more enlightened, they restricted the offences for which this penalty could be imposed.[1] The movement away from the death penalty gained momentum during the second half of the present century with the growth of the abolitionist movement. In some countries it is now prohibited in all circumstances, in some it is prohibited save in times of war, and in most countries that have retained it as a penalty for crime, its use has been restricted to extreme cases. According to Amnesty International, 1,831 executions were carried out throughout the world in 1993 as a result of sentences of death, of which 1,419 were in China, which means that only 412 executions were carried out in the rest of the world in that year.[2] Today, capital punishment has been abolished as a penalty for murder either specifically or in practice by almost half the countries of the world including the democracies of Europe and our neighbouring countries, Namibia, Mozambique and Angola.[3] In most of those countries where it is retained, as the Amnesty International statistics show, it is seldom used.
[34]In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution, which states:
In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.
[35]Customary international law and the ratification and accession to international agreements is dealt with in section 231 of the Constitution which sets the requirements for such law to be binding within South Africa. In the context of section 35(1), public international law would include non-binding as well as binding law.[4] They may both be used under
- ↑ See generally, Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries (December 1, 1993), AI Index ACT 50/02/94.
- ↑ Amnesty International, Update to Death Sentences and executions in 1993, AI Index ACT 51/02/94.
- ↑ Supra note 43.
- ↑ J. Dugard in Rights and Constitutionalism: the New South African Legal Order 192–195 (Dawid van Wyk et al. eds., Juta & Co., Ltd., 1994). Professor Dugard suggests, at 193–194, that section 35 requires regard to be had to "all the sources of international law recognised by article 38(1) of the Statute of the International Court of Justice, ie:
