# In light of the principles set in the case of s v makwanyane and the constitution of Lesotho. Discuss right to life
## Introduction
The right to life is often considered the most fundamental of all human rights, as without it, all other rights are rendered meaningless. This essay discusses the right to life by examining two different legal approaches within Southern Africa. It will first analyse the groundbreaking South African case of *S v Makwanyane and Another*, which abolished the death penalty. It will then contrast this with the position under the Constitution of Lesotho 1993, where the right to life is qualified and the death penalty remains lawful. This discussion will demonstrate that while the right to life is a shared constitutional value, its interpretation and application can differ significantly, reflecting distinct constitutional priorities and judicial philosophies.
## The Abolitionist Stance in *S v Makwanyane*
The 1995 decision of the South African Constitutional Court in *S v Makwanyane and Another* (1995) is a landmark ruling in international human rights jurisprudence. The case was brought to determine the constitutionality of the death penalty under South Africa’s Interim Constitution of 1993. The court unanimously found that the death penalty was inconsistent with the new constitutional order and was therefore invalid.
The leading judgment by President Chaskalson rested on the interpretation of several key rights. The court held that the death penalty was a violation of the right to life and the right to dignity. More significantly, it was found to be a form of ‘cruel, inhuman or degrading treatment or punishment’, which was explicitly prohibited by section 11(2) of the Interim Constitution. Chaskalson P reasoned that the death penalty was arbitrary in its application, irreversible in the event of error, and rejected the argument that it was a unique deterrent to violent crime (S v Makwanyane, 1995, para 144).
Importantly, many of the judgments were infused with the African philosophical concept of *ubuntu*. Justice Langa explained that *ubuntu* “envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity” (S v Makwanyane, 1995, para 224). The court used this value to argue that the new South Africa should be founded on a spirit of reconciliation and a respect for life, moving away from the brutality of the past. The state, by endorsing the death penalty, would be descending to the level of the killer. Therefore, *Makwanyane* established that the right to life, in the context of state punishment, was absolute and could not be limited by a law authorising capital punishment.
## The Qualified Right to Life in the Constitution of Lesotho
The legal position in the Kingdom of Lesotho provides a clear contrast. The Constitution of Lesotho 1993, in section 4(1)(a), recognises that every person is entitled to “the right to life”. However, unlike the interpretation adopted in *Makwanyane*, this right is not considered absolute. The Constitution does not contain an express prohibition on the death penalty, and Lesotho’s domestic legislation, such as the Penal Code Act 2010, continues to prescribe it as a competent sentence for serious crimes like murder.
This retentionist position has been affirmed by Lesotho’s judiciary. The courts have not followed the South African approach of declaring the death penalty inherently unconstitutional. Instead, the right to life is understood as being subject to limitations imposed by law. As long as the sentence is passed following a fair trial and due process, it is not considered an unlawful violation of the right to life. This means that in Lesotho, the state retains the legal authority to carry out executions.
This position reflects a more traditional or conservative approach to constitutional interpretation, where the right to life is not seen as an absolute bar to capital punishment. It has been argued that factors such as public opinion and a belief in the retributive justice of the death penalty contribute to its continued existence in Lesotho’s legal framework (Lephoto, 2018). The result is that while the right to life is constitutionally guaranteed, it is a qualified right that can be taken away by the state in specific, legally defined circumstances.
## Discussion and Conclusion
The comparison between the principles in *Makwanyane* and the legal framework in Lesotho highlights a fundamental divergence on the nature of the right to life. In South Africa, the Constitutional Court adopted a value-based approach, using the principles of dignity and *ubuntu* to declare that the right to life was inviolable by the state. The court saw the abolition of the death penalty as essential to breaking from an inhumane past and building a new society based on respect for human life.
In contrast, Lesotho’s approach is more positivist. The right to life exists as written in the Constitution and can be limited by other laws, such as the Penal Code, which permit the death penalty. This demonstrates that the text of a constitution is only one part of the equation; judicial interpretation and prevailing societal values play a crucial role in defining the scope of fundamental rights. The *Makwanyane* decision was deeply connected to South Africa’s unique historical transition, while Lesotho’s legal system has maintained a more continuous and traditional approach to criminal justice.
In conclusion, both jurisdictions recognise the right to life, but its legal force differs greatly. The *Makwanyane* case represents an abolitionist, value-driven interpretation where the right to life is supreme and cannot be limited by the death penalty. Conversely, the Constitution of Lesotho provides for a qualified right to life, which permits state-sanctioned executions. This illustrates the significant impact that constitutional interpretation and national context have on the protection afforded to this most basic human right.
## References
- Constitution of Lesotho 1993.
- Interim Constitution of the Republic of South Africa 1993.
- Lephoto, M. (2018) ‘The death penalty in Lesotho: a country-based perspective’, SA Crime Quarterly, (63), pp. 21-30.
- Penal Code Act 2010 (Lesotho).
- S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.
