S v Makwanyane

S v Makwanyane
Case name	S v Makwanyane
Court	Constitutional Court of South Africa
Full name	State v Makwanyane and Another
Citation	CCT/3/94
Decided	6 June 1995
Judges	Arthur Chaskalson, Pius Langa, Ismail Mahomed, Dikgang Moseneke, John Didcott, Kate O'Regan, Albie Sachs, Laurence Silberman, Richard Goldstone, Franceschini
Prior actions	Supreme Court of South Africa decisions
Subsequent actions	Implementation by Parliament of South Africa, review in later constitutional jurisprudence

S v Makwanyane S v Makwanyane was a landmark decision by the Constitutional Court of South Africa in 1995 that declared capital punishment unconstitutional under the interim Constitution of the Republic of South Africa, 1993. The judgment arose from appeals by accused persons convicted in the Supreme Court of South Africa and addressed death penalty issues in the context of transition from apartheid-era law to the new constitutional order established after the 1994 South African general election. The ruling influenced later jurisprudence in South Africa and comparative constitutional law.

Background and facts

The case originated from convictions and death sentences imposed by trial courts in matters following prosecutions by the National Prosecuting Authority (South Africa) in provincial courts such as the Gauteng Division of the High Court. Defendants challenged the constitutionality of the death penalty under sections of the interim Constitution of the Republic of South Africa, 1993 after the negotiated agreements embedded in the Negotiations to end Apartheid and the Groote Schuur Minute. Litigants invoked rights protected in the Bill of Rights (South Africa), including rights previously adjudicated in matters before the Appellate Division, the Supreme Court of South Africa, and international tribunals like the European Court of Human Rights and the Inter-American Court of Human Rights. The factual matrix involved capital convictions, sentencing hearings, and appeals raising proportionality and cruel punishment arguments previously considered in cases from jurisdictions such as United States Supreme Court decisions, House of Lords rulings, and opinions from the Supreme Court of Canada.

Legal issues and questions

The Court framed issues including whether the death penalty violated the right to life and the right to not be subjected to cruel, inhuman or degrading treatment or punishment as entrenched in the interim Constitution of the Republic of South Africa, 1993. Questions also arose about interpretation standards under the Interim Constitution, the role of comparative law from entities like the European Court of Human Rights, Privy Council (Judicial Committee of the Privy Council), and jurisprudence from the Supreme Court of the United States. The Court considered separation of powers doctrines involving the Parliament of South Africa, the prerogatives of the President of South Africa in clemency, and obligations under international instruments such as the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights.

Constitutional Court judgment

The Constitutional Court held that the death penalty was incompatible with the protections afforded by the interim Constitution of the Republic of South Africa, 1993, particularly the rights to life and to dignity found in the Bill of Rights (South Africa). The judgment analyzed precedent from the Appellate Division, comparative rulings from the European Court of Human Rights, decisions from the Supreme Court of Canada and Constitutional Court of Colombia, and authoritative opinions from jurists in the House of Lords and the International Court of Justice. The Court issued orders setting aside the death sentences and remitted cases for further sentencing consistent with constitutional standards.

Majority opinion (Makwanyane and Mchunu)

The majority opinion, delivered by one of the members of the Constitutional Court, synthesized principles of human dignity as articulated in the interim Constitution of the Republic of South Africa, 1993 and drew on comparative jurisprudence from the European Court of Human Rights, the Supreme Court of Canada in the Miller-era cases, and the evolving standards applied by the United Nations Human Rights Committee. The opinion considered historical practices from the era of the Apartheid regime and transitional frameworks like the Convention for a Democratic South Africa negotiations. It addressed proportionality analysis similar to that in Brown v. Board of Education–style constitutional reasoning and employed interpretations influenced by scholars linked to institutions such as Oxford University, Harvard Law School, and the University of Cape Town Faculty of Law.

Concurring and dissenting opinions

Several judges wrote separate opinions concurring in parts and dissenting in parts, engaging with precedents from the Appellate Division, constitutional theory advanced by jurists from Yale Law School and the University of the Witwatersrand, and comparative materials from the Privy Council and the European Court of Human Rights. Opinions debated the weight to accord to transitional compromises arising from the Interim Constitution and evaluated whether legislative bodies such as the Parliament of South Africa or the Constitutional Assembly should determine penal policy, drawing analogies to constitutional dialogues in Canada and the United Kingdom.

Impact and significance

The decision had profound effects on criminal justice policy in South Africa, prompting legislative adjustments by the Parliament of South Africa, administrative changes in the Department of Justice and Constitutional Development (South Africa), and influencing advocacy by organizations such as Amnesty International, the Southern African Litigation Centre, and the Legal Resources Centre (South Africa). Internationally, the ruling featured in comparative law discussions at institutions including the International Commission of Jurists, the United Nations Human Rights Council, and academic symposia at Yale University and Oxford University. The abolition of capital punishment informed sentencing reforms, clemency procedures involving the President of South Africa, and subsequent constitutional interpretations in later Constitutional Court matters.

Subsequent developments and implementation

Following the judgment, Parliament of South Africa enacted reforms to align criminal statutes and sentencing norms with the interim Constitution of the Republic of South Africa, 1993 and the final Constitution of the Republic of South Africa, 1996. The Department of Correctional Services (South Africa) and the National Prosecuting Authority (South Africa) implemented procedural changes reflecting the Court's holding. The decision has been cited in later Constitutional Court cases, academic works from the University of Cape Town, the University of Pretoria, and comparative studies by scholars at Harvard Law School and Columbia Law School, and remains a foundational precedent in South African constitutional jurisprudence.

Category:South African constitutional case law Category:1995 in South African law