PATEL JCC: The
applicant in this matter was convicted of the murder of his girlfriend. Because of extenuating circumstances, he was
sentenced to life imprisonment. He was
aged 19 at the time of his conviction and has been in gaol since 1995 for
almost 21 years. The gravamen of his
application is that life imprisonment without the possibility of judicial
review or parole is unconstitutional.
The applicant avers
that his dignity and expectations have been crushed. Despite his excellent
behaviour whilst in prison, which behaviour is acknowledged and conceded by the
respondents, he has absolutely no hope of any amnesty or release from prison. He further avers that the conditions in
Zimbabwean prisons are horrendous due to prevailing economic constraints. This
compounds the psychological stress of knowing that he will never be released. He notes that Part XX of the Prisons Act [Chapter 7:11] allows for the release on
parole of prisoners on extended imprisonment. However, there is no similar administrative
process in place for prisoners serving life sentences. In any event, the grant of parole should not
be left to executive discretion but should be subjected to mandatory judicial
review after the lapse of 10 years imprisonment.
The applicant accordingly seeks a declaratur that a life sentence imposed without the possibility of
parole amounts to inhuman and degrading treatment and constitutes a violation
of human dignity in breach of ss 51 and 53 of the Constitution. He also seeks a declaratur that ss 112, 113, 114 and 115 of the Prisons Act contravene
s 56 of the Constitution and that his further incarceration in prison is in
breach of his rights under ss 49, 51 and 53 of the Constitution. In the event, he applies for an order
requiring the respondents to release him from prison forthwith.
The first respondent, the Commissioner of Prisons,
points to the possibility of reprieve for life prisoners through presidential
pardon or commutation of sentence available under s 121 of the Prisons Act. He avers that the nature of a life sentence
requires executive rather than judicial review. Although this process is
different from release on parole, there is no discrimination between life
prisoners and others because of the availability of executive reprieve. The Commissioner accepts that prison
conditions in Zimbabwe are not ideal due to current economic hardships. However, they meet the requisite needs of
prisoner correction and rehabilitation. At
any rate, poor prison conditions cannot be relied upon to escape criminal liability.
The second respondent is the Vice-President who is also
responsible for the administration of justice, legal and parliamentary affairs.
He refers to s 112 of the Constitution
which empowers the President to grant pardons or vary life sentences. He avers that this provision affords the
applicant the hope of release from prison and that, therefore, there is no
violation of his constitutional rights. The alternative of parole for life
prisoners would serve to trivialise the heinous crimes which they have
committed and which society abhors. He
further contends that the judiciary cannot arrogate to itself the power to
review life sentences without legislative authority to do so.
In response, the applicant invokes s 227(1) of the
Constitution which calls for the rehabilitation of offenders and their
reintegration into society. This
overrides the concurrent objectives of retribution and deterrence which have
now become secondary in penological theory. As regards the available options of executive
reprieve, he accepts that the process of parole under the Prisons Act is
reviewable. However, the refusal of
executive pardon under the Constitution is not justiciable. This remedy is subject to executive whim and
is therefore inadequate. Moreover, it is not effectively utilised in practice. Lastly, the applicant avers that this Court is
the legitimate constitutional watchdog and does not require executive or
legislative authority in order to adjudicate in the interests of justice.
Having regard to the respective arguments of the parties
and the relief sought by the applicant, I perceive the issues for determination
in casu to be the following:
·
Whether a life sentence imposed
without the possibility of parole constitutes a violation of human dignity or
amounts to inhuman or degrading treatment in breach of sections 51 and 53 of
the Constitution.
·
Whether sections 112, 113, 114
and 115 of the Prisons Act are unconstitutional to the extent that they exclude
whole life prisoners from the parole process and thereby contravene the right
to equal protection and benefit of the law under section 56 of the Constitution.
·
Whether the further
incarceration of the applicant amounts to a breach of his rights to liberty,
human dignity and protection against inhuman or degrading treatment under
sections 49, 51 and 53 of the Constitution.
·
In the event of an affirmative
answer to any or all of the foregoing, the nature and extent of the relief that
should be granted to the applicant, i.e.
his immediate release from prison or some other appropriate remedy.
Human Dignity and
Inhuman or Degrading Treatment
Section 51 of the
Constitution enshrines the right to human dignity in the following terms:
“Every person has
inherent dignity in their private and public life, and the right to have that
dignity respected and protected.”
The inevitable
corollary of human dignity, viz.
freedom from torture and similar ill-treatment, is guaranteed by s 53 of the
Constitution:
“No person may be
subjected to physical or psychological torture or to cruel, inhuman or
degrading treatment or punishment.”
Mr. Biti, for the applicant, contends that
conditions in our prisons are so deplorable as to be intolerable and that fact in
itself renders a life sentence in contravention of the fundamental rights of
whole life prisoners. Mr. Chimombe, for the respondents, accepts
that prison conditions are not perfect but counters that this alone cannot be a
ground for holding a life sentence to be inhuman and degrading.
