MALABA
DCJ:
INTRODUCTION
The
constitutional matter before the Constitutional Court (“the Court”)
for determination is whether section 353 of the Criminal Procedure
and Evidence Act [Chapter 9:07] (“the Act”) is constitutionally
invalid.
The
section authorises the imposition of a sentence of moderate corporal
punishment on a male person under the age of eighteen years who is
convicted of any offence.
The
matter came to the Court by way of the procedure for confirmation of
orders concerning the constitutional
invalidity of any law or any conduct of the President or Parliament
made by another
court.
The
High Court made an order declaring section 353 of the Act
constitutionally invalid on the ground that it contravenes section 53
of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (“the
Constitution”). The section protects the fundamental right of every
person not to be subjected to physical or psychological torture or to
cruel, inhuman or degrading treatment or punishment. The protected
right is absolute and non-derogable.
The
High Court held that judicial corporal punishment inflicted on a male
juvenile in execution of a sentence for any offence of which he is
convicted is an inhuman and degrading punishment within the meaning
of section 53 of the Constitution.
Under
the Constitution, the Court is the only tribunal with the power to
make a final and binding decision on the question of the
constitutionality of an Act of Parliament or conduct of the President
or Parliament. An order concerning the constitutional invalidity of a
law or conduct of the President or Parliament made by another court
has no force unless it is confirmed by the Court. The involvement of
the Court in the process of determination of the constitutionality of
the law or the conduct of the President or Parliament through
confirmation proceedings is mandatory.
In
the determination of the question whether the law or the conduct of
the President or Parliament held by another court to be
constitutionally invalid is indeed so, the Court is not bound by the
other court's order of invalidity. It must satisfy itself, upon the
interpretation and application of the constitutional provisions
allegedly contravened by the legislation or the conduct concerned,
that the court a quo came to the correct decision concerning its
invalidity.
THE
ISSUES FOR DETERMINATION
The
main issue for determination is whether or not section 353 of the Act
contravenes section 53 of the Constitution. There are two other
questions that need to be determined for the Court to be able to
answer the main question;
The
first of the other questions relates to the meaning of the phrases
“inhuman punishment” and “degrading punishment”. The second
question is whether judicial corporal punishment amounts to “inhuman”
or “degrading” punishment or both.
The
Court holds that judicial corporal punishment is, by its nature,
intent and effect an inhuman and degrading punishment within the
meaning of section 53 of the Constitution. The Court also holds in
respect of the main question that section 353 of the Act is
inconsistent with section 53 of the Constitution. The order of the
High Court concerning the constitutional invalidity of section 353 of
the Act is confirmed.
The
detailed reasons for the decision now follow.
CONFIRMATION
OF CONSTITUTIONAL INVALIDITY PROCEDURE AND POWERS OF THE COURT
Orders
of constitutional invalidity made by different courts would have
potential negative effects on legal certainty and the comity existing
between the Court and the other highest organs of the State. The
power to confirm any orders of constitutional invalidity of any law
or conduct of the President or Parliament ensures that the Court, as
the highest Court in all constitutional matters, controls
declarations of constitutional invalidity made against the
Legislature or executive acts of the other highest organs of the
State. The purpose is to ensure that judicial review does not have
the effect of unduly frustrating the activities of the President in
the performance of his or her duties as Head of State and Government
and the Commander-in-Chief of the Defence Forces or the activities of
Parliament.
The
need for legal certainty means that a litigant raising a
constitutional issue that results in a declaration of constitutional
invalidity by another court cannot subsequently abandon or dispose of
the confirmation proceedings outside the judicial process. This is
particularly relevant where litigants who initially raise a
constitutional issue in the court a quo subsequently settle the
dispute. See Pharmaceutical Manufacturers Association of SA and Anor:
In re Ex parte President of the RSA and Ors 2000 (2) SA 674 (CC)
paras 55-56; Lawyers for Human Rights and Anor v Minister of Home
Affairs and Anor 2004 (4) SA 125 (CC) para 24; Khosa v Minister of
Social Development 2004 (6) SA 505 (CC) para 35; Max du Plessis et al
“Constitutional Litigation” Juta (2013) p 95.
The
court which makes an order of constitutional invalidity has to ensure
that the order reaches the Court for confirmation. Rule 31(1) of the
Constitutional Court Rules, Statutory Instrument No. 61 of 2016 (“the
Rules”) imposes a duty on the registrar or clerk of a court which
has made an order of constitutional invalidity in terms of section
175(1) of the Constitution to file with the registrar of the Court,
within fourteen days of the making of the order, a copy of the record
of proceedings including the court order for confirmation in Form CCZ
5.
It
is important that the rule be strictly complied with to ensure that
the orders that need to be confirmed are brought to the attention of
the Court timeously. This is of particular importance in cases where
litigants are not represented. See S v Manyonyo 1999 (12) BCLR 1438
(CC) para 8.
Confirmation
proceedings are in the nature of review. That does not mean that
confirmation of an order of constitutional invalidity is a foregone
conclusion – Phillips and Anor v Director of Public Prosecutions
and Ors 2003 (3) SA 345 (CC) para 8. The Court proceeds on the basis
of the record of proceedings in the court a quo.
It
is necessary that all evidence relating to the alleged inconsistency
of the law or conduct of the President or Parliament with the
Constitution be heard by that court. It is also necessary for a court
hearing a matter in which the constitutionality of legislation is
raised to afford the Minister responsible for the legislation the
opportunity to intervene in the proceedings.
The
Court must first decide the question whether the constitutional
validity of the law or conduct of the President or Parliament in
respect of which the order of invalidity was made was a matter
properly before the court a quo for determination, regard being had
to the circumstances of the case: Zantsi v Council of State, Ciskei
and Ors 1995 (4) SA 615 (CC) para 8.
The
order of constitutional invalidity must be clear and state in
specific terms the provisions of the law or the exact conduct of the
President or Parliament declared constitutionally invalid. The Court
must not be left to speculate as to what provision of the law or the
exact conduct of the President or Parliament has been found to be
inconsistent with the Constitution.
The
Court is empowered to confirm an order of constitutional invalidity
only if it is satisfied that the impugned law or conduct of the
President or Parliament is inconsistent with the Constitution. It
must conduct a thorough investigation of the constitutional status of
the law or conduct of the President or Parliament which is the
subject-matter of the order of constitutional invalidity. The Court
must do so, irrespective of the finding of constitutional invalidity
by the lower court and the attitude of the parties.
Thorough
investigation is required, even where the proceedings are not opposed
or even if there is an outright concession that the law or the
conduct of the President or Parliament which is under attack is
invalid. The reason for this strict requirement is that invalidity of
the law or the conduct of the President or Parliament is a legal
consequence of a finding of inconsistency between the law or the
conduct in question and the Constitution. Inconsistency is a matter
of fact, on the finding of which the court a quo and the Court may
differ.
The
Court has power to refuse confirmation of the order of the court a
quo. That is so if the Court is convinced that the law or the conduct
of the President or Parliament which is the subject-matter of the
order of constitutional invalidity is not inconsistent with the
Constitution. In that case the order of invalidity is of no force or
effect. The impugned law or conduct of the President or Parliament
will stand as constitutionally permissible. The order of the court a
quo will remain stillborn.
The
Court can confirm the order of constitutional invalidity. It may
decline to hear the matter, particularly in cases where the law which
is the subject-matter of the order of constitutional invalidity has
since been repealed.
THE
BACKGROUND FACTS AND THE PROVISIONS OF THE LEGISLATION, THE
CONSTITUTIONALITY OF WHICH IS IMPUGNED
The
order of constitutional invalidity of section 353 of the Act was made
by the High Court in the following circumstances.
On
26 September 2014 the respondent, who was fifteen years old, was
sentenced by a Regional Magistrate's Court to receive moderate
corporal punishment of three strokes with a rattan cane. He had been
convicted of the offence of rape committed on a girl aged fourteen
years. The sentence to receive moderate corporal punishment was
imposed on the juvenile on the authority of section 353(1) of the
Act. Section 353 of the Act provides as follows:
“353
Corporal punishment of male juveniles
(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.
(2)
Subject to subsection (3), corporal punishment in terms of this
section shall be inflicted in private.
(3)
The parent or guardian of a person sentenced to corporal punishment
in terms of this section shall have the right to be present when the
punishment is inflicted, and the court shall advise the parent or
guardian, if present when the sentence is imposed, of his right to be
present when it is inflicted.
(4)
Corporal punishment shall not be inflicted in terms of this section
unless a medical practitioner has examined the person on whom it is
to be inflicted and has certified that he is in a fit state to
undergo the punishment.
(5)
If a medical practitioner has certified that a person on whom
corporal punishment is to be inflicted in terms of this section is
not in a fit state to receive the punishment or any part of it, the
person who was to have inflicted the punishment shall forthwith
submit the certificate to the court that passed the sentence or to a
court of like jurisdiction and the court may thereupon, if satisfied
that the person concerned is not in a fit state to receive the
punishment or any part of it, amend the sentence as it thinks
appropriate.
(6)
Subject to this section, the manner in which and place at which
corporal punishment shall be inflicted, and the person who shall
inflict it, shall be as prescribed.”
In
the case of S v A Juvenile 1989 (2) ZLR 61 (S) the Supreme Court,
sitting as a Constitutional Court, held by a majority decision that
moderate corporal punishment inflicted on a male juvenile in
execution of a sentence for any offence of which he had been
convicted was an inhuman and degrading punishment within the meaning
of section 15(1) of the former Constitution of Zimbabwe (“the
former Constitution”).
Section
15(1) of the former Constitution provided that “no person shall be
subjected to torture or to inhuman or degrading punishment or other
such treatment”.
The
ruling in S v A Juvenile supra followed the decision of the Supreme
Court in S v Ncube and Ors 1987 (2) ZLR 246 (S). In that case, the
Supreme Court held by a unanimous decision that corporal punishment
inflicted in execution of a sentence imposed by a court on an adult
male person convicted of any offence was an inhuman and degrading
punishment within the meaning of section 15(1) of the former
Constitution.
In
1990 the State inserted section 15(3)(b) into the former Constitution
through section 5 of Act No. 30 of 1990 (Amendment No. 11). Section
15(3)(b) provided that:
“15
Protection from inhuman treatment
(3)
No moderate corporal punishment inflicted —
(a)
…
(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.”
With
section 15(3)(b) of the former Constitution in place, section 353 of
the Act was enacted in 1990, authorising the imposition of a sentence
of moderate corporal punishment not exceeding six strokes on a male
juvenile convicted of any offence.
Consistent
with section 353(6) of the Act, the manner in which moderate corporal
punishment imposed in terms of the section was to be inflicted on the
male juvenile offender and the person who was to inflict it were
prescribed by Statutory Instrument No. 308 of 1993 (“the
Regulations”).
The
Regulations require specific precautionary measures to be taken
before and during the administration of the sentence of moderate
corporal punishment. These are that:
(1)
The sentence of corporal punishment shall be administered by an
officer designated in writing for that purpose by the Director of
Prisons;
(2)
Corporal punishment shall be administered with a rattan cane, one
metre long and not more than ten millimetres in diameter;
(3)
A sentence of corporal punishment shall not be carried out unless –
(a)
a pair of calico shorts; and
(b)
a vest; and
(c)
a kidney protector;
are
worn by the juvenile offender during the administration of strokes.
(4)
Strokes shall be administered on the buttocks of the juvenile
offender and on no account shall the strokes –
(a)
be administered on the back of the offender;
(b)
be administered on the same spot; or
(c)
exceed the number imposed by the court.
(5)
A sentence of corporal punishment shall be administered as soon as
possible after it has been imposed by a court.
(6)
Corporal punishment shall not be administered unless –
(a)
a medical officer or State-registered nurse; and
(b)
the officer in charge or any other officer to whom the officer in
charge may assign the duty;
are
present during the administration of the punishment, to ensure that
the punishment is administered in strict accordance with the
Regulations.
(7)
The medical officer, nurse or officer in charge may at any time
during the administration of corporal punishment intervene and
prohibit the remainder of the sentence from being administered if, in
his or her opinion, the punishment is likely to cause more serious
injury than is contemplated in the sentence.
The
Regulations are silent on the position the male juvenile offender
must take when the strokes are being administered. The position was
described in S v Ncube and Ors supra at 263B C in these words:
“The
scene is best described thus: Once the prisoner is certified fit to
receive the whipping, he is stripped naked. He is blindfolded with a
hood and placed face down upon a bench in a prone position. His hands
and legs are strapped to the bench, which is then raised to an angle
of 45 degrees. The aforementioned calico square is tied over his
buttocks and the kidney protector secured above his buttocks at waist
level. The prisoner's body is then strapped to the bench.”
The
Constitution came into effect on 22 May 2013 in respect of matters
relating to the protection of fundamental human rights and freedoms
enshrined in Chapter 4. The Constitution does not have a provision
similar to section 15(3)(b) of the former Constitution. It has, in
Chapter 4, section 53, which, like section 15(1) of the former
Constitution, enshrines the protection of the fundamental right of
any person not to be subjected to physical or psychological torture
or to cruel, inhuman or degrading treatment or punishment.
Absent
a provision in terms similar to those of section 15(3)(b) of the
former Constitution in the Constitution,
courts could now exercise the power of judicial review to determine
the question whether
moderate corporal punishment imposed in terms of section 353 of the
Act on a male juvenile convicted
of any offence amounts to inhuman or degrading punishment within the
meaning of section
53 of the Constitution. In other words, the supreme law of the land
has bestowed on the courts the
sacred trust of protecting fundamental human rights and freedoms by
declaring whether or not
any punishment imposed by the laws of the country is inhuman or
degrading to assist the Legislature
in passing laws that are just and humane - S v A Juvenile supra at
101B-C.
The
substantive finding that judicial corporal punishment constitutes
inhuman or degrading punishment would provide the basis for the
determination of the primary question on the constitutional validity
of section 353 of the Act. Section 353 of the Act is, of course, the
source of the authority for the imposition of a sentence of moderate
corporal punishment on male juveniles convicted of any offence.
It
was not for the court a quo to go outside its mandate and determine
questions of constitutional validity of other types of moderate
corporal punishments. Questions of constitutional validity of
moderate corporal punishment inflicted on juveniles in schools and in
homes by their parents, legal guardians or persons in loco parentis
did not fall to be determined by the court in the automatic review
proceedings. The court a quo was exercising review powers in respect
of the constitutionality of legislation authorising the imposition of
a sentence of moderate corporal punishment on a male juvenile
convicted of an offence.
Submissions
made on the correctness or otherwise of the decision of the court a
quo on matters that were not for its determination are not relevant
to the determination of the issues before the Court. Nothing further
shall be said about matters relating to the constitutionality of
corporal punishment administered in schools and by parents, legal
guardians or persons in loco parentis. It is trite that courts are
generally loath to determine issues not brought before them.
THE
INTERPRETATION OF SECTION 53 OF THE CONSTITUTION AND HUMAN DIGNITY
Section
53 of the Constitution occupies a central place in the scheme of
constitutional protection of fundamental human rights and freedoms
enshrined in Chapter 4 of the Constitution.
The
assessment of the purpose of the protection of a fundamental human
right or freedom takes into account the values and principles on
which a democratic society is based. It is clear from a consideration
of the value system underpinning the Constitution that the object and
purpose of section 53 of the Constitution is to afford protection to
human dignity, and physical and mental integrity, which are some of
the most fundamental values.
Section
3 of the Constitution recognises human dignity as one of the values
and principles on which Zimbabwe is founded. As a foundational value,
human dignity gives rise to all fundamental rights and forms the
essence of each of them. The Constitution underscores the national
commitment to the protection of the interests of the individual,
supported by human dignity as a foundational value. The principle of
the inherent dignity of the individual provides the foundation for
other human rights and freedoms enshrined in the Constitution.
The
right not to be subjected to inhuman or degrading punishment is
closely related to the right to respect for human dignity enshrined
in section 51 of the Constitution. The section provides that every
person has inherent dignity in their private and public life and the
right to have that dignity respected and protected. The right not to
be subjected to inhuman or degrading punishment is also closely
related to the right protected by section 52(a) of the Constitution.
The section provides that every person has the right to bodily and
psychological integrity, which includes the right to freedom from all
forms of violence from public or private sources.
Unlike
the other fundamental rights enshrined in Chapter 4 of the
Constitution, which protect the person in respect of social,
economic, cultural and political activities, the rights enshrined in
sections 51, 52(a) and 53 of the Constitution protect the person as
such. The interpretation of the provisions of sections 51 and 52(a)
of the Constitution have a bearing on the meaning of section 53. The
provisions recognise the principle of human dignity and non-violence.
Section
86(3) of the Constitution makes it clear that both the right not to
be subjected to inhuman or degrading punishment and the right to the
inherent dignity which must be respected and protected are
non-derogable. The section provides that no law may limit these
rights and no person may violate them. The rights are not only
inherent and inalienable; they are also inviolable.
In
S v Ncube and Ors supra at 267B-D it is stated:
"The
raison d'etre underlying section 15(1) is nothing less than the
dignity of man. It is a provision that embodies broad and idealistic
notions of dignity, humanity, and decency, against which penal
measures should be evaluated. It guarantees that the power of the
State to punish is exercised within the limits of civilised
standards. Punishments which are incompatible with the evolving
standards of decency that mark the progress of a maturing society or
which involve the unnecessary and wanton infliction of pain are
repugnant. Thus, a penalty that was permissible at one time in our
nation's history is not necessarily permissible today. What might not
have been regarded as inhuman or degrading decades ago may be
revolting to the new sensitivities which emerge as civilisation
advances."
Section
46 of the Constitution is the interpretative provision. It makes it
mandatory for a court to place reliance on human dignity as a
foundational value when interpreting any of the provisions of the
Constitution which protect fundamental human rights and freedoms.
This is because human dignity is the source for human rights in
general. It is human dignity that makes a person worthy of rights.
Human dignity is therefore both the supreme value and a source for
the whole complex of human rights enshrined in Chapter 4 of the
Constitution. This interdependence between human dignity and human
rights is commented upon in the preambles to the International
Covenant on Economic, Social and Cultural Rights (1966) and the
International Covenant on Civil and Political Rights (1966). The
preambles state in express terms that human rights “derive from the
inherent dignity of the human person”. They all refer to “… the
inherent dignity … of all members of the human family as the
foundation of freedom, justice and peace in the world”. The rights
and duties enshrined in Chapter 4 of the Constitution are meant to
articulate and specify the belief in human dignity and what it
requires of the law.
A
court is required to do any or all of the things specified under
section 46 of the Constitution. It must -
(a)
give full effect to the right or freedom enshrined by the provision.
In this case the Court must give full effect to the right not to be
subjected to inhuman or degrading punishment;
(b)
promote the values and principles that underlie a democratic society
based on openness, justice, human dignity, equality and freedom, and
in particular, the values and principles set out in section 3. In
this case, the values of human dignity and physical and mental
integrity must be promoted;
(c)
take into account international law and all treaties and conventions
to which Zimbabwe is a party;
(d)
pay due regard to all the provisions of the Constitution, in
particular the principles and objectives set out in Chapter 2; and
(e)
may consider relevant foreign law.
The
objectives set out in Chapter 2, to which a court interpreting the
State's obligations under the Constitution and any other law must
have regard, ensure a just, fair and balanced development of society.
The objectives guide the State and all institutions and agencies of
Government at every level in formulating and implementing laws and
policy decisions that will lead to the establishment, enhancement and
promotion of a sustainable, just, free and democratic society in
which people enjoy prosperous, happy and fulfilling lives. The
interpretation must take into account the fact that protection of
fundamental rights and freedoms enshrined in Chapter 4 of the
Constitution and promotion of their full realisation and fulfilment
is one of the objectives the State is required under Chapter 2 to
pursue. The exercise of the legislative power of the State is
constitutionally limited and guided by the obligation to protect and
promote fundamental rights and freedoms. Part of the driving force
behind the elevation of the concept of human dignity to its central
rôle in international and domestic law following the Second World
War was a desire to enshrine legal recognition of the fact that the
State exists for the benefit of the human being and not the human
being for the benefit of the State. See C O Mahony “There is no
such thing as a right to dignity” – International Journal of
Constitutional Law Vol 10, Issue 2, 30 March 2012.
Section
53 of the Constitution has the meaning that springs from the evolving
standards of decency that mark the progress of a maturing society. It
is in terms similar to those of provisions of International Human
Rights Instruments. As such, it is proper, when interpreting section
53 of the Constitution, to have regard to international human rights
norms for assistance.
Whilst
section 46 of the Constitution enumerates specific things a court,
tribunal, forum or body must do when interpreting any provision in
Chapter 4 of the Constitution, the matters listed are in addition to
all other relevant factors that are to be taken into account and
considered in the interpretation of a constitution. The appropriate
approach to be adopted in the interpretation of a provision of a
constitution guaranteeing a fundamental human right or freedom is the
purposive, broad, progressive and values-based approach.
The
Court must adopt an interpretation of section 53 of the Constitution
that promotes the respect for the inherent dignity of the male
juvenile when he is subjected to punishment for an offence of which
he has been convicted.
Article
1 of the Universal Declaration of Human Rights (1948) recognises the
inherence of dignity in every human being and declares that all human
beings are born free and equal in dignity and rights. The
International Covenant on Civil and Political Rights (1976) (“the
ICCPR”) recognises human dignity as the foundation or source of
every fundamental human right and freedom.
Article
4 of the African Charter on Human and Peoples' Rights provides that
“human beings are inviolable”. Article 5 provides that:
“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.”
The
United Nations Convention on the Rights of the Child (1989) (“the
CRC”) emphasises inherent dignity in a number of places.
Significantly, Article 37(a) lays down the right of the child not to
be subjected to cruel, inhuman or degrading treatment or punishment.
This
provision is designed to protect both the inherent dignity and the
physical and mental integrity of the child. Article 37(c) requires
States Parties to treat children convicted of offences “with
humanity and respect for the inherent dignity of the human person”.
The
Committee on the Rights of the Child in General Comment No. 8
recognises the right of every person to respect by others for his or
her inherent dignity and physical integrity and equal protection of
the law. In para 16 the General Comment states that:
“The
dignity of each and every individual is the fundamental guiding
principle of international human rights law.”
The
centrality of the protection of human dignity and physical and mental
integrity in the definition of inhuman or degrading punishment
becomes clear.
Courts
must understand and rely on human dignity in the exercise of
jurisdiction because the Constitution unequivocally espouses human
dignity as a foundational value.
Human
dignity asserts the worth of the person who is imbued with it. We
cannot define what a human being is without recourse to an essential
characteristic such as inherent dignity. Respect for human dignity
during the enforcement of a penalty must be guaranteed.
It
is important to put into perspective the meaning of the concept of
“human dignity”, as used in the Constitution, without attempting
to give a comprehensive definition of the concept. Dignity, as a
concept, has various meanings that have different connotations. It is
generally defined as an honour accorded to a person for a specific
reason. A person may be accorded the honour because of respect for
the rank he or she occupies in society. The common definitive feature
is that dignity would attach to a person because of status. In that
sense, it denotes both the status of an individual and the bearing
that is associated with that status.
Human
dignity is different.
It
is a special status which attaches to a person for the reason that he
or she is a human being. It is the fact of being human that founds
human dignity. Human dignity is therefore inherent in every person
all the time and regardless of circumstances or status of the person.
All human beings are equal, in the sense that each has inherent
dignity in equal measure. What this means is that human dignity is
innate in a human being. It remains a constant factor and does not
change as a person goes through the stages of development in life.
Human dignity is not created by the State by law. The law can only
recognise the inherence of human dignity in a person and provide for
equal respect and protection of it. In fact, human dignity demands
respect. In other words, every human being merits equal respect for
his or her inherent dignity regardless of social, economic and
political status.
A
human being is a social person. He or she relates to others as a
member of society.
Society
has its own rules or norms that define rights and duties in terms of
which members relate to each other for the common good and social
order. In its social context, human dignity requires that the
individual respects himself or herself (self-respect) by
internalising the values of the society in which he or she lives and
must accord others equal respect. The others are required, in turn,
to accord the person's inherent dignity equal respect. There is
interdependence. Arising from this is the communitarian understanding
of inherent dignity with its emphasis on mutual interdependence.
The
reciprocal nature of human dignity is evident in its curtailment of
self-degradation and its limiting effect on the exercise of rights to
accommodate the rights of others or the common good. Equal respect
for the inherent dignity of the other person means refraining from
doing anything under the guise of the exercise of one's rights
which would injure his or her rights. Injuring another person's
rights shows no respect for his or her dignity as a human being,
because rights are derived from human dignity and human dignity is
the essence of every fundamental right.
