and experience warns them against the trap of undue subjectivity. Such a judgment is now required from us, at all events, and would have been inescapable whichever way the question was answered. Nor do we lack guidance on it. A provision of the Zimbabwean Constitution which banned inhuman or degrading punishment was considered by their Supreme Court in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993(4) SA 239 (ZSC). Gubbay CJ had this to say about it (at 247 I – 248 B):
"It is a provision that embodies broad and idealistic notions of dignity, humanity and decency. It guarantees that punishment … of the individual be exercised within the ambit of civilised standards. Any punishment … incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the infliction of unnecessary suffering, is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilisation advances".
The same goes, I firmly believe, for our section 11(2). Gubbay CJ continued thus (at 248 B–C):
"(A)n application of this approach to whether a form of … punishment … is inhuman or degrading is dependent upon the exercise of a value judgment …; one that must not only take account of the emerging consensus of values in the civilised international community (of which this country is a part) …, but of contemporary norms operative in Zimbabwe and the sensitivities of its people".
I take that view here too, where such norms and sensitivities are demonstrated, above all else, by the altruistic and humanitarian philosophy which animates the Constitution enjoyed by us nowadays.
[178] Capital punishment was discussed at length in Furman v State of Georgia (1972) 408 US 238, a case handled by the Supreme Court of the United States of America in which a comparably liberal philosophy was expounded by a number of the judges hearing it. Stewart J described that sentence (at 306) as—
… unique … in its absolute renunciation of all that is embodied in our concept of humanity.
Brennan J agreed, declaring in the same case (at 290 and 291) that:
Death is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident. … A prisoner remains a member of the human family. … In comparison to all other punishments … the deliberate extinguishment of human life by the state is uniquely degrading to human dignity.
The distinctive features of the penalty were emphasised by Brennan J elsewhere in his judgment, when he wrote (at 287 and 288) that:
