This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution.

THE ORDER OF THE COURT

On 28 September 2009, after reading documents filed of record and hearing argument by counsel for the applicant and for the respondent, the Court made the following order:

“The Court unanimously concludes that the State, through its agents, violated the applicant's constitutional rights protected under sections 13(1), 15(1) and 18(1) of the Constitution of Zimbabwe to the extent entitling the applicant to a permanent stay of criminal prosecution associated with the above violations.

Accordingly, it is ordered that the criminal prosecution against the applicant, arising from the facts set out in proceedings in the Magistrates Court Harare, in the case of the State v Manuel Chinanzvavana & Eight Ors, case number 8801-5/08, is stayed permanently.

The reasons for this order will be furnished in due course. The question of the costs of the application will be dealt with in the judgment.”

THE FACTS

The reasons for the order are now given.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

The evidence is to the following effect:

On 3 December 2008, at 5am, the applicant was in bed at the family home in Norton. In the house were her son, nephew, and an employee. The son came to the bedroom and said there were people at the gate to the premises who wanted to talk to her. She woke up in a night dress only. The son came back saying he understood that the people were members of the police. Wearing a night dress only she walked to the kitchen where she met seven men and one woman in plain clothes. They said they were members of the police - but did not produce identity cards to show that they were police officers. Two of the men took positions on each side of the applicant. They each held her by the hand and led her to a Mazda Familia motor vehicle that was parked at the gate. In the car was another man.

The applicant asked her captors for permission to go back into the house and dress properly. She was, instead, pushed into the rear seat of the car. She was ordered to lie on the back seat between two men with her face on the lap of one of them. The man on whose lap she was forced to put her face had a gun across his thighs. Across the floor of the car in front of the rear seat there was another firearm. A jersey was used to blindfold her. She could hardly breathe as the jersey was pressing against her nose. When she complained of suffocation the tightness of the jersey was loosened a little bit.

She said she was terrified by what was happening to her.

The car was driven for about 40 minutes before it was stopped at a secret place. During the journey, the car radio had been switched on to produce a very loud sound. She was led out of the car into a room where she was told to sit on a chair. A woman gave her a dress which she said she reluctantly put on in place of the night dress.

After 30 minutes of their arrival at the secret place, the applicant was taken to another room and told to sit on the floor with legs stretched forward. When the blindfold was removed, six men and one woman started interrogating her. She was told to agree to become a State witness in the case under investigation or be killed. She was asked to give the name of an ex-police officer who visited her work place seeking financial assistance to go outside the country.

The questions sought to solicit from her information to the effect that she had used her organisation's funds to enable the ex-police officer to go outside the country and undergo military training in insurgency and terrorism.

The applicant said when she told the interrogators that she could not remember the name of the ex-police officer who had visited her office in 2008, one of the men took a piece of a hose-pipe about one metre long. Another man took a coiled piece of iron. The two men took turns to beat her with these objects several times on the soles of her feet using severe force. She said her assailants were quite zealous in what they were doing. She yelled in pain. When the first stretch of beatings ended, a woman brought her pants to wear.

The interrogation and beatings stopped in the afternoon of the first day at the secret place.

She was blindfolded and taken to a room in which she was kept in solitary confinement. The blindfold was removed each time she was in solitary confinement.

In the evening of the first day of her arrival at the secret place she was blindfolded and taken to a room. She was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table.

She did as ordered.

Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.

On 4 December 2008, the applicant was interrogated in the morning and afternoon without being beaten. In the evening she was told that as she was not co-operative, a decision had been made that she be surrendered to a merciless group of men and women. A blindfold was put around her head. She said she was gripped by fear. She thought she was going to be killed as she was pushed into a car and told to lie face down on the rear seat.

The motor vehicle was driven for a considerable time before being stopped at a secluded place. There was a sound of shuffling movement of people outside the car. She thought her captors were preparing to execute her. The car suddenly reversed and then drove on. The captors asked about her workplace. They alleged that she worked for Voice of America Studio. She said she told them she worked for Voice of the People. The car got back to the secret place at 1:00am.

In the morning of 5 December 2008, the applicant was taken to an interrogation room. When the blindfold was removed she saw Rodrick Takawira, who was her workmate, in the same room. One of the interrogators said to her:

“You have been lying all along, Rodrick has told us everything.”

Rodrick was taken out of the room.

One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position.

She remained in that position for one hour.

The applicant said the interrogators wanted her to say that she had assisted Ricardo Hwasheni to go to Botswana for military training so as to carry out insurgent and terrorist activities in the country. She said she told the interrogators that she had a brief interaction with Ricardo when he visited their offices asking for assistance to leave the country. She said she told the interrogators that she referred Ricardo to Fidelis Mudimu who worked in the counselling services unit of the organisation.

On the fourth day, she was blindfolded and taken to a room where she was made to sit on a chair. When the blindfold was removed she saw nine men and one woman sitting at a conference table. One of the men had interrogated her before. They said they wanted to know more about Zimbabwe Peace Project and documents it had in its possession on human rights violations in the country. They asked about her interaction with Ricardo Hwasheni.

She said she told the interrogators that she had told Ricardo that her organisation did not give money to people who wanted to go out of the country. They asked her why she did not ask him which country he wanted to go to. When she said that was not her business, the interrogation became very aggressive.

The applicant said the men became visibly angry. One of them threatened to make her suffer. He said they were going to make her defecate.

Shaking with fear, and not sure whether she would come out of the room unhurt, she was given a paper and told to write a statement. The interrogators told her to write about the trip she had made to Botswana.

She did as told.

The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement.

She said she wrote the statement in the manner her interrogators wanted before signing it.

According to her, it was not true that she had referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit. She said she did not make the statement freely and voluntarily. The statement contained what she was told to write by her captors because she believed that would make them release her.

On 14 December 2008, the applicant was taken to a conference room where there was a cameraman. The men and women who had interrogated her were present. The cameraman was introduced to her. She was told that she was to be video recorded whilst making a statement about how she met Ricardo Hwasheni. It was said a decision was to be made on the basis of the statement whether to prosecute her or turn her into a State witness.

After saying what the interrogators wanted her to say, she was blindfolded and taken to the room where she was kept in solitary confinement. She was held in solitary confinement, incommunicado, until 22 December 2008.

On 22 December 2008, the applicant was blindfolded and taken, by car, in the company of Rodrick Takawira, to a place where they were turned over to a police officer called Magwenzi. The police officer told them not to remove the blindfolds before those who brought them left. She said when the blindfold was removed she recognised the place where they were left by their captors as Braeside Police Station.

She was detained there.

The police later obtained, from a magistrate, a warrant authorising a search to be carried out at her house in Norton. She was taken to the house. For the first time she saw members of her family.

Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.

The search of the house did not yield anything relevant to the allegation that she recruited Ricardo Hwasheni to undergo military training for purposes of carrying out insurgency and terrorism in the country.

On 23 December 2008 she was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts on which the charge was based were extracted from the applicant by interrogation at different times during the period of detention extending from 3 to 14 December 2008.

On the basis of the information on which the charge was brought against the applicant, the public prosecutor instituted the criminal proceedings.

The applicant was then brought before the magistrate for remand pending trial.

The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate.

Meaning of section 15(1) of the Constitution

The first point taken, on behalf of the applicant, was that the treatment to which she was subjected by State security agents, prior to the charge being laid on her, constituted a contravention of section 15(1) of the Constitution.

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's dignity and physical integrity from the prohibited treatment at the hands of public officials.

Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom [1996] 23 EHRR 413…,. It is an absolute prohibition. It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State - even in a State of public emergency: see section 25 of the Constitution.

The provision is subject only to the exercise by Parliament, when properly constituted, of the power under section 52 of the Constitution to amend, add to, or repeal any provision of the Constitution upon strict compliance with the procedure prescribed for the purpose: Mike Campbell (Pvt) Ltd v Ministry of Lands 2008 (1) ZLR 17 (S).

