Shutting down the death factory: The abolition of capital punishment in South Africa

Stanford Journal of International Law

Volumn 32, Issue 2, 1996, Pages 287-324

  Bouckaert, Peter Norbert ^a,b  

^a STANFORD LAW SCHOOL   (United States)

^b Legal Resources Centre ^*  (South Africa)

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[No Author keywords available]

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EID: 0030495593     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (295)

1. S. v. Makwanyane, [1995] 6 BCLR 665, 740 (Didcott, J., concurring).
2. Id. at 724. The Court refrained from ruling on the question of constitutionality of capital punishment during times of war. Id.
3. George Devenish, The Historical and Jurisfrrudential Evolution and Background to the Application of the Death Penalty in South Africa and its Relationship with Constitutional and Political Reform, 5 S. AFR. J. CRIM. JUST. 1, 5-6 (1992).
4. See generally LOURENS M. DU PLESSIS & A.G. DU PLESSIS, AN INTRODUCTION TO LAW 45-51 (Edwin Hees trans., 1992) (discussing the introduction of Roman-Dutch law into South Africa).
5. Ellison Kahn, The Death Penalty in South Africa, 33 TVDSKRITT VIR HEDENDAAGSE ROMEINS-HOLLANDSE REG 108, 109 (1970) [hereinafter Kahn, The Death Penalty in South Africa]. Kahn notes that in 1782, payments for the executioner included "8 rixdalers for decapitation or hanging, 12 for breaking limbs, 6 for strangling, 2 for scorching, 6 for quartering and hanging up the pieces and 4 for chopping off the hand."
6. By this time, South Africa had a well-defined judicial hierarchy: Once a court structure had been established, the highest court at the Cape was the Raad van Justitie. It was possible to appeal against the decisions of this court to the Governor-General-in-Council in Batavia and there was theoretically also a right of appeal to the States General in the Netherlands. The courts of Ianddrosten and heemraden were lower courts and there was a right of appeal from these courts to the Raad van Justitie. DU PLESSIS & DU PLESSIS, supra note 4, at 46.
7. Kahn, The Death Penalty in South Africa, supra note 5, at 109. At the same time, England was increasing the number of crimes punishable by death from approximately 180 crimes in the mid-eighteenth century to 223 by 1819. Devenish, supra note 3, at 6.
8. SIR JOHN BARROW, AN ACCOUNT OF TRAVELS INTO THE INTERIOR OF SOUTHERN AFRICA, IN THE YEARS 1797 AND 1798, 44-45 (1801), cited in Kahn, The Death Penalty in South Africa, supra note 5, at 110.
9. SIR JOHN BARROW, AN ACCOUNT OF TRAVELS INTO THE INTERIOR OF SOUTHERN AFRICA, IN THE YEARS 1797 AND 1798, 44-45 (1801), cited in Kahn, The Death Penalty in South Africa, supra note 5, at 110.
10. Ellison Kahn, Remarks at the Symposium on Capital Punishment (April 1-4, 1975), in PROCEEDINGS OF THE CONFERENCE ON CRIME, LAW AND THE COMMUNITY 220, 221 (1976) [hereinafter Kahn, Remarks at the Symposium].
11. Kahn, The Death Penalty in South Africa, supra note 5, at 100.
12. Id.
13. Id.
14. Criminal Procedure and Evidence Act, No. 31 (1917).
15. Except in cases of infanticide or where the defendant was under the age of 16. Kahn, Remarks at the Symposium, supra note 9, at 221.
16. Id.; David Welsh, Capital Punishment in South Africa, in AFRICAN PENAL SYSTEMS 397, 398 (Alan Milner ed., 1969). The available data does not suggest racial discrimination in the granting of mercy during this period. In fact, 48.3% of convicted white male murderers were executed, compared to only 24.3% of non-white male murderers. But the pool of convicted white murderers was relatively small: only 29 convictions for white male murderers were recorded during this period, compared to 765 convictions for non-white male murderers. Numbers for women were similar: one, or 20%, of the five white women convicted was executed, compared to four, or only 5.9%, of the 67 non-white women. For the relevant statistical information, see Welsh, supra, at 409.
17. The term used by then Minister of Justice, General Jan Smuts, in the 1935 session of Parliament. János Mihálik, The Moratorium on Executions: Its Background and Implications, 108 S. AFR. L.J. 118, 122 (1991) (citing Ellison Kahn, How Did We Get OUR Lopsided Law on the Imposition of the Death Penalty for Common-Law Crimes? And What Should We Do About It?, 2 S. AFR. J. CRIM. JUST. 137, 149 (1989)).
18. The term used by then Minister of Justice, General Jan Smuts, in the 1935 session of Parliament. János Mihálik, The Moratorium on Executions: Its Background and Implications, 108 S. AFR. L.J. 118, 122 (1991) (citing Ellison Kahn, How Did We Get OUR Lopsided Law on the Imposition of the Death Penalty for Common-Law Crimes? And What Should We Do About It?, 2 S. AFR. J. CRIM. JUST. 137, 149 (1989)).
19. General Law Amendment, No. 46 (1935); Welsh, supra note 15, at 398. The following extenuating circumstances were recognized in 1949: (i) immaturity of mind, as might be seen in youth or persons of retarded mental development; (ii) degeneracy of mind, as might be seen in extreme old age or in neuropathic persons who are not definitely insane; (iii) undue influence of a person in authority, though not amounting in law to coercion; (iv) reason or judgment clouded, e.g. by drink or drugs, though not to the extent that would have direct legal effect; another example of this kind of circumstance is infanticide by a mother still suffering from physical strain with consequent mental disturbance arising from birth or lactation; (v) distraction of mind not amounting in law to provocation, e.g. the killing of a brutal and unfaithful husband by his wife; (vi) a wrong, but not entirely unreasonable, belief that a fatal attack was to be made; (vii) minor degree of participation in the crime, e.g. where incomplete knowledge of common purpose existed or where the part played in carrying the crime into effect was a minor one; (viii) diminished heinousness, e.g. 'mercy killings.' Welsh, supra note 15, at 399.
20. In 1948, Daniel Malan and the National Party won a majority of seats in Parliament, effectively ending English dominance in South Africa and commencing the policies of apartheid. South Africa formally declared itself a republic on May 31, 1961, under an all-white constitution. See, e.g., A-Z OF SOUTH AFRICAN POLITICS: THE ESSENTIAL HANDBOOK 205-08 (Anton Harber & Barbara Ludman eds., 1994) [hereinafter A-Z OF SOUTH AFRICAN POLITICS].
21. REP. OF THE PENAL AND PRISON REFORM COMM'N para. 460 (1947).
22. Id., quoted in Weteh, supra note 15, at 412.
23. Mih́lik, supra note 16, at 122.
24. Criminal Procedure Amendment Act, No. 9 (1958).
25. Kahn, Remarks at the Symposium, supra note 9, at 222.
26. See A-Z OF SOUTH AFRICAN POLITICS, supra note 18, at 159-63, 215-17.
27. See id. at 215-17.
28. Following the Sharpeville massacre on March 21,1960, where 69 people were killed by police fire, the State declared the liberation organizations - the ANC and the PAC - "unlawful organizations" on April 8, 1960. Realizing the futility of further non-violent struggle, the ANC soon formed its military wing, Umkhonto we Sizwe (Spear of the Nation) to carry out acts of sabotage against the apartheid government. See NELSON MANDELA, LONG WALK TO FREEDOM 205-211, 239-241, 246-49 (1994); ALLISTER SPARKS, THE MIND OF SOUTH AFRICA 233-44 (1990).
29. Following the Sharpeville massacre on March 21,1960, where 69 people were killed by police fire, the State declared the liberation organizations - the ANC and the PAC - "unlawful organizations" on April 8, 1960. Realizing the futility of further non-violent struggle, the ANC soon formed its military wing, Umkhonto we Sizwe (Spear of the Nation) to carry out acts of sabotage against the apartheid government. See NELSON MANDELA, LONG WALK TO FREEDOM 205-211, 239-241, 246-49 (1994); ALLISTER SPARKS, THE MIND OF SOUTH AFRICA 233-44 (1990).
30. By way of the General Law Amendment Act, No. 76 (1962). See Welsh, supra note 15, at 403-04.
31. Kahn, Remarks at the Symposium, supra note 9, at 222. See General Law Amendment Act, No. 37 (1963).
32. By way of the Terrorism Act, No. 83 (1967), which later became §54(1) of the Internal Security Act, No. 74 (1982). See also Kahn, Remarks at the Symposium, supra note 9, at 222.
33. By way of §10 of the Criminal Procedure Amendment Act, No. 96 (1965). See Welsh, supra note 15, at 405.
34. See Nathan V. Holt, Jr., Human Rights and Capital Punishment: The Case of South Africa, 30 VA. J. INT'L L, 273, 301 (1989).
