Copyright (c) 2006 George Washington University
George Washington International Law Review
ARTICLE: THE CONSTITUTIONALITY OF THE DEATH PENALTY: SOUTH AFRICA AS A MODEL FOR THE UNITED STATES
38 Geo. Wash. Int'l L. Rev. 209
By Mark S. Kende*
South Africa has disallowed capital punishment for over a decade, yet violent crime there remains frequently newsworthy, even internationally. 1 Moreover, the crime rate is among the highest in the world. 2 In 2000 a man broke into South African President Thabo Mbeki's house despite heavy security, and made himself comfortable drinking brandy for several days while Mbeki was out of the country. 3 During my year in South Africa as a Fulbright scholar in 2000, I was told about a man who began a walk across the country to bring national media attention to the high crime rate. Robbers supposedly mugged him on the first day.
Despite evidence that many South Africans favored the death penalty, 4 the new South African Constitutional Court in 1995 ruled the death penalty unconstitutional in State v. Makwanyane & Another 5 (Makwanyane). The Court's President, Arthur Chaskalson, authored the unanimous opinion, though all of the other ten justices wrote separate concurring opinions. 6 The national government supported the challengers because it was made up of former Apartheid opponents who had risked execution. 7 An Attorney General (AG) from one of South Africa's provinces defended the law. 8 The decision contrasts sharply with the U.S. Supreme Court's 1976 landmark ruling in Gregg v. Georgia 9 upholding the death penalty's constitutionality.
This Article examines Makwanyane closely because it illuminates some of the most salient characteristics of South African constitutional interpretation, such as an emphasis on values, a willingness to examine international and ...
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