In Kachingwe & Others v Minister of Home Affairs & Another
2005 (2) ZLR 12 (S), the Supreme Court had occasion to inspect the conditions
in police holding cells at High lands Police Station. It was held that detention under those
conditions amounted to inhuman and degrading punishment in violation of s 15(1)
of the former Constitution. Mr. Biti argues that the conditions in
Chikurubi Prison, as described by the applicant, are not dissimilar to those
obtaining in Kachingwe's case and
should therefore be similarly denounced by this Court.
As a preliminary
interpretive point of departure, it is necessary to recognise the special
status enjoyed by the rights and freedoms guaranteed by ss 51 and 53 of
the Constitution. By virtue of paras (b) and (c) of s 86(3), no law may
limit and no person may violate, inter
alia, the right to human dignity and the right not to be tortured or
subjected to cruel, inhuman or degrading treatment or punishment. What this means is that these two rights are
inviolable. They cannot be circumscribed
by reference to the rights and freedoms of others as envisaged by s 86(1). Furthermore, they are not derogable by dint of
any law of general application contemplated under s 86(2).
A
further guide to the interpretation of the Declaration of Rights as a whole is
afforded by paras (c) and (e) of s 46(1) in the specific context of
international law and foreign law. In addition to
considering all other relevant factors that are to be taken into account in the
interpretation of a Constitution, courts and tribunals must take into account
international law and all treaties and conventions to which Zimbabwe is a party
and may, where appropriate, consider relevant foreign law. Furthermore, insofar as concerns statutory
interpretation generally, the courts are enjoined by s
326(2) of the Constitution to interpret legislation in a manner that is
consistent with international customary law. In similar vein, s 327(6) requires the
adoption of an interpretation that is consistent with any treaty or convention
that is binding on Zimbabwe.
Turning to case
authorities from other jurisdictions, the decision of the Namibian Supreme
Court in State v Tcoeib (1996) 7 BCLR 996 (NmS) is particularly germane to the
applicant's position. At 1004-1005, MAHOMED
CJ observed as follows:
“…….. there is no escape from the conclusion that an order
deliberately incarcerating a citizen for the rest of his or her natural life
severely impacts upon much of what is central to the enjoyment of life itself
in any civilised community and can therefore only be upheld if it is
demonstrably justified. In my view, it cannot be justified if it effectively
amounts to a sentence which locks the gates of the prison irreversibly for the
offender without any prospect whatever of any lawful escape from that condition
for the rest of his or her natural life and regardless of any circumstances
which might subsequently arise. Such circumstances might include sociological
and psychological re-evaluation of the character of the offender which might
destroy the previous fear that his or her release after a few years might
endanger the safety of others or evidence which might otherwise show that the offender
has reached such an advanced age or become so infirm and sick or so repentant
about his or her past, that continuous incarceration of the offender at state
expense constitutes a cruelty which can no longer be defended in the public
interest. To insist, therefore, that regardless of the circumstances, an
offender should always spend the rest of his natural life in incarceration is
to express despair about his future and to legitimately induce within the mind
and the soul of the offender also a feeling of such despair and helplessness. Such
a culture of mutually sustaining despair appears to me to be inconsistent with
the deeply humane values articulated in the preamble and the text of the
Namibian Constitution which so eloquently portrays the vision of a caring and
compassionate democracy ……..
…….. It seems to me that the sentence of life imprisonment in
Namibia can therefore not be constitutionally sustainable if it effectively
amounts to an order throwing the prisoner into a cell for the rest of the
prisoner's natural life as if he was a 'thing' instead of a person without any
continuing duty to respect his dignity.”
In the South African case of State v Bull & Another
2002 (1) SA 535 (SCA) at 552 (para. 23), the court adopted a similar approach
and noted that the possibility of parole saves a whole life sentence from being
cruel, inhuman and degrading punishment. In a case emanating from Mauritius, de Boucherville v The State of Mauritius [2008] UKPC 37, the Judicial Committee of
the Privy Council dealt with an irreducible life sentence from a different
perspective. Having noted that the legislative
provisions for parole and remission did not apply to a prisoner in penal
servitude, leaving him without hope of release for the rest of his life, the Committee
held that the sentence imposed was so manifestly disproportionate and arbitrary
as to contravene the right to a fair trial and procedural safeguards for
prisoners. The Committee considered that
a whole life sentence must allow for the prisoner to appreciate from the outset
the possibility and timing of his sentence being reviewed.
The European Court of Human Rights has dealt with
several cases involving the compatibility of whole life sentences with specific
provisions of the European Convention on Human Rights. Of particular concern is Article 3 of the
Convention which prohibits torture and inhuman and degrading treatment. In Dickson v The United Kingdom (2007) ECHR (44362/04), the Grand Chamber
underscored the role of rehabilitation as follows:
“In recent years there has been a trend towards placing more
emphasis on rehabilitation, as demonstrated notably by the Council of Europe's
legal instruments. While rehabilitation was recognised as a means of preventing
recidivism, more recently and more positively it constitutes rather the idea of
re-socialisation through the fostering of personal responsibility. This
objective is reinforced by the development of the 'progression principle': in
the course of serving a sentence, a prisoner should move progressively through
the prison system thereby moving from the early days of a sentence, when the
emphasis may be on punishment and retribution, to the latter stages, when the
emphasis should be on preparation for release.”