35. Id. at 302.
36. Id. at 303.
37. The common purpose doctrine provides that where a number of people actively associate in a joint or unlawful enterprise, the acts committed by each of them in achieving such purpose are imputed to the others. See WJ. HOSTEN ET AL., INTRODUCTION TO SOUTH AFRICAN LAW AND LEGAL THEORY 1115-18 (2d ed. 1995).
38. See Sefatsa v. Attorney Gen., Transvaal, 1989 (1) SA 821 (A) (reciting the history of the trial and dismissing the appeal to reopen it and hear new evidence).
39. Raylene Keightley, Executive Cat-and-Mouse: The Paul Setlaba Case, 5 S. AFR. J. ON HUM. RTS. 229, 231 (1989).
40. Mih́Tik, supra note; 16, at 139.
41. See Holt,supra note 31,at 315.
42. Id.
43. See infra notes 50-67 and accompanying text.
44. Mih́lik, supra note 16, at 139.
45. Focus: The Death Penalty in South Africa; Racial Discrimination, AMNESTY INT'L NEWSL. (Amnesty Int'l, London, Eng.), NOV. 1989, at 3, 5.
46. JOHN DUGARD, HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER 126-27 (1978). Whites presently account for about ten percent of the South African population.
47. Id. at 128; Rhadamanthus, Contempt of Court? The Trial of Barend van Dyk van Niekerk, [1970] ACTA JURIDICA 77, 212-213 (1971).
48. Id. at 128; Rhadamanthus, Contempt of Court? The Trial of Barend van Dyk van Niekerk, [1970] ACTA JURIDICA 77, 212-213 (1971).
49. Welsh, supra note 15, at 419.
50. Id. at 417.
51. See generally Tamara Rice Lave, A Nation at Prayer, Nation in Hate: Apartheid in South Africa, 30 STAN. J. INT'L L. 483, 484-510 (1994). Allister Sparks suggests that the relationship between the Dutch Reformed Church and the governing National Party was extremely dose: "The National Party at prayer" is how South Africans sometimes refer to the Dutch Reformed Church. It is a jest that speaks not only of the fact that the vast majority of the party's supporters belong to the church, but even more of the extent to which the church has been involved in the formulation of party policy. It was a coauthor of apartheid, some would say its initiator. It helped devise the policy and continues to this day to support it. SPARKS, supra note 26, at 153.
52. Makwanyane, [1995] 6 BCLR at 778 (O'Regan, J., concurring).
53. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
54. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
55. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
56. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
57. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
58. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
59. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
60. See Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law). (In South Africa, the briefs filed by the parties with the Court are called "Heads of Argument") The statistics were compiled from the following sources: AMNESTY INTERNATIONAL, WHEN THE STATE KILLS ... THE DEATH PENALTY. A HUMAN RIGHTS ISSUE 204-07 (1989); BLACK SASH, INSIDE SOUTH AFRICA'S DEATH FACTORY (1989); Devenish, supra note 3; Kahn, The Death Penalty in South Africa, supra note 5; Raylene Keightley, Hangings in Southern Africa: The Last Ten Years, 7 S. AFR. J. ON HUM. RTS. 347 (1991); Christina Murray, Hangings in Southern Africa: The Last Ten Years, 6 S. AFR. J. ON HUM. RTS. 439 (1990); Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 1), 86 S. AFR. L.J. 457 (1969).
61. Makwanyane, [1995] 6 BCLR at 778-79 (O'Regan .J., concurring).
62. Heads of Argument on Behalf of the Appellants para. 49, Makwanyane, [1995] 6 BCLR 665.
63. Mihálik, supra note 16, at 126 (quoting Professor Herman Giliomee).
64. See Holt, supra note 31, at 300.
65. Quoted in van Niekerk, supra note 49, at 471.
66. Kahn, The Death Penalty in Soulh Africa, supra note 5, at 12, citing H.I. VENTER, DIE GESKIEDENIS VAN DIE SUID AFRICAANSE GEVANGENISSTELSEL, 1652-1958, at 84 (1959).
67. Kahn, The Death Penalty in Soulh Africa, supra note 5, at 12, citing H.I. VENTER, DIE GESKIEDENIS VAN DIE SUID AFRICAANSE GEVANGENISSTELSEL, 1652-1958, at 84 (1959).
68. van Niekerk, supra note 49; Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 2), 87 S. AFR. L.J. 60 (1970).
69. van Niekerk, supra note 49; Barend van Niekerk,... Hanged by the Neck Until You Are Dead (pt. 2), 87 S. AFR. L.J. 60 (1970).
70. S. v. van Niekerk, 1970 (3) SA 655, 656. The change was that the article was calculated to a) bring judges charged with the administration of justice into contempt, and/or b) to violate the dignity and respect of the Judges of the Supreme Court of the Republic of South Africa, and/or c) to cast suspicion on the administration of justice in such courts.
71. Id. at 660.
72. The Minister of justice stated: Last year Dr. van Niekerk of the University of the Witwatersrand also delivered a plea [in favor of abolition]. He pointed out that nearly half of all executions in the world occurred in this country. I just want to say in passing that this is the same Dr. Van Niekerk who is reported to nave said the following the other day[,] "Many of South Africa's Sunday Observance Laws, which tend to enforce a particular brand of puritanical morality on the whole population, are harsh, ludicrous, oppressive and out of touch with the spirit of the times, and should be revoked[,]" says Mr. B. van Niekerk (I notice that he is now being called "Mr."), a Johannesburg advocate and senior lecturer in law at the University of the Witwatersrand. In a hard-hitting article in the latest issue of the South African Law Journal, Mr. van Niekerk urges "a legislative spring cleaning among the anachronistic cobwebs of our Sabbath legislation." This shows you the mentality of this particular person. quoted in van Niekerk, supra note 49, at 472 n.59.
73. van Niekerk, 1970 (3) SA at 659.
74. Etienne Mureinik, Caring About Capital Punishment, in ESSAYS IN HONOUR OF ELLISON KAHN 216, 221 (1989).
75. South Africa, like England, has a divided legal profession. Attorneys, the equivalent of the English solicitor, do a wide variety of legal work such as the drafting of contracts and wills, the administration of estates, and the drawing up of pleadings, and may appear in both criminal and civil matters only in the lower (magistrates) courts. Advocates, the equivalent of the English barrister, focus almost exclusively on litigation, the drawing up of pleadings and the writing of jegal opinions for clients. Advocates are approached through an attorney who acts as an intermediary between Advocate and client. See DU PLESSIS & DU PLESSIS, supra note 4, at 106-07. See also STEPHEN ELLMAN, IN A TIME OF TROUBLE: LAW AND LIBERTY IN SOUTH AFRICA'S STATE OF EMERGENCY 214-25 (1992).
76. Miha"lik, supra note 16, at 120 (quoting Mr. Sydney Kentridge, QC).
77. Id. at 127.
78. Patrick Laurence, Dispute Throws Harsh Light on the Scaffold, THE STAR, Nov. 25, 1988.
79. Mihálik, supra note 16, at 126.
80. Id. at 127-28. The participation of Coloured and Black representatives in the abolitionist movement in Parliament challenged the myth perpetuated by former politicians that support for the death penalty among these groups was strong.
81. This tradition was rather one-sided, as Justices often publicly expressed their views in favor of the death penalty.
82. Mihalik, supra note 16, at 131.
83. Id. at 134-35.
84. The Relaunch of the Society for the Abolition of the Death Penalty in South Africa, 106 S. AFR. L.J. 39, 40 (1989).
85. See supra notes 57-61 and accompanying text.
86. For an insightful look at the process of negotiations in South Africa, see ALLISTER SPARKS, TOMORROW is ANOTHER COUNTRY THE INSIDE STORY OF SOUTH AFRICA'S NEGOTIATED REVOLUTION (1994).
87. State President F. W. De Klerk, Speech to Parliament (Feb. 2, 1990) (on file with the Stanford Journal of International Law).
88. Id.
89. By way of the Criminal Procedure Amendment Act, No. 107 (1990).
90. Criminal Procedure Act, No. 51, § 277 (1) (1977). A list of death row inmates compiled by the South African Department of Justice (on file with the Stanford Journal of International Law) shows two inmates sentenced to death for rape and two inmates sentenced to death for kidnapping. The other (300 plus) inmates were sentenced to death for murder.
91. Id. § 277 (2).
92. Id. § 316A.
93. Defined as "under the age of 18 years at the time of the act which constituted the offence concerned." Id. § 277 (3).
94. Id. § 278. It does seem that a pregnant woman could be executed after giving birth: If upon the report of any [medical practitioner] it appears that the woman is quick with child, the court shall order that the execution of the sentence be stayed until she is delivered of a child or until it is no longer possible in the course of nature that she should be so delivered.