In
S v Makwanyane 1995 (3) SA 391 (CC) at para 328 O'REGAN J said:
“Recognising
a right to dignity is an acknowledgement of the intrinsic worth of
human beings: human beings are entitled to be treated as worthy of
respect and concern. This right therefore is the foundation of many
of the other rights that are specifically entrenched in Chapter 3.”
The
right to have the inherent dignity respected and protected means that
a person must be punished as a person. He or she cannot be punished
as if he or she is a non-human. It means that the State should not
prescribe or impose a punishment which by its nature and effect
constitutes a humiliating assault on the inherent dignity of the
person being punished.
The
obligation to respect and protect the inherent dignity of every
person means that the inherent dignity of a person being punished for
a crime must remain intact or unimpaired notwithstanding the
infliction of the punishment. Punishment must be provided in a way
that is consistent with and respects the inherent dignity of the
offender.
WHAT
IS INHUMAN OR DEGRADING PUNISHMENT?
In
S v Ncube and Ors supra at 267D-G it is stated:
“The
precise meaning of the words 'inhuman' and 'degrading' must
now be considered: 'Inhuman' is defined in the Oxford English
Dictionary as:
'Destitute
of natural kindness or pity; brutal, unfeeling, cruel; savage,
barbarous.'
And
to 'degrade' as:
'To
lower in estimation, to bring into dishonour or contempt; to lower in
character or quality; to debase.'
Barnett,
in The Constitutional Law of Jamaica (1977) at 391, deals with s17(1)
of the Jamaica Constitution, which is in similar terms to s15(1), and
sums up its purport as follows:
'It
seems that “inhuman” is limited to such action as by its very
nature is barbarous, brutal or cruel and not merely such treatment as
results from want of pity or human feeling, and “degrading”
connotes treatment which is calculated to, or in all probability will
(not merely might), destroy the human qualities and character of the
recipient.'"
It
is clear that the punishment has to meet the minimum standard to be
described as inhuman or degrading before it can be said to be in
violation of the fundamental right protected by section 53 of the
Constitution.
On
the face of it, section 53 of the Constitution is aimed primarily at
the nature or effect of punishment. Its immediate purpose is to
protect every person from inhuman or degrading punishment. Section 53
is not aimed at punishments which are in their nature inhuman or
degrading only. It also extends to punishments which are “grossly
disproportionate”; those which are inhuman or degrading in their
disproportionality to the seriousness of the offence. The test is
that the punishment should be such that no-one could possibly have
thought that the particular offence would have attracted such a
penalty – the punishment being so excessive as to shock or outrage
contemporary standards of decency. S v Ncube and Ors supra at 265C.
It
must follow from the purposive interpretation of section 53 of the
Constitution that inhuman or degrading punishment for any offence is
punishment which, by its nature or effect, invades human dignity. To
be inhuman is to act towards another person without feelings of pity
or sympathy as a fellow human being when circumstances demand such
humane conduct. It is to treat the other person as if he or she is a
mere object. A punishment, the method of the infliction of which
involves the use of violence to cause severe physical and mental pain
and suffering, would, by contemporary standards of decency and
prevailing ideas on the meaning of human dignity, constitute inhuman
punishment. It is a punishment that brutalises the person being
punished and the one punishing alike. It violates the physical and
mental integrity of the person being punished.
A
punishment, the infliction of which involves debasement or
humiliation of the person in his or her own esteem or self-respect,
does not comport with human dignity. It constitutes degrading
punishment, as it exposes the person to disrespect and contempt from
fellow human beings superintending the administration of the
punishment. A punishment is degrading when it has the effect of
arousing in the person being punished feelings of fear, anguish or
inferiority. It is a punishment which inflicts an ignominious
disgrace on the offender.
Punishment
which is inhuman will often be degrading as well, but there is a
somewhat lesser likelihood of punishment which is degrading being
also inhuman. See S v Ncube and Ors supra at 264H.
There
is no doubt that it is the Legislature that has the power under the
Constitution to create crimes and prescribe punishments for them. In
the exercise of the power to prescribe punishments for crimes the
Legislature is bound by section 44 of the Constitution. The section
provides that in its capacity as an institution of Government the
Legislature must respect, protect, promote and fulfil the rights and
freedoms set out in Chapter 4 of the Constitution. The Legislature is
also required under Chapter 2 of the Constitution to adopt as the
objective of the exercise of legislative power the protection of the
fundamental rights and freedoms.
The
Legislature must not enact a law that authorises the infliction of
inhuman or degrading punishment within the meaning of section 53 of
the Constitution. The law must prescribe punishments for crimes which
comport with human dignity.
The
fundamental principle is that a person does not lose his or her human
dignity on account of the gravity of an offence he or she commits.
Even the vilest criminal remains a human being with inherent dignity
meriting equal respect and protection (per BRENNAN J in Furman v
Georgia 408 US 238 (1972) at 273). The fact that he or she has
committed a crime of a serious nature does not mean that he or she
has lost the capacity to act with self-respect and respect for others
in the future. Commission of an offence is a result of an exercise of
freedom of choice to act in a manner proscribed by a societal norm.
That in itself means that the person has the rational capacity to
choose to act in a manner approved by the societal norm which is
consistent with self-respect and respect for the inherent dignity of
others. He or she remains entitled to the equal respect of his or her
dignity as a human being, regardless of the gravity of the crime he
or she committed. A humane penal system is one that is based on the
principle that a human being must not be treated only as a means but
always as an end for the purposes of punishment.
DOES
JUDICIAL CORPORAL PUNISHMENT AMOUNT TO INHUMAN OR DEGRADING
PUNISHMENT?
Mr
Uladi, Mrs Zvedi and Mr Mpofu argued that the punishment as
prescribed under section 353 of the Act does not amount to inhuman or
degrading punishment. The contention was that the precautionary
measures required by the Regulations to be taken before and during
the administration of moderate corporal punishment take it out of the
ambit of punishments prohibited by section 53 of the Constitution.
Mr
Biti and Mr Hofisi argued that, notwithstanding the precautionary
measures required to be taken before and during the administration of
the punishment, judicial corporal punishment is inherently an inhuman
and degrading punishment. The contention was that the punishment is
so because it involves in its infliction the use of physical and
mental violence to consciously cause acute pain and suffering on the
person being punished. They argued that the infliction of judicial
corporal punishment impacts on the human dignity and physical
integrity of the person being punished.
Mr
Biti and Mr Hofisi supported their contention that the sentence of
moderate corporal punishment, imposed in terms of section 353 of the
Act, is inhuman and degrading punishment within the meaning of
section 53 of the Constitution by reference to the majority decision
in S v A Juvenile case supra, foreign decisions, and comments from
regional and international human rights bodies. The contention was
that the common thread in the jurisprudence of the bodies referred to
is the holding that, regardless of the precautionary measures,
similar to those prescribed by the Regulations, judicial corporal
punishment is by nature, intent and effect inherently an inhuman and
degrading punishment.
Counsel
were agreed that the decision whether a punishment amounts to inhuman
or degrading punishment within the meaning of section 53 of the
Constitution is a product of value judgment. There are standards to
be taken into account and applied in the exercise of the value
judgment. The making of the value judgment requires objectivity to be
articulated and identified, regard being had to the contemporary
norms, aspirations, expectations and sensitivities of the people as
expressed in their national institutions and the Constitution.
Further, regard must be had to the emerging convergence of values in
the civilised international community. (Ex parte Attorney-General,
Namibia In Re Corporal Punishment by Organs of the State 1991 (3) SA
76 (Nm. SC) at 861.)
Value
judgment, in the context of the determination of questions on the
application of section 53 of the Constitution, cannot mean subjective
judgment in the sense of expression of personal views by individual
Judges on corporal punishment, generally influenced by their own
historical experiences and perhaps religious beliefs.
The
constitutionality of the punishment must be assessed in the light of
the values which underlie the Constitution to decide whether it
amounts to inhuman or degrading punishment. It must be assessed in
the light of the effect it has or is likely to have on the values of
human dignity and physical integrity of the persons being punished.
The question must always be whether the type of punishment prescribed
by statute by its nature and effect, or by the consideration of the
method of infliction or amount of force applied, impairs the human
dignity and physical integrity of the person being punished.
Section
53 of the Constitution preserves the basic concept of humanity by
ensuring that the power to impose punishment is exercised within the
limits of civilised standards. See S v A Juvenile supra at 77G.
In
S v Magondo and Anor 1969 (1) PH H58 (N) LEON J opined that:
“a
whipping is not only an assault upon the person of a human being but
also upon his dignity as such.”
Judicial
corporal punishment by nature involves the use of physical and mental
violence against the person being punished. Direct application of
acts of violence on the body of a person would naturally cause
physical and mental pain and suffering to the victim. In the case of
a punishment for crime, the infliction of the pain and suffering is
intended to be severe to achieve the purposes of the punishment. The
infliction of the punishment in the circumstances would inevitably
involve one human being assaulting another human being under the
authority and protection of the law. Forcibly subjecting one person
to the total control of another for the purposes of beating him or
her is inherently degrading to the victim's human dignity.
There
is no doubt that blindfolding the male juvenile offender and
strapping his body to a bench to ensure that he remains motionless
and helpless when he is caned on the buttocks by the officer
administering the strokes ordered by the court would inevitably
arouse in him the feelings of fear, anguish and inferiority which
humiliate and debase his self-respect. The mere anticipation of a
stroke is within the parameters of the inhuman and degrading elements
of judicial corporal punishment. Corporal punishment is not simply
about the actual pain and humiliation of a caning, but also about the
mental suffering that is generated by anticipating each stroke.
A
human being must not be treated as a means to an end. He or she is a
subject with inherent dignity to be respected and protected.
Measures
prescribed for his or her punishment for crime must take him or her
as an end in himself or herself and not as an object. Treating the
male juvenile offender in the manner prescribed under section 353 of
the Act as punishment for any crime is to treat him as if he is a
non-human. It makes him a mere object of State action.
The
Committee on the Rights of the Child, in General Comment No. 8 para
11, defines corporal punishment as “any punishment in which
physical force is used and intended to cause some degree of pain or
discomfort, however light”.
The
Committee held that corporal punishment takes many different forms,
one of which is caning with a rattan cane. It concluded that such
physical form of punishment is “invariably degrading”. The
beating of one person by another with an intention of causing him or
her pain and suffering invariably humiliates the victim.
The
principle is that violence must not be used to enforce moral values
or to correct behaviour. Section 52(a) of the Constitution prohibits
the use of any form of violence as a means of achieving the
objectives of punishment of a person convicted of an offence.
It
is important to state that General Comment No. 8 pertains, inter
alia, to Article 37(a) of the CRC. It aims “to highlight the
obligation of all States Parties to move quickly to prohibit and
eliminate all corporal punishment and all other cruel or degrading
forms of punishment of children …”. It emphasises eliminating
corporal punishment of children as “a key strategy for reducing and
preventing all forms of violence in societies”.
Judicial
corporal punishment in the execution of a sentence for crime has long
been adjudged to be by nature, intent and effect an inhuman and
degrading punishment. It does not respect the inherent dignity of the
person being punished. The precautionary measures prescribed to
accompany its administration do not detract from its nature and
effect, which are evidence of its invasion of human dignity and ipso
facto violation of the non-derogable right protected by section 53 of
the Constitution.
Looked
at from the perspective of the effect of the punishment on the human
dignity and physical integrity of the person being punished, it
becomes clear that the precautions prescribed are of no consequence
to the determination of the question whether judicial corporal
punishment prescribed under section 353 of the Act amounts to inhuman
or degrading punishment within the meaning of section 53 of the
Constitution.
There
has been a convergence of minimum standards to be applied in the
determination of the question under discussion. There has also been a
growing consensus in the jurisprudence of regional and international
bodies that have determined the question whether judicial corporal
punishment is inhuman or degrading punishment that it is by nature,
intent and effect an inherently inhuman and degrading punishment. Any
punishment which involves the infliction of physical and mental
violence on the person being punished to cause him or her pain and
suffering in execution of a sentence for an offence is an inhuman and
degrading punishment.
Article
7 of the ICCPR states that:
“No-one
shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
In
1992 the United Nations Human Rights Committee adopted General
Comment No. 20, relating to Article 7. The Committee said:
“The
prohibition in Article 7 relates not only to acts that cause physical
pain but also to acts that cause mental suffering to the victim. In
the Committee's view, moreover, the prohibition must extend to
corporal punishment, … offered as a punishment for a crime … .”