It was in the exercise of the power conferred on it by section 52 of the Constitution, that Parliament, by means of Act No.30 of 1990 (Amendment No.11) and Act No.9 of 1993 (Amendment No.13) provided that six specific instances of treatment of individuals by the State shall not be held to be in contravention of section 15(1) of the Constitution. These are:

(i) Treatment to prevent the escape from custody of a person who has been lawfully detained (section 15(2));

(ii) Moderate corporal punishment inflicted upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis (section 15(3)(a));

(iii) Moderate corporal punishment inflicted on a male person under the age of eighteen years in execution of the judgment or order of a court (section 15(3)(b));

(iv) Execution of a sentence of death in the manner prescribed in section 315(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (section 15(4));

(v) Delay in the execution of a sentence of death (section 15(5)); and

(vi) Delay in the execution of any sentence imposed by a competent court (section 15(6)).

The qualities of absoluteness in the sense of being an unconditional prohibition and non-derogability articulate the notion that the prohibition is one of the most fundamental standards of a democratic society. They are also designed to ensure that the prohibition produces a deterrent effect in that it signals, in advance, to all public officials and private individuals, that it is an absolute value from which nobody must derogate.

The fact that torture, inhuman and degrading treatment is prohibited by a peremptory provision serves to render null and void any act authorising such conduct.

The prohibition protects the dignity and physical integrity of every person regardless of his or her conduct.
No exceptional circumstance, such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security, can justify infliction of torture, or inhuman or degrading treatment.

There cannot be a value in our society over which there is so clear a consensus as the prohibition of torture, inhuman, and degrading treatment of a person in the custody of a public official.

That such a treatment should never form part of the techniques of investigation of crimes employed by law enforcement agents is a restatement of the principle that the law, which it is their duty to enforce, requires that only fair and humane treatment ought to be applied to a person under criminal investigation.

There is a distinction intended to be made, under section 15(1) of the Constitution, between torture on the one hand and inhuman or degrading treatment on the other.

The distinction between the notion of torture and the other two concepts lies principally in the intensity of physical or mental pain and suffering inflicted, in respect of torture, on the victim, intentionally, and for a specific purpose. Torture is an aggravated and deliberate form of inhuman or degrading treatment. What constitutes torture, or inhuman or degrading treatment depends on the circumstances of each case.

The definition of torture often adopted by courts, as a minimum standard by which a determination of the question whether torture has been committed or not, is that provided under Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (hereinafter referred to as “the UN Convention on Torture”).

Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) provides that:

“…, torture means, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not indicate pain or suffering arising only from, inherent in, or incidental to lawful sanction.”

The definition of torture, provided in Article (1)(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), is consistent with the interpretation by the Court in its case law of the concept as used in section 15(1) of the Constitution.

It is important to note that, in terms of the definition, the torture must be inflicted for the purpose of obtaining information or a confession. This is the mischief at which the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is aimed.

Inhuman treatment, is treatment which, when applied or inflicted on a person intentionally or with pre-meditation, causes, if not actual bodily injury, at least intense physical or mental suffering to the person subjected thereto and also leads to acute psychiatric disturbance during interrogation: Ireland v United Kingdom [1978] 2 EHRR 167…,.

Degrading treatment, is treatment which, when applied, to or inflicted on a person, humiliates or debases him or her showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking the person's moral and physical resistance.

The relevant notions in the definition of degrading treatment are those of humiliation and debasement. The suffering and humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate or fair treatment: Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

It follows, from the definition of the relevant concepts, that not every treatment which causes some discomfort to the person in detention violates section 15(1) of the Constitution; otherwise no one could be arrested, detained, and interrogated in the investigation of crime. The treatment must reach the minimum level of severity before it constitutes a breach of the absolute prohibition under the section.

The assessment of the minimum level of severity is relative.

The question whether or not the requisite threshold of breach of the fundamental right has been reached in a particular case is determined by the consideration of such factors as the nature and context of the treatment; manner and method of its execution, as well as the duration of the treatment; its physical and mental effects; and, in some cases, the age, sex and state of health of the victim: Ireland v United Kingdom [1978] 2 EHRR 167…,.; S v Ncube & Ors 1987 (2) ZLR 246 (S)…,.; Soering v United Kingdom [1989] 11 EHRR 439…,.; Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

APPLICATION OF SECTION 15(1)

Applying the principles of the law on what constitutes a contravention of section 15(1) of the Constitution to the facts, the Court finds a violation by the State, through its agents, of the applicant's fundamental right not to be subjected to torture, or to inhuman or degrading treatment.

The reasons for the decision are these:

The repeated beatings on the soles of the applicant's feet with a piece of a hosepipe and a metal object using severe force, on each of the two occasions she was under interrogation, constitute torture.

Repeated beating of the soles of feet with a blunt instrument is a serious form of torture called “falanga”: AMRIS K, “Long Term Consequences of Falanga Torture”, Torture Vol.19 Number 1 IRCT 2009.

Forcing the applicant to kneel for a long time, on mounds of gravel, whilst being interrogated, falls within the meaning of torture.

The treatment to which she was subjected was premeditated.

The severe pain and suffering she was forced to endure was intentionally inflicted. It was in aid of the interrogation the purpose of which was the extraction, from her, of information on the assistance her organisation was suspected of having given to Ricardo Hwasheni to enable him to undergo military training outside the country.

The prolonged periods of solitary confinement, incommunicado, on the occasions she was not being interrogated, constitutes inhuman and degrading treatment; S v Masitere 1990 (2) ZLR 289 (S)…,.

It is important to note, however, that solitary confinement is not to be deemed to be contrary to the prohibition under section 15(1) of the Constitution. It must be in conjunction with other conditions, for example, prolongation and imposition on a person who has not yet been convicted of an offence. The severity of the specific measure, its duration, the objectives pursued by it, the cumulative effect of any further conditions imposed as well as the effects on the individual's physical and mental well-being, are all factors which have to be taken into account in the assessment of the question whether a specific instance of solitary confinement is in violation of section 15(1) of the Constitution.

It was inhuman treatment to keep the applicant blindfolded each time she was out of solitary confinement and not being interrogated.

The treatment was intentionally applied and caused the applicant mental suffering.

She was also subjected to inhuman and degrading treatment when she was blind-folded and driven, at night, to an undisclosed destination under threat of unspecified action.

The treatment was intended to induce in her fear and anguish. She said she feared for her life when the motor vehicle was stopped in the middle of the night at the place she could not see. She heard the sound of people shuffling about as if preparing to execute her.

The feelings of fear and anguish, generated in her by the treatment, had the intended effect of debasing her.

The purpose of the prohibition of acts violative of section 15(1) of the Constitution is to protect human dignity and physical integrity. Any recourse to physical force against a person in the custody of a public official, which is not rendered strictly necessary by his or her conduct, diminishes his or her dignity and implicates a violation of the prohibition.

FIRST GROUND

Effect of Pre-charge Abduction and Violation of Section 15(1) on Criminal Prosecution

The grounds on which the relief sought were premised on the court making a finding that the applicant was kidnapped from home and subjected to ill treatment in the form of torture, inhuman and degrading treatment by State security agents prior to being charged with the criminal offence by the public prosecutor.

The general effect of the contention advanced on the first ground was that the Court should not countenance a prosecution of an accused person for a criminal offence in circumstances in which he or she was kidnapped and subjected to torture, or inhuman or degrading treatment by public officials exercising executive authority prior to the charge being brought against him or her.

The argument was that the institution of criminal proceedings, in the circumstances, would be an abuse of court process.

The question for determination is whether ill-treatment, in breach of section 15(1) of the Constitution, prior to the charge being brought against the victim, taints the subsequent decisions to lay the charge and institute criminal prosecution against him or her regardless of the question whether the requirements of section 13(2)(e) of the Constitution have been complied with or not.

The decision of the Court on this point is that ill-treatment, per se, has no effect on the validity of the decisions to charge the victim with a criminal offence and institute prosecution proceedings against him or her.

It is the use of the fruits of ill-treatment which may affect the validity of the decisions depending on compliance or non-compliance, by the public prosecutor, with the requirements of permissible deprivation of personal liberty under section 13(2)(e) of the Constitution.

The reasons for the decision are these:

The requirements which a public prosecutor has to bear in mind and comply with to make a valid decision to charge an accused person with a criminal offence and institute a criminal prosecution on the charge are prescribed by section 13(1) of the Constitution.

