These cases were made reference to in Onuoha v State (1998) – SC. 24/1996:
✓ In the State v. Makwanvane and Another (1995) (6) BCLR 665 (CC), (1995) SACLR LEXIS 218 where it was held that the death penalty violated the constitutional protection of freedom from cruel, inhuman and degrading treatment under section 11(2) of the South African Constitution and was, in consequence, invalid and unconstitutional. In that case, however, the right to life as prescribed under section 9 of the South African Constitution was clearly unqualified hence the Constitutional Court was able to arrive at the decision, quite rightly in my view, that it reached. Said the court at pages 49 – 50 of the report: “The unqualified right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section I1(2)of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant.” There is however a second and an equally vital reason why the death penalty was declared unconstitutional in the Makwanyane case. This is on account of the arbitrary, discriminatory and selective nature of its exercise at all material times in South Africa. In this regard, the court explained: ”..These differences still exist, which means that the law governing the imposition of the death sentence in South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death. There is no rational reason for this distinction, which is the result of history, and we asked for argument to be addressed to us on the question of whether this difference has a bearing on the constitutionality of section 277(1)(a) of the Criminal Procedure Act.”
✓ In the Hungarian case of Jones v. Wittenberg 33 F S UPP. 707, it was held that the death penalty was unconstitutional on the ground that it is inconsistent with the right to life and to human dignity under section 54 of their Constitution. Section 54(1) of the Constitution of the Republic of Hungary which states that “every one has the inherent right to life and to human dignity and no one shall arbitrarily be deprived of this right.” Under this provision, the death penalty, in Hungary, is considered an arbitrary deprivation of life. Consequently, the right to life in the context of the death penalty is unqualified under the Constitution of the Republic of Hungary.