Programme director
Honourable Mayor of Rome, Mr Alemanno
Honourable Justice Minister of Italy, Mr Alfano
Deputy President of the Constitutional Court of Italy, Justice Mancino
Distinguished Ministers
Distinguished guests
Members of the Community of Sant'Egidio
Ladies and gentlemen
It is an honour to be invited by the Community of Sant’Egidio to this international meeting of leaders committed to the abolition of capital punishment. The matter of the death penalty is current in world discourse and it should remain an important subject of dialogue within nation states.
I would therefore like to congratulate the Community of Sant’Egidio and the government of Italy for successfully leading the campaign for a universal moratorium on executions that would eventually lead to a total abolition of capital punishment globally. It was therefore pleasing to note, at the 63rd United Nations (UN) General Assembly last year, the increasing number of states approving of the resolution calling for a universal moratorium on capital punishment.
Ladies and gentlemen
The majority of the people of South Africa have been magnanimous and generous in the manner in which they have embraced the new democratic and popularly elected government’s vision of reconciliation. Without this acceptance and spirit of forgiveness all our endeavours would have been in vain. A protracted and highly consultative negotiations process, conducted by South Africans, was marked by some major landmarks along the way.
The most pivotal of these was the adoption of the interim Constitution, in 1993, which contained a bill of rights, provision for a Government of National Unity and various other checks and balances to provide for an orderly, structured and well-balanced framework within which to address the wrongs of the past.
This was followed subsequently by the final settlement, codified in the final
Constitution adopted in 1996, which contains the framework for democratic majority rule, a constitutional state and a human rights culture, and the platform from which to build a truly united, non-racial, non-sexist, democratic and prosperous society.
In my view, the most striking feature of our constitutional dispensation, considering where we come from, is the entrenchment of the principles of reconciliation and social justice as constitutional imperatives. These form the constitutional building blocks or cornerstones upon which the new South
Africa is being built.
Ladies and gentlemen
Our interim Constitution included a chapter on fundamental rights. So it came about that the right to life became entrenched in the Constitution as one of the fundamental rights. We therefore abolished capital punishment in South
Africa. In the past, under successive apartheid governments, the death penalty was used indiscriminately and largely against the majority black people of our country who in many instances had no legal representation. In alarming numbers most of those executed were later found to have been innocent.
In June 1995, in the S v Makwanyane, the highest court in our country, the Constitutional Court finally abolished the death penalty.
The Constitutional Court ruled that the imposition of the death penalty is incompatible with the right to life as enshrined in the Bill of Rights in our Constitution. The reason we have a Bill of Rights in our Constitution, which needs a special majority to be amended, is to protect the rights of all South Africans, including the marginalised and the minorities. In its ruling, the
Constitutional Court said, “It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.”
The court also found that, “no empirical study, no statistical exercises and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force greater than that of a really heavy sentence of imprisonment.” The Constitutional Court, in interpreting provisions of the interim Constitution, abolished the death penalty and held that capital punishment violated the right not to be subjected to cruel, inhumane or degrading treatment or punishment. The majority of the Court concluded that capital punishment constituted cruel, inhuman and degrading treatment or punishment on four primary grounds:
* The almost inherent arbitrariness in sentencing
* The failure of the sentence to treat the guilty party as a human being worthy of respect
* The irremediable nature of the punishment
* The cruelty that inevitably flows from the delays which convicted individuals face when awaiting execution and often the nature of the execution itself.
Our national legislature responded to the decision of the Constitutional Court by adopting the Criminal Law Amended Act (Act 105 of 1997), which makes provision for the setting aside of sentences of death and also makes provision for setting aside of the sentences of death in accordance with law and their substitution by lawful punishments. After the Constitutional Court judgement all the prisoners sentenced to death for political crimes and other crimes, had their sentences commuted to life imprisonment.
Over the years, due to the crime situation and a belief that capital punishment would deter criminals, there have been calls from some that capital punishment be reinstated. Many legal systems globally, over a period of time, have moved away from the ‘an eye for an eye,’ a ‘tooth for a tooth’ brand of justice. As South Africans we do not want to go back to that principle of retribution, for the simple reason that it embraces violence as the core value of society. To us, now living in a democratic society based on respect for human rights, such a principle of retribution is unacceptable. To many the death penalty is regarded as a deterrent to serious crime. But we know from our history in South Africa that despite the liberal use of the death penalty, the apartheid government was unable to deter serious crime.
The situation in the 1980s reached crisis point with hundreds on death row sufficient to compel the then government to suspend all executions. This was recognition of the failure of capital punishment and in preparation for a dispensation which would entrench the right to life in our Constitution.
Ladies and gentlemen
In terms of international relations, South Africa is party to treaties on extradition and mutual legal assistance in criminal matters concluded with various countries. Our Extradition Act, 1962 (Act 67 of 1962) makes no mention of the death penalty as a ground for refusal of extradition.
However, an exclusionary clause occurs in certain of the republic’s bilateral treaties, for example it is stated that when the offence for which extradition is sought is punishable by death under the laws of the requesting state and is not punishable by death under the law in the requested state, the requested state may refuse extradition unless the requesting state provides assurance that the death penalty will not be imposed, or if imposed will not be carried out. South Africa therefore declines to surrender a person to a foreign jurisdiction where the death penalty is a sanctioned form of punishment and where in the instance of the requested extradition there is probability that an order for execution may be imposed as penalty.
On 20 September 2006 the Government of South Africa signed the optional protocol to the convention against torture and other cruel, inhuman of Degrading Treatment of Punishment (OPCAT). One of its main objectives is to establish a system of regular visits undertaken by independent international and national bodies to places where people are allegedly deprived of their liberty in order to prevent torture and other cruel, inhumane or degrading treatment or punishment.
In conclusion, once again, I would like to commend the Community of Sant’Egidio for its relentless activism in advocating for the universal abolition of capital punishment and commitment, to the defence of human rights. Thanks to the unrelenting efforts of the community, we have indeed come a long way since 30 November 1786, in Tuscany, the first time in history that the death penalty was abolished.
South Africa has joined hands with many countries calling for the end of death penalty. Our democratic government took a conscious decision to entrench the right to life in our Constitution given the problems attached to the death penalty, some of which have been well pronounced by our Constitutional Court.
Indeed the question of death penalty vis-à-vis the right to life must be on the agenda for Africa and the world in general as we grapple with the call to go back to the values of the human race.
I thank you!
Issued by: Department of Justice and Constitutional Development
24 May 2009
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za/)