95. See Furman v. Georgia, 408 U.S. 238 (1972).
96. See generally Laurel Angus, How Are We to Treat the Sentence of Death Since the Criminal Law Amendment Act 107 of 1990?, 4 S. AFR. J. CRIM. JUST. 51 (1992); A.J. Middleton, Death Penalty: An Interpretation of the New Provisions, 4 S. AFR. J. CRIM. JUST. 58 (1992); Jan H. van Rooyen, South Africa's New Death Sentence: Is the Bell Tolling for the Hangman?, 3 S. AFR. J. CRIM. JUST. 79 (1991). However, these authorities conclude that the capital sentencing process remains fatally arbitrary despite the guidance of the Appellate Division's decisions.
97. See generally Laurel Angus, How Are We to Treat the Sentence of Death Since the Criminal Law Amendment Act 107 of 1990?, 4 S. AFR. J. CRIM. JUST. 51 (1992); A.J. Middleton, Death Penalty: An Interpretation of the New Provisions, 4 S. AFR. J. CRIM. JUST. 58 (1992); Jan H. van Rooyen, South Africa's New Death Sentence: Is the Bell Tolling for the Hangman?, 3 S. AFR. J. CRIM. JUST. 79 (1991). However, these authorities conclude that the capital sentencing process remains fatally arbitrary despite the guidance of the Appellate Division's decisions.
98. See generally Laurel Angus, How Are We to Treat the Sentence of Death Since the Criminal Law Amendment Act 107 of 1990?, 4 S. AFR. J. CRIM. JUST. 51 (1992); A.J. Middleton, Death Penalty: An Interpretation of the New Provisions, 4 S. AFR. J. CRIM. JUST. 58 (1992); Jan H. van Rooyen, South Africa's New Death Sentence: Is the Bell Tolling for the Hangman?, 3 S. AFR. J. CRIM. JUST. 79 (1991). However, these authorities conclude that the capital sentencing process remains fatally arbitrary despite the guidance of the Appellate Division's decisions.
99. The South African Law Commission was established by the South African Law Commission Act 19 of 1973 as a permanent official legal reform body. The Commission concerns itself (among other things) with "abolishing obsolete provisions in South African Law, eliminating contradictions and promoting uniformity, the codification of certain branches of the law, and the promotion of a more accessible common law." DU PLESSIS, supra note 4, at 57.
100. SOUTH AFRICAN LAW COMMISSION, INTERIM REPORT ON GROUP AND HUMAN RIGHTS para. 7.33 (August 1991).
101. Id. paras. 7.36-7.37.
102. Steve Keena, Defending the Revolution, A.B.A.J., Apr. 1994, at 50, 58.
103. Minister of Justice Kobie Coetsee, Press Statement (Mar. 27, 1992) (on file with the Stanford Journal of International Law).
104. The ANC called for an end to "the barbaric practice of capital punishment," inter alia, in its official announcement that it would participate in talks with President De Klerk "to resolve remaining obstacles to the start of negotations for a new political order in South Africa." David B. Ottaway, ANC Agnes to Begin Initial Talks: Exiled Leaders Accept De Klerk's Invitation to Return to S. Africa, WASH. POST, Feb. 17, 1990, at A1. The ANC had demanded a moratorium on executions as a precondition to negotiations with the South African Government. See Mihálik, supra note 16, at 142. The ANC and its ally the South African Council of Churches called for abolition in the late 1980s. Mihálik, supra note 16, at 140.
105. TECHNICAL COMMITTEE ON FUNDAMENTAL RIGHTS, FIFTH REPORT (June 11, 1993) (on file with the Stanford Journal of International Law). The present Constitution of South Africa is an interim Constitution. The permanent Constitution is presently being drafted by the Constitutional Assembly. See S. AFR. CONST. (Act No. 200, 1993).
106. TECHNICAL COMMITTEE ON FUNDAMENTAL RIGHTS, FIFTH REPORT (June 11, 1993) (on file with the Stanford Journal of International Law). The present Constitution of South Africa is an interim Constitution. The permanent Constitution is presently being drafted by the Constitutional Assembly. See S. AFR. CONST. (Act No. 200, 1993).
107. THE ANC's SUBMISSIONS TO THE 4TH AND THE 5TH REPORTS OF THE TECHNICAL COMMITTEE ON FUNDAMENTAL RIGHTS DURING THE TRANSITIONAL PERIOD (June 28, 1993) (on file with the Stanford Journal of International Law).
108. Id.
109. Id.
110. Id.
111. Minutes from the Ad Hoc Committee on Fundamental Rights (July 27, 1993) (on file with the Stanford Journal of International Law).
112. S. AFR. CONST. (Act No. 200, 1993) ch. 3, § 9. Of course, the clause was subject to the general limitation clause. See infra notes 192-196 and accompanying text.
113. Jan H. van Rooyen, Towards a New South Africa Without the Death Penalty - Struggles, Strategies, and Hopes, 20 FLA. ST. U. L. REV. 737, 779 (1993).
114. Id. at 781.
115. Id. at 782.
116. SOUTH AFRICAN GOVERNMENT, REINTRODUCE THE DEATH PENALTY (July 21, 1993) (on file with the Stanford Journal of International Law).
117. See, e.g., Hugh Corder, The Political Capital in Capital Punishment, SUNDAY TIMES, Mar. 28, 1993, at 20; Gallows Showdown, SUNDAY TRIB., June 13, 1993, at 1; Jeremy Sarkin and Alfred Cokrell, Minority May Not Decide on Death Penalty, CAPE TIMES, Apr. 14, 1993, at 6; Mathatha Tsedu, Opposition Grows to Bringing Back Hanging, THE STAR, Mar. 29, 1993, at 6.
118. See, e.g., Hugh Corder, The Political Capital in Capital Punishment, SUNDAY TIMES, Mar. 28, 1993, at 20; Gallows Showdown, SUNDAY TRIB., June 13, 1993, at 1; Jeremy Sarkin and Alfred Cokrell, Minority May Not Decide on Death Penalty, CAPE TIMES, Apr. 14, 1993, at 6; Mathatha Tsedu, Opposition Grows to Bringing Back Hanging, THE STAR, Mar. 29, 1993, at 6.
119. See, e.g., Hugh Corder, The Political Capital in Capital Punishment, SUNDAY TIMES, Mar. 28, 1993, at 20; Gallows Showdown, SUNDAY TRIB., June 13, 1993, at 1; Jeremy Sarkin and Alfred Cokrell, Minority May Not Decide on Death Penalty, CAPE TIMES, Apr. 14, 1993, at 6; Mathatha Tsedu, Opposition Grows to Bringing Back Hanging, THE STAR, Mar. 29, 1993, at 6.
120. See, e.g., Hugh Corder, The Political Capital in Capital Punishment, SUNDAY TIMES, Mar. 28, 1993, at 20; Gallows Showdown, SUNDAY TRIB., June 13, 1993, at 1; Jeremy Sarkin and Alfred Cokrell, Minority May Not Decide on Death Penalty, CAPE TIMES, Apr. 14, 1993, at 6; Mathatha Tsedu, Opposition Grows to Bringing Back Hanging, THE STAR, Mar. 29, 1993, at 6.
121. Barry Streck, Death Vote, CAPE TIMES, June 18, 1993, at 1.
122. Minister of Justice Dullah Omar, Speech to Parliament (May 27, 1994) (transcript on file with the Stanford Journal of International Law). The TBVC territories are the Transkei, Boputatswana, Venda and Ciskei. These "independent homelands" were reincorporated into the South African state at the time of the coming into force of the new Constitution. See S. AFR. CONST. (Act No. 200, 1993) ch. 1, § 1 (defining the national territory of the Republic of South Africa).
123. Minister of Justice Dullah Omar, Speech to Parliament (May 27, 1994) (transcript on file with the Stanford Journal of International Law). The TBVC territories are the Transkei, Boputatswana, Venda and Ciskei. These "independent homelands" were reincorporated into the South African state at the time of the coming into force of the new Constitution. See S. AFR. CONST. (Act No. 200, 1993) ch. 1, § 1 (defining the national territory of the Republic of South Africa).
124. Justice for All, RSA REV. June 1994, at 1, 9.
125. Minister of Justice Dullah Omar, Introductory Budget Vote Speech 22 (Aug. 26, 1994) (transcript on file with the Stanford Journal of International Law).
126. Id.
127. Id. at 23.
128. The factual background of the case is discussed in the Appellate Division opinion, S. v. Makwanyane, 1994 (3) SA 868. The following account draws from that reported decision and the Respondent Attorney General's Heads of Argument, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law).
129. S. AFR. CONST. (Act No. 200, 1993) ch. 7, § 98(2) (d).
130. See Keena, supra note 87, at 57-58.
131. Makwanyane, 1994 (3) SA at 873 ("Ek sou dus die doodvonnis bekragtig. Dit is myns insiens die enigste gepaste vonnis in hierdie geval.").
132. The State President has the power to select and appoint the President of the Constitutional Court under S. AFR. CONST. (Act No. 200, 1993) ch. 7, § 97 (2) (a).