The section recognises that every person has a fundamental right to personal liberty.

It then makes provision for the protection of the right against interference by the State by declaring that no person shall be deprived of personal liberty. Recognising the principle that the right to personal liberty is not an absolute right, the section goes on to specify cases listed as exceptions to the prohibition in which deprivation of personal liberty is permissible upon strict compliance with the prescribed requirements.

The requirements of permissible deprivation of personal liberty, in the case of a person suspected of crime, are in section 13(2)(e) of the Constitution. They constitute the standard by which the validity of the decision by the public prosecutor to charge the accused person with the criminal offence, and institute criminal proceedings, is to be measured.

The effect of prohibition of arbitrary deprivation of personal liberty is the promotion of lawful arrest or detention and prosecution of persons suspected of having committed crimes. It is the deprivation of personal liberty in connection with the criminal justice process that is relevant to the determination of the issues raised.

Once a measure, such as a criminal prosecution, is based on a decision to charge the accused person with the criminal offence which complies with the requirements of permissible deprivation of personal liberty it is a lawful measure. It cannot be a subject of an order of permanent stay on the ground that the accused person was kidnapped and subjected to torture, or inhuman or degrading treatment before the charge was brought against him or her. The ill-treatment to which the accused person would have been subjected would have taken place when he or she was in a state of lawful deprivation of personal liberty. It is usually inflicted after the person has been deprived of personal liberty by arrest and detention.

Section 13(1) of the Constitution provides that:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law –

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.”

Section 13(4)(b) provides that:

“(4) Any person who is arrested or detained –

(a)…,.

(b) Upon reasonable suspicion of having committed, or being about to commit, a criminal offence;
and who is not released shall be brought, without undue delay, before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to the trial.”

Failure to comply with the requirements for a valid decision to charge the accused person with a criminal offence, and the institution of criminal prosecution proceedings against him or her, implicates a violation of the principle of legality or rule of law enshrined by section 18(1) of the Constitution.

The principle of legality requires that every decision or act of a public official which affects the rights or interests of an individual must be in accordance with an existing law otherwise it violates the rights of the individual concerned.

The requirements for permissible deprivation of personal liberty are part of the protection of that right. Compliance with the requirements is consistent with the principle of the rule of law. In that way, the public prosecutor and the Court are prevented from acting arbitrarily.

Section 18(1) provides that:

“(1) Subject to the provisions of this Constitution every person is entitled to the protection of the law.

“(1(a)) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.”

The provisions of sections 13(1) and 15(1) of the Constitution protect two separate but related fundamental human rights. One right is not constitutive of the other. They are autonomous and under protective requirements peculiar to their nature and ambit. That means that the rights may be violated independently of each other.

The infliction of torture or inhuman or degrading treatment on an accused person affects his dignity and physical integrity. It does not in itself affect his or her criminal liability. The other right protects the individual from arbitrary arrest, detention and prosecution by agents of the State.

The same person may be a victim of ill-treatment by law enforcement agents whilst at the same time he or she is a villain having committed a criminal offence against another person. The applicability of a particular constitutional provision should turn on the reasons it was included in the Constitution and the evils it was designed to eliminate.

The existence of reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged and prosecuted is critical to the determination of the validity of the decisions to charge him or her with the criminal offence and institute criminal prosecution on the charge.

A charge is an official act by which notification is given by the competent authority of an allegation that the accused person has committed a criminal offence. In Attorney General v Blumears & Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty, under section 13(2)(e) of the Constitution, are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime.”

It is the existence, or absence, of reasonable suspicion of the accused person having committed the criminal offence he or she is charged with which provides an answer to the question whether pre-charge ill treatment of an accused person had anything to do with the institution of the criminal prosecution.

The purpose of instituting criminal proceedings against an accused person, on reasonable suspicion of having committed the criminal offence with which he or she is charged, is to prove the circumstance of his or her guilt. It is also to give effect to the law which proscribes the conduct he or she is charged with as a crime.

The decision to charge the accused person with the criminal offence and prosecute the crime would be based on the evidence of acts he or she would be suspected of having committed before he or she was subjected to ill-treatment by law enforcement agents. The prosecution would be directly connected with the crime.

If each time an accused person was subjected to torture, or inhuman or degrading treatment prior to being charged with a criminal offence, the Court was obliged to order a permanent stay of the criminal prosecution, the requirements of permissible deprivation of personal liberty, which form the standard for the validity of the decision by the public prosecutor to institute the criminal proceedings against the accused person, would be reduced to mere words. It would implicate the principle of legality which requires the Court to uphold conduct which is in accordance with law.

The availability of the procedure under section 13(2)(e) of the Constitution means that where the criminal prosecution meets all the requirements of permissible deprivation of the accused person of liberty, it cannot be impugned notwithstanding the fact that the accused person was kidnapped and subjected to torture or inhuman or degrading treatment before the charge was brought against him or her.

Section 24(4) of the Constitution provides a remedy to the individual whose fundamental right has been violated.

No right to personal liberty would have been violated in relation to the accused person by the institution of criminal proceedings in the circumstances.

An illegal arrest or detention, without more, has never been viewed as a bar to subsequent prosecution for an offence the accused person is reasonably suspected, on untainted evidence, of having committed.

That does not mean that the accused person has no remedy for the pre-charge contravention of fundamental rights.

Kidnapping a person is a criminal offence.

Compensation, under section 13(5) of the Constitution, is payable to a person who is unlawfully arrested or detained. It is also an appropriate remedy for the redress of a contravention of a fundamental right available to the Court in the exercise of the wide discretionary power under section 24(4) of the Constitution.

A finding that the decision by a public prosecutor, to charge an accused person with a criminal offence, was based on reasonable suspicion of his or her having committed the offence effectively means that the criminal prosecution is lawful. It means that there is evidence on which proof of the commission of the acts defined as the crime with which the accused person is charged would be based at the trial. It also means that the wrongful conduct of ill-treating the accused person prior to being charged with the criminal offence had nothing to do with the decisions to institute and conduct the criminal prosecution; S v Harington 1988 (2) ZLR 344 (S); Blanchard & Ors v Minister of Justice 1999 (2) ZLR 24 (S); Mthembu v The State 2008 SCA 51…,.

As a matter of law and fact it is clear that where reasonable suspicion of the accused person having committed a criminal offence existed at the time the public prosecutor charged him or her with the offence in question and commenced criminal prosecution proceedings, the prosecution must be taken to have been properly instituted regardless of the fact that the accused person was subjected to torture, or inhuman or degrading treatment prior to the charge being brought against him or her. The charge, and prosecution, would be a product of the consideration, by the public prosecutor, of evidence on the conduct of alleged wrong doing by the accused person.

There is nothing in the Constitution which requires the Court to permit an accused person, reasonably suspected of a criminal offence and properly charged, to escape prosecution because he or she was subjected to torture or inhuman or degrading treatment prior to the charge being brought against him or her.

The Constitution does not guarantee protection against prosecution to an accused person reasonably suspected of having committed a criminal offence on account of having been subjected to torture, or inhuman or degrading treatment before the charge was laid on him or her.

Giving effect to the proposition advanced on behalf of the applicant would violate the constitutional principle of proportionality.

The principle requires that a fair balance be struck between the interests of the individual, in the protection of his or her fundamental rights and freedoms, and the interests of the public, in having those reasonably suspected of having committed criminal offences tried, and, if convicted, punished according to law.

Acting in the manner suggested by the applicant would mean that the purpose of criminal law is to protect the interests of a person suspected of crime at the expense of the victim and society.

That would be tantamount to providing a guarantee of immunity from prosecution to a person reasonably suspected of having committed a criminal offence in every case in which proof is produced that he or she was kidnapped and subjected to torture or inhuman or degrading treatment by agents of the State prior to being charged with a criminal offence. The victims of crime would be denied the right to the protection of the law.

Justice demands, however, that each man and woman be given what is due by his or her conduct.

It would also mean that one person who fell into the hands of law enforcement agents, who decided to break the law and maltreat him or her, would escape prosecution whilst another person who fell into the hands of law abiding law enforcement agents would not. That would be despite the fact that they were both reasonably suspected of having committed the criminal offences with which they were charged. Each would have known that his or her act was criminal. He or she would have committed the act before being placed in the custody of law enforcement agents.

