30 Years Ago, South Africa Abolished the Death Penalty to Prioritize Life and Dignity

30 years ago, the new­ly formed Constitutional Court of South Africa issued a land­mark deci­sion abol­ish­ing the death penal­ty and pri­or­i­tiz­ing the core con­sti­tu­tion­al rights to life and dig­ni­ty above all else. Published on June 6, 1995, the Court’s opin­ion in S v. Makwanyane drew on inter­na­tion­al legal frame­works, as well as death penal­ty debates in oth­er coun­tries, such as the United States. The Court weighed inher­ent issues in the appli­ca­tion of the death penal­ty, such as inequal­i­ty, cru­el­ty, and arbi­trari­ness, against argu­ments high­light­ing its alleged deter­rent effect. Ultimately, the Court unan­i­mous­ly ruled that the death penal­ty was uncon­sti­tu­tion­al, with each jus­tice author­ing their own concurring opinion. 

Following the end of apartheid in South Africa, an inter­im con­sti­tu­tion, includ­ing a bill of rights, was cre­at­ed in 1993. Constitutional nego­ti­a­tions did not address the death penal­ty, instead leav­ing the ques­tion of con­sti­tu­tion­al­i­ty up to the courts. The Constitutional Court was estab­lished in February 1995, about five years after the announce­ment of an execution moratorium. 

The Court’s deci­sion, only the sec­ond after its con­cep­tion, set the tone for the new­ly estab­lished demo­c­ra­t­ic gov­ern­ment, empha­siz­ing the foun­da­tion­al impor­tance of human rights and extend­ing the val­ue of rec­on­cil­i­a­tion beyond polit­i­cal realms, ahead of the com­mence­ment of the nation’s Truth and Reconciliation Commission lat­er that same year. In deem­pha­siz­ing the val­ue of ret­ri­bu­tion in the Court’s ​“bal­anc­ing process,” the deci­sion notes that “[t]o be con­sis­tent with the val­ue of ubun­tu ours should be a soci­ety that ​‘wish­es to pre­vent crime…[not] to kill crim­i­nals sim­ply to get even with them,’” cit­ing lan­guage from Justice Brennan’s opin­ion in Furman v. Georgia (1972). 

As in the United States, where death penal­ty use has his­tor­i­cal ties to racial vio­lence and lynch­ing, and which con­tin­ues to show a white-vic­tim bias, South Africa’s use of the death penal­ty under apartheid was racial­ly biased. ​“For many years, South Africa had the doubt­ful hon­our of being a world leader in the num­ber of judi­cial exe­cu­tions car­ried out,” a con­cur­ring opin­ion notes, cit­ing esti­mates of 1,100 peo­ple exe­cut­ed between 1981 and 1990, with the last exe­cu­tion occur­ring in November 1989. As men­tioned dur­ing the nation’s Truth and Reconciliation Commission, 95% of peo­ple sen­tenced to death under apartheid were Black, while all those impos­ing the judg­ment were white. Executions from June 1982 to June 1983 also point to a white-vic­tim bias; near­ly half of the Black peo­ple exe­cut­ed were con­vict­ed of mur­der­ing white vic­tims, while none of the 31 white peo­ple with Black vic­tims were executed. 

The Court empha­sized the inher­ent arbi­trari­ness in death penal­ty cas­es, present from ini­tial inves­ti­ga­tion through tri­al and appeals process­es, espe­cial­ly high­light­ing issues of class and race. For exam­ple, the Court explained that defen­dants who can afford to hire expe­ri­enced legal rep­re­sen­ta­tion are ​“less like­ly to be sen­tenced to death” than those with state-appoint­ed coun­sel. On the oth­er hand, indi­gent defen­dants are often paired with ​“young and inex­pe­ri­enced” coun­sel who are of a dif­fer­ent race and require inter­preters to com­mu­ni­cate. Although the Court points to con­sti­tu­tion­al changes that could poten­tial­ly improve this sys­tem, it also acknowl­edges that ​“lim­its to the avail­able finan­cial and human resources, lim­its which are like­ly to exist for the fore­see­able future, and which will con­tin­ue to place poor accused at a sig­nif­i­cant dis­ad­van­tage in defend­ing them­selves in cap­i­tal cas­es.” Criminal defense sys­tems in the U.S. also appoint coun­sel to indi­gent crim­i­nal defen­dants; both states and the fed­er­al gov­ern­ment are expe­ri­enc­ing fund­ing issues that threat­en the qual­i­ty and avail­abil­i­ty of legal rep­re­sen­ta­tion for this group. The Court con­clud­ed that fac­tors of class and race are ​“almost cer­tain­ly present to some degree in all court sys­tems,” and although they can be ​“mit­i­gat­ed” they can­not be ​“total­ly avoid­ed.” The Court notes that the issue of arbi­trari­ness is most prob­lem­at­ic in cap­i­tal cas­es, where the final judg­ment is death and the ​“killing of an inno­cent per­son is irre­me­di­a­ble,” con­clud­ing that its ​“arbi­trary and capri­cious” appli­ca­tion means that ​“any result­ing death sen­tence is cru­el, inhu­man and degrading punishment.” 

