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| 76 S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra note 72, at 749A-D. 77 According to the statistics referred to in the amicus brief of the South African Police approximately 9 000 murder cases are brought to trial each year. In the more than 40 000 cases that have been heard since the amendment to section 277 of the Criminal Procedure Act, only 243 persons were sentenced to death, and of these sentences, only 143 were ultimately confirmed on appeal. See also, Devenish, supra note 42, at 8 and 13. 78 In the amicus brief of Lawyers for Human Rights, Centre for Applied Legal Studies and the Society for the Abolition of the Death Penalty in South Africa it is pointed out that the overwhelming majority of those sentenced to death are poor and black. There is an enormous social and cultural divide between those sentenced to death and the judges before whom they appear, who are presently almost all white and middle class. This in itself gives rise to problems which even the most meticulous judge cannot avoid. The formal trial proceedings are recorded in English or Afrikaans, languages which the judges understand and speak, but which many of the accused may not understand, or of which they may have only an imperfect understanding. The evidence of witnesses and the discourse between the judge and the accused often has to be interpreted, and the way this is done influences the proceedings. The differences in the backgrounds and culture of the judges and the accused also comes into the picture, and is particularly relevant when the personal circumstances of the accused have to be evaluated for the purposes of deciding upon the sentence. All this is the result of our history, and with the demise of apartheid this will change. Race and class are, however, factors that run deep in our society and cannot simply be brushed aside as no longer being relevant. 79 I do not want to be understood as being critical of the pro deo counsel who perform an invaluable service, often under extremely difficult conditions, and to whom the courts are much indebted. But the unpalatable truth is that most capital cases involve poor people who cannot afford and do not receive as good a defence as those who have means. In this process, the poor and the ignorant have proven to be the most vulnerable, and are the persons most likely to be sentenced to death. 80 See the comments of Curlewis, J in [1991] SAJHR, Vol. 7, p. 229, arguing that judges who do not impose the death sentence when they should do so are not doing their duty. "Let me return to the point that troubles the authors: 'that a person's life may depend upon who sits in judgment.' Of course this happens. I do not know why the authors are so hesitant in saying so. Their own reasoning, let alone their tables, proves this". Id. at 230. 81 Furman v. Georgia, supra note 34, at 257. 82 "While this court has the power to correct constitutional or other errors retroactively...it cannot, of course, raise the dead." Suffolk District v. Watson and Others, 381 Mass. 648, 663 (1980)(Hennessy, CJ.)(plurality decision holding the death penalty unconstitutionally cruel under the Massachusetts State Constitution). "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of the qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case". Woodson v. North Carolina, supra note 66, at 305 (Stewart, Powell and Stevens, JJ.). 83 Voyles v. Watkins, 489 F.Supp 901 (D.D.C.: N.D.Miss. 1980). See also, People v. Frierson, 599 P.2d. 587 (1979). Cf. Powell v. Alabama, 287 U.S. 45 (1932). 84 Furman v. Georgia, supra note 34, at 288-289 (Brennan, J., concurring). Although in the United States prolonged delay extending even to more than ten years has not been held, in itself, a reason for setting aside a death sentence, Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990)(rejecting a claim that execution after sixteen years on death row would constitute curel and unusual punishment in violation of the Eighth and Fourteenth Amendments), in other jurisdictions a different view is taken. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence.
85 Callins v. Collins, supra note 62, (Blackmun, J., dissenting). 86 Id. (compare Scalia, J., concurring, with Blackmun, J., dissenting). 87 Trop v. Dulles, supra note 61, at 100. See also, Furman v. Georgia, supra note 34, at 270-281 (Brennan, J., concurring); Gregg v Georgia, supra note 60, at 173; People v. Anderson, supra note 62, at 895 ("The dignity of man, the individual and the society as a whole, is today demeaned by our continued practice of capital punishment."). 88Gregg v. Georgia, supra note 60, at 230 (Brennan, J., dissenting) (quoting his opinion in Furman v. Georgia, at 273). See also, Furman v. Georgia, supra note 34, at 296, where Brennan, J., concurring, states: "The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death." 89 [1977] 45 BVerfGE 187, 228 (Life Imprisonment case)(as translated in Kommers, supra note 18, at 316). 90 (1992) 6 CRR (2d) 193 SC. 91 Id. at 241 (per Cory, J, dissenting with Lamer, CJC, concurring). See also, Sopinka, J, dissenting (with Lamer, CJC, concurring) at 220. 92 Id. at 202 (per La Forest, J)(L'Heureux-Dube and Gonthier, JJ concurring). 94 Joseph Kindler v Canada, United Nations Committee on Human Rights, Communication No 470/1991, 30 July 1993. 95 (1989) 11 EHRR 439 at paras. 103, 105 and 111. 96 (1980) 2 SCC 684. 97 Id. at 730, para. 136. 98 Id. at 709, para. 61. 99 Id. at 712, para. 71. 100 I have not yet dealt specifically with the issues of deterrence, prevention and retribution, on which the Attorney General placed reliance in his argument. These are all factors relevant to the purpose of punishment and are present both in capital punishment, and in the alternative of imprisonment. Whether they serve to make capital punishment a more effective punishment than imprisonment is relevant to the argument on justification, and will be considered when that argument is dealt with. For the moment it is sufficient to say that they do not have a bearing on the nature of the punishment, and need not be taken into account at this stage of the enquiry. 101 Supra note 96, at 729, para. 132. 102 Id. 103 Supra note 96, at 730-731, para. 136. For similar reasons, the death penalty was held not to be inconsistent with the Constitution of Botswana, or with the Constitution of the former Bophuthatswana. S v Ntesang 1995 (4) BCLR 426 (Botswana); S v Chabalala 1986 (3) SA 623 (B AD). 104 Id. at 740, para. 165. Bhagwati J dissented. The dissenting judgement is not available to me, but according to AMNESTY INTERNATIONAL, WHEN THE STATE KILLS, supra note 42, at 147, Bhagwati J asserted in his judgement that "[t]he prevailing standards of human decency are incompatible with [the] death penalty." 105 Triveniben v State of Gujarat [1992] LRC(Const.) 425 (Sup. Ct. of India); Daya Singh v Union of India [1992] LRC(Const.) 452 (Sup. Ct. of India). 106 Supra note 95, at 484. 107 Joseph Kindler v Canada, supra note 94, at 23. 108 Per Lord Bridge in R v Home Secretary, Ex parte Bugdaycay (1987) AC 514 at 531G. 109 Supra note 55. 110 "The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority. It is the function of the court to examine legislative acts in the light of such constitutional mandates to ensure that the promise of the Declaration of Rights is a reality to the individual (citations omitted)...Were it otherwise, the Legislature would ever be the sole judge of the permissible means and extent of punishment and article I, section 6, of the Constitution would be superfluous." People v. Anderson, supra note 62, at 888. This was also the approach of the President of the Hungarian Constitutional Court in his concurring opinion on the constitutionality of capital punishment, where he said: "The Constitutional Court is not bound either by the will of the majority or by public sentiments."
111 Supra note 34, at 443. 112 319 U.S. 624, 638 (1943). 113 The Californian Constitution was subsequently amended to sanction capital punishment. 114 Supra note 62. 115 Id. at 899. The cruelty lay "...not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to the execution during which the judicial and administrative procedures essential to due process of law are carried out." Id. at 894 (citations omitted). 116 Id. at 899. 117 381 Mass. 648 (1980). 118 "...[T]he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror." Id. at 664. "All murderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are inescapably capricious when applied to murders and murderers." Id. at 665. "...[A]rbitrariness and discrimination...inevitably persist even under a statute which meets the demands of Furman." Id. at 670.