133. For a history of the Legal Resources Centre, see Penelope Andres, A Resource for Justice: South Africa's Legal Resources Centre, 2 E. AFR. J. PEACE & HUM. RTS. 53 (1995).
134. S. AFR. CONST. (Act No. 200, 1993) ch. 7, § 99(3)
135. It is quite common for South African Justices to hold simultaneous positions in neighboring States, as the legal systems are similar in many respects.
136. S. AFR. CONST. (Act No. 200, 1993) ch. 7, § 99(4)-(5). The author was present at the hearings of the Judicial Service Commission and was struck by the contrast between the South African and the United States' selection processes. In South Africa, the interviews of the 25 candidates took 30 minutes each, and focused on issues relating to each candidate's qualifications rather than his or her political views. Cameras were prohibited at the hearings, but the media and the public were welcome to attend. The process received significant media attention but was not the media circus one might imagine if, for example, the U.S. Congress were suddenly responsible for selecting a majority of the Supreme Court The hearings were mostly pleasant and often quite amusing. The author agrees with the sentiments expressed in the ABA Journal that the process "is widely applauded for its fairness and apparent insulation from political interference." See Keena, supra note 87, at 58.
137. For profiles of the justices of the Constitutional Court, see Patrick Laurence & Gail Irwin, Watchdogs of the Constitution, THE STAR, Feb. 13, 1995, at 13.
138. Tom Cohen, Mandela Undismayed by High Court Setback, S.F. CHRON., Sept. 23, 1995, at A12. The line-up of Advocates before the Court in the death penalty case was equally formidable. The original Advocate for the defendants, van Rooyen, was soon joined by Advocates Trengrove and Marcus of the Johannesburg Bar. The State was represented by the Attorney Generals of three provinces: Advocates Von Lieres und Wilkau, McNally, and Henning. In addition, Minister of Justice Dullah Omar briefed Advocate Bizos, a former member of Mandela's legal team, to represent the Government of National Unity, arguing in favor of abolition. A number of Amicus Curiae presented their positions. Advocate Dennis Davis represented the Center for Applied Legal Studies, the Society for the Abolition of the Death Penally in South Africa, and Lawyers for Human Rights in favor of abolition. A private citizen, Ian Glauber, hired an Advocate to argue in favor of a mandatory death penalty system. The Black Advocates Forum argued that the Court should consult the opinion of a long neglected black population before deciding on the constitutionality of capital punishment. Even the United States NAACP Legal Defense & Education Fund, Inc. and Human Rights Watch offered their opinion to the Court, urging the Court to avoid the convoluted procedural approach of the U.S. courts and instead to decide the question on substantive grounds.
139. See Justin Pearce, A Smile. A Chuckle. A Quip. Their Lordships Have Begun Their Deliberations, WKLY. MAIL & GUARDIAN, Feb. 17-23, 1995, at 12-13.
140. S. AFR. CONST. (Act No. 200, 1993) ch. 3, § 35 (1). For an interpretation of the meaning of this Clause, see JOHN DUGARD, RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER 192-95 (1994).
141. S. AFR. CONST. (Act No. 200, 1993) ch. 3, § 35 (1). For an interpretation of the meaning of this Clause, see JOHN DUGARD, RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER 192-95 (1994).
142. S. v. Zuma, 1995 (2) SA 642, 650-53. This "generous" or "purposive" approach is well established in the constitutional jurisprudence of southern Africa and elsewhere. See, e.g., Smith v. Attorney Gen., 1984 (1) SA 196, 199 (Bophuthats. S.C.); S. v. Majavu, 1994 (4) SA 268, 305-07 (Ciskei G.D.); Ntenteni v Chairman, Ciskei Council of State, 1993 (4) SA 546, 555 (Ciskei G.D.); Government of Namibia v. Cultura 2000, 1994 (1) SA 407, 418 (Namib. S.C.); Mwandingi v. Minister of Defence, 1991 (1) SA 851, 857-60 (Namib. H.C.); S. v. Acheson, 1991 (2) SA 805, 813 (Namib. H.C.). See also the Canadian case of R. v. Big M Drug Mart Ltd., [1985] l S.C.R. 295, 344; the Privy Council case of Attorney Gen. v. lobe, 1985 App. Cas. 689, 700 (RG) (appeal taken from the Court of Appeal of the Gambia); Minister of Home Aff. (Bermuda) v. Fisher, [1980] App. Cas. 319 (RC.).
143. Makwanyane, [1995] 6 BCLR at 687-88.
144. Id. at 770 (Mokgoro, J., concurring).
145. Id. at 685.
146. Id.
147. See Second Optional Protocol to the International Convention on Civil and Political Rights Aiming at the Abolition of the Death Penalty, 29 I.L.M. 1464 (1990); Protocol to the American Convention m Human Rights to Abolishthe Death Penalty, 29 I.L.M. 1447 (1990); Protocol No. 6 to the Convention for the Protection of Human Bights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, 22 I.L.M. 538 (1983).
148. See Second Optional Protocol to the International Convention on Civil and Political Rights Aiming at the Abolition of the Death Penalty, 29 I.L.M. 1464 (1990); Protocol to the American Convention m Human Rights to Abolishthe Death Penalty, 29 I.L.M. 1447 (1990); Protocol No. 6 to the Convention for the Protection of Human Bights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, 22 I.L.M. 538 (1983).
149. See Second Optional Protocol to the International Convention on Civil and Political Rights Aiming at the Abolition of the Death Penalty, 29 I.L.M. 1464 (1990); Protocol to the American Convention m Human Rights to Abolishthe Death Penalty, 29 I.L.M. 1447 (1990); Protocol No. 6 to the Convention for the Protection of Human Bights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, 22 I.L.M. 538 (1983).
150. See generally WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW (1993) (documenting and evaluating international trends in the abolition of capital punishment); Sonia Rosen & Stephen Journey, Abolition of the Death Penalty: An Emerging Norm of International Law, 14 HAMLINE J. PUB. L. & POL'Y 163 (1993) (summarizing current major international treaties regarding capital punishment as evidence of a strong international movement toward abolition of the death penalty). Amnesty International reported 1831 executions worldwide in 1993. Of these, 1419 were in China, leaving only 412 executions in the rest of the world. Update to Death Sentences and Executions in 1993, AI Index ACT 51/02/94 (Feb. 28, 1994) (on file with the Stanford Journal of International Law). Amnesty International listed 53 countries as abolitionist for all crimes in 1993 (Andorra, Angola, Australia, Austria, Cambodia, Cape Verde, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Federal Republic of Germany, Finland, France, Gambia, Greece, Guinea-Bissau, Haiti, Honduras, Hong Kong, Hungary, Iceland, Ireland, Kiribati, Liechtenstein, Luxembourg, Macedonia, Marshall Islands, Micronesia, Monaco, Moçambioue, Namibia, Netherlands, New Zealand, Nicaragua, Norway, Panama, Portugal, Romania, San Marino, Sao Tome and Principe, Slovak Republic, Slovenia, Solomon Islands, Sweden, Switzerland, Tuvalu, Uruguay, Vanuatu, Vatican City State, and Venezuela). It listed 16 countries as abolitionist for ordinary (non-war or military) crimes (Argentina, Brazil, Canada, Cyprus, El Salvador, Fiji, Israel, Italy, Malta, Mexico, Nepal, Paraguay, Peru, Seychelles, Spain, and the United Kingdom). Another 21 countries were listed as abolitionist de facto, as they had not carried out executions in the past 10 years (Bahrain, Belgium, Bermuda, Bhutan, Bolivia, Brunei Darussalam, Comoros, Cote D'Ivoire, Djibouti, Madagascar, Maldives, Nauru, Niger, Papua New Guinea, Philippines, Rwanda, Western Samoa, Senegal, Sri Lanka, Togo, and Tonga). The remaining 103 countries and territories stayed retentionist The Death Penalty: List of Abolitionist and Retentionist Countries, AI Index ACT 50/02/94 (Jan. 1994) (on file with the Stanford Journal of International Law).
