CONSTITUTION WATCH 16/2015
[19th October 2015]
Death Penalty Challenges in the Constitutional Court - Wednesday 21st and Wednesday 28th October
On Wednesday 21st October the Constitutional Court is due to hear two cases, one on the constitutionality of the death penalty and the other on the constitutionality of “whole life” imprisonment.
The following Wednesday, the 28th October, the Court will hear a further case on the death penalty. All the cases have been initiated by Veritas.
The three cases are:
This Wednesday [21st October]
Ndlovu & Another v Minister of Justice & Another (CCZ 50/15): In this case the two applicants were convicted in separate cases of murder and sentenced to death in July 2002 and May 2012 respectively, before the new Constitution came into operation. The argument on their behalf is that although they were lawfully sentenced to death, the penalty cannot now be carried out because:
- The provisions of the Criminal Procedure and Evidence Act which authorise the imposition and carrying out of the death penalty, are completely inconsistent with section 48 of the present Constitution. They are therefore invalid by virtue of section 2 of the Constitution.
- Hence there is no law that authorises the death penalty to be carried out on the applicants. The provisions of the Criminal Procedure and Evidence Act, under which the condemned were tried and sentenced, are now invalid. The carrying out of sentences imposed by courts is a procedural matter governed by the law existing at the time the sentences are carried out. The applicants sentences must therefore be commuted to life imprisonment.
Makoni v Commissioner-General of Prisons and Correctional Service & Another (CCZ 48/2015). The applicant in this case was convicted of murdering his girlfriend in 1995 and was sentenced to life imprisonment. He has currently served just over 20 years in prison. He argues that the sentence is unconstitutional because:
- Under the Criminal Procedure and Evidence Act and the Prisons Act, prisoners serving sentences of life imprisonment are not entitled to be considered for parole or early release. They must serve “whole life” sentences, i.e. they are released from prison only by death.
- This, it is argued, violates section 51 of the Constitution, which guarantees human dignity, and section 53, which protects against cruel, inhuman or degrading punishment. Giving prisoners no hope of release, however good their behaviour in prison and however much they may have reformed, robs them of hope and crushes their dignity.
- Hence, the applicant claims he should be considered for parole.
Note: The European Court of Human Rights and the South African Constitutional Court have ruled that prisoners sentenced to life imprisonment must have some hope of release on parole. Without such hope their punishment becomes inhuman
Next Wednesday [28th October]
Chawira & 14 Others v Minister of Justice & Others (CCZ 47/2015). This is a case brought by 15 prisoners who have been on “death row” – i.e. in prison awaiting execution – for varying periods up to 20 years. They are seeking an order that their death sentences be commuted to life imprisonment because:
- Section 53 of the Constitution protects everyone, including convicted prisoners, against torture or cruel, inhuman or degrading punishment.
- The long periods they have spent in prison awaiting execution, never knowing from one day to the next when they would be hanged [because death-row prisoners are not told in advance of the date and time of their execution] amounts to torture or to cruel, inhuman or degrading punishment.
- Therefore, the applicants argue, they cannot now be executed.
The applicants rely on judgments of the Supreme Court which laid down as long ago as 1993 that it was cruel, inhuman and degrading to keep prisoners under sentence of death waiting for long periods for their sentences to be carried out.
Note: Although there is a de facto moratorium on executing prisoners – the last execution took place in 2005 – the moratorium has not been written into the law and it could be lifted at any time.
The Court Papers for these court cases are on the Veritas website
Court Hearings will start at 9.30 am
Constitutional Court - Cr. Samora Machel Ave, Third St.
Everyone who is concerned about the Death Penalty is urged to attend the court hearings
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied
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