African human rights law journal

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(2014) 14 AHRLJ 24-42

Capital sentencing discretion in Southern Africa: A human rights perspective on the doctrine of extenuating circumstances in death penalty cases

Andrew Novak*

Adjunct Professor of African Law, American University Washington College of Law; Adjunct Professor of Criminal Justice, George Mason University, United States of America


In 1935, South Africa reduced the harshness of the common law mandatory death penalty for murder with the passage of the doctrine of extenuating circumstances. A judge was permitted to substitute a lesser sentence if the accused proved the existence of a mitigating factor at the time of the offence. The doctrine, which operated as a rebuttable presumption in favour of death, passed to the criminal law of Botswana, Lesotho, Namibia, Swaziland, Zambia and Zimbabwe, as well as to the South Pacific nation of Papua New Guinea. The doctrine lacked the analytical rationality of an American or Indian-style discretionary death penalty, which required a judge to articulate an aggravating factor in order to sentence an accused to death, with the burden of proof on the prosecution. The doctrine has now been abolished in South Africa, Namibia, Papua New Guinea, Swaziland and Zimbabwe, and modified in Botswana and Lesotho. The decline of the doctrine of extenuating circumstances accords with the international consensus that the death penalty should be restricted only to the most serious crimes and only based on the circumstances of the individual offence and the characteristics of the individual offender.

* MSc (African Politics) (London School of Oriental and African Studies), JD (Boston);

1 Introduction

The common law mandatory death penalty for murder, in which a death sentence is automatic upon conviction, is increasingly out of sync with prevailing human rights norms. By failing to consider individualised circumstances of an offence or an offender, the penalty overpunishes, encompassing mercy killing with sadistic killing and murders in cold blood with those in the heat of passion. Although most former British colonies inherited a process for executive mercy in which the governor-general and later an independent head of state could dispense clemency in troubling cases, the unreviewable power of the pardon does not remove all risk of arbitrariness or mistake. As a consequence, international tribunals such as the Inter-American Commission on Human Rights and the United Nations (UN) Human Rights Committee have determined that a mandatory sentence of death is a cruel and degrading form of punishment because it could be too harsh, and not limited to the ‘most serious crimes’ as required

by international human rights instruments.1

In the common law world, the harshness of an automatic sentence of death has gradually given way to judicial sentencing discretion in capital cases. In practice, judicial sentencing discretion has taken two forms. The first is to require a trial judge to articulate an aggravating factor that placed a crime into a special category of seriousness meriting the unusual penalty of death; the trial judge is able to review the evidence and pass a sentence specifically tailored to the criminal offence and offender. This was the regime that originated in the United States after the death penalty was reinstated in Gregg v Georgia in 1976, and in India after capital punishment was reserved for the

worst of the worst’ in Bachan Singh v State of Punjab in 1980.2 The

second option was the opposite: to require a judge to articulate a

mitigating factor that removed the case from the sweeping scope of

the death penalty, in essence a presumption in favour of death. This

was the regime created by the Criminal Procedure and Evidence

(Amendment) Act of 1935 in South Africa, which passed into the law

of neighbouring Southern African countries in the following decades, where it was known as the ‘doctrine of extenuating circumstances’.3

Over the past four decades, the first option, the American or Indian- style discretionary death penalty, has emerged as the consensus in the
1 See art 6(2) International Covenant on Civil and Political Rights UN Doc A/6316 (1966), 999 UNTS 171 (23 March 1976); art 4(2) American Convention on Human Rights; Thompson v St Vincent Comm 806/1998, UN Doc CCPR/C/70/D/

806/1998 (2000) (UNHRC); Edwards v Bahamas Case 12.067, Report 48/01, OEA/ SerL/V/II.111 Doc 20 (2000) (IAHRC).

2 Gregg v Georgia 428 US 153 (1976); Bachan Singh v State of Punjab 1980 (2) SCC

684 (India).

3 Sec 61 Criminal Procedure and Evidence (Amendment) Act 46 of 1935 (SA).

common law world, including in the Commonwealth Caribbean and common law East Africa.4

By contrast, the doctrine of extenuating circumstances, which requires a judge to find a mitigating factor in order to determine that a punishment does not merit the death sentence, conflicts with the overwhelming international trend to limit the death penalty only to the ‘most serious crimes’ by establishing a presumption against

death.5 The doctrine lacks the analytical rationality of a pure

discretionary death sentence as it places the burden on the accused

person to prove beyond a fair preponderance of the evidence why he

or she should not be executed, instead of requiring the prosecution to

prove both guilt and sentence beyond a reasonable doubt. Unlike the

mandatory death penalty, the doctrine of extenuating circumstances

has not faced a direct challenge in an international human rights


Apartheid South Africa had one of the most active death penalties in the Western world during the twentieth century, and an enormous body of intricate case law developed on the doctrine that was highly influential in the Southern African region. The white legislature of Rhodesia adopted the doctrine in 1949, as did the drafters of the revised penal codes of Botswana, Lesotho and Swaziland prior to

independence; Zambia did so in a legislative reform in 1990.6 The

doctrine of extenuating circumstances was replaced by a discretionary

death penalty regime in South Africa in 1990 (prior to total abolition

in 1995), in Swaziland in 2005, and in Zimbabwe in 2013. The

doctrine was abolished with the death penalty in Namibia in 1989. In

addition, both Botswana and Lesotho use a modified version of the

original doctrine that removes the most objectionable aspects of the doctrine.7 Only Zambia retains the original doctrine, though the constitutional drafting process currently underway offers an

opportunity to reform the capital sentencing process in a manner consistent with international human rights and due process norms.8

Where the doctrine survives, it is an anachronism, and its abolition contributes to the narrowing of the scope of the death penalty in the common law world.

4 See eg Reyes v The Queen [2002] 2 AC 259 (PC) (appeal taken from Belize); The Queen v Hughes [2002] 2 AC 259 (PC) (appeal taken from St. Lucia); Fox v The Queen [2002] AC 284 (PC) (appeal taken from St Kitts & Nevis); Kafantayeni v Attorney-General [2007] MWHC 1 (Malawi HC); Attorney-General v Kigula [2009] UGSC 6 (Uganda SC); Mutiso v Republic Crim App 17 of 2008 (30 July 2010) (Kenya CA).

5 See art 6(2) International Covenant on Civil and Political Rights.

6 A Novak ‘Abuse of state power: The mandatory death penalty for political crimes in Southern Rhodesia, 1964-1970’ (2013) 19 Fundamina 28.

7 See Kelaletswe v S [1995] BLR 100 (Botswana CA); Letuka v Rex 1997-1998 LLR-LB

346 (4 February 1998) 360 (Lesotho CA).

8 C Musonda & L Nyondo ‘Constitution to stand test of time: Zambia still waits’ Zambia Daily Mail 7 July 2013) (accessed 31 January 2014).

2 International human rights and the doctrine of extenuating circumstances
The doctrine of extenuating circumstances is less compliant with prevailing human rights norms than a pure discretionary death penalty for three primary reasons. First, the doctrine requires two separate discretionary acts instead of one, which increases the potential for arbitrariness or error, by requiring a judge to consider all mitigating factors in determining whether extenuating circumstances exist, and then, separately, to weigh mitigating factors against

aggravating factors to craft an appropriate sentence.9 The traditional

doctrine shifts the burden to the accused to show why he or she

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