Calls for the reinstatement of the death penalty have resurfaced amid South Africa’s ongoing gender-based violence and femicide crisis, with some arguing that capital punishment should be considered for perpetrators of the most serious crimes.
However, bringing back the death penalty would face a significant constitutional hurdle.
South Africa’s Constitutional Court declared capital punishment unconstitutional in the landmark S v Makwanyane judgment in 1995, finding that it violated fundamental rights including the right to life and dignity, as well as the right not to be subjected to cruel, inhuman or degrading punishment.
Speaking to VOC, Southern Africa Litigation Centre (SALC) Civic Rights Programme Manager Melusi Simelane says while perpetrators of gender-based violence must be held accountable, the death penalty would not provide the solution.
“The Southern Africa Litigation Centre stands shoulder to shoulder with everyone, and like those calling for the death penalty, I want everyone who’s responsible to be punished. Women must be kept safe. And where we part ways is on the death penalty itself, because it will deliver neither.”
Simelane says the Constitutional Court’s 1995 ruling remains relevant because the rights underpinning that judgment are still protected by the Constitution.
He says the court’s unanimous decision was shaped by South Africa’s history and its rejection of state-sanctioned executions.
“The court said unanimously that the death penalty violates the right to life, the right to dignity, and the right not to be punished in a cruel and inhuman and degrading way. So the rights are still in our Constitution today.”
“No ordinary law can bring back the death penalty because the court would have to strike it down again.”
He says the Makwanyane judgment was ultimately about defining the kind of society South Africa wanted to become after apartheid.
“It was a promise made to ourselves that the state would never again decide which one of us gets to live.”
Listen to the full interview below.
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