Again, in Vinter & Others v The United Kingdom (2013) ECHR
(66069/09, 130/10, 3896/10), at paras. 111-114, the Grand Chamber further
expounded the integral relationship between rehabilitation and the prospect of
release:
'It is axiomatic that a prisoner cannot be detained unless there are
legitimate penological grounds for that detention. As was recognised by the
Court of Appeal in Bieber and the
Chamber in its judgment in the present case, these grounds will include
punishment, deterrence, public protection and rehabilitation. Many of these
grounds will be present at the time when a life sentence is imposed. However,
the balance between these justifications for detention is not necessarily
static and may shift in the course of the sentence. What may be the primary
justification for detention at the start of the sentence may not be so after a lengthy
period into the service of the sentence. It is only by carrying out a review of
the justification for continued detention at an appropriate point in the
sentence that these factors or shifts can be properly evaluated.
Moreover, if such a prisoner is incarcerated without any prospect of
release and without the possibility of having his life sentence reviewed, there
is the risk that he can never atone for his offence: whatever the prisoner does
in prison, however exceptional his progress towards rehabilitation, his
punishment remains fixed and unreviewable. If anything, the punishment becomes
greater with time: the longer the prisoner lives, the longer his sentence.
Thus, even when a whole life sentence is condign punishment at the time of its
imposition, with the passage of time it becomes – to paraphrase Lord Justice
Laws in Wellington – a poor guarantee
of just and proportionate punishment. …….. .
Indeed, there is also now clear support in European and
international law for the principle that all prisoners, including those serving
life sentences, be offered the possibility of rehabilitation and the prospect
of release if that rehabilitation is achieved.”
A comparative
survey of international law further fortifies the point that penological theory
has evolved from sentencing as a tool of retribution to one of rehabilitation
and the re-socialisation of prisoners. Thus,
Article 10 of the International Covenant on Civil and Political Rights (1976), in
its relevant portions, declares that:
“1. All persons deprived of their liberty shall be treated with
humanity and with respect for the
inherent dignity of the human person.
2. ……………………
3. The penitentiary system
shall comprise treatment of prisoners the essential aim of which shall be their
reformation and social rehabilitation. …….. .”
This position is echoed by the United Nations Human
Rights Committee in CCPR General Comment No. 21 (1992) relative to Article 10:
“No penitentiary system should be only retributory; it should
essentially seek the reformation and social rehabilitation of the prisoner.”
The International
Covenant on Civil and Political Rights (1976) as well as its counterpart
International Covenant on Economic, Social and Cultural Rights (1976) were both
acceded to by Zimbabwe in May 1991. This
was after the introduction, through s 17 of Act No. 23 of 1987, of s 111B(1)(a)
of the former Constitution which rendered any treaty or international convention
concluded by the Executive subject to parliamentary approval. However, this requirement of parliamentary
approval was specifically excluded, by s 12(2) of Act No. 4 of 1993, in respect
of any treaty or convention concluded before November 1993. Both Covenants are
therefore binding upon Zimbabwe and fall into the category of treaties that
must, in conformity with s 46(1)(c) of the current Constitution, be taken into
account in interpreting the Declaration of Rights.
The principal
international instrument on the regulation of prisons is contained in the
Standard Minimum Rules for the Treatment of Prisoners, which were adopted by a
United Nations Congress in 1955 and subsequently approved by its Economic and
Social Council in July 1957 and May 1977. The preamble to the Rules makes it clear that
they are not intended to detail a model system of penal institutions. Rather:
“They seek only, on the basis of the general consensus of
contemporary thought and the essential elements of the most adequate systems of
today, to set out what is generally accepted as being good principle and
practice in the treatment of prisoners and the management of institutions.´
In relation to prisoners under sentence, the guiding
principles are set out in Rules 56 to 64. In summary, they emphasise the following
tenets: the prison system should not aggravate the suffering inherent in the
deprivation of liberty; the prisoner should be able to lead a law-abiding and
self-supporting life upon his return to society; the institution should seek to
address the individual treatment needs of the prisoners; the institution should
respect the dignity of prisoners as human beings; steps should be taken to ensure
for the prisoner a gradual return to life in society; the treatment of
prisoners should emphasise not their exclusion from the community, but their
continuing part in it; the institution should detect and treat any mental or
physical illnesses or defects that hamper a prisoner's rehabilitation;
institutions should endeavour to achieve the individualisation of prisoner
treatment.
On 17 December 2015, the General
Assembly adopted Resolution 70/175, titled the United Nations Standard Minimum
Rules for the Treatment of Prisoners (the Nelson Mandela Rules). The 2015 Rules are designed to revise the
original 1957 Rules so as to reflect recent advances in correctional science
and best practices as well as major developments in human rights and criminal
justice since 1957. The 2015 Rules
pertaining to prisoners under sentence, i.e.
