Review
Judgment
MUREMBA
J: The accused, a 15 year old
juvenile was charged with and convicted of rape as defined in section
65(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23].
The
accused raped a 14 year old neighbor during the night as they were
both sleeping in the same hut. The accused is friends with one of the
complainant's brothers. On the fateful night the accused went to
the complainant's home to see his friend. Unfortunately, the friend
was not at home. When the complainant and her other brothers retired
to bed the accused joined them. The complainant and her brothers were
sleeping in the same hut. During the night the accused raped her. The
accused denied the charge and was convicted after a full trial.
I
find the conviction proper and it is hereby confirmed.
The
accused was sentenced to receive a moderate corporal punishment of 3
strokes with a rattan cane. He was sentenced on 26 September 2014 on
the strength of section 353(1) of the Criminal Procedure and Evidence
Act [Cap 9:07] which allows for the imposition of corporal
punishment. The section reads,
“(1)
Where a male person under the age of eighteen years is convicted of
any offence the court which imposes sentence upon him may:-
(a)
in lieu of any other punishment; or
(b)
in addition to a wholly suspended sentence of a fine or imprisonment;
or
(c)
in addition to making an order in terms of subsection (1) of section
three hundred and fifty-one, sentence him to receive moderate
corporal punishment, not exceeding six strokes”.
What
gave rise to the enactment of section 353(1) of the Criminal
Procedure and Evidence Act [Cap 9:07] is the old Constitution of
Zimbabwe which permitted the imposition of corporal punishment on
boys below the age of 18 years. Section 15(1) thereof reads as
follows:-
“No
person shall be subjected to torture or to inhuman or degrading
punishment or other such treatment.”
Section
15(3) reads:-
“No
moderate corporal punishment inflicted -
(a)
in appropriate circumstances upon a person under the age of eighteen
years by his parent or guardian or by someone in loco parentis or in
whom are vested any of the powers of his parent or guardian; or
(b)
in execution of the judgment or order of a court, upon a male person
under the age of eighteen years as a penalty for breach of any law;
shall
be held to be in contravention of subsection (1) on the ground that
it is inhuman or degrading”.
The
foregoing provision of the old Constitution made it constitutional to
impose corporal punishment. The right not to be tortured or subjected
to cruel, inhuman or degrading treatment or punishment was limited to
the extent specified in section 15(3). While it was constitutional
under the old Constitution to impose corporal punishment what is of
significance in the present case is that the accused was sentenced
after the new Constitution, that is, the Constitution of Zimbabwe
Amendment (No.20) Act 2013 had come into operation.
There
is need to examine the provisions of the new Constitution and see if
it is still competent for the courts to impose corporal punishment on
male juvenile offenders.
In
the new Constitution, the right to freedom from torture or cruel,
inhuman or degrading treatment or punishment is under section 53 and
it reads;
“No
person may be subjected to physical or psychological torture or to
cruel, inhuman or degrading treatment or punishment”.
Section
86 thereof deals with limitation of rights and fundamental human
freedoms. Section 86(3)(c) reads:-
“No
law may permit the following rights enshrined in this Chapter and no
person may violate them:-
(a)
………
(b)
………
(c)
the right not to be tortured or subjected to cruel, inhuman or
degrading treatment punishment”.
It
is clear that the way the new Constitution is worded on the right to
protection from inhuman treatment is different from the way it was
worded under the old Constitution. In the new Constitution the right
is not limited at all. In fact, section 86 makes it abundantly clear
that no law may limit that right and provides for no exception. If
the legislature had intended corporal punishment to remain as part of
our law it would have limited the right by categorically stating that
moderate corporal punishment inflicted in execution of the judgment
or order of a court shall not be held to be in contravention of that
right as was the case under the old Constitution.
My
interpretation of sections 53 and 86 of the new Constitution brings
me to the conclusion that corporal punishment is now
unconstitutional. What strengthens my conclusion are further
provisions in the new Constitution which protect the right to
personal security, equality and non-discrimination. Below are the
relevant provisions.
Section
52(a), which deals with personal security and prohibits violence,
states that;
“Every
person has the right to bodily and psychological integrity, which
includes the right -
(a)
to freedom from all forms of violence from public or private
sources.”
