunishment must to some extent be He concluded that: <\/p>\n \u201cThe rights to life and dignity are the Justice Chaskalson ordered that \u201c(a) the Albie Sachs, 2009. Wikicommons\/Ram.eisenberg.Some rights reserved.All the other members of the bench wrote Justice Johann Ditto Justice Albie Justices Tholie \u201cWe believe that a person is a person through another person, that my Justice Mahomed, whose quotation now He said in another set of erudite sentences "The death sentence must, in some South Africa\u2019s constitutional court has Alas, during the mad regime of President Chief Justice Pius Langa, 2013. Wikicommons\/ WP:NFCC#4.Some rights reserved.In other words, South Africa has a It is another matter that in other Ismail Mahomed, Advocate, first Black judge of the Supreme Court of South Africa. South African History Online. Some rights reserved Eight months after a post-Apartheid, multi-racial government elected through universal suffrage, led by Nelson Mandela, took office in May 1994, the Constitutional Court of South Africa was formally inaugurated on 14 February 1995. The very…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"class_list":["post-1385","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/googmn.com\/index.php?rest_route=\/wp\/v2\/posts\/1385","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/googmn.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/googmn.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/googmn.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/googmn.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1385"}],"version-history":[{"count":0,"href":"https:\/\/googmn.com\/index.php?rest_route=\/wp\/v2\/posts\/1385\/revisions"}],"wp:attachment":[{"href":"https:\/\/googmn.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1385"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/googmn.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1385"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/googmn.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1385"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\ndeath penalty jurisprudence from various parts of the world, had this astute
\nobservation about a country that retains the death penalty and yet preens
\nitself as a great democracy, namely the United States: <\/p>\n
\nand poor, between good and bad prosecutions, between good and bad defence,
\nbetween severe and lenient judges, between judges who favour capital punishment
\nand those who do not, and the subjective attitudes that might be brought into
\nplay by factors such as race and class, may in similar ways affect any case
\nthat comes before the courts, and is almost certainly present to some degree in
\nall court systems. Such factors can be mitigated, but not totally avoided, by
\nallowing convicted persons to appeal to a higher court. Appeals are decided on the
\nrecord of the case and on findings made by the trial court. If the evidence on
\nrecord and the findings made have been influenced by these factors, there may
\nbe nothing that can be done about that on appeal. Imperfection inherent in
\ncriminal trials means that error cannot be excluded; it also means that persons
\nsimilarly placed may not necessarily receive similar punishment. This needs to
\nbe acknowledged. What also needs to be acknowledged is that the possibility of
\nerror will be present in any system of justice and that there cannot be perfect
\nequality as between accused persons in the conduct and outcome of criminal
\ntrials. We have to accept these differences in the ordinary criminal cases that
\ncome before the courts, even to the extent that some may go to gaol when others
\nsimilarly placed may be acquitted or receive non-custodial sentences. But death
\nis different, and the question is, whether this is acceptable when the
\ndifference is between life and death. Unjust imprisonment is a great wrong, but
\nif it is discovered, the prisoner can be released and compensated; but the
\nkilling of an innocent person is irremediable.\u201d<\/i><\/p>\n
\nprisoners clinging to life for many years (in fact decades) \u2013 trying to exhaust
\nany possible avenue of redress, he said: \u201cThe difficulty of implementing a
\nsystem of capital punishment which on the one hand avoids arbitrariness by
\ninsisting on a high standard of procedural fairness, and on the other hand
\navoids delays that in themselves are the cause of impermissible cruelty and
\ninhumanity, is apparent.\u201d (Moreover it is now known that keeping a prisoner
\nalive for life costs far less in the United States than going through the
\nappeals procedures.)<\/p>\n
\nAfrican constitution specifically guaranteed the right to human dignity and
\nright to life. (Article 10 of Chapter 2 of the constitution says: \u201cEveryone has
\ninherent dignity and the right to have their dignity respected and protected.\u201d
\nAnd Article 11 says: \u201cEveryone has the right to life.\u201d Period. (Incidentally,
\nthere are no ifs and buts nor any neverthlesses or notwithstandings appended to