119 E.g., Coker v. Georgia, 433 U.S. 782 (1977)(imposition of the death penalty for rape violates due process guarantees because the sentence is grossly disproportionate punishment for a nonlethal offence). See also, Gregg v. Georgia, supra note 60, at 187 ("[W]e must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed."), and Furman v. Georgia, supra note 34, at 273 ("...a punishment may be degrading simply by reason of its enormity."). 120 The Black Act: 9 George I. C.22, as cited in E.P. THOMPSON, WHIGS AND HUNTERS, THE ORIGIN OF THE BLACK ACT 211 (Pantheon). The author notes that these provisions were described by Lord Chief Justice Hardwicke as "necessary for the present state and condition of things and to suppress mischiefs, which were growing frequent among us." 121 This was the approach of Brennan, J., in Furman v. Georgia, supra note 34, at 282 ("The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society [a determination he makes based on the infrequency of use in relation to the number of offences for which such punishment may apply], and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the [clause prohibiting cruel and unusual punishment]."). 122 S v Zuma and Two Others, supra note 6, para. 21. 123 Furman v. Georgia, supra note 34, at 300. Brennan, J., was dealing here with the proposition that "an unusually severe and degrading punishment may not be excessive in view of the purposes for which it is inflicted." 124 Id. 125 "The People concede that capital punishment is cruel to the individual involved. They argue, however, that only "unnecessary" cruelty is constitutionally proscribed, and that if a cruel punishment can be justified it is not forbidden by article I, section 6, of the California Constitution." Supra note 62, at 895. 126 S v Zuma and Two Others, supra note 6. 127 Attorney-General of Hong Kong v Lee Kwong-Kut, (1993) AC 951 at 970-972 (PC). 128 Supra note 60, at 186-187. 129 S v Zuma and Two Others, supra note 6. 130 A proportionality test is applied to the limitation of fundamental rights by the Canadian courts, the German Federal Constitutional Court and the European Court of Human Rights. Although the approach of these Courts to proportionality is not identical, all recognise that proportionality is an essential requirement of any legitimate limitation of an entrenched right. Proportionality is also inherent in the different levels of scrutiny applied by United States courts to governmental action. 132 (1986) 19 CRR 308. 133 Id. at 337. 134 (1989) 39 CRR 193 at 248. 135 (1990) 48 CRR 1 at 62. 136 (1991) 1 CRR (2d) 1 at 30. 137 Per La Forest J in Tetreault-Gadoury v Canada (Employment and Immigration Commission) (1991), 4 CRR(2d) 12 at 26. See also, Rodriquez v British Columbia (AG) (1994) 17 CRR(2d) 192 at 222 and 247. 138 Dieter Grimm, Human Rights and Judicial Review in Germany, in HUMAN RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE PERSPECTIVE 267, 275 (David H. Beatty, ed., Martinus Nijhoff publ.)(1994). Prof. Grimm is presently a member of the German Federal Constitutional Court. 139 Id. For a discussion of the application of the principle of proportionality in German Constitutional jurisprudence, see CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 18-20, 307-310 (Univ. of Chicago Press)(1994). Prof. Currie outlines the genesis of proportionality, intimated in the Magna Carta and generally described by Blackstone, and notes that it was further developed by Carl Gottleib Svarez, a celebrated thinker of the German Enlightenment. "Svarez insisted on proportionality both between ends and means and between costs and benefits; both aspects of the principle are reflected in the jurisprudence of the Constitutional
140 Currie, id., at 178, note 15 and accompanying text. See also infra note 161. 141 R v France (1993) 16 EHRR 1, para. 63. 142 Handyside v United Kingdom (1979-80) 1 EHRR 737, para. 49. 143 Dudgeon v United Kingdom (1981) 4 EHRR 149, para. 52; Norris v Ireland (1988) 13 EHRR 186, para. 46; Modinos v Cyprus (1993) 16 EHRR 485. 144 "...[T]he margin of appreciation available to the legislature in implementing social and economic policies should be a wide one..." James v United Kingdom (1986) 8 EHRR 123, para. 46. See also, Lithgow v United Kingdom (1986) 8 EHRR 329, para. 122. 145 S v Zuma and Two Others, supra note 122, para. 35. 146 S v Senonohi, supra note 76, at 734F-G. 147 Criminal Appeal No. 142 of 1994; 30 January 1995. 148 Id., wherein Ramadhani JA., highlights with respect to the Republic of Tanzania Constitution, that article 30(2) provides that laws, and actions taken in accordance with such laws, shall not be invalidated under the Constitution if such laws (or actions) make provision, inter alia, for "ensuring that the rights and freedom of other or the public interest are not prejudiced by the misuse of the individual rights and freedom." Id. at p. 23.
149 See discussion on public opinion supra paras. 87 to 89. 150 S v W 1993 (2) SACR 74, at 76H-I. 151 In the Statement of Minister of Justice dated 27 March 1992, supra note 31, para. 22. |