In
General Comment No. 13 of 1999, the United Nations Committee on
Economic, Social and Cultural Rights said that:
“…
corporal punishment is inconsistent with the fundamental guiding
principle of international human rights law enshrined in the
Preambles to the Universal Declaration of Human Rights and both
Covenants: the dignity of the individual.”
In
Tyrer v United Kingdom [1978] EHRR 1 at 11 para 33, the European
Court of Human Rights decided that a system of judicial corporal
punishment for male juvenile offenders in use in the United Kingdom
violated Article 3 of the European Convention on Human Rights (“the
ECHR”). Article 3 of the ECHR states that “no-one shall be
subjected to torture or to inhuman or degrading treatment or
punishment”.
Tyrer,
aged fifteen years and a resident of the Isle of Man, pleaded guilty
on 7 March 1972 before the local Juvenile Court to unlawful assault
occasioning actual bodily harm to a senior pupil at his school. He
was sentenced to three strokes of the birch in accordance with
relevant legislation. He appealed against the sentence to the High
Court of Justice of the Isle of Man. His appeal was dismissed on 28
April 1972. He was birched later in the afternoon of the same day. He
was made to take down his trousers and underpants and bend over a
table. He was held by two policemen whilst a third administered the
punishment, pieces of the birch breaking at the first stroke. The
birching raised, but did not cut, Tyrer's skin and he was sore for
about ten days.
An
application was lodged with the Commission, complaining that the
judicial corporal punishment suffered constituted a breach of Article
3 of the ECHR. In its Report the Commission expressed the opinion
that judicial corporal punishment, being degrading, violated Article
3 of the ECHR and that consequently its infliction upon Tyrer was
unconstitutional.
The
European Court of Human Rights decided that the punishment violated
Article 3 of the ECHR because the very nature of judicial corporal
punishment is that it involves one human being inflicting physical
violence on another human being. Furthermore, the European Court of
Human Rights deemed it to be institutionalised violence, that is,
violence permitted by the law, ordered by the judicial authorities of
the State and carried out by the police authorities of the State. It
went on to hold that the institutionalised character of the violence
was further compounded by the whole aura of official procedure
attending the punishment and by the fact that those inflicting it
were total strangers to the offender.
The
European Court of Human Rights held that the punishment of Tyrer,
whereby he was treated as an object in the power of the authorities,
constituted an assault on precisely that which it is one of the main
purposes of Article 3 of the ECHR to protect, namely a person's
inherent dignity and physical integrity.
Although
Tyrer did not suffer any severe or long-lasting physical injury, the
European Court of Human Rights held that the punishment amounted to a
degrading punishment within the meaning of Article 3 of the ECHR. The
European Court of Human Rights based its decision on the objective
assessment of the corporal punishment inflicted on Tyrer in the light
of the effect it had on his dignity as a human being and on his
physical integrity.
Tyrer's
case supra was cited with approval in S v A Juvenile supra.
DUMBUTSHENA CJ, commented on the decision of the European Court of
Human Rights in Tyrer's case supra and its implications on the
determination of the question whether judicial corporal punishment
authorised by section 330(1) of the Criminal Procedure and Evidence
Act [Chapter 59] contravened section 15(1) of the former
Constitution. At 73F-G the learned CHIEF JUSTICE said:
“It
would be strange were we to come to a contrary view because, as I see
it, the circumstances described above are present in any judicial
corporal punishment. It is a type of institutionalised violence
inflicted on one human being by another. The only difference between
it and street violence is that the inflictor assaults another human
being under the protection of law. He might, during the execution of
the punishment, vent his anger in a similar manner on his victims as
the street fighter does. But, as I have pointed out above, the degree
of force he elects to use is of his own choosing. Because this
institutionalised violence is meted out to him, the victim's personal
dignity and physical integrity are assailed. In the result the victim
is degraded and dehumanised. In a street fight he can run away from
his assailant or he can defend himself. The juvenile offender cannot
because he is tied down to the bench.”
Unlike
the European Court of Human Rights, which found in Tyrer's case
supra that the judicial corporal punishment inflicted on the male
juvenile offender amounted to degrading punishment only, the majority
in S v A Juvenile supra held that judicial corporal punishment
amounted to inhuman and degrading punishment. GUBBAY JA (as he then
was) at 91A-B said:
“I
am, however, prepared to go further than the European Court of Human
Rights and hold that judicial whipping, no matter the nature of the
instrument used and the manner of execution, is a punishment
inherently brutal and cruel; for its infliction is attended by acute
physical pain. After all, that is precisely what it is designed to
achieve. It may cause bleeding and scarring and at the very least
bruises and swellings. Irrespective of any precautionary conditions
which may be imposed, it is a procedure subject to ready abuse in the
hands of a sadistic or overzealous official appointed to administer
it. It is within his power to determine the force of the beating.”
Caning
invades the integrity of the human body. It is an inhuman punishment
which blocks the way to understanding the pathology of crime. It has
been abolished in many countries of the world as being incompatible
with the contemporary concepts of humanity, decency and fundamental
fairness.
According
to Rule 17:3 of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice 1985 (“the Beijing Rules”),
'Juveniles should not be subjected to corporal punishment'.”
KORSAH
JA in S v A Juvenile supra at 101F held that any law which allows a
person to be blindfolded and strapped to a wooden bench degraded and
debased that person, and that if it was done for the sole purpose of
subjecting him to a caning, then it also dehumanised him. HIS
LORDSHIP opined that:
“Even
if corporal punishment were to be administered without the victim
taking his clothes off, the mere idea of inflicting physical pain as
a form of punishment constituted an inhuman approach to punishment.”
In
the case of Ex parte Attorney-General, Namibia supra the Supreme
Court of Namibia considered the question whether section 294 of the
Namibian Criminal Procedure Act, 51 of 1977, contravened Article 8 of
the Constitution of Namibia. Section 294 made provision for the
imposition of a sentence of moderate correction of caning not
exceeding seven strokes on a male person under the age of twenty-one
years convicted of any offence. The provisions of subsections (2) to
(5) of section 294 were in terms similar to those of section 353 of
the Act. Section 36 of the Namibian Prisons Act 8 of 1959 and
sections 2, 3 and 4 of Regulation 100 of the Namibian Prisons
Regulations provided for the manner of the administration of the
sentence of corporal punishment which was similar to that provided
for under our Regulations.
Article
8 of the Constitution of Namibia provides:
“8.
Respect for human dignity
(1)
The dignity of all persons shall be inviolable.
(2)(a)
In any judicial proceedings or in any other proceedings before any
organ of the State, and during the enforcement of a penalty, respect
for human dignity shall be guaranteed.
(b)
No persons shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment.”
By
a unanimous decision, the Supreme Court of Namibia held that judicial
corporal punishment as practised in that country constituted inhuman
and degrading punishment.
Speaking
through MAHOMED AJA (as he then was) the court said at 87B-I:
“The
provisions of art. 8(2)(b) are not peculiar to Namibia; they
articulate a temper throughout the civilised world which has
manifested itself consciously since the Second World War. Exactly the
same or similar articles are to be found in other instruments. (See
for example art. 3 of the European Convention for the Protection of
Human Rights and Freedoms, art. (1)(1) of the German Constitution;
art. 7 of the Constitution of Botswana; art. 15(1) of the Zimbabwean
Constitution.)
In
the interpretation of such articles there is strong support for the
view that the imposition of corporal punishment on adults by organs
of the State is indeed degrading or inhuman and inconsistent with
civilised values pertaining to administration of justice and the
punishment of offenders. This view is based substantially on the
following considerations:
(1)
Every human being has an inviolable dignity. A physical assault on
him sanctioned by the power and authority of the State violates that
dignity. His status as a human being is invaded.
(2)
The manner in which the corporal punishment is administered is
attended by, and intended to be attended by, acute pain and physical
suffering 'which strips the recipient of all dignity and
self-respect'. It 'is contrary to the traditional humanity
practiced by almost the whole of the civilised world, being
incompatible with the evolving standards of decency'. (S v Ncube &
Others supra at 722B-C).
(3)
The fact that these assaults on a human being are systematically
planned, prescribed and executed by an organised society makes it
inherently objectionable. It reduces organised society to the level
of the offender. It demeans the society which permits it as much as
the citizen who receives it.
(4)
It is in part at least premised on irrationality, retribution and
insensitivity. It makes no appeal to the emotional sensitivity and
the rational capacity of the person sought to be punished.
(5)
It is inherently arbitrary and capable of abuse leaving as it does
the intensity and the quality of the punishment substantially subject
to the temperament, the personality and the idiosyncrasies of the
particular executioner of that punishment.
(6)
It is alien and humiliating when it is inflicted as it usually is by
a person who is a relative stranger to the person punished and who
has no emotional bonds with him.
There
is an impressive judicial consensus concerning most of these general
objections.”
HIS
LORDSHIP went on to say at 90C-91A:
“If
corporal punishment upon adults authorised by judicial or
quasi-judicial authorities constitutes inhuman or degrading
punishment in conflict with art. 8(2)(b) of the Constitution, can it
successfully be contended that such a punishment is nevertheless
lawful where it is sought to be inflicted upon juvenile offenders in
consequence of a direction from such a similar judicial or
quasi-judicial authority? …
It
would seem to me that most of the six objections against corporal
punishment in general, to which I previously referred, would be of
equal application to both adults and juveniles. Juveniles also have
an inherent dignity by virtue of their status as human beings and
that dignity is also violated by corporal punishment inflicted in
consequence of judicial or quasi-judicial authority.
The
manner in which corporal punishment is administered upon a juvenile
is also intended to result in acute pain and suffering which invades
his dignity and the self respect of the recipient. Such punishment is
also potentially arbitrary and open to abuse in the hands of the
person administering the punishment. Both the punisher and the
juvenile sought to be punished are also equally degraded. The
juvenile is also alienated by such punishment. Corporal punishment
upon juveniles in consequence of judicial or quasi-judicial direction
also has a retributive element with scant appeal to the rational, and
emotional sensitivities of the juvenile.”
In
S v Williams and Ors 1995 (3) SA 632 (CC) the Constitutional Court of
South Africa had referred to it a matter which was a consolidation of
five different cases. The cases involved six juveniles who had been
convicted of offences by different magistrates and sentenced to
receive “moderate correction” of a number of strokes with a light
cane. The issue for determination was whether the sentence of
juvenile caning pursuant to the provisions of section 294 of the
South African Criminal Procedure Act, 51 of 1977, was consistent with
section 11(2) of the Constitution of the Republic of South Africa.
Section
11(2) of the Constitution of the Republic of South Africa provides
that:
“…
no person shall be subject to torture of any kind, whether physical,
mental or emotional, nor shall any person be subjected to cruel,
inhuman or degrading treatment or punishment.”
According
to the provisions of section 294 of the South African Criminal
Procedure Act, 51 of 1977, a caning could not be imposed “if it was
proved that the existence of some psychoneurotic or psychopathic
condition contributed towards the commission of the offence”. A
caning had to be carried out “by such person and in such place and
with such instrument as the court” determined.
In
practice, a cane was used. The maximum number of strokes that could
be imposed at any one time was seven. Juvenile caning was inflicted
over the buttocks, which had to be covered with normal attire. A
parent or guardian had a right to be present. No caning could be
carried out unless a district surgeon or an assistant district
surgeon certified that the juvenile was “in a fit state of health
to undergo the whipping”. (See Williams and Ors supra at
637F-638A.)
At
644C-645C of Williams and Ors supra LANGA J (as he then was) said:
“In
determining whether punishment is cruel, inhuman or degrading within
the meaning of our Constitution, the punishment in question must be
assessed in the light of the values which underlie the Constitution.
The
simple message is that the State must, in imposing punishment, do so
in accordance with certain standards; these will reflect the values
which underpin the Constitution; in the present context, it means
that punishment must respect human dignity and be consistent with the
provisions of the Constitution.
There
is unmistakably a growing consensus in the international community
that judicial whipping, involving as it does the deliberate
infliction of physical pain on the person of the accused, offends
society's notions of decency and is a direct invasion of the right
which every person has to human dignity. This consensus has found
expression through the Courts and Legislatures of various countries
and through international instruments. It is a clear trend which has
been established.
Corporal
punishment has been abolished in a wide range of countries, including
the United Kingdom, Australia (except in the State of Western
Australia), the United States of America, Canada, Europe and
Mozambique, among others. In Lesotho, restrictions have been imposed
by the courts on the whipping of people over thirty years. Although
the Constitution of Botswana contains a provision preserving the
application of judicial corporal punishment in its criminal justice
system, the practice has been severely criticised by the Judiciary.