\nthis six-word sentence. More of this later.) <\/p>\n
\nthe Witwatersrand attorney general. The latter had said what is cruel, inhuman
\nor degrading depends on contemporary attitudes and that South African society
\nfavoured the death penalty for the extreme case of murder. <\/p>\n
\nthere would be no need for constitutional adjudication. The protection of
\nrights could then be left to Parliament, which has a mandate from the public,
\nand is answerable to the public for the way its mandate is exercised, but this
\nwould be a return to parliamentary sovereignty, and a retreat from the new
\nlegal order established by the 1993 Constitution. By the same token the issue
\nof the constitutionality of capital punishment cannot be referred to a
\nreferendum, in which a majority view would prevail over the wishes of any
\nminority. The very reason for establishing the new legal order, and for vesting
\nthe power of judicial review of all legislation in the courts, was to protect
\nthe rights of minorities and others who cannot protect their rights adequately
\nthrough the democratic process. Those who are entitled to claim this protection
\ninclude the social outcasts and marginalised people of our society. It is only
\nif there is a willingness to protect the worst and the weakest amongst us, that
\nall of us can be secure that our own rights will be protected."<\/i><\/p>\n
\nwhich had abolished the death penalty were on the whole developed and peaceful
\nand that the punishment was needed in South Africa to deter crime. But Justice
\nChaskalson forthrightly rejected the \u201cdeterrence\u201d argument:<\/p>\n
\nto believe that the execution of the few persons sentenced to death during this
\nperiod, and of a comparatively few other people each year from now onwards will
\nprovide the solution to the unacceptably high rate of crime. There will always
\nbe unstable, desperate, and pathological people for whom the risk of arrest and
\nimprisonment provides no deterrent, but there is nothing to show that a
\ndecision to carry out the death sentence would have any impact on the behaviour
\nof such people, or that there will be more of them if imprisonment is the only
\nsanction. No information was placed before us by the Attorney General in regard
\nto the rising crime rate other than the bare statistics, and they alone prove
\nnothing, other than that we are living in a violent society in which most crime
\ngoes unpunished – something that we all know.\u201d <\/i><\/p>\n
\nand one supported by feminists, especially
\nin India \u2013 where they have been stressing the certainty and not the severity
\nof justice to deter heinous crimes such as rape and murder, \u2013 Justice
\nChaskalson said: <\/p>\n
\nlikelihood that offenders will be apprehended, convicted and punished. It is
\nthat which is presently lacking in our criminal justice system; and it is at
\nthis level and through addressing the causes of crime that the State must seek to
\ncombat lawlessness.\u201d <\/i><\/p>\n
\nabolitionist Europe (excepting retentionist Belarus) and the United States and
\nthose between the abolitionist and retentionist US states themselves would show
\nthat that the death penalty has no deterrent effect. More than 140 countries
\nhave, realising this, abolished the death penalty in law or practice as of now.<\/p>\n
\nthe only way of ensuring it and imprisonment would serve the purpose too, he said.
\nOn retribution, Justice Chaskalson said: <\/p>\n
\ncommensurate with the offence, but there is no requirement that it be
\nequivalent or identical to it. The state does not put out the eyes of a person
\nwho has blinded another in a vicious assault, nor does it punish a rapist, by
\ncastrating him and submitting him to the utmost humiliation in gaol. The state
\ndoes not need to engage in the cold and calculated killing of murderers in
\norder to express moral outrage at their conduct. A very long prison sentence is
\nalso a way of expressing outrage and visiting retribution upon the criminal.\u201d<\/i><\/p>\n
\nmost important of all human rights, and the source of all other personal rights
\n\u2026 By committing ourselves to a society founded on the recognition of human
\nrights we are required to value these two rights above all others. And this
\nmust be demonstrated by the State in everything that it does, including the way
\nit punishes criminals. This is not achieved by objectifying murderers and
\nputting them to death to serve as an example to others in the expectation that
\nthey might possibly be deterred thereby.\u201d<\/i><\/p>\n
\nState is and all its organs are forbidden to execute any person already
\nsentenced to death under any of the provisions thus declared to be invalid; and
\n(b) all such persons will remain in custody under the sentences imposed on
\nthem, until such sentences have been set aside in accordance with law and
\nsubstituted by lawful punishments.\u201d<\/p>\n
\nconcurring judgements. Space does not permit a consideration of them all. Just
