/ 11 April 2024

Populist death penalty calls do not pass constitutional muster

Horror Photo Of A Dark Scary Hanging Nooses On Black Background.

“We must abolish this Constitution!” has become the election carol and election decorations of this year’s poll.

It has become almost routine to hear calls from populist politicians, including those in the ruling party, as well as other influential figures in society, advocating to change the South African Constitution. They often label this proposed shift as the “second transition”, consequentially portraying the Constitution as inadequate for driving social change and economic transformation. 

In the 2024 election campaign, the call has yet again been made to reintroduce capital punishment through constitutional amendment. Capital punishment was abolished in the 1995 constitutional court (CC) decision following S v Makwanyane and Another.

It is my view that such an amendment would be impossible as parliament does not have unlimited authority to change the Constitution. Thus, calls for such constitutional amendment are mere rhetoric that scapegoats the Constitution for the government’s failure to fulfil its constitutional obligations and progressively improve the lives of all who live in the country. The calls project the death penalty as the panacea to the unacceptably high crime rate. In this article, I aim to challenge the fallacious notion of introducing the death penalty through a constitutional amendment.

The significance of the Constitution cannot be overstated. It is the supreme law of the land, as explicitly stated in section 2, and embodies the collective aspirations of the nation which are founded on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms”. 

The Constitution defines the role and obligations of the state, delineates the powers and responsibilities of each branch, and provides mechanisms for accountability and oversight primarily for the government to ensure that it operates within its defined powers and duties. Our Constitution exists in a dynamic socio-political context and is adaptable to address and accommodate inevitable societal and political changes that are both desirable and necessary. It was purposely drafted in broad and general terms to ensure its longevity and relevance over time. 

To that end, the CC in S v Zuma and Others in 1995 approved the view that the Constitution is a living document but the Constitution does not mean whatever we wish it to mean. Thus, there is a clear distinction between amending the Constitution and replacing it, what is termed constitutional abrogation in legal circles. 

While it may be argued that both processes involve altering the supreme law of the land, they have vastly different implications and consequences. The former involves undertaking a rigorous process of adding, altering, correcting, enhancing, or even abolishing one or more existing constitutional provisions to address identified shortcomings or evolving societal needs, while maintaining the integral structure of the Constitution. Conversely, the latter entails substituting the existing Constitution with an entirely new document. 

Section 74 of the Constitution provides for the amendment of any of its provisions. These procedures are considerably more stringent than other legislative-making procedures. The rigorous procedure is deliberately imposed to shield the Constitution from the volatility of routine political dynamics and the potential for misuse by transient and populist majorities.

Strict procedures were established to ensure that all attempts to amend the Constitution are approached with great care, to prevent hastily executed amendments that could potentially introduce regressive amendments that would ultimately undermine its basic features.

The amendment procedure in section 74 is initiated by introducing a bill in the National Assembly and/or the National Council of Provinces.

Notably, on the plain reading of the text of the Constitution, any of its provisions may be amended, the only hurdle to conquer is to follow the prescribed procedure to satisfy the required majority stipulated in section 74. Section 167(4)(d) then confers upon the CC, as the custodian and guardian of the Constitution, the exclusive jurisdiction “to decide on the constitutionality of any constitutional amendment”. 

The delegation of power to the CC to review the validity of constitutional amendments aims to ensure that the court can establish and ensure that following an amendment there will be a reasonable degree of continuity and stability within the legal and political system. 

This implies that the power of the CC to determine the constitutionality of constitutional amendments extends beyond merely examining procedural aspects, it also encompasses scrutinising the substantive validity of amendments enacted.

This signifies that there might be a substantive limitation on parliament’s amending powers and introduces the basic structure doctrine phenomenon. This doctrine posits that the Constitution has certain implied and intrinsic characteristics that parliament cannot depart from — any proposed constitutional amendment deviating from this constitutional sub-structure is invalid despite procedural compliance with section 74.

The basic structure doctrine was approved by the supreme court of India in the landmark case of Kesavananda Bharati Sripadagalvaru v State Of Kerala and Anr in 1973, in response to the contentious relationship between the judiciary and parliament of India. 

The court held that while the authority to amend the constitution rested with India’s parliament, like in South Africa’s case, this power cannot be exercised to temper the basic features of the constitution in a manner that would fundamentally change its essence or identity.

Hence, the Indian constitution has certain unwritten features that cannot be amended because such an amendment would strip the constitution of its identity and purpose. This legal doctrine reinforces the importance of maintaining constitutional continuity and serves as a bulwark against wholesale replacement or retrogressive constitutional changes.