Where there is no direct connection between the fruits of the torture or inhuman or degrading treatment to which the accused was subjected and the institution of the criminal prosecution, justification for an order of permanent stay of the criminal proceedings cannot be found in the pre-charge ill-treatment of the accused person. If the order were made it would be on the ground that there was no reasonable suspicion of the accused person having committed the offence with which he or she was charged.

In urging the first ground on the Court, counsel for the applicant relied on the decision of the South African Appellate Division in S v Ebrahim 1991 (2) SA 553 (A).

It is necessary to briefly look at the circumstances in which the decision was made to see whether the principles relied upon in that case are applicable to the facts of this case.

The appellant, a South African citizen by birth, fled to Swaziland whilst under a restriction order which confined him to Pinetown in Natal. In December 1986 he was forcibly abducted from his home in Mbabane by persons acting as agents of the South African State. He was taken to South Africa and handed over to the police. The police detained him in terms of security legislation. He was subsequently charged with treason, convicted, and sentenced to twenty years imprisonment with labour.

Prior to pleading to the charge, the appellant launched an application seeking an order that the court lacked jurisdiction to try him. The contention was that his abduction was in breach of international law and thus unlawful. The application was dismissed.

An appeal against the ruling succeeded.

STEYN JA carried out a review of Roman and Roman-Dutch authorities on the question whether the court lacked jurisdiction.

The learned Judge of Appeal came to the conclusion that, under both systems, the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area was considered to be tantamount to abduction. The court held that there was a rule at common law which limited a court's jurisdiction in criminal cases. That rule was to the effect that even if an offence was committed within the area of jurisdiction of the court it does not have jurisdiction to try the offender if he was abducted from another area of jurisdiction by agents of the State.

The head note to the judgment shows that the court continued, at p582C-E, as follows:

“Several fundamental legal principles are implicit in these rules (of the Roman-Dutch Law) namely, the preservation and promotion of human rights, good international relations, and sound administration of justice.

The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, State sovereignty must be respected, the legal process must be fair towards those who are affected by it, and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice.

The State is also bound thereby.

When the State itself is a party to a case, as for example in criminal cases, it must, as it were, come to court with 'clean hands'. When the State is itself involved in an abduction over territorial boundaries, as in the present case, its hands are not clean.

Rules such as those mentioned are evidence of sound legal development of high quality.”

The court, in S v Ebrahim 1991 (2) SA 553 (A), approved of the decision of the Federal Court of Appeal for the Second Circuit in United States v Toscanino 500F 2d 267 (1974).

The appellant, an Italian national, protested that agents of the United States government had abducted him from Uruguay and taken him to Brazil where he was held in custody and tortured. From there, he was conveyed, by aeroplane, to the United States. He was arrested and brought to trial on a charge of conspiring to import narcotics into the country.

The trial court had followed the prevailing judicial authorities on the interpretation of the principle of due process and its application to such cases. Judicial policy, at the time, was represented by the decisions of the United States Supreme Court in Ker v Illinois (1886) 119 US 436 and Frisbie v Collins (1952) 342 US 519. These decisions held that where an accused person was brought to court, on a proper charge, he or she was in the lawful custody of the court, and, as such, the court had no right to inquire into the means or method used to secure his or her presence before the court.

In holding that the concept of due process, under the Fourth Amendment of the United States Constitution, had been broadly interpreted, and, as such, justified an inquiry by a court into the circumstances in which an accused person had been brought before the court, the Federal Court of Appeal departed from the line of binding decisions of the Supreme Court of the United States.

In United States v Alvaren–Machain (1992) 119 Led. 2nd 441 that court re-affirmed its previous decisions by a majority thereby effectively over-ruling the decision in United States v Toscanino 500F 2d 267 (1974).

The reasoning in S v Ebrahim 1991 (2) SA 553 (A) was endorsed by the Court in S v Beahan 1991 (2) ZLR 98 (S) as having “the quality of being in accord with justice, fairness, and good sense.”

The principles have been applied in subsequent similar type situations in South Africa; in Mohammed v President of the Republic of South Africa & Ors 2001 (3) SA 893 (CC).

The same principles have been adopted and applied by the United Kingdom courts in similar cases of accused persons who had been forcibly abducted from territories of sovereign States by security agents of the receiving State, in some cases with the connivance of the prosecution agency: in R v Horseferry Road Magistrates (1994) 1AC 42; R v Mullen [2000] QB 520; and R v Loosely [2001] UKHL 53.

There is no doubt that the contention urged on the Court was animated by the principles enunciated in S v Ebrahim 1991 (2) SA 553 (A).

What is clear from the cases is that the principles in question provided a basis for an answer to a defence to the charge placed on the accused person to the effect that the court lacked jurisdiction to try him. The reason given in each of the cases was that the appearance of the accused person before the court was brought about by his forcible removal by agents of the receiving State from the territory of another sovereign State in breach of international law and the sovereignty of that State. The accused person would, at the time of the abduction, have been under the protection of the laws of the State in which he lived. He would have been outside the boundaries of the territorial jurisdiction of the court.

The cases merely recognised a long standing principle of international law, that abduction by one State of persons located within the territory of another violates the territorial sovereignty of the second State. The breach of international law, in the circumstances, is usually redressed by the return of the person abducted.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A), and those that followed it, were applied in the determination of the question of lack of jurisdiction because the courts accepted that the principles formed part of the meaning of the applicable international norms.
They do not provide a basis for challenging the validity of decisions by a public prosecutor to charge a person who is resident in the area of jurisdiction of the court with a criminal offence which it has jurisdiction to hear.

The principles are not an answer to the question whether a court, whose duty is to protect fundamental human rights, can decline jurisdiction in a case in which the accused person complains that his or her fundamental rights have been contravened by the institution of criminal prosecution proceedings after he had been kidnapped and subjected to torture, or inhuman or degrading treatment by agents of the State within the area of jurisdiction of the court.

They are not applicable to facts of a case the consideration of which has to take into account the existence, or absence, of reasonable suspicion, by the public prosecutor, of the accused person having committed the criminal offence with which he or she has been charged.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A) cannot be transposed and applied to facts of cases which do not raise for determination questions of breach of boundaries of criminal law jurisdiction.

Different principles apply in the determination of the issues raised by the facts of this case.

The cocktail of the principles of the relevant international law would have to have been violated by the receiving State before a criminal prosecution which followed could be said to be an abuse of legal process and a breach of the principles of protection and promotion of the dignity and integrity of the administration of justice. The cocktail comprises the principles of the preservation and promotion of the human right to personal liberty; the protection of individuals from unlawful detention and abduction; the protection of boundaries of territorial jurisdiction; and the protection of foreign State sovereignty.

Needless to say the last two principles would not form part of the law applicable to the facts of this case.

The analogy was inappropriate.

The forcible abduction of an accused person from foreign territory, by agents of the receiving State, has the effect of barring jurisdiction by the courts because it involves breach of an affront to the sovereignty of the refuge State. The act of arresting a person is an act of sovereignty. In such a case, that power would have been exercised by one State in the territory of another State.

Deriving from the cases of foreign abduction the proposition that in every case in which the accused person was subjected to torture, or inhuman, or degrading treatment before being charged with the crime the Court is obliged to order a permanent stay of the criminal prosecution was an ingenious argument which was unhelpful in the determination of the issues.

To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it. Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law. What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

The argument that a criminal prosecution following a pre-charge illegal arrest, detention and infliction of torture or inhuman or degrading treatment constituted abuse of process requiring a stay of proceedings would have to contend with the requirements of section13(2)(e) of the Constitution and show the fundamental right or freedom guaranteed by the Constitution that has been violated by the institution of the criminal prosecution in those circumstances.

It is not necessary to consider the argument in this case.

THE SECOND GROUND

Effect of Pre-charge Abduction and Violation of section 15(1) on Criminal Prosecution

The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.

In the raising of the issue of the wrongful conduct of public officers antecedent to the charge being brought against the accused person, and its connection with the prosecution proceedings instituted, was the suggestion that the responsibility of the State was engaged in occasioning a violation of the accused person's fundamental right to personal liberty.