\na few vignettes follow.<\/i><\/p>\n
\nKriegler, in one brief sentence, sought to dismiss the Witwatersrand AG\u2019s
\ncase: \u201cIn as much as capital punishment, by definition, strikes at the heart of
\nthe right to life, the debate need go no further.\u201d Justice Kate O\u2019Regan expanded
\non this: "(The death penalty's) very purpose lies in the deprivation of
\nexistence. Its inevitable result is the denial of human life. It is hard to see
\nhow this methodical and deliberate destruction of life by the government can be
\nanything other than a breach of the right to life." <\/p>\n
\nSachs, a remarkable individual who had lost an eye and an arm thanks to a
\nbomb placed in the Mozambican capital, Maputo, by agents of Apartheid South
\nAfrica in 1988. (In other words he was a survivor of a terrorist act and he was
\neffectively ruling out the death penalty for everyone including those convicted
\nof terrorism): \u201cOur Constitution \u2026 is different from those that expressly
\nauthorise deprivation of life if due process of law is followed, or those that
\nprohibit the arbitrary taking of life. The unqualified statement that 'every
\nperson has the right to life' in effect outlaws capital punishment.\u201d<\/p>\n
\nMadala and Yvonne
\nMokgoro \u2013 along with other Black judges including Justice Pius
\nLanga lending a strong African perspective to the judgement \u2013 found that
\nthe death penalty went against the grain of the indigenous philosophy of Ubuntu<\/em>, which in the words of Archbishop
\nEmeritus Desmond Tutu is defined
\nthus: <\/p>\n
\nhumanity is caught up, bound up, inextricably, with yours. When I dehumanize
\nyou, I inexorably dehumanise myself.\u201d <\/i><\/p>\n
\nfamiliar to many a law student and human rights activist around the world was cited
\nabove, went on to say, echoing the Ubuntu<\/em>
\nphilosophy: \u201cIt is not necessarily only the dignity of the person to be
\nexecuted which is invaded. Very arguably the dignity of all of us, in a caring
\ncivilization, must be compromised, by the act of repeating, systematically and
\ndeliberately, albeit for a wholly different objective, what we find to be so
\nrepugnant in the conduct of the offender in the first place.\u201d<\/p>\n
\nthat have been oft-quoted by opponents of the death penalty: <\/p>\n
\nmeasure, manifest a philosophy of indefensible despair in its execution,
\naccepting as it must do, that the offender it seeks to punish is so beyond the
\npale of humanity as to permit of no rehabilitation, no reform, no repentance,
\nno inherent spectre of hope or spirituality; nor the slightest possibility that
\nhe might one day, successfully and deservedly be able to pursue and to enjoy
\nthe great rights of dignity and security and the fundamental freedoms protected
\nin \u2026 the Constitution, the exercise of which is possible only if the \u2018right to
\nlife\u2019 is not destroyed. The finality of the death penalty allows for none of
\nthese redeeming possibilities. It annihilates the potential for their
\nemergence. Moreover, it cannot accomplish its objective without invading in a
\nvery deep and distressing way, the guarantee of human dignity afforded by …
\nthe Constitution, as the person sought to be executed spends long periods in
\ncustody, anguished by the prospect of being 'hanged by the neck until he is
\ndead'… The invasion of his dignity is inherent. He is effectively told: 'You
\nare beyond the pale of humanity. You are not fit to live among humankind. You
\nare not entitled to life. You are not entitled to dignity. You are not human.
\nWe will therefore annihilate your life'." <\/i><\/p>\n
\ndistinguished itself through not only this judgement but several other
\ntrail-blazers: In Mohamed
\nv President of the RSA<\/em>, it prohibited extraditing anyone to a country
\nthat imposes the death penalty without an express guarantee that the person
\nwill not be subject to capital punishment. Even more remarkably, the court has
\nexcelled in the sphere of equality, especially gender equality and LGBTQ rights
\n(the court\u2019s website contains the links to those judgements).
\nIn August
\nv Electoral Commission<\/em>, it affirmed the right of prisoners to vote. <\/p>\n
\nMandela\u2019s ill-chosen successor Thabo Mbeki and his equally appalling health
\nminister Manto Tshabalala-Msimang, nicknamed Dr Garlic for her insistence in
\nthe late 1990s that South Africa\u2019s then raging AIDS epidemic could be stemmed
\nthrough the use of garlic and beetroot, things took a downslide. Jacob Zuma has
\nonly further defiled the chair on which Mandela sat.<\/p>\n
\njudiciary that stands with the best in the world. The executive lags far behind.
\n<\/i><\/p>\n
\nnominally democratic countries such as the United States, India and Japan, the
\nlegislature, the executive and the judiciary are all dominated by conservative,
\ncorporatist and majoritarian chauvinist interests and where deeply conservative
\nholdovers such as the death penalty remain in use.<\/p>\n","protected":false},"excerpt":{"rendered":"