151. See generally WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW (1993) (documenting and evaluating international trends in the abolition of capital punishment); Sonia Rosen & Stephen Journey, Abolition of the Death Penalty: An Emerging Norm of International Law, 14 HAMLINE J. PUB. L. & POL'Y 163 (1993) (summarizing current major international treaties regarding capital punishment as evidence of a strong international movement toward abolition of the death penalty). Amnesty International reported 1831 executions worldwide in 1993. Of these, 1419 were in China, leaving only 412 executions in the rest of the world. Update to Death Sentences and Executions in 1993, AI Index ACT 51/02/94 (Feb. 28, 1994) (on file with the Stanford Journal of International Law). Amnesty International listed 53 countries as abolitionist for all crimes in 1993 (Andorra, Angola, Australia, Austria, Cambodia, Cape Verde, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Federal Republic of Germany, Finland, France, Gambia, Greece, Guinea-Bissau, Haiti, Honduras, Hong Kong, Hungary, Iceland, Ireland, Kiribati, Liechtenstein, Luxembourg, Macedonia, Marshall Islands, Micronesia, Monaco, Moçambioue, Namibia, Netherlands, New Zealand, Nicaragua, Norway, Panama, Portugal, Romania, San Marino, Sao Tome and Principe, Slovak Republic, Slovenia, Solomon Islands, Sweden, Switzerland, Tuvalu, Uruguay, Vanuatu, Vatican City State, and Venezuela). It listed 16 countries as abolitionist for ordinary (non-war or military) crimes (Argentina, Brazil, Canada, Cyprus, El Salvador, Fiji, Israel, Italy, Malta, Mexico, Nepal, Paraguay, Peru, Seychelles, Spain, and the United Kingdom). Another 21 countries were listed as abolitionist de facto, as they had not carried out executions in the past 10 years (Bahrain, Belgium, Bermuda, Bhutan, Bolivia, Brunei Darussalam, Comoros, Cote D'Ivoire, Djibouti, Madagascar, Maldives, Nauru, Niger, Papua New Guinea, Philippines, Rwanda, Western Samoa, Senegal, Sri Lanka, Togo, and Tonga). The remaining 103 countries and territories stayed retentionist The Death Penalty: List of Abolitionist and Retentionist Countries, AI Index ACT 50/02/94 (Jan. 1994) (on file with the Stanford Journal of International Law).
152. See generally WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW (1993) (documenting and evaluating international trends in the abolition of capital punishment); Sonia Rosen & Stephen Journey, Abolition of the Death Penalty: An Emerging Norm of International Law, 14 HAMLINE J. PUB. L. & POL'Y 163 (1993) (summarizing current major international treaties regarding capital punishment as evidence of a strong international movement toward abolition of the death penalty). Amnesty International reported 1831 executions worldwide in 1993. Of these, 1419 were in China, leaving only 412 executions in the rest of the world. Update to Death Sentences and Executions in 1993, AI Index ACT 51/02/94 (Feb. 28, 1994) (on file with the Stanford Journal of International Law). Amnesty International listed 53 countries as abolitionist for all crimes in 1993 (Andorra, Angola, Australia, Austria, Cambodia, Cape Verde, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Federal Republic of Germany, Finland, France, Gambia, Greece, Guinea-Bissau, Haiti, Honduras, Hong Kong, Hungary, Iceland, Ireland, Kiribati, Liechtenstein, Luxembourg, Macedonia, Marshall Islands, Micronesia, Monaco, Moçambioue, Namibia, Netherlands, New Zealand, Nicaragua, Norway, Panama, Portugal, Romania, San Marino, Sao Tome and Principe, Slovak Republic, Slovenia, Solomon Islands, Sweden, Switzerland, Tuvalu, Uruguay, Vanuatu, Vatican City State, and Venezuela). It listed 16 countries as abolitionist for ordinary (non-war or military) crimes (Argentina, Brazil, Canada, Cyprus, El Salvador, Fiji, Israel, Italy, Malta, Mexico, Nepal, Paraguay, Peru, Seychelles, Spain, and the United Kingdom). Another 21 countries were listed as abolitionist de facto, as they had not carried out executions in the past 10 years (Bahrain, Belgium, Bermuda, Bhutan, Bolivia, Brunei Darussalam, Comoros, Cote D'Ivoire, Djibouti, Madagascar, Maldives, Nauru, Niger, Papua New Guinea, Philippines, Rwanda, Western Samoa, Senegal, Sri Lanka, Togo, and Tonga). The remaining 103 countries and territories stayed retentionist The Death Penalty: List of Abolitionist and Retentionist Countries, AI Index ACT 50/02/94 (Jan. 1994) (on file with the Stanford Journal of International Law).
153. See generally WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW (1993) (documenting and evaluating international trends in the abolition of capital punishment); Sonia Rosen & Stephen Journey, Abolition of the Death Penalty: An Emerging Norm of International Law, 14 HAMLINE J. PUB. L. & POL'Y 163 (1993) (summarizing current major international treaties regarding capital punishment as evidence of a strong international movement toward abolition of the death penalty). Amnesty International reported 1831 executions worldwide in 1993. Of these, 1419 were in China, leaving only 412 executions in the rest of the world. Update to Death Sentences and Executions in 1993, AI Index ACT 51/02/94 (Feb. 28, 1994) (on file with the Stanford Journal of International Law). Amnesty International listed 53 countries as abolitionist for all crimes in 1993 (Andorra, Angola, Australia, Austria, Cambodia, Cape Verde, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Federal Republic of Germany, Finland, France, Gambia, Greece, Guinea-Bissau, Haiti, Honduras, Hong Kong, Hungary, Iceland, Ireland, Kiribati, Liechtenstein, Luxembourg, Macedonia, Marshall Islands, Micronesia, Monaco, Moçambioue, Namibia, Netherlands, New Zealand, Nicaragua, Norway, Panama, Portugal, Romania, San Marino, Sao Tome and Principe, Slovak Republic, Slovenia, Solomon Islands, Sweden, Switzerland, Tuvalu, Uruguay, Vanuatu, Vatican City State, and Venezuela). It listed 16 countries as abolitionist for ordinary (non-war or military) crimes (Argentina, Brazil, Canada, Cyprus, El Salvador, Fiji, Israel, Italy, Malta, Mexico, Nepal, Paraguay, Peru, Seychelles, Spain, and the United Kingdom). Another 21 countries were listed as abolitionist de facto, as they had not carried out executions in the past 10 years (Bahrain, Belgium, Bermuda, Bhutan, Bolivia, Brunei Darussalam, Comoros, Cote D'Ivoire, Djibouti, Madagascar, Maldives, Nauru, Niger, Papua New Guinea, Philippines, Rwanda, Western Samoa, Senegal, Sri Lanka, Togo, and Tonga). The remaining 103 countries and territories stayed retentionist The Death Penalty: List of Abolitionist and Retentionist Countries, AI Index ACT 50/02/94 (Jan. 1994) (on file with the Stanford Journal of International Law).
154. Id. at 699.
155. Id. at 736 (Didcott, J., concurring). According to Didcott, "Executions were not outlawed altogether [in the United States or Zimbabwe] despite the castigation that they underwent The reason lay in the special provisions . . . which impliedly authorised the punishment, or appeared at least to do so, by protecting the right to life in terms that specifically excluded deaths thus caused." Didcott was referring to the U.S. case of Furman v. Georgia, 408 U.S. 238 (1972), and the Zimbabwean case of Catholic Comm'n for Justice and Peace v. Attorney Gen., 1993 (4) SA 239 (Zimb. S.C).
156. Makwanyane, [1995] 6 BCLR at 694.
157. Kindler v. Canada, Communication No. 470/1991 (views adopted on July 30, 1993), reprinted in 14 HUM. RTS. L.J. 307 (1993); Ng v. Canada, Communication No. 469/1991 (views adopted on Nov. 5, 1993). For a discussion of these opinions, see Craig R. Roecks, Extradition, Human Rights, and the Death Penalty: When Nations Must Refuse to Extradite a Person Charged with a Capital Crime, 25 CAL. W. INT'L L.J. 189 (1994).
158. Kindler v. Canada, Communication No. 470/1991 (views adopted on July 30, 1993), reprinted in 14 HUM. RTS. L.J. 307 (1993); Ng v. Canada, Communication No. 469/1991 (views adopted on Nov. 5, 1993). For a discussion of these opinions, see Craig R. Roecks, Extradition, Human Rights, and the Death Penalty: When Nations Must Refuse to Extradite a Person Charged with a Capital Crime, 25 CAL. W. INT'L L.J. 189 (1994).
159. Kindler v. Canada, Communication No. 470/1991 (views adopted on July 30, 1993), reprinted in 14 HUM. RTS. L.J. 307 (1993); Ng v. Canada, Communication No. 469/1991 (views adopted on Nov. 5, 1993). For a discussion of these opinions, see Craig R. Roecks, Extradition, Human Rights, and the Death Penalty: When Nations Must Refuse to Extradite a Person Charged with a Capital Crime, 25 CAL. W. INT'L L.J. 189 (1994).
160. Makwanyane, [1995] 6 BCLR at 696-97.
161. See McCleskey v. Kemp, 481 U.S. 279 (1987); U.S. GEN. ACCT. OFF., DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISCRIMINATION (1990); Kendra Meinert, Criminal Injustice: Continuing Racial Inequities in Death Penalty Sentencing, 22 SW. U. L. REV. 1177 (1993). See also Ursula Bentele, Race and Capital Punishment in the United States and Africa, 19 BROOK. J. INT'L L. 235 (1993) (arguing that the "anomaly" of continuing executions in South Africa and the United States stems from their common history of racial discrimination).