During these pro­ceed­ings, the rep­re­sen­ta­tive of the South African gov­ern­ment did not argue in favor of the death penal­ty; instead, he explained that the gov­ern­ment ​“accepts that the death penal­ty is a cru­el, inhu­man and degrad­ing pun­ish­ment and that it should be declared uncon­sti­tu­tion­al.” Arguing in favor of the death penal­ty was the Attorney General of the Witwatersrand, whose office is inde­pen­dent of the gov­ern­ment. His argu­ment in favor of the death penal­ty echoed argu­ments made by pro­po­nents today, high­light­ing the punishment’s deter­rent and ret­ribu­tive val­ue, while draw­ing on pub­lic sup­port for the punishment. 

The Witwatersrand Attorney General empha­sized deter­rence, explain­ing that a ​“death sen­tence is an indis­pens­able weapon” to ​“com­bat­ting vio­lent crime,” espe­cial­ly as South Africa had not reached the same stage of devel­op­ment as oth­er abo­li­tion­ist nations. This nar­ra­tive per­sists among pro­po­nents of the death penal­ty today, with President Trump’s admin­is­tra­tion includ­ing it as a key jus­ti­fi­ca­tion in his January 2025 exec­u­tive order. 

The Witwatersrand Attorney General not­ed an increase in vio­lent crime dur­ing the nation’s mora­to­ri­um as sup­port for the deter­rent val­ue of the death penal­ty. However, the Court found that this sim­ple cau­sa­tion failed to account for sev­er­al oth­er fac­tors, includ­ing the polit­i­cal con­flicts at the time, home­less­ness, unem­ploy­ment, and pover­ty. Although the Attorney General acknowl­edged that the deter­rent effect of the death penal­ty has been long debat­ed, he explained that it is ​“a propo­si­tion that is not capa­ble of proof.” The Court high­light­ed that debates on the death penalty’s deter­rent ben­e­fit are often mis­char­ac­ter­ized as a choice between death and a lack of pun­ish­ment, when the deci­sion is more accu­rate­ly one between death and life impris­on­ment. The deci­sion notes that life impris­on­ment is suf­fi­cient pun­ish­ment, sat­is­fy­ing the need for crime pre­ven­tion and ret­ri­bu­tion, although they cau­tion that the lat­ter ​“ought not to be giv­en undue weight in the balancing process.” 

In account­ing for pub­lic sen­ti­ment on the mat­ter, the Court notes that while the major­i­ty of South Africans might favor the pun­ish­ment for the worst of the worst cas­es, it is not a sub­sti­tute for the Court’s deter­mi­na­tion. ​“If pub­lic opin­ion were to be deci­sive there would be no need for con­sti­tu­tion­al adju­di­ca­tion,” the decision noted. 

The Court notes that, unlike the U.S. Constitution, the new­ly cre­at­ed South African con­sti­tu­tion specif­i­cal­ly enshrines the right to life and human dig­ni­ty. As one con­cur­ring opin­ion explains: ​“Respect for the dig­ni­ty of all human beings is par­tic­u­lar­ly impor­tant in South Africa. For apartheid was a denial of a com­mon human­i­ty.” The deci­sion holds these two human rights in the high­est regard and notes that “[b]y com­mit­ting our­selves to a soci­ety found­ed on the recog­ni­tion of human rights we are required to val­ue these two rights above all oth­ers” and accord­ing­ly, it must be reflect­ed in all state gov­ern­ment actions, ​“includ­ing the way it punishes criminals.”