RE-THINKING THE STATE’S DUTY TO PROTECT AND UPHOLD THE RIGHT TO LIFE IN A CRIMINAL JUSTICE CONTEXT

Abstract

The central question posed in this contribution is whether the right to life has been employed by our courts as a workable constitutional concept in order to promote a quality of life − referred to herein as a “safe” life − lived in accord with the constitutional rights and values of human dignity, equal worth and freedom. A preliminary observation is that the South African judiciary is generally hesitant to interpret the right to life as the right to a certain “quality of life”. This is due to the fact that the state’s obligations regarding the entitlements that would enable such an existence are dealt with effectively by other rights already codified in the Constitution. In addition, the courts are traditionally wary of imposing duties on the state. Our courts have thus employed an interpretation of this right that is limited to the right not to be deprived of one’s life in cases involving social policy issues. As such, the
judiciary has failed to address the entitlement to a quality of life that would impose positive obligations on the state effectively. In order to explore more fully the ambit of the right to life, the authors turn to the Indian experience, which provides an excellent
example of a more creative interpretation of this right. It is submitted that the Indian position could provide useful guidelines in advancing a more activist interpretation of the right to life in order to facilitate the effective application of this right in a criminal
justice context.