Rules 86 to 90, are essentially similar to those contained in the precursor
1957 Rules. However, in the section
dealing with rules of general application, the 2015 Rules incorporate certain
basic principles that are novel in their emphasis on human dignity and the need
to safeguard that dignity through appropriate corrective measures. In particular, Rules 1 and 4 state as follows:
“1. All
prisoners shall be treated with the respect due to their inherent dignity and
value as human beings. No prisoner shall be subjected to, and all prisoners
shall be protected from, torture and other cruel, inhuman or degrading
treatment or punishment, for which no circumstances may be invoked as a
justification. The safety and security of prisoners, staff, service providers
and visitors shall be ensured at all times.”
“4. The
purposes of a sentence of imprisonment or similar measures deprivative of a
person's liberty are primarily to protect society against crime and to reduce
recidivism. These purposes can be achieved only if the period of imprisonment
is used to ensure, so far as possible, the reintegration of such persons into
society upon release so that they can lead a law-abiding and self-supporting
life.”
The status of General Assembly
resolutions was considered by the International Court of Justice in its advisory
opinion on the Legality of the Threat or
Use of Nuclear Weapons 1996 ICJ Reports 226, at para. 70:
“The
Court notes that General Assembly resolutions, even if they are not binding,
may sometimes have normative value. They can, in certain circumstances, provide
evidence important for establishing the existence of a rule or the emergence of
an opinion juris. …….. [A] series of
resolutions may show the gradual evolution of the opinio juris required for the establishment of new rule.”
With reference to
“soft law” generally, John Dugard: International
Law (4th ed.) at pp 33-34, observes that such law
constitutes:
“imprecise standards, generated by declarations adopted
by diplomatic conferences or resolutions of international organisations, that
are intended to serve as guidelines to states in their conduct, but which lack
the status of 'law'. …….. The passage of time and state practice in support of
such a standard may convert it into a customary rule, but until this occurs it
serves as a useful guide to state conduct.”
In normative terms, the Standard
Minimum Rules of 1957 are generally considered to be “soft law” and cannot be
equated to obligations under a treaty or convention. The same applies to the successor Rules of
2015. As such, they are not legally
binding on member States of the United Nations.
Nevertheless, the general consensus amongst States is that they are
highly persuasive in influencing and regulating the treatment of prisoners and
the administration of penal institutions generally. They are regarded as being the primary source
of standards relating to treatment in detention and as the key framework used
by monitoring and inspection mechanisms in assessing the treatment of
prisoners.
Some of the principles embodied in the 1957 and 2015
Rules are now recognised and replicated in s 50 of the Constitution which
elaborates the rights of arrested and detained persons. Thus, in terms of s 50(1)(c), any
person who is arrested “must be treated humanely and with respect for their
inherent dignity”. More specifically, s 50(5)(d) provides that any person who
is detained, including a sentenced prisoner, has the right “to conditions of
detention that are consistent with human dignity, including the opportunity for
physical exercise and the provision, at State expense, of adequate
accommodation, ablution facilities, personal hygiene, nutrition, appropriate
reading material and medical treatment”.
Very significantly, s 50(8) stipulates that “an arrest or detention
which contravenes this section, or in which the conditions set out in this
section are not met, is illegal”.
The traditional approach to punishment for serious
offences is derived from the Roman lex
talionis and its equivalents in other ancient societies, whereby justice is
to be attained through the exaction of an eye for an eye, a tooth for a tooth
and a life for a life. The new Constitution ushers in a fundamental departure from
this archaic retributive approach to one of social reintegration. This is
emphasised in s 227(1) which articulates the rehabilitative functions of the
Prisons and Correctional Service:
'There is a Prisons and Correctional Service
which is responsible for—
(a)
the protection of society from criminals through the incarceration and
rehabilitation of convicted persons and others who are lawfully required to be
detained, and their reintegration into society; and
(b)
the administration of prisons and correctional facilities.”
The regional and European case authorities that I have
cited earlier all point to the conclusion that whole life imprisonment, without
rehabilitative treatment coupled with the possibility of release, is tantamount
to inhuman and degrading treatment in contravention of the relevant constitutional
and conventional rights. Similarly, all the international instruments alluded
to above, viz. the 1976 Covenant and
the Standard Minimum Rules of 1957 and 2015, capture the essentially
twofold purpose of penal servitude as it has developed over the years within
the broad framework of societal protection: firstly, the infliction of a
punishment that is condign to the nature and gravity of the crime committed;
secondly, the rehabilitative reorientation of the offender to render him fit
and suitable for societal reintegration as a law-abiding and self-supporting
citizen. These two objectives are
intrinsically interconnected, so that the unavoidable cruelty of incarceration
without the correlative beneficence of rehabilitation would unnecessarily aggravate
and dehumanise the delivery of corrective justice. In short, every prisoner should be able to
perceive and believe in the possibility of his eventual liberation after a
period of incarceration befitting his crime and his capacity for reformation.
Having regard to
our own constitutional provisions, viz.
ss 50 and 227(1) which establish revised liberal guidelines on the treatment of
prisoners and the rehabilitative responsibilities of correctional institutions,
I see no reason to depart from the foreign and international jurisprudence that
has developed on the subject over the past sixty years. I accordingly conclude that an irreducible
life sentence without the possibility of release in appropriate circumstances,
constitutes a violation of human dignity and amounts to cruel, inhuman or degrading
treatment or punishment in breach of ss 51 and 53 of the Constitution.
