UBUNTU IN S V MAKWANYANE
S v Makwanyane is a milestone 1995 decision by the Constitutional Court of South Africa. The facts of the case regard the validity of the death penalty as a deterrent to offenders/ potential offenders and it’s use as the final form of retribution by the loss of the offender’s life. Justice Chaskalson wrote for the majority that the death penalty destroys life and the very essence of being that is entrenched in the Bill of Rights. The court held that capital punishment was inconsistent with human rights and the Interim Constitution that was in place at the time. This case nullified various statutory provisions and more particularly section 277(1)(a) of the Criminal Procedure Act and erased the death penalty as a form of punishment.
In determining the constitutionality of capital punishment the court reflected in length
regarding the exceptional concept of ubuntu. The idea of ubuntu appears for the first time in the post-amble but it is a concept that has been found saturated throughout the Constitution and embodies the entrenched and essential human rights. Justice Mokgoro is the first judge to not only philosophically define ubuntu but to also emphasize its value in the right to life and the right to human dignity. Justice Mokgoro describes ubuntu as "fundamentally humaneness and morality", it is a concept ingrained in compassion and group solidarity as well as the emphasis on the importance of mutual respect and a shift away from confrontation.
Justice Mokgoro’s classification also reflects ubuntu as a political ideological representation and draws the connection between ubuntu and the building of the democracy. One cannot move to the future and attempt to build a firm and sound democracy without demanding that no voice be silenced or group excluded. This is at the very essence of ubuntu.
Justice Langa went further to affirm that an incomparable feature of ubuntu is the sense of community and the value it puts on life and human dignity. Reverence for the dignity of every person is primary to the concept of ubuntu. Treatment that is cruel, inhuman or degrading is bereft of ubuntu.
The idea of individualism scarcely features in the concept of ubuntu, some find this substantially perturbing as not everyone relates the same to the same thing and therefore not everyone will agree with the idea of assembly commonality. One cannot expect every person to feel or react the same as the rest of the community regarding controversial issues, for example same sex marriage. Many South Africans still feel religiously regarding this even though the right to choose sexual orientation is also a fundamental human right entrenched in the Bill of Rights.
This type of restrained conflict will always exist. Ubuntu however seeks to establish that simply existing is not what gives a human being inherent worth. This is where ubuntu calls for balancing interests of society against those of the individual for the maintenance of law and order but not for dehumanizing and degrading the individual. Ubuntu is therefore integral to the social bond and encapsulates the moral relations demanded by human beings who must live together.
In accepting the concept of ubuntu one must believe that even the most violent criminals fundamentally remain human beings and thus are entitled to rehabilitation, counseling, treatment or training to once again rejoin society as an improved individual. Justice Madala felt it imperative to highlight this that one must ask if the rejection of rehabilitation and the issuing of the death penalty accords with the concept of ubuntu. This rehabilitation is at the very philosophy of the new South Africa and the heart of concept of ubuntu. Despite the brutality of the perpetrated crimes, offenders in spite of criminal conduct remain members of society worthy of rehabilitation. The finding by the court in S v Makwanyane was certainly accurate that the death penalty is inconsistent with not only the Interim Constitution but also the concept of ubuntu.
Ubuntu has become a notion with particular resonance in building of South Africa’s new democracy. South Africa’s new Constitution is value based and continues to emphasize the protection of basic human rights including the right to life and right to dignity supported by the spirit of ubuntu. Ubuntu has continued to shape and inspire the majority in South Africa and has remained a fundamental value of many including various levels of the
judiciary.
T