In such a case, there had to be produced clear evidence of a direct connection between the antecedent breach of the fundamental right of the accused not to be subjected to torture, or inhuman or degrading treatment and the decision to charge and prosecute him or her. The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words, it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.

According to the applicant, the use, by the public prosecutor, of information obtained from her by infliction of the treatment prohibited by section 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman, and degrading treatment to which she was subjected.

The contention advanced on behalf of the applicant, on the second ground, was premised upon an interpretation of the provisions of section 15(1) of the Constitution which recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus.

(iii) What effect does a finding that the onus has been discharged have on the question of the contravention of the fundamental rights of the accused person protected under sections 13(1); 15(1) and 18(1) of the Constitution.

Section 15(1) of the Constitution and Evidence Obtained by Torture

The Court takes the first point for determination.

Its decision on the point is that section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use, in any legal proceedings, information or evidence obtained from an accused person or defendant, or any third party, by torture, or inhuman or degrading treatment.

The reasons for the decision are these:

Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) requires State parties to ensure “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”

Article 15 of the African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa and Article 16 of the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba on 27 August to 7 September 1990, are important.

They recognise the existence of an obligation on the public prosecutors not to use or rely on information, or evidence, obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment to make decisions in the exercise of prosecutorial powers.

The relevance of the reference to the provisions of Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is not in the substance of the obligation imposed on State parties.

It is on the principle of interpretation involved.

Of importance to the determination of the question before the Court, is the recognition and acceptance of the principle that the rules in Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) and the United Nations Guidelines on the Role of Prosecutors are based on the interpretation of Article 5 of the Universal Declaration of Human Rights (1948).

Article 5 of the Universal Declaration of Human Rights (1948) prohibits, in absolute and non-derogable terms, infliction of torture, inhuman or degrading treatment or punishment on any person.

The African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa are based on the interpretation of the relevant provisions of the African Charter on Human and People's Rights (1981).

Article 5 of the African Charter on Human and People's Rights (1981) prohibits torture, inhuman and degrading treatment or punishment of any person.

The principle of interpretation which emerges is that the fact that a stand-alone rule has been used to denote the meaning of a primary provision does not prevent a court interpreting the meaning of a primary provision in similar language as covering the matters explicitly dealt with in the rule if the meaning of the primary provision has not been explained by a similar rule.

The principle under consideration was applied by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439.

That Court held, on the interpretation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (“the ECHR”), that the prohibition by the Article was the basis for the rule against admission or use of information or evidence established to have been obtained or in respect to which there were substantial grounds for believing that it was obtained from the defendant, or a third party, by infliction of torture, inhuman or degrading treatment.

Considering the fact that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (ECHR) did not spell out in specific terms, as did Article 3 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), that no State “shall extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture,” the European Court of Human Rights, at para 88 of the judgment in Soering v United Kingdom (1989) 11 EHRR 439, said:

“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.”

The obligation on the State, through its agents, not to admit or use, in criminal proceedings, information or evidence obtained from an accused person, or any third party, by infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate provision in the Constitution. It would be contrary to the object and purpose of the prohibition, under section 15(1) of the Constitution, to allow admission or use of such information or evidence in any legal proceedings.

A proper interpretation of section 15(1) of the Constitution, which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by section 15(1) of the Constitution.

The obligation is inherent in the general terms of the section. It enjoys with the general prohibition the same qualities of being absolute and non-derogable.

The condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

The obligation is an exception to the general rule of evidence enacted by section 48(1) of the Civil Evidence Act [Chapter 8:01]]. That rule is to the effect that evidence of violation of a fundamental right or freedom is admissible in legal proceedings unless its admission would bring the administration of justice into disrepute: Paradza v Chirwa & Ors NNO 2005 (2) ZLR 94 (S)…,.; A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…,.

At various stages of the whole process of proceedings by which the State deals with persons suspected of crime who are in the custody of public officers, the Constitution imposes duties for the protection of the fundamental rights of the suspect.

The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill treatment.

If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence, or any third party, by torture, inhuman or degrading treatment when making prosecutorial decisions.

If the duty fails at this stage, the law imposes the duty on judicial officers. Eventually, it lies with the Court to intervene, through the exercise of its original jurisdiction, to enforce or secure the enforcement of fundamental rights.

The rationale for the exclusionary rule is the protection of any person suspected of a crime, who is in the custody of a public officer, from torturous, or inhumane or debasing invasions of his or her dignity and physical integrity. Its object is to ensure that criminal prosecutions which are a direct consequence of the pre-trial illegality violative of fundamental rights of an accused person to freedom from torture, inhuman and degrading treatment are not used to give legitimacy to such conduct.

The rule has nothing to do with the fair determination of the guilt or innocence of the accused person.

Where there is independent evidence, which has been obtained lawfully, and on which reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged is founded, an order of permanent stay of a criminal prosecution is not justified.

The rule represents a device designed to deter disregard for constitutional prohibitions and give substance to constitutionally protected fundamental rights.

The exclusionary rule, as a remedy for the enforcement of the protection of fundamental rights under the Constitution, is not intended to immunise an accused person from criminal prosecution for any action he or she is reasonably suspected of having committed which is provable at the trial by independent evidence lawfully obtained.

Information or evidence obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment, if admitted or used in legal proceedings, would reduce section 15(1) of the Constitution to a mere form of words.

As JACKSON J put it, in the dissenting opinion in Korematsu v United States (1944) 323 US 214…, “once judicial approval is given to such conduct it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In People (Attorney-General) v O'Brien (1965) IR 142 KINGSMILL MOORE J, of the Supreme Court of Ireland, said that:

“To countenance the use of evidence extracted or discovered by gross personal violence would…, involve the State in moral defilement.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from a report by MR ALVARO GIL-ROBLES, the Council of Europe Commissioner for Human Rights on his visit to the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where he said:

“Torture is torture whoever does it; judicial proceedings are judicial proceedings, whatever their purpose - the former can never be admissible in the latter.”

Giving as a reason for holding, in S v Nkomo 1989 (3) ZLR 117 (S), that a court was under an obligation not to admit or use, in any proceedings, evidence of objects pointed out as part of confessions extracted from an accused person by torture McNALLY JA…, said:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from that torture, because the effect is to encourage torture.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from the work on “The United Nations Convention Against Torture” (1988) where BURGERS and DANELIUS suggest…, that:

“…, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”

Lastly, in Mthembu v The State 2008 SCA 51 the South African Supreme Court of Appeal ruled that the admission of evidence obtained through the use of torture would compromise the integrity of the judicial process and bring the administration of justice into disrepute.

The reason given is that torture is barbaric, illegal and inhuman and is one of the most serious of human rights violations. That court applied the exclusionary rule against the admission or use of information or evidence obtained by torture in legal proceedings as an exception to the general rule contained in section 35(5) of the Constitution of South Africa.

The section provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render that trial unfair or otherwise be detrimental to the administration of justice.”

It is clear that the rationale for the exclusionary rule against the admission or use of information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment, as contained in section 15(1) of the Constitution, is founded on the absolute obligation imposed on the State.

It is also founded on the revulsion which attaches to the source of such information or evidence, coupled with its offensiveness to civilized values, and its degrading effect on the administration of justice.

The rule applies even when the evidence is reliable and necessary to secure the conviction of an accused person facing serious charges.

The reliability, or probative value, of the information or evidence is irrelevant because its admissibility is prohibited in absolute and peremptory terms.

It is vital, in a society governed by the rule of law, that persons in the custody of public officials should not be subjected to ill-treatment of the level of severity prohibited by section 15(1) of the Constitution.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment. It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

The applicant discharged the onus on her.

She established, by oral and affidavit evidence, that in bringing the charge of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] against her, and initiating the prosecution proceedings, the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her, and a third party, by torture, inhuman and degrading treatment.

There was an inextricable link between the ill-treatment and the criminal prosecution.

No evidence was placed before the Court, by the respondent, to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.

It is important to emphasize the fact that the ordering of the exclusion of evidence obtained by torture or inhuman or degrading treatment assumes, implicitly, that the remedy does not extend to barring the prosecution based on evidence wholly untainted by the misconduct of the law enforcement agents.

