Constitutional Development, at the 'Feast of Tuscany' celebration, Florence,
Italy
28 November 2007
President of the Regional Council of Tuscany, the Honourable Riccardo
Nencini
Programme Director
Ambassadors and Councillors
Members of the community
Distinguished guests
Ladies and gentlemen
I bring you warm greetings from the government and people of South Africa,
as this region celebrates the Tuscany heritage. Yesterday I was privileged to
be part of the guests of the Tuscany Commission for Equal Opportunity as they
reviewed research work of three exceptional young scholars on women workers. It
was an engaging debate and I look forward to further engaging with the
thesis.
Your Excellencies, distinguished guests, it is an honour to be invited to
this conference organised by the Region of Tuscany against capital punishment.
In June this year I was in this country with my colleagues Ministers of Justice
in Africa. As guests of the community of Saint Egidio where we deliberated on
the death penalty. As a South African I left that conference strengthened in
the belief that there are many countries in the world considering either a
moratorium or the abolishment the death penalty.
Congratulations to the Government of Italy for successfully leading the
introduction of the resolution on the moratorium on the use of the death
penalty. With the support of the European Union, South Africa and other
countries the resolution was adopted in the United Nations General Assembly on
15 November 2007. Those in favour were 99 and those against were 52, with 33
abstentions. This is an indication that many more countries have to be
persuaded about the justness of the abolition of the death penalty. The matter
of the death penalty is current in world discourse and it should remain and
important subject of dialogue within nation states, amongst scholars and at all
relevant international fora.
Ladies and gentlemen, the death penalty is abolished in South Africa. Allow
me to give you a brief background to how the death penalty was abolished. 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 the death penalty in South Africa.
During apartheid days the death penalty was used indiscriminately and largely
against the 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 the highest court in our country, the
Constitutional Court abolished the death penalty.
The Constitutional Court, interpreting provisions of the interim
Constitution, abolished the death penalty and held that capital punishment
violated the right not to be subjected to cruel, inhuman 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.
Parliament responded to the decision of the Constitutional Court by adopting
the Criminal Law Amended Act, 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.
Thereafter, prisoners sentenced to death for political crimes and other
crimes, had their sentences replaced by a life imprisonment after applying to
the President for the substitution of death, through the Department of Justice.
The 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 who cannot protect their rights
adequately through the democratic process. 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."
In terms of international relations, South Africa is party to treaties on
extradition and mutual legal assistance in criminal matters concluded with
various countries. 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 will not be imposed, or if imposed will not be carried
out.
South Africa should decline surrender of a person to a foreign jurisdiction
where the death penalty is a competent form of punishment. 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, inhuman or degrading treatment or punishment.
In conclusion, South Africa remains committed to the advancement of human
rights, the pursuit of justice, peace and security amongst nations of the
world, amongst different communities inter-state, solidarity with developing
countries in advancing the noble ideal of human development.
I thank you!
Issued by: Ministry of Justice and Constitutional Development
28 November 2007
Source: Ministry of Justice and Constitutional Development (http://www.doj.gov.za)