For the sake of
completeness, it is necessary to mention in passing section 344A of the Criminal Procedure
and Evidence Act [Chapter 9:07] which stipulates that:
“Subject to any other law, the effect of a sentence of imprisonment for
life imposed on or after the date of commencement of the Criminal Procedure and
Evidence Amendment Act, 1997, shall be that the person so sentenced shall
remain imprisoned for the rest of his life.”
The first point to
be made is that the constitutionality of this provision has not been challenged
in casu. This is because the applicant himself was
convicted and sentenced to life imprisonment in 1995, before the promulgation
and commencement of s 344A. As is quite
correctly accepted by both counsel, this provision cannot be applied with
retrospective effect to the applicant and, therefore, it has no direct bearing
on his fundamental rights. The second
point is that the provision is expressly made “subject to any other law”. That being so, its constitutionality may well
be saved and remain intact by virtue of such other law which applies or which is
interpreted to apply so as to override or negate its explicit import and
effect, viz. that life means for
life. Apart from these obiter observations, the conclusion that
I have arrived at in relation to the applicant's case does not specifically apply
to the constitutionality of s 344A. Nevertheless, I would simply add that, if
and when the question should arise for determination, the same conclusion would
probably be inescapable.
Equal Protection and
Benefit of the Law
Section 56(1) of the Constitution
guarantees the right to equality and equal protection in the following terms:
“All persons are
equal before the law and have the right to equal protection and benefit of the
law.”
The
remaining provisions of s 56 pertain to gender equality and the right not to be
treated in an unfairly discriminatory manner on specified grounds that are
irrelevant to the questions at hand. What
is in issue in the present matter is the legality of differentiation in
treatment as between different categories of persons who are imprisoned.
The applicant contends that certain provisions contained
in Part XX of the Prisons Act, in particular, ss 112, 113, 114 and 115, are
unconstitutional to the extent that they exclude whole life prisoners from the
parole process and thereby contravene the right to equal protection and benefit
of the law under s 56(1) of the Constitution. The respondents argue that the Prisons Act
properly differentiates between serious and trivial offenders. Thus, a different system is in place for life
and death row prisoners who are dealt with under section 121 of the Act in
conjunction with s 112 of the Constitution. These sections provide for executive clemency
and constitute an adequate remedy in the instant case. However, as regards the
prerogative of clemency, Mr. Chimombe
was unable to provide any statistics as to how many life prisoners have actually
been released under that system. Moreover,
he accepts that this process lies entirely within the realm of executive discretion
and is therefore not justiciable.
Section 112 of the
Prisons Act establishes the Prisoners Release Advisory Board. It also provides for the composition,
functions and proceedings of the Board, the tenure of office of its members and
their terms and conditions of office. The
principal functions of the Board are to consider cases involving the release of
prisoners and to make recommendations for that purpose. In my view, there is
nothing intrinsically objectionable in these provisions of s 112 per se that might invite constitutional
censure, whether under s 56(1) of the Constitution or otherwise.
Section 113 of the
Prisons Act establishes the Parole Board and prescribes its composition, the
tenure and terms of office of its members and its proceedings. In terms of s 113(5), the primary function of
the Parole Board is to consider the cases of prisoners who are serving sentences
of extended imprisonment and to make reports to the Minister (the second
respondent) as to the treatment and release on licence of such prisoners. The phrase “extended imprisonment” is defined
in s 2 of the Act to mean extended imprisonment imposed in terms of s 346 of
the Criminal Procedure and Evidence Act, i.e.
a sentence of imprisonment, ranging from a minimum of seven years to a maximum
of twenty years, imposed upon habitual offenders convicted of very serious
offences specified in the Seventh Schedule to that Act.
Section
114(1) of the Prisons Act enjoins the Parole Board to consider and report on
the case of each prisoner who is serving a sentence of extended imprisonment,
at regularly prescribed intervals or at any other times that the Board thinks
appropriate. In terms of s 114(2), when
making a report to the Minister as to the release of any prisoner, the Board must
have regard to all the relevant circumstances of the case and of the prisoner. In particular, it must consider the number and
nature of the offences committed by the prisoner, the period during which the
prisoner has been detained, the behaviour of the prisoner while in prison, the
likelihood of the prisoner leading a useful and law-abiding life outside
prison, and the need to protect the public. Thereafter, s 114(3) requires the Board
to inform the prisoner whether or not it has recommended his release and, if it
has not recommended his release, to inform him briefly of the reasons why no such
recommendation was made.
Subsections
(1) and (3) of s 115 of the Prisons Act empower the Minister, after
consultation with the Parole Board or the Advisory Board, as the case may be, to
release a prisoner on licence, for such period and subject to such conditions
as may be specified in the licence. This
power applies to “any convicted prisoner, including a prisoner who has been sentenced
to periodical or extended imprisonment, other than a prisoner who has been
sentenced to death or to imprisonment for life” (my emphasis). Subsections
(2) and (4) of s 115 enable the Minister, at any time but subject to
consultation with the relevant Board, to amend, cancel or add to any of the
conditions of a licence or to cancel a licence and direct that the person
concerned be returned to a prison.