The remarks of AGUDA JA in S v Petrus and Another ([1985] LRC
(Const.) 699 at 725g-726b) are apposite to the present enquiry:
'First,
it must be recognised that certain types of punishment or treatment
are by their very nature cruel, inhuman or degrading. Here once more
I must cite with approval what Professor Nwabueze says in his book
(ibid):
'Any
punishment involving torture … or the infliction of acute pain and
suffering, either physical or mental, is inherently inhuman or
degrading.'”
Article
5 of the American Convention on Human Rights (“ACHR”) prohibits
any torture, or cruel, inhuman, or degrading punishment or treatment.
In
the case of Winston Caesar v Trinidad and Tobago 2005 Inter-Am. Ct.
H.R. (Ser. C) No. 123 (Mar. 11, 2005) the Inter American Court of
Human Rights emphasised that the prohibition of inhuman and degrading
punishment or treatment had reached the status of a “peremptory
norm of international law”.
It
based this conclusion on a reading of international human rights
instruments as well as on regional case law. Coming to the conclusion
that corporal punishment imposed on Caesar for the offence of
attempted rape amounted to inhuman and degrading punishment in
contravention of Article 5 of the ACHR, the Inter-American Court of
Human Rights took into account the institutionalised nature of the
violence against Caesar, his humiliation and his severe physical and
psychological suffering. The Inter-American Court of Human Rights
ruled that Trinidad and Tobago's Corporal Punishment Act, on the
authority of which fifteen strokes of the cat-o'-nine tails had
been imposed on Caesar, contravened Article 5.
See
also Prince Pinder v Bahamas Case 12.5/3, Inter-Am. C.H.R. Report No.
79/07, OEA/Serv.L./V/11.130, doc. 22, rev. 1 (2007).
Those
who argued in support of judicial corporal punishment did so on three
grounds.
The
first ground was that the precautionary measures required by the
Regulations to be taken before and during the administration of the
sentence of moderate corporal punishment take it out of the category
of inhuman and degrading punishments.
The
flaw in the contention lies in the attempt to overlook the essence of
judicial corporal punishment. One cannot simply wish away the fact
that judicial corporal punishment is what it is because it involves
the use of institutionalised violence to inflict acute physical and
mental pain and suffering on the person being punished. The
punishment remains an invasion on human dignity.
In
Ex parte Attorney-General, Namibia supra at 92D-G MAHOMED AJA (as he
then was) said:
“I
have little doubt that these and other similar provisions appearing
in the relevant statutes and regulations which I have referred to in
the earlier part of this judgment are intended to ameliorate the
harshness and the severity of corporal punishment upon juveniles.
They do not, however, in my view, meet the basic objection to all
corporal punishment inflicted upon citizens in consequence of a
sentence imposed by a judicial or quasi-judicial authority. Such
punishment remains an invasion on human dignity; an unacceptable
practice of inflicting deliberate pain and suffering degrading to
both the punished and the punisher alike. Even in the case of
juveniles, it remains wide open to abuse and arbitrariness; it is
heavily loaded with retribution with scant appeal to the sensitivity
and rational responses of the juvenile. It is inconsistent with the
basic temper and the letter of the Namibian Constitution.
The
differences between adults and juveniles which appear from the
relevant statutes and regulations, with respect to the manner in
which corporal punishment is administered, are in my view
insufficient to convert punishment which is degrading or inhuman for
adults into punishment which is not so degrading and inhuman in the
case of juveniles.”
The
State is under the constitutional obligation to protect the right to
physical integrity of every person against violence. Section 52(a) of
the Constitution is a clear and emphatic rejection of use of all
forms of physical and psychological violence against any person. The
prohibition of all forms of physical and mental violence does not
leave room for any level of legalised violence against male juveniles
convicted of offences. There is no way the State can claim to be
enforcing these rights and performing its obligation of protecting
the physical integrity and human dignity of a male juvenile offender
when it inflicts pain and suffering on the juvenile through corporal
punishment, in execution of a sentence for any offence of which he
has been convicted.
Compliance
with the values protected by sections 51, 52(g) and 53 of the
Constitution requires that the State be consistent with the inherent
dignity of a male juvenile offender in the enforcement of penalties
against him.
If
the State, as a rôle model, treats the weakest and the most
vulnerable in society in a manner which diminishes rather than
enhances their self-esteem and invades their human dignity, the
danger increases that their regard for a culture of decency and
respect for rights of others will be diminished. See the Williams and
Ors case supra at 647C.
BRANDIES
J observed, in a dissenting opinion in Olmstead v United States 277
US 438 (1928) at 485, that the Government should be “the potent,
the omnipresent teacher. For good or for ill it teaches the whole
people by its example”.
By
the example of the infliction of judicial corporal punishment on male
juvenile offenders, the message the Government gives to citizens is
that the use of violence to achieve what one wants is socially
acceptable conduct.
The
second ground on which it was argued that section 353 of the Act is
constitutionally valid is that judicial corporal punishment protects
male juveniles convicted of crimes from going to prison.
The
contention that judicial corporal punishment saves a male juvenile
offender from imprisonment does not show that the punishment does not
amount to inhuman or degrading punishment. It is a fallacious
argument. The use of unauthorised means cannot be justified on the
basis of the legitimate objective sought to be achieved.
Section
53 of the Constitution makes provision for both the legitimate
purpose punishment must seek to achieve and the means to be chosen
for the advancement of the Governmental interest to achieve the
object and purpose. The Constitution prohibits in absolute terms the
use of inhuman or degrading punishment as a means of achieving the
objects and purposes of punishment. As a means for the achievement of
legitimate objectives of the penal system, a type of punishment must
be chosen which is consistent with the protection of human dignity
and physical integrity.
Keeping
male juvenile offenders out of jail cannot justify the imposition of
inhuman or degrading punishment on male juvenile offenders as the
means of securing the legitimate objectives of punishment. The fact
that judicial corporal punishment is a type of punishment that
amounts to a total lack of respect for the human being does not
change on account of the legitimacy of the objective pursued by its
infliction on the male juvenile offender. Human dignity may not be
infringed upon for any reason. No interest, such as saving the male
juvenile offender from imprisonment, can justify infringement of
human dignity.
Interpretation
of what constitutes the best interests of the male juvenile offender
cannot be used to justify practices which conflict with the
juvenile's human dignity and right to physical integrity. The
measures adopted in giving effect to the sentence imposed on the
authority of section 353 of the Act do not protect the offender from
physical and mental violence. Judicial corporal punishment is not in
the best interest of the male juvenile.
In
the Williams and Ors case supra at 651B-C LANGA J (as he then was)
had this to say:
“It
was argued that sentencing alternatives for juveniles were limited
and that this country did not have a sufficiently well-established
physical and human resource base which was capable of supporting the
imposition of alternative punishments. This is, of course, an
argument based on pragmatism rather than principle. It is a problem
which must be taken seriously nevertheless. It seems to me, however,
to be another way of saying that our society has not yet established
mechanisms to deal with juveniles who find themselves in conflict
with the law; that the price to be paid for this state of unreadiness
is to subject juveniles to punishment that is cruel, inhuman or
degrading. The proposition is untenable. It is diametrically opposed
to the values that fuel our progress towards being a more humane and
caring society. It would be a negation of those values precisely
where we should be laying a strong foundation for them, in the young;
the future custodians of this fledgling democracy.”
The
third ground on which the constitutionality of section 353 of the Act
was supported was the proposition that a male juvenile offender
reacts to the infliction of corporal punishment on him in a manner
different from that of an adult offender.
Mr
Uladi and Mr Mpofu relied on what MCNALLY JA said in the dissenting
judgment in the S v A Juvenile case supra. The comments by the
learned JUDGE OF APPEAL, which were essentially an expression of a
subjective judgment on the issue before the court, were based on the
theory that somehow age in itself was a redeeming factor. The view
expressed by MCNALLY JA was that while an adult whose character and
personality had already been formed was likely to be hardened by the
infliction of judicial caning, the position was the opposite in the
case of a juvenile. HIS LORDSHIP reasoned that, as a juvenile's
character was still in the process of formation, he was still
susceptible to correction. The contention was that judicial corporal
punishment might still have a reformative effect on the male juvenile
offender.
Whilst
confessing to the fact that he was referring to “conventional
wisdom” and generalising without evidence, MCNALLY JA nonetheless
at 95B-D of the S v A Juvenile case supra said:
“I
am in danger of straying into fields of sociology and psychology
where I have no expertise. In a sense I am forced into them by being
presented with this question. But I can say as a lawyer of many years
of practice that young people often appear before the courts on
charges of doing wicked things, cruel things, irresponsible things,
stupid things, thoughtless things. Very often a large element in the
offence is their lack of judgment, their lack of experience, their
lack of forethought. Sending them to prison achieves nothing and
usually does them a great deal of harm; the same can be said of
remand homes and reformatories; they cannot pay a fine and there is
little point in their parents paying it. The imposition of a moderate
correction of cuts enables a magistrate or judge to avoid all these
unpleasant alternatives. It enables him to impose a short, sharp,
salutary and briefly painful punishment which achieves in very many
cases exactly what is required. I must say that in twenty-five years
in the law I have never heard a complaint about the brutality of
cuts. Indeed, the only comment I have had was from one client who
said his headmaster hit much harder than the prison officer.”
It
is interesting to note that there is no reference to human dignity as
an interpretative value in the learned Judge's dissenting opinion.
What was expressed is an almost religious faith in the utility of
judicial corporal punishment inflicted on male juvenile offenders.
There is no attempt to reconcile the clear and absolute obligation on
the State to protect the male juvenile offender, as an autonomous
human being with inherent dignity, with the deliberate use of
physical and mental violence on him to achieve the purposes and
objects of punishment. Failure by the learned Judge to ground the
assessment of the constitutionality of judicial corporal punishment
on its effect on the inherent dignity of the male juvenile offender
led to the unbelievable proposition that the corporal punishment was
in the best interests of the person being caned.
The
principle of constitutional morality requires that courts should
approach constitutional issues from the point of view that accepts
that the content of the rights protected by the Constitution change
with the changes in social norms. Acts that may have been regarded as
falling within the scope of the protection of a fundamental right or
freedom some three decades ago may no longer be accepted today. See:
Catholic Commission For Justice and Peace in Zimbabwe v
Attorney-General and Ors 1993 (1) ZLR 242 (S).
The
Constitution is a dynamic document which must by its very nature be
interpreted and applied to absorb the changes in society's
attitudes towards what is right and wrong at any given period in its
development. Like every human rights instrument, the Constitution is
a living instrument.
In
Trop v Dulles 356 US 86 (1958) at 101, it was held that the Eighth
Amendment, which prohibits cruel and unusual punishment, must draw
its meaning from the evolving standards of decency that mark the
progress of a maturing society. In Weems v United States 217 US 347
(1909) at 378 the court observed that the Eighth Amendment is
progressive and does not merely protect cruel and unusual punishments
known but may acquire a wider meaning “as public opinion becomes
enlightened by humane justice”. In Jackson v Bishop 404 F2d 571
(1968) at 579 reference is made to “contemporary concepts of
decency and human dignity and precepts of civilisation which we
profess to possess”. In Tyrer's case supra the European Court of
Human Rights determined that judicial corporal punishment of juvenile
offenders, which was acceptable in 1956, was no longer acceptable by
Convention standards in 1978.
The
application of the doctrine of “evolving standards of decency” is
based on the theory that facts may have changed or come to be seen so
differently from the time that a decision was made to the current
situation. Atkins v Virginia 536 US 304, 321 (2002).
It
is a fact that at the time the learned JUDGE OF APPEAL practised law
and even wrote his dissenting opinion in S v A Juvenile supra the
Constitution in existence then did not have a strong protection for
human dignity as a foundational value. In fact, the former
Constitution did not have an express provision on the right to
inherent dignity and the right to have that dignity respected and
protected as provided for in section 51 of the Constitution. There
was no provision for the protection of the right to bodily and
psychological integrity, which includes the right to freedom from all
forms of violence from public and private sources.
A
deliberate and systemic assault with a cane on the buttocks of an
individual, inflicted by strangers as a form of punishment authorised
by a judicial tribunal, is inherently a demeaning invasion on the
inherent dignity of the person punished. It must in the circumstances
be degrading and inhuman. It does not become less so because a
juvenile might conceivably recover from such assault on his inherent
dignity sooner than an adult might in similar circumstances.
