After the Death Penalty

Abstract

In 1995, the Constitutional Court of the Republic of South Africa declared the death penalty to be unconstitutional. The judgment and concurring opinions in State v. Makwanyane relied, along with other precedents, on Furman v. Georgia, the 1972 U.S. Supreme Court case that, following a moratorium, brought about an end to executions in the United States, until Gregg v. Georgia opened the way four years later for their resumption under more restricted conditions. The South African justices find noteworthy Justice William Brennan’s affirmation, in Furman, of human dignity as a value guiding his concurring opinion. A right to dignity is enshrined in South Africa’s constitution (State v. Makwanyane, ¶¶ 57– 58). In the judgment in Makwanyane, as well as in several of its concurring opinions, human dignity is connected to ubuntu— the idea that a person is a person through other people— an African ethics of reciprocity invoked in the epilogue of the 1993 interim South African constitution (State v. Makwanyane, ¶¶ 130– 31, 223– 27, 237– 63, 307– 13). This reference to ubuntu leads to an appeal to recognize “African law and legal thinking as a source of legal ideas, values and practice.” It is then noted that, prior to the imposition of colonial law, although people suspected of witchcraft were sometimes summarily killed, and killings took place in the context of military discipline, this is not how murderers were punished: meaning that the equivalent of judicial killing was not practiced in precolonial southern Africa (State v. Makwanyane, ¶¶ 365– 83).