162. See McCleskey v. Kemp, 481 U.S. 279 (1987); U.S. GEN. ACCT. OFF., DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISCRIMINATION (1990); Kendra Meinert, Criminal Injustice: Continuing Racial Inequities in Death Penalty Sentencing, 22 SW. U. L. REV. 1177 (1993). See also Ursula Bentele, Race and Capital Punishment in the United States and Africa, 19 BROOK. J. INT'L L. 235 (1993) (arguing that the "anomaly" of continuing executions in South Africa and the United States stems from their common history of racial discrimination).
163. See McCleskey v. Kemp, 481 U.S. 279 (1987); U.S. GEN. ACCT. OFF., DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISCRIMINATION (1990); Kendra Meinert, Criminal Injustice: Continuing Racial Inequities in Death Penalty Sentencing, 22 SW. U. L. REV. 1177 (1993). See also Ursula Bentele, Race and Capital Punishment in the United States and Africa, 19 BROOK. J. INT'L L. 235 (1993) (arguing that the "anomaly" of continuing executions in South Africa and the United States stems from their common history of racial discrimination).
164. See McCleskey v. Kemp, 481 U.S. 279 (1987); U.S. GEN. ACCT. OFF., DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISCRIMINATION (1990); Kendra Meinert, Criminal Injustice: Continuing Racial Inequities in Death Penalty Sentencing, 22 SW. U. L. REV. 1177 (1993). See also Ursula Bentele, Race and Capital Punishment in the United States and Africa, 19 BROOK. J. INT'L L. 235 (1993) (arguing that the "anomaly" of continuing executions in South Africa and the United States stems from their common history of racial discrimination).
165. See STAFF OF SUBCOMM. ON CIVIL AND CONSTITUTIONAL RIGHTS OF THE HOUSE COMM. ON THE JUDICIARY, 103D. CONG., 2D SESS., INNOCENCE AND THE DEATH PENALTY ASSESSING THE DANGER OF MISTAKEN EXECUTIONS (Comm. Print 1993); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987).
166. See STAFF OF SUBCOMM. ON CIVIL AND CONSTITUTIONAL RIGHTS OF THE HOUSE COMM. ON THE JUDICIARY, 103D. CONG., 2D SESS., INNOCENCE AND THE DEATH PENALTY ASSESSING THE DANGER OF MISTAKEN EXECUTIONS (Comm. Print 1993); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987).
167. See Stephen B. Bright, Counsel for the Poor: The Death Penalty Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835 (1994).
168. Caliins v. Collins, 114 S. Ct. 1127 (1994) (Blackmun, J., dissenting); Anthony Lewis et al., The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases, 31 HOUS. L. REV. 1105 (1994); Robert Weisberg, Deregulating Death, 8 SUP. CT. REV. 305 (1983).
169. Caliins v. Collins, 114 S. Ct. 1127 (1994) (Blackmun, J., dissenting); Anthony Lewis et al., The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases, 31 HOUS. L. REV. 1105 (1994); Robert Weisberg, Deregulating Death, 8 SUP. CT. REV. 305 (1983).
170. Caliins v. Collins, 114 S. Ct. 1127 (1994) (Blackmun, J., dissenting); Anthony Lewis et al., The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases, 31 HOUS. L. REV. 1105 (1994); Robert Weisberg, Deregulating Death, 8 SUP. CT. REV. 305 (1983).
171. Makwanyane, [1995] 6 BCLR at 725 (Ackermann, J., concurring).
172. S. AFR. CONST. (Act No. 200, 1993) (postscript entitled, "National Unity and Reconciliation"). For the meaning of ubuntu, see infra notes 146-147 and accompanying text.
173. See, e.g., Makwanyane, [1995] 6 BCLR at 718, 751 (Langa, J., concurring), 754 (Madala, J., concurring), 758 (Mahomed, J., concurring), 771-72 (Mokgoro, J., concurring), and 785 (Sachs, J., concurring).
174. Id. at 758 (Mahomed, J., concurring). See also the sources cited in supra note 121 for the process of interpretation.
175. Id. at 740 (Didcott, J., concurring).
176. Id. at 750 (Langa, J., concurring).
177. Id. at 751 (Langa, J., concurring).
178. Id. at 752-53 (Langa, J., concurring).
179. Sydney Kentridge, Bills of Rights-The South African Experiment, 112 L Q. REV. 237, 261 (1996) ("'Ubuntu' is a word found in a number of South African languages. It can be translated as 'a feeling of common humanity.'").
180. Makwanyane, [1995] 6 BCLR at 759 (Mahomed, J., concurring).
181. Id. at 771-72 (Mokgoro, J., concurring).
182. Id. at 786 (Sachs, J., concurring). But see infra notes 203-209 and accompanying text (discussing the relevance of public opinion).
183. Id. at 779 (O'Regan, J., concurring).
184. S. AFR. CONST. (Act No. 200, 1993) ch. 3, § 11(2).
185. Makwanyane, [1995] 6 BCLR at 763 (Mahomed, J., concurring).
186. According to Mahomed, the factors involved in interpreting § 11 (2) include: its consistency with the other rights protected by the Constitution and the constitutional philosophy and humanism expressed... [in the] Constitution; its harmony with the national ethos which the Consutution identifies; the historical background to the structures and objectives of the Constitution; the discipline of proportionality to which it must legitimately be subject; the effect of die death sentence on the right to life protected by the Constitution; its inherent arbitrariness in application; its impact on human dignity; and its consistency with constitutional perceptions evolving both within South Africa and the world outside with which our country shares emerging values central to the permissible limits and objectives of punishment in the civilised community. Id. at 763 (Mahomed, J., concurring).
187. See supra note 131 and accompanying text.
188. Decision No. 23/1990 (X.31.) AB, Alkotmánybiróság [Const L. Ct.] (Docket No. 89/D/1990/7, Oct 24, 1990) (Hung.) on the constitutionality of capital punishment (translated copy on file with the Stanford Journal of International Law).
189. People v. Anderson, 493 P.2d 880 (1972) (holding that the death penalty is cruel and unusual punisnment prohibited under the California constitution). Califonian voters later readopted capital punishment by amending the constitution. CAL. CONST, art I, § 27 ("The death penalty . . . shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishment").
190. Makwanyane, [1995] 6 BCLR at 763 (Mahomed, J., concurring).
191. Id. at 725, 729-30 (Ackermann, J., concurring), 733 (Didcott, J., concurring), 742-43 (Kentridge, A.J., concurring), 750 (Langa, J., concurring), 755, 757 (Madala, J., concurring), 762, 763 (Mahomed, J., concurring), 774 (Mokgoro, J., concurring), 775 (O'Regan, J., concurring), and 781 (Sachs, J., concurring).
192. Makwanyane, [1995] 6 BCLR at 723. See also id. at 742 (Kentridge, A.J., concurring) ("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").
193. S. AFR. CONST. (Act No. 200, 1993) ch. 3, § 9.
194. Id. § 10.
195. See supra notes 73-96 and accompanying text.
196. Makwanyane, [1995] 6 BCLR at 782-83 (Sachs, J., concurring).
197. Id. at 777 (O'Regan, J., concurring). See also id. at 702.
198. Decision No. 23/1990 (X.31.) AB, Alkotmánybiróság [Const. L. Ct.] (Docket No. 89/b/1990/7, Oct. 24, 1990) (Hung.) on the constitutionality of capital punishment (translated copy on file with the Stanford Journal of International Law).
199. HUNG. CONST, ch. xii, art. 54(1).
200. Makwanyane, [1995] 6 BCLR at 702.
201. Id. at 777 (O'Regan, J., concurring).
202. Id. at 778 (O'Regan, J., concurring).
203. Furman v. Georgia, 408 U.S. 238, 290-91 (1972), quoted in Makwanyane, [1995] 6 BCLR at 734 (Didcott, J., concurring).
204. Kindler v. Canada, 2 R.C.S. 779, 817 (1991).
205. For a consideration of dicta from U.S. case law, see Makwanyane, [1995] 6 BCLR at 734-36 (Didcott, J., concurring).
206. Catholic Comm'n for Justice and Peace v. Attorney Gen., 1993 (4) SA 239, 268-69 (Zimb. S.C.). See generally Lloyd Vogelman, The Living Dead: Living on Death Row, 5 S. AFR. J. ON HUM. RTS. 183 (1989).
207. Makwanyane, [1995] 6 BCLR at 779-80 (O'Regan, J., concurring).
208. Makwanyane, [1995] 6 BCLR at 761 (Mahomed, J., concurring). Note the similar argument made in the House of Lords by Lord Chancellor Gardiner in 1965: When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disembowelled while still alive, and then quartered, we did not abolish that punishment because we symphathised with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect. 268 Parl. Deb., H.L. (5th ser) 703 (1965), quoted in People v. Anderson, 493 P.2d 880, 899 (1972).
209. Makwanyane, [1995] 6 BCLR at 748 (Kriegler, J., concurring). See also Id. at 733 (Didcott, J., concurring), 750 (Langa, J., concurring), 760 (Mahomed, J., concurring).