Although the basic structure is yet to be fully established in the South African jurisprudence, as is the case in other jurisdictions, the CC has nevertheless recognised it. In Executive Council of the Western Cape Legislature v President of the Republic of South Africa the CC, in obiter, briefly contemplated whether the basic structure doctrine could apply in South Africa similar to India. 

The CC adopted the stance that parliament cannot enact amendments that would fundamentally alter the features of our constitutional order, for instance, it is inconceivable that parliament through a procedural compliant manner can abolish itself. This reaffirms the imposition of a substantive constraint on parliament’s authority to amend the Constitution.

Merely asserting that parliament has complied with the prescribed procedures will not suffice to justify the removal of specific constitutional provisions, the CC, as empowered by section 167(4)(d), will also scrutinise the constitutional validity of such amendments. Similarly, in Premier of Kwazulu-Natal and Others v President of the Republic of South Africa and Others, the CC noted the basic structure doctrine, supporting the decision in Kesavananda Bharati, but decided not to make a ruling on the doctrine as the case before it did not involve amendments that could potentially undermine or abrogate the Constitution. 

The CC held that the general rule is that constitutional amendments enacted by adhering to the special amendment procedures are “constitutionally unassailable”. Except for amendments that “radically and fundamentally restructure and reorganise the fundamental premises of the Constitution”, such changes “might not qualify as an ‘amendment’ at all”.

In the Certification of the Constitution of the Republic of South Africa, the CC identified the basic structure and premise of the South African Constitution, which is immutable and may not be altered or interfered with, whether by a dominant political party or a coalition of parties wielding their collective majority in parliament. 

These fundamental features include: 

  • the supremacy of the Constitution protected by an independent judiciary; 
  • the rule of law; 
  • the establishment of a democratic State founded on openness, accountability and equality; and 
  • the separation of powers between the legislature, executive and judiciary. 

This structure provided by the CC is built on the foundation of human dignity, equality and freedom. It is clear that this basic structure doctrine, while not explicitly mentioned in the Constitution, is implicit in its design and interpretation and is a crucial safeguard against partisan interest and the enactment of retrogressive amendments that would undermine the essence of our constitutional order. This is not a radical departure from our jurisprudence as the CC has reiterated that constitutional provisions must be read textually, purposively and contextually.

Now turning to the decision of Makwanyane where the CC abolished the death penalty. It was held that this form of sanction is not an effective punishment for murderers, nor does it serve as a deterrent from committing such heinous crimes. Instead, the greatest deterrent to crime “is the likelihood that offenders will be apprehended, convicted and punished”, which the court noted to be lacking in the criminal justice system at the time judgment was made, and I argue that this deficiency persists even today and has exacerbated over time. 

This decision was based on the rights to life and dignity which are of supreme importance in our Constitution. In addition, as the high court noted in Qozeleni v Minister of Law, our Constitution was enacted to address the “mischief” of the apartheid legal order and it must be interpreted against that background. Thus, reintroducing the death penalty through a constitutional amendment would be invalid because it would violate the right to life and dignity which have been upheld as “the most important of all human rights, and the source of all other personal rights”.  

Given the fundamental and inviolable nature of these rights and the fact that they are intricately woven into the structure of our Constitution, amending them in pursuit of reinstating capital punishment would result in fundamentally altering or otherwise obliterating the basic structure of our Constitution, and would not be viewed favourably by the CC when it assesses the constitutional validity of such amendments, irrespective of whether the prescribed amendment procedures were adhered to. 

The CC would assess the constitutional invalidity of these amendments in line with the basic structure doctrine, as they threaten the integrity and foundational values of the Constitution if passed. Such a proposed constitutional amendment would obliterate our Constitution which is a dignity-based Constitution in stark contrast to the apartheid laws. 

Thus, there is little doubt that the CC would view such an amendment as unconstitutional. These kinds of amendments are regressive and driven by political expediency for short-term gains, rather than a genuine commitment to justice and the protection of human rights.

The process of amending the Constitution should be undertaken with the objective of preserving its basic elements structure intact. Put differently, although our Constitution permits for any of its provisions to be amended, the “old” Constitution must nevertheless be preserved even after amendments have been made to, not dismantle or nullify its foundational structure or framework. 

These calls to overhaul or replace the Constitution seem to stem from the misconception that the document itself is inherently flawed, and no mention of the failures in its implementation or enforcement as the course of the state of affairs.

Sello Ivan Phahle is a legal adviser and analyst.