It is also important to point out that where the allegations by the accused are contested by the State, it is the court before which the allegations are first made, or the trial court, which must hear the parties and decide question of facts.

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

Its decision on this point is that, the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with, and prosecute her for the criminal offence, is that there was a breach of sections 15(1) and 13(1) of the Constitution.

The breach of section 13(1) of the Constitution lies not in the use of torture, inhuman and degrading treatment to obtain the information or evidence of the crime from the applicant. That is a breach of section 15(1) of the Constitution.

The violation of section 13(1) of the Constitution lies in the use of, or reliance, by the public prosecutor, on the information or evidence obtained by torture, inhuman and degrading treatment for the purposes of making the prosecutorial decisions.

Had the public prosecutor rejected the information or evidence of the crime obtained from the applicant by torture, inhuman and degrading treatment, there would have been a violation of section 15(1) of the Constitution but no breach of section13(1) - provided the criminal prosecution was supported by a reasonable suspicion of her having committed the criminal offence with which she was charged.

The reason is that the criminal prosecution would be a proceeding for the proof, beyond reasonable doubt, of the guilt of the accused person of the crime with which he or she is charged, based on no more or less evidence of the criminal acts than was available at the time of their commission.

The criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution.

The absolute and non-derogable fundamental right of the applicant, not to have information or evidence of the crime obtained from her, or any third party, by torture, or inhuman or degrading treatment used or relied upon by the public prosecutor in making the prosecutorial decisions to charge her with the criminal offence, and institute the criminal prosecution, was contravened.

There was also a violation of the applicant's fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution.

By acting in the manner he did, the public prosecutor failed to act in accordance with the requirements of the protection of the fundamental rights prescribed by sections 15(1) and 13(1) of the Constitution.

He acted in breach of the principle of the rule of law.

It is clear from the facts that, at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment, during interrogation, to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged.

The effect of the operation of the exclusionary rule is that the whole conduct of the State security agents, in kidnapping and detaining the applicant, and subjecting her to torture, inhuman and degrading treatment, was a violation of the fundamental rights guaranteed to her by section 13(1), 15(1) and 18(1) of the Constitution.

It also shows that the criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution thereby engaging the responsibility of the State in the contravention of sections 13(1) and 18(1) of the Constitution.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

COSTS

The Court takes the question of costs for determination.

Its decision on this point is that there be no order as to costs. The reasons for the decision are these:

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom.

An order of permanent stay of the criminal prosecution was considered by the Court to be the appropriate remedy for the redress of the violation of the applicant's fundamental rights. The violation would otherwise have continued: In re Mlambo 1991 (2) ZLR 339 (S)…,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

Costs are in the discretion of the Court.

It is permissible, in cases of this nature, to order that costs incurred should follow the event: Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (S).

Nonetheless, a constitutional question was raised with regard to which the answer was not self-evident.

The question whether section 15(1) of the Constitution imposes an absolute and non-derogable obligation on the State, through its agents, not to admit or use information or evidence of the crime obtained from an accused person, or defendant, by infliction on him or her, or any third party, of torture, or inhuman or degrading treatment had not been raised and exhaustively determined by the Court before.

The opportunity arose for the Court to clarify the law on the fundamental right of a person accused of a crime not to have information, or evidence, obtained from him or her by infliction of torture, or inhuman or degrading treatment admitted or used against him or her in any legal proceedings.

The legal question had to be clarified not only for the benefit of accused persons in similar circumstances. It has been clarified for the benefit of public prosecutors and judicial officers.

The victor is therefore not the applicant but the administration of justice.

The respondent did not challenge the correctness of the factual basis of the constitutional question. He properly took the view that the resolution of the legal question was in the public interest. The Court considers that the respondent should not be penalised by an order of costs.

There will be no order as to costs.

THE BACKGROUND

The applicants were arrested during the course of a demonstration, on 15 April 2010, against what they alleged to be the appalling service provision from the Zimbabwe Electricity Supply Authority (ZESA), and detained at the Harare Central Police Station. The first applicant is the Director of Women of Zimbabwe Arise.

It was alleged by the first applicant that on arrival at the police station, she was ordered by police officers, at the Law and Order Section, to remove her shoes, jacket and brassiere causing her to remain with a single top and bottom. She felt violated by being forced to remove such an intimate piece of apparel and deposit it with the police. She was shocked to be handed a filthy bag in which to place such intimate wearing apparel as well as her outer clothing and  personal belongings and this made the whole exercise 'all the more dehumanizing.'

She was force-marched, barefoot, on a dirty floor, to the holding cells where her senses were assaulted by the choking smell of human excreta and flowing urine of varying colours. The holding cells were 'full to overflowing' with human excreta and the built-in beds were also covered with the same. The lights did not work and the entire atmosphere was damp and dark without any fresh air. She spent the night in one of the corridors huddled up together with the second, third and fourth applicants even though urine flowed there as well.

During the night, she discovered that the toilet was within the cell. When she needed to relieve herself, she had to wade through a pool of urine. The toilets had no running water and were full of human excreta. She later discovered that this was because the toilets are flushed from outside and are thus flushed at the pleasure of the police officers who did not do so often judging by the fact that excreta from the toilet was flowing into the cells.

There was no toilet paper and she was refused permission to carry her own. The toilet bowl is not partitioned from the rest of the cell and it was not possible to relieve oneself in privacy. She had to use the toilet in full view of the other occupants of the cell.

No sanitary provisions were made for menstruating women, such as washing and disposal facilities and provision of sanitary towels.

During the night, she requested blankets for warmth and was given three blankets, which reeked of urine - for use by the sixteen detainees in the cell.

There was no shower, no bathing or ablution facilities and no drinking water was available. She had to depend on the kindness of those who visited her for that.

Although certain cleaners came to mop the floor, they confined themselves to cleaning the corridors and the cells were not cleaned. She was given no food by the police and had to rely on the food brought to her by friends and relatives. However, that was unpalatable as she had to eat it in the corridor of the same cell which was overflowing with excreta. She spent five nights in the cell under these conditions and her complaints to the police fell on deaf ears.

The other three applicants associated themselves with these averments.

In addition, the second applicant alleged that her mobile phone, which she was made to surrender to the police at the time of her detention by them, had been tampered with.

The applicants claimed that in view of the above, their constitutional right to protection from torture or to inhuman and degrading treatment or punishment as enshrined in section 15(1) of the Constitution of Zimbabwe was violated by the respondents.

They alleged, also, that the failure to make provision for the peculiar needs of women, for example, sanitary facilities, as set out above, amounted to discrimination against women, in violation of section 23 of the Constitution.

In essence, the applicants aver that the circumstances in which they were detained, as narrated above, deprived them of protection of the law guaranteed in section 18 of the Constitution, constitute inhuman and degrading treatment prohibited under section 15 of the Constitution, and amounted to a violation of their right, enshrined in section 23 of the Constitution, to be protected from discrimination on the basis of sex. 

They sought declaraturs to the effect that their constitutional rights enshrined in those sections of the Constitution had been violated as well as certain consequential relief.

The respondents opposed the application and relied on the affidavit of the second respondent.

They denied that the conditions in the cells were as deposed to by the applicants. They averred that it is procedural for detainees to be made to remove some of their apparel. This is standard procedure and is provided for by section 41 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) as read with the Police Standing Orders Volume 1. Arrested persons, they averred, are searched by the arresting detail in strict compliance with the terms of the Criminal Procedure and Evidence Act [Chapter 9:07] and particularly section 41(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], with reference to women, and all money and articles connected with an offence as well as all things which a prisoner could use to cause harm to himself or others or which could be used to effect his escape are collected from the arrested persons. They denied that the applicants were ordered to remove their 'undergarments' because 'the law does not allow it' but did not deny that they were made to remove their brassieres.