In
Ex parte Attorney-General, Namibia supra at 91A-E MAHOMED AJA (as he
then was) said:
“What
then are the material differences which could sufficiently
distinguish the position of juveniles from adults for the purposes of
art 8(2) of the Constitution?
There
appear to be three arguments advanced in support of such a
distinction. The first contention is that the right to impose
corporal punishment gives to the sentencing officer the opportunity
of avoiding more unsuitable alternatives. Since most juveniles would
not be in the position to pay a fine, it is contended that judicial
officers might be compelled to resort to unsuitable custodial
sentences if the alternative of corporal punishment was made
constitutionally unavailable. (See the judgment of MCNALLY JA in the
case of S v A Juvenile supra at 173H). In support of this argument we
were also reminded that there are no suitable reformatories or
correctional institutions apparently available for young juveniles in
Namibia at present.
I
am not persuaded by this argument.
The
first issue which requires to be determined is whether the infliction
of corporal punishment upon juveniles, in consequence of a
punishment, directed by a judicial or quasi-judicial authority, in
fact constitutes degrading or inhuman treatment within the meaning of
art (8)(2)(b) of the Constitution. If it does, it is unlawful even if
the motive behind such a practice is to keep young offenders, who
need to be punished, out of prison. Means otherwise unauthorised by
the law do not become authorised simply because they seek to achieve
a permissible and perhaps even a laudable objective. (Van Eck NO and
Van Rensburg NO v Etna Stores 1947 (2) SA 984 (A), at 996, 998). The
provisions of art (8)(2) of the Constitution do not permit of a
derogation on such grounds. The duty of the Court is to apply the
clear provisions of the Constitution.”
How
is it possible that two different conclusions can be reached on the
question whether judicial corporal punishment of male juvenile
offenders in execution of a sentence for crime amounts to inhuman or
degrading punishment?
The
reason is that one conclusion has no regard to the obligation on the
State to respect and protect the inherent dignity and physical
integrity of the male juvenile offender as an autonomous human being.
The approach is not based on the principle that a male juvenile
offender is a child who, like any other human being, has inherent
dignity to be equally respected and protected. It looks at the male
juvenile offender purely as a criminal who deserves corporal
punishment. The question of the impairment of the juvenile's
dignity as a human being does not come into the equation. If the
obligation to respect and protect the inherent dignity of the male
juvenile offender does not come into the equation, then the question
of the corporal punishment amounting to inhuman or degrading
punishment does not arise. Yet a close examination of the basis of
the argument advanced reveals that it is an attempt at the
justification of violation of the right of the male juvenile offender
to equal respect for his human dignity. Human dignity is always and
unconditionally violated when infringed.
Those
who argue that judicial corporal punishment does not constitute
inhuman or degrading punishment within the meaning of section 53 of
the Constitution have not contested the correctness of the principle
that judicial corporal punishment is by its very nature, intent and
effect inhuman and degrading. They have not contested the correctness
of the comment by the Committee on the Rights of the Child, in
General Comment No. 8 that corporal punishment is “invariably
degrading”. So one cannot argue that judicial corporal punishment
does not amount to inhuman or degrading punishment without at the
same time condoning violation by the State of its obligation to
respect and protect the male juvenile offender's right to respect
for human dignity. Judicial corporal punishment does not respect the
inherent dignity of the male juvenile offender.
The
admitted use by the State of physical and mental violence on the male
juvenile offender with the intention of causing acute pain and
suffering is a manifestly inhuman and degrading punishment. The
obligation on the State is to protect every child from violence.
Every child is an autonomous human being with his or her own inherent
dignity. Punishment for any crime must be chosen that is consistent
with the male juvenile offender's inherent dignity. It is
absolutely inconceivable under the applicability of section 53, as
read with section 51, of the Constitution to have corporal punishment
as a punishment to be imposed on a male juvenile offender on the
basis of a statutory authorisation.
AVAILABILITY
OF SENTENCING OPTIONS
It
is necessary to examine available resources to determine whether
there are indeed appropriate sentencing options which the State can
employ in the punishment of male juvenile offenders that would
comport with their human dignity and physical integrity, whilst
achieving the objectives and purposes of punishment sanctioned by the
Constitution.
The
choice and assessment of an appropriate sentence or disposition for a
juvenile offender is a scientific process with specific objectives,
undertaken in accordance with principles defined and prescribed by
law in the interests of justice.
The
Act prescribes a range of sentences which may be imposed by the
courts on convicted offenders to achieve the objectives of punishment
in the criminal justice system. The sentencing options provided by
the legislation may be applied to any person convicted of an offence,
including a juvenile offender who would have been processed through
the criminal justice system.
The
Act makes provision for a court dealing with a juvenile offender
convicted of an offence to consider using disposition orders
ordinarily used for adjudicated delinquents by the Children's Court
for non-punitive purposes characteristic of the juvenile justice
system. The provision is in addition to the sentencing options
designed for all convicted offenders as punishment.
The
disposition orders are, therefore, an integral part of the options
for the disposition of juvenile offenders convicted of offences
through the criminal justice system. Although the sentencing options
and the disposition orders pursue some of the same objectives, the
purpose of the disposition order is fundamentally to ensure the
reformation and rehabilitation of the juvenile offender and not to
punish him or her.
The
objective of retribution, which may be the purpose for the choice of
a sentencing option by a court, would not be the motivating factor in
the decision by a court to dispose of the juvenile offender convicted
of an offence through the disposition orders characteristic of the
juvenile justice system.
The
appropriateness of the choice by a court of a sentencing option or
disposition method for a juvenile offender will depend on the extent
to which the decision complies with the fundamental principles of
international law, conventions and treaties to which Zimbabwe is a
party that govern the administration of juvenile justice.
The
criminal justice system and the juvenile justice system in Zimbabwe
have embraced the fundamental principles of relevant international
legal instruments and given effect to them. In that way, they bind
judicial officers to comply with the provisions of the international
legal instruments in the choice and application of the sentencing
options and disposition orders when dealing with juvenile offenders.
The
relevant provisions of international law, conventions and treaties
brought a revolution to the administration of the juvenile justice
system, both in terms of the shift of emphasis in respect of the
objectives to be pursued in the punishment of juvenile offenders and
the principles to be applied in the assessment of the appropriate
sentence.
The
most important instrument in this regard is the CRC. The primary
objectives the court is required by the CRC to bear in mind when
choosing and assessing an appropriate sentence for a juvenile
offender are the reintegration and rehabilitation of the juvenile
offender with his or her family or community, where he or she becomes
a productive member.
PURPOSES
OF PUNISHMENT
Recognising
that all human rights derive from the inherent dignity of the human
being, international human rights law requires that the essential aim
of all penal systems must be to allow, encourage and facilitate the
reformation and social rehabilitation of the offender. See Article
10.3 of the ICCPR. The goal is critical to community safety.
Underpinning
several of the CRC provisions is the fundamental recognition of the
juvenile offender's potential for rehabilitation. The CRC
recognises the unacceptability of sentences that negate the potential
of children to make change for the better over time.
Article
40.1 of the CRC provides that the objective of sentencing a juvenile
offender is the promotion of his or her reintegration into society to
assume a constructive rôle in his or her community. According to
Article 40.4 of the CRC, a child's wellbeing is not merely a
primary consideration but has to be ensured.
Article
14.4 of the ICCPR requires that in the case of juvenile offenders the
procedure adopted in the criminal justice system shall be such as
will take account of their age and the desirability of promoting
their rehabilitation. The ICCPR requires States to respond to the
offences children commit by focusing on positive measures and
education rather than punishment.
Manfred
Nowark “UN Covenant on Civil and Political Rights: Commentary”
(1993) p 266.
Rule
5.1 of the Beijing Rules asserts that the aim of a juvenile justice
system shall be to emphasise and promote the wellbeing of the
juvenile and ensure that any reaction to juvenile offenders shall
always be in proportion to the circumstances of both offender and the
offence.
The
Rule refers to two of the most important objectives of juvenile
justice systems. The first objective is the promotion of the
wellbeing of the juvenile. The objective relates to the criminal
justice system and contributes to the avoidance of merely punitive
and retributive sanctions. The second objective is the
proportionality of the punishment which, in this particular context,
means that “the response to young offenders should be based on the
consideration not only of the gravity of the offence but also of
personal circumstances”, such as “social status, family
situation, the harm caused by the offence or other factors affecting
personal circumstances”.
The
principle of proportionality must, however, also be safeguarded in
ensuring the welfare of the juvenile offender so that the measures
taken do not go beyond what is necessary, failing which the
fundamental rights of the juvenile offender may be infringed. In
other words, Rule 5 calls for no less and no more than a fair
reaction in any given case of juvenile delinquency and crime.
The
issues combined in the Rule may help to stimulate development in both
regards. New and innovative types of reactions are as desirable as
precautions against any undue widening of the net of formal social
control over juveniles.
See
“Human Rights – A Compilation of International Instruments” Vol
1 (First Part) Universal Instruments p 360:
www.chchr.org/Documents/Publications/training.
The
primary focus on the rehabilitation of the juvenile offender is also
present in Article 17(3) of the African Charter on the Rights and
Welfare of the Child (“the ACRWC”), according to which “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, reintegration into his or her family and social
rehabilitation”.
FUNDAMENTAL
PRINCIPLES OF SENTENCING
The
courts are required to choose and assess the appropriate sentence or
disposition for a juvenile offender convicted of an offence in a
manner that takes account of and applies the fundamental principles
of international law contained in the CRC and other related
conventions and treaties on the administration of juvenile justice.
The relevant principles show that conviction even for a very serious
offence does not extinguish a juvenile's claim to just treatment.
Nor does it free a government to ignore fundamental rights.
Three
fundamental principles of the administration of juvenile justice
having a direct bearing on the issues of sentencing and disposition
of juvenile offenders in the criminal justice system deserve
mentioning. There are, of course, many other principles of
international law that relate to the processes and procedures of
adjudication of cases involving juvenile offenders that are not
pertinent to the purposes of highlighting the relevant law to be
applied in the choice and assessment of an appropriate sentence for
or disposition of a juvenile offender.
The
first fundamental principle is one contained in the provisions of
Article 3.1 of the CRC. It is to the effect that in all actions
concerning children, the best interests of the child shall be a
primary consideration.
Section
81(2) of the Constitution also provides that “a child's best
interests are paramount in every matter concerning the child”. See
also Article 4(1) of the ACRWC.
The
best interest of the child is the most important principle laid down
by the CRC which conditions the consideration of issues relating to
the choice and assessment of appropriate sentences or dispositions
for juvenile offenders.
The
fact that the best interest of the child “shall be a primary
consideration” in every decision affecting the child is an
indication that “the best interests of the child” will not always
be the single overriding factor to be considered. There may be
competing or conflicting human rights interests. The “child's
best interests” must, however, be the subject of active
consideration.
It
is a matter that takes precedence over all others under
consideration.
There
must be demonstration of the fact that children's interests have
been explored and taken into account as a primary consideration in
the choice and assessment of appropriate sentences for or
dispositions of juvenile offenders. See “Implementation Handbook
for the Convention on the Rights of the Child” New York, UNICEF,
1998.
The
second principle to be considered by courts in the choice of sentence
options and assessment of appropriate punishment or disposition for
juvenile offenders is that children have special rights that reflect
their unique vulnerabilities and needs and the concomitant
responsibility of government to protect them.
The
effect of the principle is that a juvenile offender's culpability
should not be measured by the same standard as that of an adult. The
reason is that during the formative years of childhood and
adolescence minors often lack the experience, perspective and
judgment expected of adults. In the early and middle teen years,
adolescents are more vulnerable, more impulsive and less
self-disciplined than adults. See S v Lehnberg and Anor 1975 (4) SA
553 (A) at 560.
Crimes
committed by juveniles may be just as harmful to victims as those
committed by older persons. When an individual of any age can be held
responsible for his or her actions, failure to bring them to account
would deny justice to the victim. Children deserve less punishment
because they may have less capacity to control their conduct and
think in long-range terms than adults. Moreover, juvenile crime, as
such, is not exclusively the offender's fault.
Offences
by juveniles also present a failure by family, school and the social
system, which share responsibility for the development of the youth.
Actions of a child are less likely to be evidence of irretrievable
depravity.
In
November 1959 the United Nations General Assembly adopted the
“Declaration on the Rights of the Child”, which recognised that
“the child by reason of his physical and mental immaturity needs
special safeguards and care including appropriate legal protection
before as well as after birth”. General Assembly Resolution 1386
(XIV) Nov. 20, 1959.
