Section Eleven of the

Constitution of South Africa The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Govern ...

, part of the

Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...

, guarantees the

right to life The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...

. This section has been interpreted to prohibit the

death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...

, but not to prohibit

abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregn ...

. It also has important implications for

euthanasia Euthanasia (from el, εὐθανασία 'good death': εὖ, ''eu'' 'well, good' + θάνατος, ''thanatos'' 'death') is the practice of intentionally ending life to eliminate pain and suffering. Different countries have different eut ...

self-defence Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...

, the use of force by

law enforcement Law enforcement is the activity of some members of government who act in an organized manner to enforce the law by discovering, deterring, rehabilitating, or punishing people who violate the rules and norms governing that society. The term en ...

, and the provision of life-saving

healthcare Health care or healthcare is the improvement of health via the prevention, diagnosis, treatment, amelioration or cure of disease, illness, injury, and other physical and mental impairments in people. Health care is delivered by health profe ...

. Under the heading "Life", the section states, in full, "''Everyone has the right to life.''" Unlike the right to life in many other human rights instruments, this section is unqualified; it does not make an exception for the death penalty, but neither does it explicitly state that the death penalty is forbidden.

Death penalty

One of the first decisions by the

Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...

was the 1995 case of ''

S v Makwanyane ''S v Makwanyane and Another'' (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constituti ...

'', in which the court addressed the constitutionality of the death penalty. The principal judgment, by President of the Court

Arthur Chaskalson Arthur Chaskalson Order of the Baobab, SCOB, (24 November 1931 – 1 December 2012) was President of the Constitutional Court of South Africa from 1994 to 2001 and Chief Justice of South Africa from 2001 to 2005. Chaskalson was a member of the ...

, found the death penalty to be unconstitutional not because it violated the right to life, but because it violated the prohibition of cruel, inhuman and degrading punishment elsewhere in the Bill of Rights. However, a majority of the judges of the court held that the death penalty also violated the right to life. In the 2001 case of ''

Mohamed v President of the Republic of South Africa ''Mohamed v President of the Republic of South Africa'', 001ZACC 18, is a 2001 decision of the Constitutional Court of South Africa dealing with the legality of the South African government's actions in handing over Khalfan Khamis Mohamed to U ...

'' the Constitutional Court dealt with the

extradition Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdict ...

of suspects under circumstances where they may face the death penalty. The court held that the South African government cannot extradite suspects for capital offences without obtaining an assurance from the jurisdiction requesting extradition that they will not be sentenced to death (or that, if they are, the death penalty will not be carried out). This was reaffirmed in the 2012 case of ''Minister of Home Affairs v Tsebe''. However these protections do not extend to South African citizens outside South Africa: in ''Kaunda v President of the Republic of South Africa'' the court held that the South African government was not obliged to intervene diplomatically to protect South African citizens being extradited from Zimbabwe to Equatorial Guinea on capital charges.

Abortion

The Choice on Termination of Pregnancy Act, 1996, which permits elective abortions in the first trimester and for broadly-specified reasons in the second trimester, was challenged in '' Christian Lawyers' Association v Minister of Health'', on the basis that it violated the foetus' right to life. The

Transvaal Provincial Division The Gauteng Division of the High Court of South Africa is a superior court of law which has general jurisdiction over the South African province of Gauteng and the eastern part of North West province. The main seat of the division is at Pretoria, w ...

of the High Court dismissed the case, ruling that the word "everyone" in section 11 does not extend to unborn foetuses, which do not have legal personality under the Bill of Rights.

References

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External links

The Bill of Rights
Constitution of South Africa Capital punishment in South Africa Human rights in South Africa Personhood