Section 121, which appears in Part
XXI of the Prisons Act, governs the reporting procedure on long term prisoners
with reference to the power of mercy exercisable under s 112 of the
Constitution. Section 121(1a) of the Act
deals specifically with prisoners undergoing imprisonment for life. It enjoins the Commissioner (the first
respondent) to prepare a report at the end of every five years after the first
ten years served by each life prisoner. The
Commissioner must forward every such report to the Minister “who may, if he thinks
fit, submit it to the President”. Section
121(2) requires the Commissioner to supply more frequent reports if so
requested by the Minister. It also
requires the Commissioner to arrange for compliance with any instructions as to
pardon, respite, reprieve, commutation or remission of sentence given by the
President.
Section 112(1) of
the Constitution empowers the President, after consultation with the Cabinet, to
exercise the power of mercy, i.e. to
grant a pardon or respite from the execution of any sentence, or to substitute
or suspend or remit the whole or part of a sentence. In so doing, the President may impose
conditions on any such pardon, respite, substitution or suspension.
Several critical
points arise for consideration from the foregoing provisions of the Prisons Act
and the Constitution. First and
foremost, the reporting requirements and the possibility of release on parole
or licence under ss 113, 114 and 115 of the Act are largely restricted to the
situation of prisoners serving sentences of extended imprisonment. They explicitly exclude from their ambit those
prisoners who are sentenced to imprisonment for life. Such prisoners cannot be released on parole or
licence.
Secondly, to the extent that life prisoners may be
considered for clemency under s 121 of the Act, the reporting obligation
imposed upon the Commissioner is mandatory, but the consequential power conferred
upon the Minister to take the matter further is clearly discretionary. Thirdly, even if the Minister should deign to
submit a recommendation for the release of any prisoner to the President, there
is no assurance that such release will be forthcoming. The power of mercy reposed in the President
under s 112 of the Constitution, although exercisable after consultation with
the Cabinet, is entirely discretionary. Equally
significantly, unlike the powers of release conferred upon the Minister under s 115
of the Act, it constitutes a prerogative power that is not ordinarily justiciable:
Nkomo & Another v Attorney-General
& Others 1994 (3) SA 34 (ZS) at 37; Woods
v Commissioner of Prisons & Another
2003 (2) ZLR 421 (S) at 435C-E. In short, it does not afford adequate redress
for the purpose of enforcing the Declaration of Rights.
The critical aspect
of the reducibility or otherwise of a life sentence was considered by the Grand
Chamber of the European Court of Human Rights in Kafkaris v Cyprus (2008)
ECHR (21906/04), at paras. 98-99, as follows:
“In determining whether a life sentence in a given case can be
regarded as irreducible, the Court has sought to ascertain whether a life
prisoner can be said to have any prospect of release. An analysis of the
Court's case-law on the subject discloses that where national law affords the
possibility of review of a life sentence with a view to its commutation,
remission, termination or the conditional release of the prisoner, this will be
sufficient to satisfy Article 3. The Court has held, for instance, in a number
of cases that where detention was subject to review for the purposes of parole
after the expiry of the minimum term for serving the life sentence, that it
could not be said that the life prisoners in question had been deprived of any
hope of release. …….. The Court has found that this is the case even in the
absence of a minimum term of unconditional imprisonment and even when the
possibility of parole for prisoners serving a life sentence is limited. …….. It
follows that a life entence does not become 'irreducible' by the mere fact that
in practice it may be served in full. It is enough for the purposes of Article
3 that a life sentence is de jure and
de facto reducible.
Consequently, although the Convention does not confer, in general, a
right to release on licence or a right to have a sentence reconsidered by a
national authority, judicial or administrative, with a view to its remission or
termination …….., it is clear from the relevant case-law that the existence of
a system providing for consideration of the possibility of release is a factor
to be taken into account when assessing the compatibility of a particular life
sentence with Article 3. In this
context, however, it should be observed that a State's choice of a specific
criminal justice system, including sentence review and release arrangements, is
in principle outside the scope of the supervision the Court carries out at
European level, provided that the system chosen does not contravene the
principles set forth in the Convention.”
In Vinter's case (supra), the European Court reiterated that the imposition of a whole
life sentence for especially serious crimes was not in itself incompatible with
Article 3, so long as the sentence is de jure and de facto reducible. Thus, in
order to be compatible with Article 3, a life sentence must include the
possibility of review and the prospect of release.
The same concerns were expressed by Mahomed CJ in Tcoeib's case (supra) at 1006:
“The nagging question which still remains is whether the statutory
mechanisms to which I have referred, constitute a sufficiently 'concrete and
fundamentally realisable expectation' of release adequate to protect the
prisoner's right to dignity, which must include belief in, and hope for, an
acceptable future for himself.”
