Mandela and the Death Penalty

On a day when the world mourns the death of Nelson Mandela, it is worth remembering his role in de Klerk’s remarkable move to abolish the death penalty in South Africa.

South Africa had been renowned for its extensive use of the death penalty. The Society for the Abolition of Capital Punishment in South Africa had been established in 1971, but while apartheid persisted the government had rejected all calls for inquiries into the system.

However, with the release of Nelson Mandela in February 1990 and the beginning of negotiations for constitutional change, the death penalty became one of the touchstones of commitment to a new social order. President F. W. de Klerk announced an immediate moratorium on executions, the last one having taken place on 2 February 1989, and in July 1990 the Criminal Law Amendment Act abolished capital punishment for housebreaking with intent to commit a crime or with aggravating circumstances, and made the death penalty for murder discretionary rather than mandatory.

A tribunal was set up to review death sentences imposed before July 1990 and, as a result, the Minister of Justice announced in 1992 that all executions would continue to be suspended, pending the introduction of a Bill of Rights for the new South Africa.

Despite the fact that the South African Transitional Constitution of 1993 was silent on the matter of whether or not the death penalty was permissible, the Attorney-General, in line with President Mandela’s long-held belief that the death penalty was barbaric, brought a case before the Constitutional Court, arguing that the death penalty should be declared unconstitutional. The Court, in the landmark judgment of The State v T. Makwanyane and M. Mchunu in 1995 decided that capital punishment was incompatible with the prohibition against ‘cruel, inhuman or degrading’ punishment and with a ‘human rights culture’ which made the rights to life and dignity the cornerstone of the Constitution. A further influential argument was that it would be inconsistent with the spirit of reconciliation, post-apartheid.

Thus, despite widespread concern about a tide of violent crime, and strong political pressures to reinstate the death penalty, the South African Parliament endorsed the opinion of Judge Chaskalson, the President of the Constitutional Court, that the way to reduce violence was to create a ‘human rights culture’ which respects human life. In 1997 the Criminal Law Amendment Act removed all references to capital punishment from the statute book.

Despite the fact that political parties such as the Freedom Front Plus, the Christian Democratic Party, and the Pro-Death Penalty Party have argued for reinstatement of capital punishment in South Africa, on the grounds that it is necessary to reduce the country’s very high homicide rate, it is very unlikely that there would be a parliamentary majority for the constitutional amendment that would be necessary. Such is the legacy of Nelson Mandela.

This blog has relied heavily on Hood and Hoyle, The Death Penalty: A Worldwide Perspective, OUP, 2008.