Section
56 deals with equality and non-discrimination. It reads;
“(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.
(2)………………………..
(3)
Every person has the right not to be treated in an unfairly
discriminatory manner on such grounds as their nationality, race,
colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom,
culture, sex, gender, marital status, age, pregnancy, disability or
economic or social status, or whether they were born in or out of
wedlock. (the underlining is mine)
(4)
A person is treated in a discriminatory manner for the purpose of
subsection (3) if -
(a)
they are subjected directly or indirectly to a condition, restriction
or disability to which other people are not subjected; or
(b)
other people are accorded directly or indirectly a privilege or
advantage which they are not accorded.
(5)
Discrimination on any of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair,
reasonable and justifiable in a democratic society based on openness,
justice, human dignity, equality and freedom.”
Internationally
corporal punishment is regarded as violence against children and as a
breach of fundamental human rights. It is considered inhuman and
degrading as it violates children's physical integrity and
demonstrates disrespect for human dignity and undermines the
self-esteem of children. It is said to treat children as half-human
beings thereby breaching the principle of equal protection before the
law and non-discrimination.
There
are regional and international conventions which protect these rights
and the right to freedom from torture, inhuman and degrading
punishment. Zimbabwe has ratified and acceded to some of them. It
ratified the Convention on the Rights of the Child on 11 September
1990 and the African Charter on Human and Peoples' Rights (ACHPR)
on 30 May 1986. It acceded to the International Covenant on Civil and
Political Rights (ICCPR) on 13 May 19991 and to the African Charter
on the Rights and Welfare of the Child on 19 January 1995.
Under
the African Charter on Human and Peoples' Rights, under Article 3 -
“1.
Every individual shall be equal before the law.
2.
Every individual shall be entitled to equal protection of the law.”
Under
Article 5 -
“Every
individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status.
All forms of exploitation and degradation of man particularly
slavery, slave trade, torture, cruel, inhuman or degrading punishment
and treatment shall be prohibited.”
Under
The International Covenant on Civil and Political Rights under
Article 7 -
“No
one shall be subjected to torture or to cruel, inhuman or degrading
treatment and punishment.”
Under
Article 4(2), even in times of public emergency, no derogation from
Article 7 may be made. Under Article 26 -
“All
persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.”
Under
The Convention on the Rights of the Child the following provisions
are relevant;
“Article
1
For
the purposes of the present Convention, a child means every human
being below the age of eighteen years unless under the law applicable
to the child, majority is attained earlier.
Article
2
1.
States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her
parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin,
property, disability, birth or other status.
2.
States Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or
beliefs of the child's parents, legal guardians, or family members.
Article
37
States
Parties shall ensure that:
(a)
No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital punishment nor
life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age.”
Under
the African Charter on the Rights and Welfare of the Child the
following are the relevant provisions.
“Article
1: Obligation of States Parties
1.
Member States of the Organization of African Unity Parties to the
present Charter shall recognize the rights, freedoms and duties
enshrined in this Charter and shall undertake to the necessary steps,
in accordance with their Constitutional processes and with the
provisions of the present Charter, to adopt such legislative or other
measures as may be necessary to give effect to the provisions of this
Charter.
2.
Nothing in this Charter shall affect any provisions that are more
conductive to the realization of the rights and welfare of the child
contained in the law of a State Party or in any other international
Convention or agreement in force in that State.
3.
Any custom, tradition, cultural or religious practice that is
inconsistent with the rights, duties and obligations contained in the
present Charter shall to the extent of such inconsistency be
discouraged.
Article
2: Definition of a Child
For
the purposes of this Charter, a child means every human being below
the age of 18 years.
Article
3: Non-Discrimination
Every
child shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in this Charter irrespective of the child's
or his/her parents' or legal guardians' race, ethnic group, colour,
sex, language, religion, political or other opinion, national and
social origin, fortune, birth or other status.
Article
16: Protection Against Child Abuse and Torture
1.
States Parties to the present Charter shall take specific
legislative, administrative, social and educational measures to
protect the child from all forms of torture, inhuman or degrading
treatment and especially physical or mental injury or abuse, neglect
or maltreatment including sexual abuse, while in the care of the
child.
2.
