S v Makwanyane and Another/Didcott J

S v Makwanyane and Another
Concurring judgment of Justice Didcott by John Didcott

[173]Didcott J: I agree with Chaskalson P that our new Constitution (Act 200 of 1993) outlaws capital punishment in South Africa for the crimes covered by his judgment, and I concur in the order giving effect to that conclusion which he proposes to make.

[174]My grounds for believing the death penalty to be unconstitutional for the crimes in question are these. Capital punishment violates the right to life of every person that is protected by section 9 of the Constitution and contravenes the prohibition pronounced in section 11(2) against cruel, inhuman or degrading punishment, both of which bind the state and its organs in terms of section 7(1). The provisions of the Criminal Procedure Act (51 of 1977) that sanction sentences of death for such crimes are not saved from nullification in their consequent clash with sections 9 and 11(2). For they fail to satisfy the conditions which paragraph (a) of section 33(1) prescribes for their survival as exceptions to the general rule, the conditions requiring that they must be reasonable in the first place and, in a society of the sort described there, justifiable in the second. Nor do they pass the further test of necessity set by paragraph (aa) for any permissible invasion of section 11(2).

[175]Perhaps the essential content of the right to life is negated in addition, an effect not countenanced by paragraph (b) of section 33(1) which subjects the legitimacy of any encroachment on the right to the extra requirement that no such result may ever ensue. That point may be put aside, however, once the requirements of paragraphs (a) and (aa) are not met. Negating the essential content of a constitutional right is a concept less simple and clear than it may appear at first to be. Any definitive ruling on its import that was made now would have a profound bearing on other issues likely to confront us in the future, with implications for them which are difficult to foresee at so early a stage in the development of our jurisprudence. It is better, I therefore feel, not to go into the question on this occasion, but to leave that open for consideration and decision on a different one when it has to be answered.

[176]Nor, for much the same reasons, do I think it wise to venture at present a comprehensive and exact definition of what is encompassed by the constitutional right to life. It suffices for the purposes of this case to say that the proclamation of the right and the respect for it demanded from the state must surely entitle one, at the very least, not to be put to death by the state deliberately, systematically and as an act of policy that denies in principle the value of the victim's life. Those are hardly features of deaths which the state may happen to cause in the course of waging defensive warfare, quelling an insurrection or rescuing hostages, to cite some situations debated before us in which a constitutional protection of life was said to be inconceivable. Such hallmarks do, however, characterise every execution by the state of a criminal.

[177]Whether execution ranks also as a cruel, inhuman or degrading punishment is a question that lends itself to no precise measurement. It calls for a value judgment in an area where personal opinions are prone to differ, a value judgment that can easily become entangled with or be influenced by one's own moral attitude and feelings. Judgments of that order must often be made by courts of law, however, whose training and experience warns them against the trap of undue subjectivity. Such a judgment is now required from us, at all events, and would have been inescapable whichever way the question was answered. Nor do we lack guidance on it. A provision of the Zimbabwean Constitution which banned inhuman or degrading punishment was considered by their Supreme Court in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993(4) SA 239 (ZSC). Gubbay CJ had this to say about it (at 247 I – 248 B):

"It is a provision that embodies broad and idealistic notions of dignity, humanity and decency. It guarantees that punishment … of the individual be exercised within the ambit of civilised standards. Any punishment … incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the infliction of unnecessary suffering, is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilisation advances".

The same goes, I firmly believe, for our section 11(2). Gubbay CJ continued thus (at 248 B–C):

"(A)n application of this approach to whether a form of … punishment … is inhuman or degrading is dependent upon the exercise of a value judgment …; one that must not only take account of the emerging consensus of values in the civilised international community (of which this country is a part) …, but of contemporary norms operative in Zimbabwe and the sensitivities of its people".

I take that view here too, where such norms and sensitivities are demonstrated, above all else, by the altruistic and humanitarian philosophy which animates the Constitution enjoyed by us nowadays.

[178] Capital punishment was discussed at length in Furman v State of Georgia (1972) 408 US 238, a case handled by the Supreme Court of the United States of America in which a comparably liberal philosophy was expounded by a number of the judges hearing it. Stewart J described that sentence (at 306) as—

… unique … in its absolute renunciation of all that is embodied in our concept of humanity.

Brennan J agreed, declaring in the same case (at 290 and 291) that:

Death is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident. … A prisoner remains a member of the human family. … In comparison to all other punishments … the deliberate extinguishment of human life by the state is uniquely degrading to human dignity.