The
ICCPR specifically acknowledges the need for special treatment of
children in the criminal justice system and emphasises the importance
of their rehabilitation. Human Rights General Comment No. 1 (1992)
para 13.
The
principle therefore is that whilst children can commit the same acts
as adults, they cannot by virtue of their age and immaturity be as
blameworthy as adults. They do not have adults' developed abilities
to think, to weigh consequences, to make sound decisions, to control
their impulses, and to resist group pressures. See Roper v Simmons
125 S.Ct. 1183, 1197 (2005).
There
is national as well as international consensus that it is fair to
hold an eighteen year old as accountable as an adult. Most youths of
eighteen years of age are well into the process of acquiring the full
capacity of adulthood. So sentences for offenders who are children –
a group society recognises as uniquely vulnerable and in need of
protection in many realms of life – should acknowledge the profound
differences between childhood and adulthood.
See
Just Sentences for Youth: International Human Rights Law – Human
Rights Watch: https://wwco.hrw.org?reports?9.htm. See also In re
Stanford 537 US 968,970-71 (2002).
The
last principle to guide a court in the choice of sentence options and
assessment of appropriate punishment for juvenile offenders is the
principle of proportionality.
It
is a precept of justice that punishment for a crime should be
graduated and proportioned to the offender being punished. The
Beijing Rules provide guidance which is relevant to the sentencing
process. Rule 17.1 ensures that the reaction to a juvenile offender
shall be in proportion not only to the circumstances and needs of the
juvenile offender but also to the needs of society.
It
is stated in Rule 17.1(a) of the Beijing Rules that “the reaction
taken shall always be in proportion not only to the circumstances and
the gravity of the offence, but also to the circumstances and the
need of the juvenile as well as to the needs of the society”.
In
other words, an appropriate sentence for a juvenile offender is one
that does not serve the retributive purpose only by relating directly
to the seriousness of the offence and the culpability of the offender
in committing it, ignoring his or her personal circumstances and the
interests of society.
Rule
16 of the Beijing Rules not only takes a child's developmental
stage into consideration, it also emphasises the importance of
considering the background of the juvenile offender. It provides that
the background and circumstances in which the juvenile was living or
the conditions under which the offence was committed shall be
properly investigated so as to facilitate judicious adjudicating of
the case by the competent authority.
It
is important that the court, in compliance with the principle of
proportionality, takes into consideration the background of the
juvenile offender and the circumstances in which the offence was
committed when deciding on an appropriate sentence for or disposition
of the juvenile offender.
TYPES
OF PUNISHMENT
The
kinds of punishment a court may impose on a juvenile offender
convicted of a crime are set out in section 336 of the Act. The
section provides that a court may impose on a person convicted of an
offence a sentence of imprisonment for a determinate period, a fine,
community service, or recognisance with conditions.
The
provisions of the CRC and other relevant international instruments
contain the principles which a court is required to consider and
enforce in the assessment of an appropriate sentence to be imposed on
a juvenile offender convicted of a crime. The application of the
principles ensures that the sentence or disposition order is
appropriate in respect of its proportionality to the circumstances of
the juvenile offender, the offence, and the interests of society.
IMPRISONMENT
Under
the provisions of the CRC and domestic law, the imposition of a
sentence of imprisonment for a determinate period on a juvenile
offender convicted of a crime is permitted.
Rule
17.1(c) of the Beijing Rules recognises that a sentence of direct
imprisonment may be imposed on a juvenile offender where he or she is
adjudicated of a serious act involving violence against another
person or persistence in committing other serious offences and unless
there is no other appropriate response. The sentence must, however,
honour the constitutional provision to the effect that imprisonment
of a child offender should be a measure of last resort and for the
shortest appropriate period of time.
A
sentence of direct imprisonment involves the deprivation of the
juvenile offender of his or her liberty. Deprivation of a juvenile
offender of his or her liberty by means of a sentence of direct
imprisonment must be in accordance with the principles and procedures
prescribed in the CRC, the Beijing Rules and the Constitution.
Under
section 81(1)(i) of the Constitution, a juvenile offender has a
fundamental right not to be sentenced to a direct term of
imprisonment except as a measure of last resort and for the shortest
appropriate period. The contents of the right protected by section
81(1)(i) of the Constitution reflect the contents of the provisions
of Article 37(b) of the CRC.
Article
37(b) of the CRC requires that the imprisonment imposed on a juvenile
offender must not be arbitrary. It must be in conformity with the
law. It must be used only as a measure of last resort and for the
shortest appropriate period of time. A court has to consider other
measures to deal with the juvenile offender before resorting to the
use of direct imprisonment.
According
to Rule 17.1(b) of the Beijing Rules, imprisonment of a juvenile
offender “shall be imposed only after careful consideration and
shall be limited to the possible minimum”.
Furthermore,
the Beijing Rules promote the wellbeing of the juvenile offender as
the guiding factor in the assessment of an appropriate sentence. A
sentence should not reflect a determination that there is nothing
that can be done to render the child a fit member of society. It
should be an expression of faith that hard work and time can promote
positive change.
In
S v Z 1999 (1) SACR 427 (ECD), it was held that a sentence on a
juvenile should be tailored to the personal circumstances of the
offender. Three important principles were highlighted -
Firstly,
the younger the juvenile offender the more inappropriate a sentence
of direct imprisonment.
Secondly,
direct imprisonment is especially inappropriate for a juvenile
offender who is a first offender.
Thirdly,
short term imprisonment is seldom appropriate for a juvenile
offender.
In
S v Nkosi 2002 (1) SA (WD) at 500D-501C, the principles applicable in
the consideration of an appropriate sentence for a juvenile offender,
particularly with regard to whether imprisonment is the appropriate
punishment, were summarised as follows –
(a)
Where possible, a sentence of imprisonment should be avoided,
especially in the case of a first offender.
(b)
Imprisonment should be considered as a measure of last resort and
where no other sentence could be considered appropriate.
(c)
Where imprisonment is considered appropriate, it should be for the
shortest appropriate time and also considering the nature and gravity
of the offence and the needs of society, as well as the particular
needs and interest of the juvenile offender.
(d)
If possible, the judicial officer should structure the punishment in
such a way as to promote the rehabilitation and reintegration of the
juvenile concerned into his or her family or community.
Imprisonment
is not an inherently cruel, inhuman or degrading punishment. An
excessive punishment, however, becomes cruel, inhuman or degrading if
its severity or length is greatly or grossly disproportionate to the
circumstances of the offender, the nature and gravity of the crime,
the culpability of the offender, and the interests of society.
The
prohibition of cruel, inhuman or degrading punishment in Article 7 of
the ICCPR is complemented by the positive requirements of Article
10(1), which stipulates that “all persons deprived of their liberty
shall be treated with humanity and with respect for the inherent
dignity of the human person”.
For
treatment or punishment to be humane, it must be appropriate to age
and legal status. The vulnerability and immaturity of juvenile
offenders render them more susceptible to cruel, inhuman or degrading
punishments, which will in turn have a much more profound impact on
the body and mind of a developing child than an adult.
See
“Just Sentences for Youth: International Human Rights Law” Human
Rights Watch supra.
The
general principle of the administration of juvenile justice is,
therefore, that direct imprisonment should not be imposed on a
juvenile who is a first offender unless it is absolutely necessary
and appropriate to do so, regard being had to the circumstances of
the juvenile offender, the nature and gravity of the offence, the
degree of culpability of the offender, and the interests of society.
FINES
Imposing
a fine on a juvenile offender is generally not an appropriate
sentence, unless he or she is earning a salary. Few juvenile
offenders earn a salary and fines would generally be paid by parents
or legal guardians of the child. Consequently, it is not the juvenile
offender being punished but his or her parents or legal guardian.
Furthermore, where a fine is set with an alternative of imprisonment,
the concern is that poverty could cause a child to be imprisoned.
See
Skelton A “The Major Sources of Children's Legal Rights”
Children and the Law (1988) 146-158 http://www.ihr.org.za.
The
court may permit the juvenile offender, as an alternative to paying
the fine, to render such community service as may be specified by it
in terms of sections 247(1)(b) and 350A(3) of the Act.
COMMUNITY SERVICE
In
terms of section 350A of the Act, a court which convicted a juvenile
offender of any offence may, instead of sentencing him or her to
imprisonment or a fine, make a community service order requiring him
or her to render service for the benefit of the community or any
section of the community for such number of hours as shall be
specified in the order.
The
court may sentence the juvenile offender to a fine or imprisonment as
an alternative punishment if he or she fails to render the service
specified in the order. Subject to such conditions and requirements
as may be prescribed, an offender in respect of whom a community
service order is in force is obliged to render the service specified
in the order for the number of hours specified therein. Unless
revoked, a community service order remains in force until the
offender has rendered the number of hours of service specified. Where
there has been failure to comply with any requirement of a community
service order, the court may amend or extend the order in such a
manner as the court thinks will best ensure that the offender renders
the service specified in the order.
The
importance of a sentence entailing community service cannot be
over-emphasised, especially with regard to juvenile offenders. The
advantages of a community service order have been neatly encapsulated
in an article by Francis Howes in 1984 SACC 131, titled “Community
Service as Community Orientated Punishment”, cited with approval in
the case of S v Sikunyana 1994 (1) SACR 206 (Tk) at 208h-209c. In the
article, Howes states as follows:
“A
system of community service has, inter alia, the following
advantages:
(i)
Community service is a viable alternative, especially to short-term
imprisonment. It can alleviate not only the overcrowding in prisons
in this category, but can eliminate the detrimental effects that
imprisonment can have on certain offenders.
(ii)
It is generally accepted that offenders can best be treated in the
community and that isolation of the offender in an artificial social
environment seldom contributes to his rehabilitation. Community
service keeps the offender in the community and combines the punitive
and rehabilitative aspects of a sentence.
(iii)
Instead of becoming a financial burden on the State, the offender
remains a productive member of society. Family disintegration and
dependency, which are often a by-product of imprisonment, are
eliminated.
(iv)
By involving the community in the treatment of the offender, it
becomes more aware of the crime problem, which might create a more
positive attitude towards treatment of offenders. Furthermore,
community service enables the offender to become better integrated
into society and affords him a positive learning.”
It
is beyond doubt that community service orders are key in the
rehabilitation of a juvenile offender. A community service order
strikes a balance between the punitive and reformative aspects of the
sentencing objectives in criminal law. It metes out punishment in a
manner that facilitates the integration of the juvenile into society,
whilst the community benefits directly from the work performed by the
offender. So community service orders may be structured in such a way
that they meet the punitive element of sentencing while allowing for
the education and rehabilitation of the offender. See William's
case supra at 654C.
PICKERING
J in the S v Sikunyana case supra at 209g-i correctly held that,
prior to the making of a decision to order an accused (a juvenile
offender in this case) to render community service, the court should
be informed of the following:
“(a)
Whether community service is an appropriate sentence in the
particular circumstances of the case;
(b)
whether the accused is a suitable candidate for community service;
(c)
…;
(d)
the identification of a suitable place for the rendering of such
service;
(e)
the identification of a suitable person under whose supervision and
control the service should be rendered;
(f)
the determination of the number of hours and the days on which the
service should be rendered;
(g)
the date on which the rendering of the service should commence; and
(h)
the duration of the period of such service.”
POSTPONEMENT
AND SUSPENSION OF SENTENCE
Section
358(1) of the Act refers to postponement of passing sentence. Section
358(2)(a) of the Act makes provision for the court to postpone the
passing of a sentence for a period not exceeding five years upon
conditions as are available for the suspension of sentence.
Section
358(2)(d) of the Act provides that the court may in its discretion
discharge a juvenile offender with a caution or reprimand. Such
discharge shall have the effect of an acquittal, except that the
conviction shall be recorded as a previous conviction. This is
because in terms of section 358(2) of the Act the discharge follows a
conviction for an offence other than an offence specified in the
Eighth Schedule to the Act. The offences listed in the Eighth
Schedule are murder other than the murder by a woman of her
newly-born child, any conspiracy or incitement to commit murder, any
offence in respect of which any enactment imposes a minimum sentence,
and any conspiracy, incitement or attempt to commit any such offence.
Section
358(4) of the Act provides that if the period of conditional
postponement has expired and the court is, at the end of the period,
satisfied that the conditional postponement has expired and the
conditions have been kept, the accused shall be discharged without
passing sentence. The discharge has the effect of an acquittal,
except that the conviction is recorded as a previous conviction.