Consequently,
having found, at 1007, that the statutory arrangements were not arbitrary or
unpredictable, because the parole and release boards were required to act impartially,
in accordance with the law and subject to the supervision of the courts, it was
concluded, at 1009:
“For the reasons which I have articulated I am unable to hold that
life imprisonment as a sentence is per se
unconstitutional in Namibia, regard being had to the fact that the relevant
legislation permits release on parole in appropriate circumstances.”
Insofar as concerns the provisions of Part XX of the
Prisons Act, there is no doubt that they differentiate between prisoners
generally and those sentenced to life imprisonment. By excluding life prisoners from the statutory
process of possible release on parole availed to other prisoners they operate
to deny them the constitutional guarantee of the right to equal protection and benefit of
the law. Apart from the argument that
persons sentenced to life imprisonment would have been so sentenced for having
committed some heinous or atrocious crime, the respondents have proffered no
reasonable or justifiable basis for the limitation of their rights within the
contemplation of s 86 of the Constitution. It is not clear what legitimate public
interest is served by depriving life prisoners of the possibility of their
release following an appropriate period of reformative and rehabilitative incarceration.
In the absence of any such
justification, it follows that the impugned provisions are
unconstitutional to the extent that they exclude whole life prisoners from the
parole process and thereby contravene the right to equal protection and benefit
of the law under s 56(1) of the Constitution.
This conclusion per se does not end the present enquiry.
It is still necessary to consider the
objectives of the impugned provisions in the context of their potential scope
of coverage, i.e. their possible
extension to all prisoners undergoing imprisonment, whatever the length of
their period of imprisonment, including whole life prisoners. In this regard, I am unable to perceive any
rational or practical objection to applying the reporting procedures and powers
of release vested in the authorities under Part XX of the Prisons Act to those
prisoners who have been sentenced to life imprisonment. In principle, this approach is perfectly concordant
with para 10 of the Sixth Schedule to the Constitution, which provides for the
continuation of existing laws, as follows:
“Subject to this Schedule, all existing laws continue in force but must
be construed in conformity with this Constitution.”
The established
approach espoused in constitutional interpretation is to adopt a purposive and
generous rather than a pedantic or restrictive interpretation. As was enunciated in the celebrated decision
of the Canadian Supreme Court in R v Big M Drug Mart Ltd (1985) 1 SCR 295, at
344:
“The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an
analysis of the purpose of such a guarantee; it was to be understood, in
other words, in the light of the interest it was meant to protect.
In my view, this analysis is to be undertaken, and the purpose of
the right or freedom in question is to be sought, by reference to the character
and larger objects of the Charter
itself, to the language chosen to articulate the specific right or freedom, to
the historical origins of the concepts enshrined, and where applicable, to the
meaning and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter.
The interpretation should be …….. a generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and securing for individuals
the full benefit of the Charter's
protection.”
In similar vein, it
was recognised in State v Zuma 1995 (2) SA 642 (CC), at para. 14,
that a Constitution requires:
“a generous interpretation …….. suitable to give to individuals the
full measure of the fundamental rights and freedoms referred to.”
Extrapolating from these authorities, the preferable
approach to the construction of an enactment is to interpret and apply it in a
manner that accords with the overall tenor of the Constitution and is liberal,
generous and purposive in its impact on fundamental rights, insofar as this is
possible without doing violence to its scope and objects. The adoption of the approach that I commend in
the construction of Part XX of the Prisons Act would, to use the words of MAHOMED
CJ in Tcoeib's case (supra), “constitute a sufficiently concrete
and fundamentally realisable expectation of release adequate to protect the
prisoner's right to dignity”. It would thus
attain the constitutional objective of advancing rather than diminishing
fundamental rights and construing existing laws in conformity with that
objective in a manner that is expressly sanctioned by para 10 of the Sixth
Schedule to the Constitution.
To conclude on this aspect, it is clear that the
impugned provisions of the Prisons Act operate to deprive whole life prisoners of
the equal protection and benefit of the law. Furthermore, by excluding them from the
possibility of release, they also violate their rights to human dignity and
freedom from inhuman and degrading treatment or punishment. In principle, this would entail the
invalidation of all the offending provisions. However, in order to avoid the complete and
total nullification of these provisions, I take the view that Part XX of the
Prisons Act should be construed and applied in conformity with the Constitution,
by extending the scope of their coverage to all prisoners, including prisoners
sentenced to life imprisonment.
In adopting this approach, I am alive to the critical consideration
that it appears to involve judicial encroachment into the legislative domain of
Parliament, in disregard of the time-honoured doctrine of the separation of
powers. Nevertheless, it seems to me
perfectly possible to obviate this apparent conflict by applying the broad
remedial powers conferred upon the courts in constitutional matters. I refer in particular to s 175(6) of the
Constitution which provides that:
“(6) When deciding a constitutional matter within
its jurisdiction a court may—
(a) declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of the inconsistency;
(b) make any order that is just and
equitable, including an order limiting the retrospective effect of the
declaration of invalidity and an order suspending conditionally or
unconditionally the declaration of invalidity for any period to allow the
competent authority to correct the defect.”
I take the view that it would be just and equitable, in
the circumstances of this case, to invoke and apply the wide discretion allowed
by this provision in order to address and appropriately modify the declaratory
and consequential relief sought by the applicant.