The distinctive features of the penalty were emphasised by Brennan J elsewhere in his judgment, when he wrote (at 287 and 288) that:

Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering. … Since the discontinuance of flogging as a constitutionally permissible punishment…, death remains the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. … The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself.

In a Californian case, the one of The People v Anderson (1972) 493 P 2d 880, Wright CJ observed (at 894) that:

The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalising to the human spirit as to constitute psychological torture.

Liacos J elaborated on that aspect of the matter in the judgment which he delivered when District Attorney for the Suffolk District v Watson and Others (1980) 381 Mass 648 was decided in Massachusetts. The passages that I shall quote (at 678 - 9, 681 and 683) are vivid. They went thus:

The ordeals of the condemned are inherent and inevitable in any system that informs the condemned person of his sentence and provides for a gap between sentence and execution. Whatever one believes about the cruelty of the death penalty itself, this violence done the prisoner's mind must afflict the conscience of enlightened government and give the civilised heart no rest. … The condemned must confront this primal terror directly, and in the most demeaning circumstances. A condemned man knows, subject to the possibility of successful appeal or commutation, the time and manner of his death. His thoughts about death must necessarily be focussed more precisely than other people's. He must wait for a specific death, not merely expect death in the abstract. Apart from cases of suicide or terminal illness, this certainty is unique to those who are sentenced to death. The state puts the question of death to the condemned person, and he must grapple with it without the consolation that he will die naturally or with his humanity intact. A condemned person experiences an extreme form of debasement. … The death sentence itself is a declaration that society deems the prisoner a nullity, less than human and unworthy to live. But that negation of his personality carries through the entire period between sentence and execution.

A similar account was furnished by Gubbay CJ in the Catholic Commission case when he said (at 268 E–H):

From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is the living dead. … He is kept only with other death sentence prisoners—with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful … death is … never far from mind.

[179]The Constitutions of California and Massachusetts forbade cruel punishments. Sentences of death were held in each state to be contraventions of the prohibition which could not stand. The decision reached in the case of the District Attorney for Suffolk was announced by Hennessey CJ, who said (at 664 and 665):

(T)he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror. … We conclude … that the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel … when judged by contemporary standards of decency.

Executions were not outlawed altogether, on the other hand, in either Furman v State of Georgia or the case of the Catholic Commission, despite the castigation that they then underwent. The reason lay in the special provisions of the governing charters, the Constitutions of the United States and Zimbabwe, each of 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. So, while executions could be and were banned in the particular circumstances of the two cases, insufficient room was visible for the total embargo which Brennan J and Gubbay CJ would no doubt have preferred to impose on them. No such obstacle was presented by the Constitution of Massachusetts or found to be raised at that time by the Californian one. None of this detracts, however, from my purpose in repeating the harrowing descriptions given on all four occasions of the ordeal suffered by criminals awaiting and experiencing execution. I am unaware of any criticism ever levelled at those descriptions, which were not disputed before us when reliance was placed on them in argument, and I have no reason to believe that they may have been inaccurate or exaggerated in any material respect. They suffice on the whole to convince me that every sentence of death must be stamped, for the purposes of section 11(2), as an intrinsically cruel, inhuman and degrading punishment.

[180]I pass to the question whether capital punishment is nevertheless allowed by section 33(1) for the crimes that concern us now. I am not sure that a sentence with a sequel of such cruelty, inhumanity and degradation can ever be rightly regarded in a civilised society as a reasonable or justifiable measure, let alone a necessary one. But I shall assume that the penalty is not innately incapable of meeting those requirements.

[181]The most familiar argument advanced in support of capital punishment, and the main contention we have to consider under the heading of its suggested permissibility, is that executions operate as a unique deterrent against the future commission of the crimes visited with them. That proposition, if sound indeed, deserves to be taken seriously. It then provides the strongest reason, in cases of murder at all events, for rating the sentence of death as an expedient which, though regrettable, passes constitutional muster. For section 9 protects likewise the lives of the innocent, the lives of potential victims. And that is a factor which must enter the reckoning, especially at present when the crimes of violence perpetrated here have become so prevalent and reached a level so appalling that acute anxiety is felt everywhere about the danger to life lurking around the corner. Such a time was said to be hardly propitious for, such a state of affairs to be scarcely conducive to, any relaxation in the rigour of the law. We dared not exacerbate the danger, we were warned, by reducing the force of deterrence in the combat with it. I agree that the nation cannot afford our doing so, and we would not wish it anyhow. Sight must never be lost, however, of this. The question is not whether capital punishment has a deterrent effect, but whether its deterrent effect happens to be significantly greater than that of the alternative sentence available, a suitably severe sentence of imprisonment which not only gets passed but may also be expected to run its course.