In
terms of s 358(3) of the Act, the passing of sentence may be
postponed or the operation of the whole or part of a sentence may be
suspended for a period not exceeding five years on conditions
relating to any of the following matters:
“(a)
good conduct;
(b)
compensation for damage or pecuniary loss caused by the offence …;
(c)
the rendering of some specified benefit or service to any person
injured or aggrieved by the offence:
Provided
that no such condition shall be specified unless the person injured
or aggrieved by the offence has consented thereto;
(d)
the rendering of service for the benefit of the community or a
section thereof;
(e)
submission to instruction or treatment;
(f)
submission to the supervision or control of a probation officer
appointed in terms of the Children's Act [Chapter 5:06] … or
submission to the supervision and control of any other suitable
person;
(g)
compulsory attendance or residence at some specified centre for a
specified purpose;
(h)
any other matter which the court considers it necessary or desirable
to specify having regard to the interests of the offender or of any
other person or of the public generally.”
The
type of punishment referred to in section 358 of the Act is
particularly appropriate in cases of juvenile offenders. The court
has the option of adding conditions for the postponement of the
sentence. The juvenile offender may, for instance, be sent on a
rehabilitation programme such as a skills programme, or be placed
under the supervision of a probation officer. In the light of the
wide discretion of the court in section 358(3)(h) of the Act, the
court can use this form of sentence to advantage.
To
determine an appropriate sentence, the court has to be innovative and
preventative. Rehabilitation should be a priority.
JUVENILE
JUSTICE SYSTEM OPTIONS
When
a court considers the question of sentencing a juvenile offender,
section 351 of the Act provides special alternatives to punishment.
Instead of punishment, the court may invoke the procedure of
disposition orders specifically applicable in the Children's Court.
Procedures relating to the issuance of disposition orders are
specifically and exclusively applicable to children alleged as,
accused of, or recognised as, having infringed the penal law.
Article
40.4 of the CRC requires States Parties to use a variety of measures
to address the situation of children in conflict with the law. The
measures include “a variety of dispositions, such as care, guidance
and supervision orders; counselling; probation; foster care;
education; and vocational training programmes”.
The
alternatives to punishment are to ensure that children are dealt with
in a manner appropriate to their wellbeing and proportionate to both
their circumstances and the offence.
The
founding model of the juvenile justice system characterised by the
Children's Court is not based on offence-related considerations.
Interactions with the juvenile offender, as well as the choice of the
manner of disposition, are supposed to be based solely on the goal of
rehabilitation of the offender. In theory, if not in practice, the
seriousness of the offence is not supposed to be a relevant
consideration, much less a determinate one, in choosing a Juvenile
Court disposition. See also “Just Sentences for Youth:
International Human Rights Law” Human Rights Watch supra at p 183.
Section
351(2) of the Act provides:
“351
Manner of dealing with convicted juveniles
(2)
Any court before which a person under the age of nineteen years has
been convicted of any offence may, instead of imposing a punishment
of a fine or imprisonment for that offence, subject to subsection (1)
of section three hundred and thirty-seven —
(a)
order that he shall be taken before a children's court and dealt
with in terms of the Children's Act [Chapter 5:06]; or
(b)
after ascertaining from the Minister responsible for social welfare
that accommodation is available, order that he shall be placed in a
training institute in Zimbabwe or in a reform school in the Republic
of South Africa for the period specified in subsection (1) of section
three hundred and fifty-two.”
If
a juvenile offender is ordered to be taken before a children's
court or the court disposes of him or her in terms of section
351(2)(b) of the Act, the conviction shall not, for the purposes of
any enactment, be regarded as a conviction. If, however, such person
is convicted on a second or subsequent occasion before he or she
attains the age of eighteen years it shall be lawful to prove that
earlier conviction as a conviction.
The
period of “retention” or “supervision” referred to in section
352 of the Act is the period during which a person shall remain in a
training institute, reform school or certified institution. A
juvenile offender in respect of whom a disposition order has been
made in terms of section 351(2) of the Act placing him or her at a
training institute or reform school is required to remain there for a
period of three years from the date of the order or until he or she
is released on licence in terms of the Children's Act or until he
or she has been discharged from the effect of the order in terms of
the Children's Act, whichever is the soonest.
After
the expiration of the period of retention of the juvenile in a
training institute or reform school, whether by effluxion of time or
release on licence, the juvenile is obliged to remain under the
supervision of the management of the training institute or reform
school for a period not exceeding three years from the time of the
expiry of his or her period of retention or until he or she is
discharged from the supervision in terms of the Children's Act or
until he or she attains the age of twenty years, whichever is the
soonest.
Under
section 352(4) of the Act, where a court is satisfied, on the
application of the Minister to whom the administration of the
Children's Act is assigned or the parent or legal guardian of the
person concerned, that a further period in a training institute,
reform school or certified institution would advance the education or
welfare of a person who has been placed in such an institute, school
or institution and whose period of retention has expired or is about
to expire, the court may order the juvenile to return to or remain in
the institute, school or institution concerned for a further period
or periods as it may fix, and may at any time revoke such order.
In
terms of section 3(2) of the Children's Act, every Magistrates
Court is a Children's Court for any part of its jurisdiction.
Section
19(1)(b) of the Children's Act provides that a Children's Court
before which a child has been brought in terms of an order of a court
which has convicted him or her of an offence, in order to be dealt
with in terms of the Children's Act, shall inquire into and
determine the appropriate order to be made in terms of section 20(1).
After holding the inquiry in respect of a child who has been ordered
by a court which convicted him or her of an offence to be dealt with
in terms of the Children's Act, the children's court may make any
of the following orders -
“(i)
upon being satisfied that a certified institution will accept the
child …, order that the child … shall be placed in that certified
institution, which shall be named in the order; or
(ii)
order that the child … shall be placed in, returned to or remain
for foster care in the custody of any suitable person named in the
order; or
(iii)
order that the child … shall be placed in, returned to or remain in
the custody of his parent or guardian; or
(iv)
order that the child … shall reside in such place as the court may
determine; or
(v)
order that the child … shall render service for the benefit of the
community or a section thereof; or
(vi)
upon being satisfied that a training institute will accept the child
…, order that the child … be placed in that training institute,
which shall be named in the order;
for
the period specified in subsection (1) of section twenty-five.”
A
children's court which makes an order in terms of subpara (ii),
(iii) or (iv) of subs (1) of section 20 of the Children's Act may
also order, at the same or any later time, that the child shall be
placed under the supervision of a probation officer for such period,
not exceeding three years, as the court may determine.
A
Children's Court which makes an order in terms of subpara (ii),
(iii) or (iv) of subs (1) of section 20 of the Children's Act may
order that the child, if he or she is of or above the age of twelve
years, shall attend an attendance centre specified in the order on
such days and during such hours as may be stated in the order. No
child may be ordered to attend such centre for longer than three
hours per week or forty-eight hours in all.
Section
25 of the Children's Act provides that a child in respect of whom
an order has been made in terms of subs ection(1) of section 20 shall
reside in the place determined by the court or shall remain in the
certified institution or training institute or in the custody in
which he or she was placed or ordered to return to or remain in any
other certified institution, training institute or custody to which
he or she may be transferred in terms of the Children's Act or
shall render service for the benefit of the community, as the case
may be –
(a)
until a period of three years from the date of the order has lapsed;
or
(b)
until he or she is released on licence in terms of the Children's
Act; or
(c)
until the order has been discharged or he or she has been discharged
from the effect of the order in terms of the Children's Act;
whichever
is the soonest.
Upon
the expiration of the period of retention of a juvenile in a
certified institution or training institute, whether by effluxion of
time or release on licence, that juvenile shall remain under the
supervision of the management of that certified institution or
training institute or under the supervision of the management of any
other certified institution or training institute to which he may be
transferred in terms of the Children's Act -
(a)
for a period not exceeding three years from the date of the expiry of
the period of retention; or
(b)
until he or she is discharged from that supervision in terms of the
Children's Act;
whichever
is the soonest.
A
Children's Court may, if it thinks it necessary, order that —
(a)
any former pupil of a certified institution or training institute
whose period of retention has expired shall return to and remain in
that institution or institute; or
(b)
any juvenile offender in a certified institution or training
institute whose period of retention is about to expire shall remain
in that institution or institute; or
(c)
a child who was ordered to render service for the benefit of the
community and whose period of service is about to expire, shall
continue to render such service to the community;
for
such further period or periods as the court may fix and may at any
time revoke such order, provided that the period or the aggregate of
periods shall not exceed two years at any time. Any such order shall
lapse upon the juvenile or former pupil attaining the age of eighteen
years.
The
juvenile justice system should ensure that juvenile offenders are
held accountable for their wrongdoing and that, in doing so, they are
treated fairly. A review of the Children's Act reveals that it
typically declares dual objectives. It holds youth accountable and
provides rehabilitative services to reduce their risk of
re-offending. Both of these goals are necessary to satisfy public
expectations that corrective action will be taken. What this means is
that a juvenile offender can be made to take responsibility for his
or her wrongdoing and rehabilitated without being punished.
If
designed and implemented in a developmentally informed way,
procedures for holding juvenile offenders accountable for their
actions whilst undergoing programmes for reformation, reintegration
and rehabilitation into society can promote positive legal
socialisation, reinforce a prosocial identity, and facilitate
compliance with the law.
The
courts have to play a new rôle in the promotion and development of a
new culture in juvenile sentencing, founded on the recognition of
human rights enshrined in the Constitution. Sentencing policies have
to be influenced by both the Constitution and international law.
The
abolition of judicial corporal punishment should give new impetus to
the establishment of more training institutions in the country.
Formal rehabilitation programmes, such as vocational training for
juvenile offenders, need to be intensified and expanded to contribute
towards the reintegration of juvenile offenders into the community.
There
is need for the training of more probation officers.
Rule
16.1 of the Beijing Rules requires that before a court renders a
final disposition prior to sentencing a juvenile offender, the
background and circumstances in which the juvenile is living or the
conditions under which the offence has been committed shall be
properly investigated so as to facilitate judicious adjudication of
the case by the court. Social reports are an indispensable aid in
legal proceedings involving juveniles. The court should be informed
of relevant facts about the juvenile offender, such as social and
family background, school career and educational experience. The rule
requires that adequate social services should be available to deliver
social reports of an informed nature.
To
the extent that facilities and physical resources may not always be
adequate, the new dynamic shall be regarded as a timely challenge to
the Government to ensure the provision and execution of an effective
juvenile justice system. See Williams' case supra at 653H.
CONCLUSION
The
elimination of judicial corporal punishment from the penal system is
an immediate and unqualified obligation on the State. Judicial
corporal punishment constitutes a serious violation of the inherent
dignity of a male juvenile offender subjected to its administration.
It is an antithesis of compliance with the values recognised in
section 53 of the Constitution.
To
emphasise human dignity is to engage with our conception of what it
is to be human. It is also a point of closure: it is definitive and
universal. It is not a value that tolerates either derogation or
dissent. We recognise this in all sorts of areas, including
constitutional law. See Michael D A Freeman “Upholding the Dignity
and Best Interests of Children”; “International Law and the
Corporal Punishment of Children”; The Law and Contemporary Problems
Vol 73 (Spring 2010) 211 at 251 or scholarship.law.duke.edu.
DISPOSITION
The
order of the court a quo declaring section 353 of the Criminal
Procedure and Evidence Act [Chapter 9:07] to be invalid for the
reason that it is in contravention of section 53 of the Constitution
is confirmed.
The
declaration of invalidity of section 353 of the Criminal Procedure
and Evidence Act [Chapter 9:07] shall take effect from 03 April 2019,
which is the date of delivery of this judgment. As of that date
section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07]
is struck down.
With
effect from 03 April 2019 no male juvenile convicted of any offence
shall be sentenced to receive moderate corporal punishment. The
prohibition shall apply to sentences to receive moderate corporal
punishment that have already been imposed and are awaiting execution.
CHIDYAUSIKU
CJ:
ZIYAMBI
JCC: I agree
GWAUNZA
JCC: I agree
HLATSHWAYO
JCC: I agree
MAVANGIRA
JCC: I agree
BHUNU
JCC: I agree
UCHENA
JCC: I agree
MAKONI
AJCC: I agree
National
Prosecuting Authority, State's legal practitioners
Attorney
General's Office, State's legal practitioners
Justice
for Children's Trust, as amicus curiae
Zimbabwe
Lawyers for Human Rights, as amicus curiae