Whatever was meant to be conveyed by the term 'undergarments', the respondents' attitude, as expressed in their heads of argument as well as in oral argument before us, that brassieres are not necessary wearing material within the meaning of section 41 of the Criminal Procedure and Evidence Act [Chapter 9:07] would appear to support the applicants' averment that they were made to remove their brassieres. Indeed, the respondents, in their heads of argument, submit:

“The Applicants contend that they were made to remove their undergarments and in their founding affidavit the undergarments are specified as brassiere. They argue that it is necessary wearing apparel.  Although the brassieres are mentioned in their founding affidavits, in their heads of argument they simply use the word undergarments, which ordinarily would include panties. However, since applicants' case is founded on their founding affidavits, Respondents submit that what Applicants were made to remove were their brassieres.”…,.

We therefore resolve this apparent dispute of fact in favour of the applicants.

It was not denied that the applicants were made to remove their shoes as this was 'standard procedure.' 

In response to the allegation that the light in the cell was not functioning, they averred that the lighting system at the police station is fully functional.

While the location of the toilet within the holding cell was admitted, it was denied that the applicants had to wade through urine. The reason given for the denial was that, if that had happened, the applicants would have contracted a disease of some sort. They maintained that there is running water at the police station and denied that there was human excreta flowing into the holding cell from the toilet.

They averred, further, that it is standard procedure that a police detail is placed on guard duty at the cells to deal with detained persons' requests. Where no member is placed on guard duty all suspects are to be visited at least every half hour. Such visits are recorded in the charge office diary or report book maintained for this purpose. [However, neither the diary nor the report book was attached to the opposing affidavit].

They maintained that although no toilet paper is kept in the cells, it is issued upon request. While it was admitted that no sanitary provisions are made for menstruating women, the women are permitted to bring their sanitary requirements. They  added that these concerns are being addressed by a committee set up by Cabinet to look into the conditions of police and prison cells, which committee is expected to make recommendations on how best to improve the detention conditions of suspects and convicted persons.

It was denied that the blankets given to the applicants were dirty, although, by virtue of the number of detainees in the cells, they could have been inadequate.

According to police standards, so they averred, prisoners are to be supplied with good drinking water and sufficient wholesome food. The inadequacy of these provisions is also one of the matters being looked into by the committee.

It was denied that the cells were unclean, as deposed to by the applicants, because, so it was averred, general hands scrub the police cells daily with detergent and disinfectant during the daily prisoners' exercise period of thirty minutes and the Officer in Charge arranges for daily inspection of the cells. 

The court was urged to inspect the cells in order to ascertain the actual conditions prevailing thereat….,.

In addition to the Court's observations…., , the established facts were that the applicants, women, were made to remove their brassieres and shoes and to place them in a bag with their other belongings.  The court was shown a canvas bag of the type used by the applicants and noted that it, as well as the others observed to be hanging nearby, was dirty probably by reason of use by other detainees. Established also was the fact that the applicants were made to walk barefoot to and in the cell. There were sixteen detainees, including the applicants, in the cell which was meant to accommodate six people. Only three blankets were provided for use by the sixteen occupants of the cell. The applicants were provided with no food or drinking water, no toilet paper or soap. The occupants of the cell were unable to flush the toilet after use, having to depend on the pleasure of the police to flush it from outside….,.

THE RIGHT TO BE PROTECTED AGAINST TORTURE OR CRUEL AND INHUMAN PUNISHMENT OR TREATMENT

Section 15(1) of the Constitution of Zimbabwe provides:

“15 PROTECTION FROM INHUMAN TREATMENT

(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.

(2) No treatment reasonably justifiable in the circumstances of the case to prevent the escape from custody of a person who has been lawfully detained shall be held to be in contravention of subsection (1) on the ground that it is degrading.”

Section 15, therefore, proscribes torture, inhuman punishment, degrading punishment, inhuman treatment, degrading treatment. See S v Ncube & Ors 1987 (2) ZLR 246 (SC)…,.

Many decisions of this Court have dealt with the issue of what constitutes inhuman or degrading treatment. See for example S v Ncube & Ors 1987 (2) ZLR 246 (SC); Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04; Jestina Mukoko v The Attorney General SC11-12.

In Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04, this Court declared that the applicants were subjected to inhuman and degrading treatment. It found that the holding cells in which the applicants had been detained overnight at Highlands Police Station and Matapi Police Station, respectively, fell short of the minimum standards of decency. It said, at page 10 and 11 of the cyclostyled judgment:

“I have no doubt in my mind that the holding cell that the court inspected at Highlands Police Station, the same holding cell in which Kachingwe was detained overnight, does not comply with elementary norms of human decency, let alone, comply with internationally accepted minimum standards. In particular, the failure: 

a. To screen the toilet facility from the rest of the cell to enable inmates to relieve themselves in private;

b. To provide a toilet flushing mechanism from within the cell;

c. To provide toilet paper;

d. To provide a wash–basin; and

e. To provide a sitting platform or bench;

constitute inhuman and degrading treatment prohibited in terms of s15(1) of the Constitution. The evidence clearly establishes that Chibebe was subjected to similar treatment.”

The remarks quoted above apply equally to the cells at Harare Central Police Station which were seen by the Court. That there was a sitting platform surrounding the toilet hole and a one metre wall separating the toilet from the rest of the cell is of little significance because there was no door and the one metre wall is inadequate to provide privacy to the users of the toilet.

Thus, the conditions experienced by the applicants in Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04 are little or no different from those experienced by the applicants in the instant case. In addition, the applicants shared the cell, which was made to accommodate six people, with thirteen others. It was not denied that no drinking water was available to the applicants. However, even assuming that the tap in the cell was meant to be the source of drinking water for the occupants of the cell, the implications arising from the fact that the tap was positioned directly above, and emptied into, the toilet which could only be flushed from without, are too ghastly to contemplate.

The applicants in Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04 were detained for one night. The position in respect of the applicants is aggravating in that they were detained in such degrading conditions for four days and forced to rely on relatives for food and drinking water. Detention for four or five nights in the conditions described by the applicants, in my view, constitutes a gross violation of the applicants' right not to be subjected to inhuman and degrading treatment. 

Accordingly, I find that the applicants were detained in conditions that constitute inhuman and degrading treatment in violation of their right enshrined in section 15 of the Constitution.

REMOVAL OF BRASSIERES

The applicants averred that their brassieres are items of intimate under-clothing, and being forced to remove them was inhuman and degrading.

The respondents could only submit, in reply, that in some cultures women go about bare-breasted.

However, it would seem to me that the applicants are in a better position to comment on this issue. They have said how humiliated they felt, not only by being made to remove what were personal underclothing but also by being forced to place them in a dirty bag.

The question then is posed: Are these measures reasonably necessary to prevent the applicants' escape from custody? 

Surely not.

Further, such treatment cannot be justified by the reasoning that the applicants might use these items of clothing to harm themselves - for then, any item of clothing can be turned into a weapon or an instrument for self-affliction or suicide.

Detention ought not to reduce the detainee to humiliation and indignity. Every detainee is entitled to be treated with some modicum of decency and respect. The order to the applicants to remove their brassieres caused them great humiliation. Such treatment meted out to the applicants cannot be said to be reasonably necessary to prevent their escape - which is the only derogation allowed by section 15 of the right enshrined therein.

Accordingly, the applicants have established, in this regard also, that their right enshrined in section 15, not to be subjected to cruel and inhuman and degrading treatment, has been violated by the respondents.

REMOVAL OF SHOES 

The applicants averred that they were made to walk barefoot on dirty floors. 

The respondents deny that the floors were dirty and based their denial on the fact that Standing Orders require the floors to be cleaned.

However, the respondent admits that there were sixteen persons, including the applicants, detained in one cell which is meant for six people. It is admitted, also, that the toilet in the cell is only flushed at the pleasure of the police - from outside. The cells are cleaned only once a day during the detained persons daily exercise period of 30 minutes. In these circumstances, the probabilities are that the floor of the cell did become wet with human waste as deposed to by the applicants. 

To require the applicants to walk barefoot in such unsanitary conditions is to subject them, in my view, to inhuman and degrading treatment.

THE ORDER SOUGHT

The applicants premised their argument on the fact that the conditions experienced in the police cells amounted to a violation of their right to the protection of the law enshrined in section 18. 

Having found the treatment experienced by the applicants to amount to a violation of sections 15 and 23 we do not consider it appropriate or necessary to grant the declaratur sought in this regard.