[182]The debate surrounding that question, an old one both here and elsewhere, has often been marked by the production of statistical evidence tendered to show that the death penalty either does not or does serve a uniquely deterrent purpose, as the case may be. The rate of capital crimes committed in a state performing executions is compared with that of the selfsame crimes experienced contemporaneously in some place or another where none occurs. The records of countries that executed convicts formerly, but have ceased doing so, are also examined. Comparisons are then drawn between the rates of those crimes found there before the punishment was abandoned and the ones encountered afterwards. Such statistics, when analysed, have always turned out to be inconclusive in the end. The pictures that they purport to present differ in the first place. The clarity of the sketching is impaired, in the second, by all sorts of variable factors for which no allowance is or can be made. One thinks, for instance, of differences and fluctuations in moral codes and values, in the efficiency and success of police forces in preventing and investigating crimes, in the climate for the collaboration and assistance that they need to obtain from the public and the extent of it which they manage to gain, in the organisation and skills of criminal conspirators and, above all perhaps, in the social and economic conditions that have so profound a bearing everywhere on the incidence of crimes. It therefore did not surprise me to hear that no great store was set in argument by figures of that kind. Others were drawn to our attention, which related to South Africa alone. They recorded the number of alleged murders that were reported here during every year from 1988 until 1993, inclusive of both. A globular increase emerged, the rate of which over the whole period of six years amounted approximately to 35% and accordingly to an annual average of almost 6%, calculated for convenience by means of a straight division that inflates the rate slightly, to be sure, since it disregards the effect on the percentage of the change from year to year in the figure on which it ought actually to be based. Interesting to notice, however, is this. The number of alleged murders rose by a mere 1% or thereabouts during 1993, in contrast with the average rate of 6% postulated, and by 9% during the time from the beginning of 1992 until the end of 1993, which remained lower than the corresponding average of 12% for that period of two years. The significance of the arithmetic lies in the fact that the moratorium on executions was announced, formally and firmly, in March 1992. What the exercise appears to illustrate, if statistics prove anything in such an area, is the irrelevance of the announcement to the rate of murders alleged, which had grown steadily while executions were carried out and was not accelerated by the halt in hangings. The results of my analysis, for what they are worth, may be added to the cogent and stronger reasons which Chaskalson P has supplied in paragraphs [119] and [120] for rejecting the contention addressed to us that the moratorium had contributed materially to the increase.

[183]Without empirical proof of the extent to which capital punishment worked as a deterrent, neither side could present any argument on the point better than the appeal to common sense that tends to be lodged whenever the debate is conducted. That the extreme penalty must inevitably be more terrifying than anything else was said, on the one hand, to speak for itself. It spoke superficially, we were told on the other, and unrealistically too. What stood to reason was this instead. A very large proportion of murderers were in no mood or state of mind at the time to contemplate or care about the consequences of their killings which they might personally suffer. Those rational enough to take account of them gambled by and large on their escape from detection and arrest, where the odds in their favour were often rather high. The prospect of conviction and punishment was much less immediate and seldom entered their thinking. It was fanciful, should that happen on relatively rare occasions, to imagine their being daunted by the possibility of a journey to the gallows, a journey taken by only a small percentage of convicted murderers even at the height of executions in this country, but not by the probability of incarceration in a jail for many years and perhaps for the rest of their lives. The second school of thought is the one which gets to grips with the realities of the matter, in my opinion, appraising them with a lot more plausibility and persuasiveness than any that attaches to the stark proposition of the first school.

[184]It is unnecessary, however, to go so far. The protagonists of capital punishment bear the burden of satisfying us that it is permissible under section 33(1). To the extent that their case depends upon the uniquely deterrent effect attributed to it, they must therefore convince us that it indeed serves such a purpose. Nothing less is expected from them in any event when human lives are at stake, lives which may not continue to be destroyed on the mere possibility that some good will come of it. In that task they have failed and, as far as one can see, could never have succeeded.

