A smile. A chuckle. A quip. Their lordships have begun deliberations Strange, is that laughter we hear? Justin Pearce reports on the inauguration of the Constitional Court
SELDOM can a South African court have heard as much laughter as the Constitutional Court did on Wednesday, during its first day of proceedings.It was the good- natured belly laughter arising out of the ironic sparring of intellectuals at play. They laughed when advocate Gilbert Marcus suggested that one of the problems faced by South Africa’s legal system was that ”authority was in short supply”. And they roared when Judge Ismail Mahomed suggested to Marcus that ”if you don’t have authority, try some logic”.
When the laughter was over, the argument would continue as rigorously as ever, the critical faculties of the participants in no way impaired by their ready humour.
It is hard to imagine that the judges could have afforded the humour if the individuals whose lives rested on their judgment had been facing them from across the courtroom.But then, the Constitutional Court was not established with the purpose of judging individuals. It is there to judge laws, and it deals in philosophical abstracts rather than fingerprints and tearful testimonies.
This first case, though, challenging the constitutionality of the death penalty, will have a direct bearing on the fate of more than 300 people who have been sentenced to death since former president FW de Klerk declared a moratorium on further executions on February 2 1990.
The moral urgency to resolve the capital punishment issue is likely to be one of the reasons why Constitutional Court president Judge Arthur Chaskalson selected the issue to be the first ruling to be made by the newly convened court.
But perhaps even more importantly, the arguments around the death penalty illustrated the kinds of choices the court will be making as it strives to bring South African law into line with the present constitution.The application was made jointly by lawyers representing convicted killers Themba Makwanyane and Mvuso Mchunu, Laywers for Human Rights, the Society for the Abolition of the Death Penalty, and the government.
Makwanyane and Mchunu were sentenced to death for the killing of four people during an armed robbery at Coronation Hospital in Johannesburg. The murders are the kind of clear-cut case which is commonly cited as justification for the retention of capital punishment – – it was a fitting case, therefore, to test the acceptibility of the death penalty on purely principled grounds.
Backing up the case of the abolitionists is section nine of the constitution, which guarantees the right to life. Further fuel for the abolitionist argument appears in section 10, which guarantees the protection of human dignity, and section 11, which outlaws ”cruel, inhuman or degrading treatment or punishment”.
The room for debate lies in section 33, which allows for the limitation of constitutional rights, ”only to the extent that it is reasonable and justifiable in an open and democratic society based on freedom and equality”.
The subjective content of terms like ”reasonable” formed the basis of much of the argument that took place on Wednesday, with retentionists arguing that the alleged value of capital punishment as a crime deterrent outweighed the infringement of the right to life clause. It seems likely that much of the work of the Constitutional Court in the coming months will involve testing the discretionary section 33 against the clear provisions of other sections of the Bill of Rights.
How much time the court spends on discretionary clauses depends on how the judges view the court’s role. On the one hand, advocate Wim Trengove asserted that the question faced by the court was ”is it constitutional?” and not ”whether it is justified by popular demand”. Yet an approach which dwells on the discretionary clauses allows considerable room for political manoeuvring. Such an approach was taken by the retentionists in the case of capital punishment — ironically so, since for decades it has been the abolitionists who have campaigned against the establishment.
The arguments favouring the retention of the death penalty make much of the fact that section 33 allows the right to life to be waived if this is in the interests of ”a free and democratic society”. Retentionists told the court that with public opinion in South Africa favouring the death penalty as an effective crime deterrent, it would be fundamentally undemocratic to abolish it.
Retentionists also argue that there is more to section nine — the right-to-life clause — than immediately meets the eye. While Trengove argued that ”the first principle is the right not to be killed by the state”, retentionists interpret the right-to-life provision as favouring the protection of life by the state — which could in turn mean the retention of the death penalty as a measure against violent crime.
It is no surprise that the arguments submitted to the court by the retentionists form a much fatter document than those of the abolitionists — a graphic illustration of the complexitity of interpretation favoured by the those who wish the death penalty to remain in South African law.
But in responding to the retentionist position, the abolitionists did more than just reiterate section nine. Advocate George Bizos argued that the majoritarian position was not necessarily the right position: if every black South African demanded restitution without compensation of land that was conquered in colonial times, this would not necessarily mean that the Constitutional Court would endorse the demand.
Debate on this level — hammering out the principles without the luxury of a specific instance — would, it appears, be impossible anywhere other than in the rarified setting of the Constitutional Court.
And who would not forgive the judges the occasional academic chuckle if it allows them to deal rationally with the emotionalism of graphic descriptions of hanging submitted by the abolitionists — and on the other hand, with the letter from a member of the public crying that ”bloodshed is polluting our beautiful South Africa, and the only way to cleanse our land is capital punishment”.