Protective measures under this Article shall include effective
procedures for the establishment of special monitoring units to
provide necessary support for the child and for those who have the
care of the child, as well as other forms of prevention and for
identification, reporting referral investigation, treatment, and
follow-up of instances of child abuse and neglect.
Article 17:
Administration of Juvenile Justice
1.
Every child accused or found guilty of having infringed penal law
shall have the right to special treatment in a manner consistent with
the child's sense of dignity and worth and which reinforces the
child's respect for human rights and fundamental freedoms of others.
2.
State Parties to the present Charter shall in particular:
(a)
ensure that no child who is detained or imprisoned or otherwise
deprived of his/her liberty is subjected to torture, inhuman or
degrading treatment or punishment.”
By
becoming a State Party to the above mentioned conventions, Zimbabwe
indicated its consent to be bound by these conventions. As such it
has international legal obligations to respect, protect and fulfil
human rights for everyone within its jurisdiction. As a State Party
it is duty-bound to enact the necessary legislation to give domestic
effect to them. It is evident from Part 3 of Chapter 4 of the new
Constitution that Zimbabwe has endeavoured to fulfil its
international legal obligation in protecting the rights of the
children. Section 81 thereof elaborates on the rights of children. Of
significance are sections 81(1)(a) and 81(1)(e) which make it clear
that children are not half-human beings as they ought to be treated
equally as adults and protected from all forms of abuse including
violence. They read as follows:
“81(1)
Every child, that is to say every boy and girl under the age of
eighteen years, has the right -
(a)
to equal treatment before the law, including the right to be heard;
(b)
…………..
(c)
……………
(d)
……………
(e)
to be protected from economic and sexual exploitation, from child
labour, and from maltreatment, neglect or any form of abuse” (my
emphasis).
This
elaboration of the children's rights in conformity with the
regional and international conventions that Zimbabwe has ratified
demonstrates that the new Constitution does not allow for the
imposition of corporal punishment anymore.
Clearly
section 353(1) of the Criminal Procedure and Evidence Act [Cap 9:07]
is now a law which is inconsistent or ultra vires the Constitution.
Section
10 of Schedule 6 of the new Constitution provides that “all
existing laws continue to be in force but must be construed in
conformity with this Constitution.'' Section 2(1) thereof goes on
to state that, “the Constitution is the supreme law of Zimbabwe and
any law, practice custom or conduct inconsistent with it is invalid
to the extent of the inconsistency”.
What
it means, under the circumstances, is that whilst the Criminal
Procedure and Evidence Act [Cap 9:07] remains in force its section
353(1) is now an invalid law. Section 2(2) of the new Constitution
states that:-
“The
obligations imposed by this Constitution are binding on every person,
natural or juristic, including the State and all executive,
legislative and judicial institutions and agencies of government at
every level, and must be fulfilled by them”.
What
it means is that the courts have a duty to uphold the Constitution
and to promote, respect and protect the rights and freedoms enshrined
therein.
I
thus declare section 353(1) of the Criminal Procedure and Evidence
Act [Cap 9:07] to be constitutionally invalid.
One
other issue that I feel obliged to comment on although it is not an
issue before me is that section 53 of the new Constitution seems to
outlaw the infliction of corporal punishment on children by their
parents, guardians or by persons in loco parentis. As already
explained above the right not to be tortured or subjected to cruel,
inhuman or degrading treatment or punishment is an absolute right.
Under
the old Constitution, parents, guardians and persons in loco parentis
were allowed to inflict moderate corporal punishment on children. It
appears that that position has since changed.
In
view of the fact that the accused was sentenced after the new
Constitution had come into operation the trial magistrate ought to
have employed the provisions of the new Constitution in sentencing
the accused. Since the new Constitution has outlawed corporal
punishment the trial magistrate should have considered other
sentencing options in rape cases in respect of juvenile offenders.
Article 17(3) of the African Charter on the Rights and Welfare of the
Child states that;
“the
essential aim of treatment of every child during the trial and also
if found guilty of infringing the penal law shall be his or her
reformation, re-integration into his or her family and social
rehabilitation.”