Breach of Applicant's
Rights
Without delving
into the details of the specific conditions to which the applicant has been
subjected at Chikurubi Prison, I have no doubt that they are, euphemistically
speaking, far from ideal. Moreover, it
is not in dispute that they have been exacerbated by the prevailing economic
constraints that bedevil the Prisons and Correctional Service in its operations
throughout the country. Be that as it
may, it seems to me that the more critical feature to be considered in casu is not so much the physical fact
of imprisonment per se, a condition
that is common to every prisoner, as much as the effects of irreducible
incarceration on the emotions and psyche of a life prisoner.
In the instant case, the applicant's assertions as to
the acute angst that he continues to endure are uncontroverted and the sheer
hopelessness of his mind-set cannot be denied. It must be accepted as being truly reflective
of the highly deleterious impact of indeterminate imprisonment on his emotional
and psychological well-being. Having
regard to the conclusions arrived at earlier vis-à-vis whole life prisoners, I
am satisfied that the further incarceration of the applicant, without
consideration for parole and the possibility of release, amounts to a breach of
his rights to human dignity and protection against inhuman or degrading
treatment or punishment under ss 51 and 53 of the Constitution. It also constitutes a contravention of his
right to equal protection and benefit of the law under s 56(1) of the
Constitution. However, all of this is
subject to what I have stated in relation to the extended application of the
provisions of Part XX of the Prisons Act.
Finally, it is
necessary to address the alleged breach of the applicant's right to liberty
contrary to section 49 of the Constitution. That section provides as follows:
“(1) Every person has
the right to personal liberty, which includes the right—
(a)
not to be detained without trial; and
(b) not to be
deprived of their liberty arbitrarily or without just cause.
(2) No person may be imprisoned merely on the
ground of inability to fulfil a contractual obligation.”
My reading of these
provisions is that they have no bearing whatsoever on the applicant's present
situation. He has not been detained
without trial or deprived of his liberty arbitrarily or without just cause. And he certainly has not been imprisoned
merely on the ground of his inability to fulfil a contractual obligation. It is abundantly clear, therefore, that the
applicant has absolutely no basis for the complaint that his right to liberty
under s 49 of the Constitution has been violated in any way.
Appropriate Relief or
Remedy
Apart from the
constitutional declarators that the applicant seeks, he also seeks an order for
his immediate release from prison. As I
have already intimated, such an order would not be appropriate in casu, particularly as the facts
before this Court do not adequately establish the propriety of immediately
releasing the applicant from prison at this juncture. What is first necessary is a full inquiry and
report by the Parole Board, having regard to all the relevant factors delineated
in s 114 of the Prisons Act, to determine the applicant's aptitude and
suitability for release on parole. It
would then be a matter for the Parole Board to make such recommendations as it
may deem fit and proper and, thereafter, for the Minister, in terms of s 115 of
the Act, to decide whether or not to release the applicant on licence, for such
period and subject to such conditions as he may specify.
I should add, for the sake of completeness, that the
authorities who administer the provisions of Part XX of the Prisons Act,
namely, the Advisory Board, the Parole Board, the Commissioner and the
Minister, are administrative authorities stricto
sensu. Accordingly, the exercise of
their functions and powers under these provisions, unlike the presidential
prerogative of mercy, is ordinarily reviewable on the established grounds of
irrationality, illegality or procedural irregularity, either under the common
law or in terms of section 3 of the Administrative Justice Act [Chapter 10:28].
In the result, the
application is granted in the following terms and with the following
conditions:
It is declared
that:
1.
A life sentence imposed on a
convicted prisoner without the possibility of parole or release on licence constitutes
a violation of human dignity and amounts to cruel, inhuman or degrading treatment or
punishment in breach of sections 51 and 53 of the Constitution.
2.
The provisions of Part XX of
the Prisons Act [Chapter 7:11], to
the extent that they exclude prisoners sentenced to imprisonment for life from
the parole or release on licence process, contravene the right to equal
protection and benefit of the law under section 56(1) of the Constitution.
3.
Subject to paragraph 4 below,
the further incarceration of the applicant amounts to a breach of his right to
human dignity, right to protection against cruel, inhuman or degrading
treatment or punishment and right to equal protection and benefit of the law
under sections 51, 53 and 56(1) of the Constitution.
It is accordingly ordered that:
4.
Pending the enactment of
legislation amending the provisions of Part XX of the Prisons Act [Chapter 7:11] so as to conform with the
right to equal protection and benefit of the law under section 56(1) of the
Constitution, the respondents shall apply those provisions, mutatis mutandis, to every prisoner
sentenced to imprisonment for life, including the applicant.
CHIDYAUSIKU CJ: I agree.
GWAUNZA JCC: I agree.
GARWE JCC: I agree.
HLATSHWAYO JCC: I agree.
MAVANGIRA JCC: I
agree.
BHUNU JCC: I
agree.
UCHENA JCC: I
agree.
CHITAKUNYE AJCC: I agree.
Tendai Biti Law, applicant's legal practitioners
Civil
Division of the Attorney-General's Office, respondents' legal practitioners
