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Address by the Minister of Justice and Correctional Services, Michael Masutha, MP, (Adv) at the 9th International Meeting of Ministers of Justice, Rome, Italy, 22 February 2016

Your Excellences
Distinguished Ministers
Distinguished guests
Members of the Community of Sant’Egidio
Ladies and gentlemen
South Africa would like to express its gratitude for having been invited by the Community of Sant’Egidio to this international meeting of leaders dedicated to the abolition of capital punishment. This initiative fits into the broader work of a universal moratorium on the death penalty towards which this community has been working for many years across the globe.

I will be failing in representing my country if I do not share a remarkable story of one of our biggest correctional centres, the Kgosi Mampuru II Management Centre. This centre was named after Kgosi Mampuru II, who relentlessly resisted a colonial rule at a time when doing so was met by the death sentence by way of hanging the person.

Kgoshi Mampuru II refused to recognize the Zuid Afrikaans Republic and to pay taxes to it, and so, 131 years ago, he was hanged to death at the old Pretoria Central Prison on 22 November 1883. The Transvaal Advertiser of 24 November 1883 recorded that:

The Executive Council of this state having decided that the sentence of death pronounced upon the kaffir Chief Mampuru at the last Criminal Sessions of the High Court for murder and rebellion should be carried out, the execution took place on Thursday morning of 22 November. Generally the dread sentence of the law is carried out within the precincts of the gaol, but, for some reason or other, it was resolved to vary the practice in the case of Mampuru, and the gallows was erected on the western side of the gaol, within the enclosure … some 260 white persons took advantage of the opportunity of witnessing a public execution furnished to them by the Executive … these men of education and standing in society … turned out early in the morning to behold a scene that, under any circumstances, is most repulsive and horrible. The Government … enforced the attendance of the kaffir prisoners, who had been more or less compatriots of Mampuru; and they were compelled to witness the death agonies of the Chief. It may be mentioned that the Government did not consider it necessary to provide the condemned prisoner with a shirt, and he was hanged in all his nakedness.”

The brutal execution of Kgosi Mampuru was reported as far as the United States. The New York Times of 19th December 1886 recorded that:

Mampuru was led naked to the jail yard in the presence of 200 whites. The first rope used broke when the trap was sprung and Mampuru fell into a pit below. He was dragged out, however, and another attempt to hang him was successful.”

Indeed, as Pope Francis eloquently observed in his speech recently made to the US Congress:

“If we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities”.

Likewise, imbued with a spirit of truth and forgiveness, the South African interim Constitution, born out of a negotiated political settlement and that contained as one of its pillars, which served as a blueprint against which its laws and societal values would be measured, envisaged a society based on values of reconciliation and Ubuntu or humanity and not vengeance and retaliation.

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, providing a platform from which to build a truly united, non-racial, non-sexist, democratic and prosperous society.

Our Constitution includes a chapter on fundamental rights, commonly known as the Bill of Rights, which is entrenched therein. The consequence of entrenching this right to life was the abolishment of the death penalty amongst others. In the past, under successive apartheid governments, the death penalty was used largely against the majority of 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 a precedent-setting judgement, delivered by the Constitutional Court in June 1996, in the case of State versus Makwanyane, the death penalty was finally abolished. The Constitutional Court ruled that the imposition of the death penalty was incompatible with the right to life as enshrined in the Bill of Rights in our Constitution:

“The right to life is sacrosanct and in one sense, antecedent to all other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be bearer thereof. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity.  This concept of human life is at the centre of our constitutional values”.

Further expanding on the notion of the right to life, the Court also found that this particular right incorporates the right to dignity. So the right to dignity and to life are intertwined:

“The right to life is more than existence; it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity”.

The Court also found that:

“No empirical study, no statistical exercises and no theoretical analysis have 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:

  1. The almost inherent arbitrariness in sentencing;
  2. The failure of the sentence to treat the guilty party as a human being worthy of respect;
  3. The irredeemable nature of the punishment;
  4. The cruelty that inevitably flows from the delays, which the convicted individuals face when awaiting execution and often the nature of the execution itself.

South Africa’s first democratic President, the late Nelson Mandela summarised the death penalty well when he said:

“The death sentence is a barbaric act … It is a reflection of the animal instinct still in human beings.”

In response to the Constitutional Court decision, our national legislature adopted the Criminal Law Amendment Act Act 105 of 1997), which makes provision for the setting aside of 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 converted to life imprisonment.

Over the years, due to the crime situation and a belief that capital punishment would deter criminal behaviour, there have been calls from some that capital punishment be reinstated. Many legal systems globally, over a period of time, have moved away from “an eye for an eye” brand of justice.  As South Africans we do not want to go back to that principle of retribution, because 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 doctrine 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 a crisis point with hundreds on death row, sufficient to compel the then government to suspend all executions.  This was in recognition of the failure of capital punishment and in preparation for a dispensation which would entrench the right to life in our Constitution.

In terms of international relations, South Africa is party to treaties on extraditions and mutual legal assistance in criminal matters concluded with various countries. Our Extradition Act (Act No.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 in respect of 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 a probability that an order for execution may be imposed as a penalty.

On 20 September 2006, the Government of South Africa signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 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, once again, South Africa 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, when in Tuscany, the first time in history, the death penalty was abolished.

South Africa has joined hands with many countries calling for the end of the 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.

The right to life and dignity is the most important of all human rights and the source of all other personal rights in a broader scheme of fundamental rights. By committing ourselves to a world without the death penalty, founded on the recognition of human rights, we are required to value these two rights above all others. This must be demonstrated by states in everything they do; including the way they punish criminals.

Indeed the question of the death penalty vis-á-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!