[185]In his judgment Chaskalson P has discussed retribution as another goal of punishment, and the arbitrariness and inequality contaminating our processes that culminate in executions. His treatment of the first subject will be found in paragraphs [129] to [131] and of the second one in paragraphs [48] to [54]. I share the view taken by him that retribution smacks too much of vengeance to be accepted, either on its own or in combination with other aims, as a worthy purpose of punishment in the enlightened society to which we South Africans have now committed ourselves, and that the expression of moral outrage which is its further and more defensible object can be communicated effectively by severe sentences of imprisonment. The inequality of which he has written may be curable in the long run, once it is not the result of the arbitrariness described by him. The same does not go, however, for the arbitrariness itself, a flaw in the edifice which Ackermann J has examined as well in paragraphs [158] to [165]. The problem of that is quite as intractable here as it has proved to be in the United States of America, where the courts have wrestled with it constantly and by no means to their satisfaction. For such arbitrariness is largely inherent in the nature of the proceedings from start to finish. Similar trouble may be inescapable, to be sure, in cases that are not capital ones. But in those producing sentences of death the arbitrariness is intolerable because of the irreversibility of the punishment once that gets put into force and the consequent irremediability of mistakes discovered afterwards, mistakes which do occur now and then notwithstanding the myth to the contrary. The defect then militates forcefully, I believe, against the reasonableness and justifiability of capital punishment.

[186]The conclusion to which I have thus come, echoing the one reached by Chaskalson P, is that the death penalty cannot survive our constitutional scrunity of it. The line I have taken in arriving there differs in some parts from that preferred by him, occasionally approaching a topic from another angle and sometimes placing the emphasis elsewhere. It has also called for less elaboration in the light of his meticulous research into a mountain of material and his erudite exposition of the themes developed from that. In general, however, I agree with his judgment, a profound and monumental work with which I feel proud to associate myself.

[187]I wish before ending this judgment to add my voice to that of Chaskalson P in dealing with a couple of points raised in argument on which he has commented already but which I have not yet mentioned.

[188]Whether capital punishment ought to be abolished or retained amounted, so it was said, to a question of policy which Parliament should decide, representing as it did the citizens of the country and expressing their general will. The issue is also, however, a constitutional one. It has been put before us squarely and properly. We cannot delegate to Parliament the duty that we bear to determine it, or evade that duty otherwise, but must perform it ourselves. In doing so, we were counselled in the alternative, we had to pay great attention to public opinion, which was said to favour the retention of the death penalty. We have no means of ascertaining whether that is indeed so, but I shall assume it to be the case. One may also assume, with a fair measure of confidence, that most members of the public who support capital punishment do so primarily in the belief that, owing to its uniquely deterrent force, they and their families are safer with than without its protection. The feeling is quite understandable, given its basis. But it deserves no further homage if the premise underlying and accounting for it is fallacious or unfounded, as I consider that one to be. To allow ourselves to be influenced unduly by public opinion would, in any event, be wrong. Powell J disparaged such external pressures on constitutional adjudication when he said in Furman v State of Georgia (at 443):

(T)he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess (the) amorphous ebb and flow of public opinion generally on this volatile issue, this type of enquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, not a judicial, function.

In similar vein were these remarks passed by Jackson J on the earlier occasion of West Virginia State Board of Education v Barnette and Others (1942) 319 U5 624 (at 638):

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 to establish them as legal principles to be applied by the courts. One's right to life … and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

[189]The other point was not so much a contention as a complaint, one registered against the sympathy with murderers, and the lack of any felt for the victims and their families, which some proponents of capital punishment have seen as the motivation behind every attack on it. It is unnecessary, I hope, for this court to answer that canard. In rebuttal of the criticism, lest it be levelled at us all the same, one can do no better than to repeat the following excerpts from the judgment which Wright CJ wrote in The People v Anderson (at 896 and 899):

We are fully aware that many condemned prisoners have committed crimes of the utmost cruelty and depravity and that such persons are not entitled to the slightest sympathy from society in the administration of justice or otherwise. … Our conclusion that the death penalty may no longer be exacted in California … is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members. Lord Chancellor Gardiner reminded the House of Lords, debating abolition of capital punishment in England: 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 sympathised with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect.

[190]South Africa has experienced too much savagery. The wanton killing must stop before it makes a mockery of the civilised, humane and compassionate society to which the nation aspires and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects, even the worst.