Article
40(1) of the Convention on the Rights of the Child also states that:
“State
Parties recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a
manner consistent with the promotion of the child's sense of dignity
and worth, which reinforces the child's respect for the human rights
and fundamental freedoms of others and which takes into account the
child's age and the desirability of promoting the child's
reintegration and the child's assuming a constructive role in
society.”
The
above provisions show that what is important when punishing juveniles
is the need to have the child rehabilitated back into society and his
family. Fortunately, we have provisions in our Criminal Procedure and
Evidence Act [Cap 9:07] which are meant to promote the child's
rehabilitation and reintegration into society.
In
terms of section 351(2)(a) of the Criminal Procedure and Evidence Act
[Cap 9:07] the court may refrain from passing sentence and refer the
matter to the Children's Court if the juvenile is a child who is in
need of care. Under this section it is not competent for the court to
pass sentence and to refer the child to the Children's Court at the
same time. If the matter is referred to the Children's Court the
juvenile offender should be dealt with in terms of the Children's
Act [Cap 5:06]. See also S v Mupariwa 2000 (1) ZLR 168 (HC).
The
other alternative that the court has is to have the juvenile offender
placed or institutionalized in a reformatory or in a training
institute. This is in terms of section 351(2)(b) of the Criminal
Procedure and Evidence Act [Cap 9:07]. This should be done after
ascertaining with the Ministry of Social Welfare that accommodation
is available. See also S v Mupariwa 2000 (1) ZLR 168 (HC). The
challenge that we have though with this option is that we have very
few such institutions in Zimbabwe. With the economic hardships that
we are facing even funding the few existing institutions is a big
challenge. Again, if the court goes for this option it should not
pass sentence.
The
courts also have an option to impose wholly suspended prison terms.
See S v M 2009 (1) 47 (H).
In
some cases effective imprisonment can be imposed.
Generally,
juveniles should not be sent to prison but in cases where there are
aggravating features such as multiple counts, transmission of
sexually transmitted diseases to the victim, serious psychological
and or physical trauma, a high degree of violence or force used
during the rape and the use of a weapon during the rape, effective
imprisonment might be called for especially if the juvenile offender
is between 16 and 18 years. However, the periods of imprisonment
should vary according to the age and the moral blameworthiness of the
offender – See John Reid Rowland Criminal Procedure in Zimbabwe pp
13-10. See also S v Zaranyika and Ors 1995 (1) ZLR 270 (H).
For
the court to arrive at an appropriate penalty it should consider and
assess all relevant factors and recommendations by the Probation
Officer.
Community
service should not be imposed in rape cases as this is meant for
petty or non-serious offences. See S v Zhou 1995 (1) ZLR 329 (H).
In
casu, I did not have the benefit of reading the Probation Officer's
report although the trial magistrate made reference to it in her
reasons for sentence. The report was not attached to the record when
it was submitted for review. I suppose it was an oversight on the
part of the trial magistrate. However, in her reasons for sentence
the trial magistrate indicated that the Probation Officer had
recommended community service, but as I have already stated above,
community service should not be imposed in rape cases. Considering
the way the rape was committed, the age of the accused (15 years),
the age of the complainant (14 years) and that the accused is a first
offender who is still in secondary school doing Form 3, a wholly
suspended prison sentence in the region of 3-4 years would have met
the justice of the case.
The
accused has already been caned. There is nothing that can be done
about it now. I cannot certify the sentence to be in accordance with
real and substantial justice. I thus withhold my certificate.
Although
I have declared section 353(1) of the Criminal Procedure and Evidence
Act [Cap 9:07] to be constitutionally invalid, in terms of section
167(3) and section 175(1) of the new Constitution it is the
Constitutional Court which makes the final decision on whether an Act
of Parliament is constitutional. Any order of constitutional
invalidity of any law that is made by another court other than the
Constitutional court has no force unless it is confirmed by the
Constitutional Court. In terms of section 175(3) -
“Any
person with a sufficient interest may appeal, or apply, directly to
the Constitutional Court to confirm or vary an order concerning
constitutional validity by a court in terms of subsection (1).”
In
casu since this matter came before me as a criminal review I hold the
view that it is the Prosecutor-General who should apply to the
Constitutional Court to have the declaration of constitutional
invalidity confirmed. As such this review judgment should be brought
to the attention of the Prosecutor-General.
MAWADZE
J agrees………….