210. See Holt, supra note 31, at 306-07.
211. See, e.g., Franklin E. Zimring et al., Selectivity and Racial Bias in a Mandatory Death Sentence Dispensation: A South African Case Study, 28 COMP. & INT'L L.J. OF S. AFR. 107 (1995).
212. The Relaunch of the Society for the Abolition of the Death Penalty in South Africa, supra note 71 at 47. The fact that there were abolitionist judges was recognized by Judge President Munnik in 1989, admitting that "there are judges who have an aversion to passing the death penalty." Statement reprinted in Christina Murray, et. al, Correspondence, 6 S. AFR. J. ON HUM. RTS. 102 (1990).
213. Laurel Angus & Evadné Grant, Sentencing in Capital Cases in the Transvaal Provincial Division and Wittwatersrand Local Division: 1987-1989, 7 S. AFR. J. ON HUM. RTS. 50, 69 (1991).
214. D.J. Curlewis, Correspondence, 7 S. AFR. J. ON HUM. RTS. 229, 229-30 (1991). For a discussion of the Curlewis comments, see ANNUAL SURVEY OF SOUTH AFRICAN LAW 666-68 (1991).
215. D.J. Curlewis, Correspondence, 7 S. AFR. J. ON HUM. RTS. 229, 229-30 (1991). For a discussion of the Curlewis comments, see ANNUAL SURVEY OF SOUTH AFRICAN LAW 666-68 (1991).
216. Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring).
217. See, e.g., Callins v. Collins, 114 S. Ct. 1127, 1128-39 (1994) (Blackmun, J., dissenting); CHARLES L. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 27 (2d ed. 1981); FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 90-91 (1986); Jill Cottrell, Wrestling with the Death Penalty in India, 7 S. AFR. J. ON HUM. RTS. 185 (1991); David Dolinko, Foreword: How to Criticize the Death Penalty, 77 J. CRIM. L. & CRIMINOLOGY 546, 571-79 (1986). See also AMNESTY INTERNATIONAL, supra note 49, at 31, noting the following case: In India, three men convicted in a murder case were sentenced to death in 1975. Although all three filed appeals to the Supreme Court, their cases were dealt with in different ways, apparently because the appeals were heard by different judges. In 1977 Kashmira Singh's death sentence was commuted at his first appeal. Jeeta Singh's appeal, however, was dismissed and he was executed... Harbans Singh's appeal was also rejected. Scheduled to be executed the same day as Jeeta Singh, he filed a review petition. At this second appeal the Supreme Court recommended commutation, noting that as Kashmira Singh's death sentence had been commuted, it would be a 'sheer travesty of justice' to allow [Harbans Singh] to be executed. 'It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence,' the court observed.
218. See, e.g., Callins v. Collins, 114 S. Ct. 1127, 1128-39 (1994) (Blackmun, J., dissenting); CHARLES L. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 27 (2d ed. 1981); FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 90-91 (1986); Jill Cottrell, Wrestling with the Death Penalty in India, 7 S. AFR. J. ON HUM. RTS. 185 (1991); David Dolinko, Foreword: How to Criticize the Death Penalty, 77 J. CRIM. L. & CRIMINOLOGY 546, 571-79 (1986). See also AMNESTY INTERNATIONAL, supra note 49, at 31, noting the following case: In India, three men convicted in a murder case were sentenced to death in 1975. Although all three filed appeals to the Supreme Court, their cases were dealt with in different ways, apparently because the appeals were heard by different judges. In 1977 Kashmira Singh's death sentence was commuted at his first appeal. Jeeta Singh's appeal, however, was dismissed and he was executed... Harbans Singh's appeal was also rejected. Scheduled to be executed the same day as Jeeta Singh, he filed a review petition. At this second appeal the Supreme Court recommended commutation, noting that as Kashmira Singh's death sentence had been commuted, it would be a 'sheer travesty of justice' to allow [Harbans Singh] to be executed. 'It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence,' the court observed.
219. See, e.g., Callins v. Collins, 114 S. Ct. 1127, 1128-39 (1994) (Blackmun, J., dissenting); CHARLES L. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 27 (2d ed. 1981); FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 90-91 (1986); Jill Cottrell, Wrestling with the Death Penalty in India, 7 S. AFR. J. ON HUM. RTS. 185 (1991); David Dolinko, Foreword: How to Criticize the Death Penalty, 77 J. CRIM. L. & CRIMINOLOGY 546, 571-79 (1986). See also AMNESTY INTERNATIONAL, supra note 49, at 31, noting the following case: In India, three men convicted in a murder case were sentenced to death in 1975. Although all three filed appeals to the Supreme Court, their cases were dealt with in different ways, apparently because the appeals were heard by different judges. In 1977 Kashmira Singh's death sentence was commuted at his first appeal. Jeeta Singh's appeal, however, was dismissed and he was executed... Harbans Singh's appeal was also rejected. Scheduled to be executed the same day as Jeeta Singh, he filed a review petition. At this second appeal the Supreme Court recommended commutation, noting that as Kashmira Singh's death sentence had been commuted, it would be a 'sheer travesty of justice' to allow [Harbans Singh] to be executed. 'It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence,' the court observed.
220. See, e.g., Callins v. Collins, 114 S. Ct. 1127, 1128-39 (1994) (Blackmun, J., dissenting); CHARLES L. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 27 (2d ed. 1981); FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 90-91 (1986); Jill Cottrell, Wrestling with the Death Penalty in India, 7 S. AFR. J. ON HUM. RTS. 185 (1991); David Dolinko, Foreword: How to Criticize the Death Penalty, 77 J. CRIM. L. & CRIMINOLOGY 546, 571-79 (1986). See also AMNESTY INTERNATIONAL, supra note 49, at 31, noting the following case: In India, three men convicted in a murder case were sentenced to death in 1975. Although all three filed appeals to the Supreme Court, their cases were dealt with in different ways, apparently because the appeals were heard by different judges. In 1977 Kashmira Singh's death sentence was commuted at his first appeal. Jeeta Singh's appeal, however, was dismissed and he was executed... Harbans Singh's appeal was also rejected. Scheduled to be executed the same day as Jeeta Singh, he filed a review petition. At this second appeal the Supreme Court recommended commutation, noting that as Kashmira Singh's death sentence had been commuted, it would be a 'sheer travesty of justice' to allow [Harbans Singh] to be executed. 'It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence,' the court observed.
221. See, e.g., Callins v. Collins, 114 S. Ct. 1127, 1128-39 (1994) (Blackmun, J., dissenting); CHARLES L. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 27 (2d ed. 1981); FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 90-91 (1986); Jill Cottrell, Wrestling with the Death Penalty in India, 7 S. AFR. J. ON HUM. RTS. 185 (1991); David Dolinko, Foreword: How to Criticize the Death Penalty, 77 J. CRIM. L. & CRIMINOLOGY 546, 571-79 (1986). See also AMNESTY INTERNATIONAL, supra note 49, at 31, noting the following case: In India, three men convicted in a murder case were sentenced to death in 1975. Although all three filed appeals to the Supreme Court, their cases were dealt with in different ways, apparently because the appeals were heard by different judges. In 1977 Kashmira Singh's death sentence was commuted at his first appeal. Jeeta Singh's appeal, however, was dismissed and he was executed... Harbans Singh's appeal was also rejected. Scheduled to be executed the same day as Jeeta Singh, he filed a review petition. At this second appeal the Supreme Court recommended commutation, noting that as Kashmira Singh's death sentence had been commuted, it would be a 'sheer travesty of justice' to allow [Harbans Singh] to be executed. 'It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence,' the court observed.
222. Makwanyane, [1995] 6 BCLR at 691. See also supra note 83 (listing authorities analyzing the judicial safeguards developed after the 1990 amendments).
223. Makwanyane, [1995] 6 BCLR at 691-92. See also id. at 761-62 (Mahomed, J., concurring).
224. Id. at 693.
225. Id. at 725 (Ackermann, J., concurring).
226. Id. at 726 (Ackermann, J., concurring).
227. Id. at 726-27 (Ackermann, J., concurring) (relying on Furman, 408 U.S. at 249, 256, 274, 294, 309-10; Callins, 114 S. Ct. at 1129-30).
228. Id. at 728 (Ackermann, J., concurring).
229. Id. at 728-29 (Ackermann, J., concurring) (relying on Ghandi v. Union of India, [1978] 2 S.C.R. 621).
230. See supra notes 57-58 and accompanying text. See also Welsh, supra note 15, at 414 ("The investigator wishing to ascertain whether these assertions [of racial discrimanation] are valid is handicapped by a dearth of statistical material and reluctance on the part of the Minister of Justice and his officials to provide information.").
231. S. AFR. CONST. (Act No. 200, 1993) ch. 3, § 33(1).
232. Id.
233. S. v. Zuma, 1995 (2) SA 642, 654.
234. See supra note 121 and accompanying text.
235. Makwanyane, [1995] 6 BCLR at 707.
236. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Chaner of Rights and Freedoms), § 1.
237. R. v. Oakes, 26 D.L.R.4th (1986) (Can.).
238. Makwanyane, [1995] 6 BCLR at 709.
239. Id. at 710.
240. Mat 710-11.
241. Id. at 711.
242. HUMAN SCIENCES RESEARCH COUNCIL, PERCEPTIONS OF CURRENT SOCIOPOLITICAL ISSUES IN SOUTH AFRICA 9-10 (1994).
243. Makwanyane, [1995] 6 BCLR at 703.
244. Id. at 703-04, quoting Furman v. Georgia, 408 U.S. 238, 443 (1972). Chaskalson also quoted approvingly the comment of justice Jackson in West Va. Bd. of Educ. v. Barnette, 319 U.S. 225,638 (1943): The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
245. Makwanyane, [1995] 6 BCLRat 739-40 (Didcott, J., concurring).
246. Id. at 745 (Kemridge, A.J., concurring).
247. Id. at 745-46 (Kentridge, A.J., concurring).
248. See, e.g., Id. at 751 (Langa, J., concurring).
249. See, e.g HUGO A. BEDAU, THE DEATH PENALTY IN AMERICA 93-185 (3d ed. 1982).
250. Quoted in ROGER HOOD, THE DEATH PENALTY A WORLD-WIDE PERSPECTIVE (A REPORT TO THE UNITED NATIONS COMMITTEE ON CRIME PREVENTION AND CONTROL) 148 (1989).
251. Respondent Attorney General's Heads of Argument para. 50.19, Makwanyane, [1995] 6 BCLR 665 (on file with the Stanford Journal of International Law).
252. H.L.A. HART, PUNISHMENT AND RESPONSIBILY 88 (1968).
253. Makwanyane, [1995] 6 BCLR at 716-17 (quoting People v. Anderson, 493 P.2d 880, 897 (1972)).
254. Id. at 716.
255. Id. at 765 (Mahomed, J., concurring).
256. Id. at 715.
257. Id. at 765-66 (Mahomed, J., concurring).
258. Id. at 714-15.
259. Id. at 714-15 and 737-38 (Didcott, J., concurring).
260. Id. at 717.
261. Id. at 732.
262. Id. (discussing the German life imprisonment case, Judgment of june 21, 1977, BVerfG, 45 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 187).
263. Respondent Attorney General's Heads of Argument para. 45.2, Makwanyane,.[995] 6 BCLR 665.
264. Makwanyane, [1995] 6 BCLR at 767 (Mahomed, J., concurring).
265. Id. at 718.
266. S. AFR. CONST. (Act No. 200, 1993), eh. 3, § 33 (1)(b).
267. F.R.G. CONST. § 19(2): "In no case may the essence of a basic right be encroached upon."
268. NAMIB. CONST. § 22(a): "Whenever or wherever in terms of this constitution the limitation of any fundamental rights or freedoms contemplated by this Chapter is authorised, any law providing for such limitation... shall not negate the essential content thereof."
269. SPAIN CONST. § 53(1): "Only by law, which in every case must respect their essential content, could the exercise of such rights and liberties be regulated...."
270. PORT. CONST. §18(3): "Laws restricting rights, freedoms and safeguards ... shall not limit in extent and scope the essential content of constitutional provisions."
271. ESTONIA CONST. §11: "Such restrictions must be necessary in a democratic society, and their imposition may not distort the nature of the rights and liberties."
272. CZECH. CONST. §4(4): "When the provisions on the limits of the fundamental rights and freedoms are applied, their substance and meaning must be respected."
273. HUNG. CONST. §8(2): "In the Republic of Hungary the law contains rules on fundamental rights and obligations, but must not impose any limitation on the essential contents and meaning of fundamental rights."
274. Furman v. Georgia, 408 U.S. 238, 290 (1972).
275. Makwanyane, [1995] 6 BCLR at 741-42 (Kentridge, A.J., concurring). But see id. at 730 (Ackermann, J., concurring) and the authorities there cited (arguing that there is indeed a wealth of German case law and scholarship on the topic).
276. Dieter Grimm, Human Rights and Judicial Review in Germany, in HUMAN RIGHTS AND JUDICIAL REVIEW 267, 276 (David H. Beatty ed. 1994); CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 306-07 (1994).
277. Dieter Grimm, Human Rights and Judicial Review in Germany, in HUMAN RIGHTS AND JUDICIAL REVIEW 267, 276 (David H. Beatty ed. 1994); CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 306-07 (1994).
278. Makwanyane, [1995] 6 BCLR at 719, 730-31 (Ackermann, J., concurring).
279. Id. at 783 (Sachs, J., concurring).
280. For a discussion of the two approaches, see Johan De Waal, A Comparative Analysis of the Provisions of German Origin in the Interim Bill of Rights, 11 S. AFR. J. ON HUM. RTS. 1, 18-29 (1995);
281. Harold Rudolph, The 1993 Constitution - Some Thoughts on is Effect on Certain Aspects of Our System of Criminal Procedure, 111 S. AFR. L.J. 497, 499 (1994); L.M. Rautenbach, Grondwetlike Bepalings ter Beskerming van die Wese van Menseregte, 1991 TYDSKIRF VIR SUID-AFRIKAANSE REG 403 (1991).
282. Harold Rudolph, The 1993 Constitution - Some Thoughts on is Effect on Certain Aspects of Our System of Criminal Procedure, 111 S. AFR. L.J. 497, 499 (1994); L.M. Rautenbach, Grondwetlike Bepalings ter Beskerming van die Wese van Menseregte, 1991 TYDSKIRF VIR SUID-AFRIKAANSE REG 403 (1991).
283. Makwanyane, 1995 (6) BCLR at 741-42 (Kentridge, A.J., concurring).
284. Id. at 742 (Kentridge, A.J., concurring).
285. Mandela reminded the Justices of this fact at the opening of the Constitutional Court, one day prior to the hearing of the present case, when he stated that "the last time I was in Court was to hear whether I would live or die." See Paul Taylor, Mandela Swears in first Constitutional Court, THE WASH. POST, Feb. 15, 1995, at A13.
286. See, e.g., Ved P. Nanda, Recent Developments in the United States and Internationally Regarding Capital Punishment-An Appraisal, 67 ST. JOHN'S L. REV. 523 (1993).
287. South Africa Shows the Way, N.Y. TIMES, June 10, 1995, at 18 (Late Edition).
288. Stephen Ellman believes that the death penalty will not be reinstated in South Africa: In South Africa, [as in the United States], many-perhaps most-citizens do indeed favor capital punishment But I do not believe they will press their leaders to quickly rewrite the constitution to overturn their new court's work. More likely, this decision will become part of the fabric of South African law. Stephen Ellman, On the Death Penalty, Copy South Africa, NEWSDAY, June 29, 1995, at A41.
289. Stephen Ellman, Laut and Legitimacy in South Africa, 20 L. & SOC. INQUIRY 407, 445 (1995) (calculating a homicide rate of 46.7 per 100,000 for South Africa, compared to a U.S. rate of 9.5 per 100,000).
290. David Beresford, Fivaz Sees the Light at the End of the Noose, MAIL & GUARDIAN, Nov. 24-30, 1995, at 11. Fivaz concluded that the only way to tackle crime was "to work on the culture of society in South Africa. Unfortunately, it is a long-term solution. We will have to start at the schools level and go to work altering the mind-sets of people. But the introduction of the death penalty, to my mind, is not going to solve our problems."
291. David Beresford, 'String 'Em Up,' Says 'Hanged' Actor, MAIL & GUARDIAN, Nov. 24-30, 1995, at 11.
292. South African Leaden Still Far Apart on Crucial Issues: New Draft Constitution is Submitted for Debate, THE BALTIMORE SUN, Nov. 23, 1995, at 31A.
293. The proposed options are: "Everyone has the right to life [and the death penalty is abolished]," or "Everyone has the right to life, and the right not to be deprived of life except by execution of a court sentence following conviction for a crime for which the death penalty is prescribed by an Act of Parliament" WORKING DRAFT OF THE NEW CONSTITUTION (Nov. 22, 1995) ch. 2, § 10 (on file with the Stanford Journal of International Law).
294. The proposed draft of the dignity clause reads: "Everyone has inherent dignity and the right to have their dignity respected and protected." WORKING DRAFT OF THE NEW CONSTITUTION (Nov. 22, 1995) ch. 2, § 9 (on file with the Stanford Journal of International Law).
295. The Freedom and Security of the Person clause in the working draft reads in relevant part: (2) Even-one has the right to security of the person, [bodily and psychological integrity,] including the right-(a) to be free from all forms of violence; and (b) [to be secure in; and control their own body]. (3) No one may be-(a) tortured in any way; (b) treated or punished in a cruel, inhuman or degrading way; or (c) subjected to medical of scientific experiments without that person's consent. WORKING DRAFT OF THE NEW CONSTITUTION (Nov. 22, 1995) ch. 2, § 11 (on file with the Stanford Journal of International Law).