SEIZURE OF CELLPHONES

The papers establish that personal possessions of detainees are taken on detention and stored pending their retrieval on the release of the detainee. 

No breach of an enshrined right has been shown in this regard. 

Suffice it to say that a claim for any damages suffered as a result of such seizure may be made in the appropriate forum.

CONCLUSION 

The applicants have established that their rights enshrined in sections 15 and 23 of the former Constitution of Zimbabwe were violated by the respondents. We consider the following order to be appropriate:

ORDER

It is declared:

1. That the applicants' rights, in terms of section 23 of the Constitution of Zimbabwe, not to be discriminated against, have been violated.

2. The applicants' rights, in terms of section 15 of the Constitution, to protection from inhuman and degrading treatment, have been violated.

Consequently, it is ordered that:

1. The first and second respondents are directed to take all necessary steps and measures within their power to ensure that at Harare Central Police Station:

a. The holding cells shall have clean and salubrious flushing toilets with toilet paper and a washing bowl.

b. The flushing toilets shall be cordoned off from the main cell to ensure privacy.

c. A good standard of hygiene shall be maintained in the holding cells.

d. Every person detained in police custody overnight shall be furnished with a clean mattress and adequate blankets.

e. Adequate bathing facilities shall be provided for all persons detained in custody overnight.

f. Every person detained shall have access at all times to wholesome drinking water from a source other than the tap above the toilet.

g. Women detained in police custody shall be allowed to keep their undergarments, including brassieres, and to wear suitable footwear.

2. There shall be no order as to costs.

The applicant in this matter was convicted of the murder of his girlfriend. Because of extenuating circumstances, he was sentenced to life imprisonment. He was aged nineteen (19) at the time of his conviction and has been in gaol since 1995 - for almost 21 years.

The gravamen of his application is that life imprisonment without the possibility of judicial review or parole is unconstitutional.

The applicant avers that his dignity and expectations have been crushed. Despite his excellent behaviour whilst in prison, which behaviour is acknowledged and conceded by the respondents, he has absolutely no hope of any amnesty or release from prison. He further avers that the conditions in Zimbabwean prisons are horrendous due to prevailing economic constraints. This compounds the psychological stress of knowing that he will never be released. He notes that Part XX of the Prisons Act [Chapter 7:11] allows for the release, on parole, of prisoners on extended imprisonment. However, there is no similar administrative process in place for prisoners serving life sentences. In any event, the grant of parole should not be left to Executive discretion but should be subjected to mandatory judicial review after the lapse of 10 years imprisonment.

The applicant, accordingly, seeks a declaratur that a life sentence imposed without the possibility of parole amounts to inhuman and degrading treatment and constitutes a violation of human dignity in breach of sections 51 and 53 of the Constitution.

The applicant also seeks a declaratur that sections 112, 113, 114 and 115 of the Prisons Act [Chapter 7:11] contravene section 56 of the Constitution and that his further incarceration in prison is in breach of his rights under sections 49, 51 and 53 of the Constitution.

In the event, he applies for an order requiring the respondents to release him from prison forthwith.

The first respondent, the Commissioner of Prisons, points to the possibility of reprieve for life prisoners through Presidential pardon or commutation of sentence available under section 121 of the Prisons Act [Chapter 7:11]. He avers that the nature of a life sentence requires Executive rather than judicial review. Although this process is different from release on parole, there is no discrimination between life prisoners and others because of the availability of Executive reprieve.

The Commissioner accepts that prison conditions in Zimbabwe are not ideal due to current economic hardships. However, they meet the requisite needs of prisoner correction and rehabilitation. At any rate, poor prison conditions cannot be relied upon to escape criminal liability.

The second respondent is the Vice-President, who is also responsible for the administration of justice, legal and Parliamentary affairs. He refers to section 112 of the Constitution which empowers the President to grant pardons or vary life sentences. He avers that this provision affords the applicant the hope of release from prison and that, therefore, there is no violation of his constitutional rights. The alternative of parole for life prisoners would serve to trivialise the heinous crimes which they have committed and which society abhors. He further contends that the judiciary cannot arrogate to itself the power to review life sentences without legislative authority to do so.

In response, the applicant invokes section 227(1) of the Constitution which calls for the rehabilitation of offenders and their reintegration into society. This overrides the concurrent objectives of retribution and deterrence which have now become secondary in penological theory. As regards the available options of Executive reprieve, he accepts that the process of parole under the Prisons Act [Chapter 7:11] is reviewable. However, the refusal of Executive pardon under the Constitution is not justiciable. This remedy is subject to Executive whim and is therefore inadequate. Moreover, it is not effectively utilised in practice. Lastly, the applicant avers that this Court is the legitimate constitutional watchdog and does not require Executive or Legislative authority in order to adjudicate in the interests of justice.

Having regard to the respective arguments of the parties and the relief sought by the applicant, I perceive the issues for determination in casu to be the following:

(i) Whether a life sentence imposed without the possibility of parole constitutes a violation of human dignity or amounts to inhuman or degrading treatment in breach of sections 51 and 53 of the Constitution.

(ii) Whether sections 112, 113, 114 and 115 of the Prisons Act are unconstitutional to the extent that they exclude whole life prisoners from the parole process and thereby contravene the right to equal protection and benefit of the law under section 56 of the Constitution.

(iii) Whether the further incarceration of the applicant amounts to a breach of his rights to liberty, human dignity and protection against inhuman or degrading treatment under sections 49, 51 and 53 of the Constitution.

(iv) In the event of an affirmative answer to any or all of the foregoing, the nature and extent of the relief that should be granted to the applicant, i.e. his immediate release from prison or some other appropriate remedy.

Human Dignity and Inhuman or Degrading Treatment

Section 51 of the Constitution enshrines the right to human dignity in the following terms:

“Every person has inherent dignity in their private and public life and the right to have that dignity respected and protected.”

The inevitable corollary of human dignity, viz. freedom from torture and similar ill-treatment, is guaranteed by section 53 of the Constitution:

“No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.”

Counsel for the applicant contends that conditions in our prisons are so deplorable as to be intolerable and that fact in itself renders a life sentence in contravention of the fundamental rights of whole life prisoners. Counsel for the respondents accepts that prison conditions are not perfect but counters that this alone cannot be a ground for holding a life sentence to be inhuman and degrading.

In Kachingwe & Others v Minister of Home Affairs & Another 2005 (2) ZLR 12 (S), the Supreme Court had occasion to inspect the conditions in police holding cells at Highlands Police Station. It was held that detention under those conditions amounted to inhuman and degrading punishment in violation of section 15(1) of the former Constitution. 

Counsel for the applicant argues that the conditions in Chikurubi Prison, as described by the applicant, are not dissimilar to those obtaining in Kachingwe & Others v Minister of Home Affairs & Another 2005 (2) ZLR 12 (S) and should therefore be similarly denounced by this Court….,.

Turning to case authorities from other jurisdictions, the decision of the Namibian Supreme Court in State v Tcoeib (1996) 7 BCLR 996 (NmS) is particularly germane to the applicant's position. At 1004-1005, MAHOMED CJ observed as follows:

“…, there is no escape from the conclusion that an order deliberately incarcerating a citizen for the rest of his or her natural life severely impacts upon much of what is central to the enjoyment of life itself in any civilised community and can therefore only be upheld if it is demonstrably justified. In my view, it cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly for the offender without any prospect whatever of any lawful escape from that condition for the rest of his or her natural life and regardless of any circumstances which might subsequently arise. Such circumstances might include sociological and psychological re-evaluation of the character of the offender which might destroy the previous fear that his or her release after a few years might endanger the safety of others or evidence which might otherwise show that the offender has reached such an advanced age or become so infirm and sick or so repentant about his or her past, that continuous incarceration of the offender at State expense constitutes a cruelty which can no longer be defended in the public interest. To insist, therefore, that regardless of the circumstances, an offender should always spend the rest of his natural life in incarceration is to express despair about his future and to legitimately induce within the mind and the soul of the offender also a feeling of such despair and helplessness. Such a culture of mutually sustaining despair appears to me to be inconsistent with the deeply humane values articulated in the preamble and the text of the Namibian Constitution which so eloquently portrays the vision of a caring and compassionate democracy…,.

…,. It seems to me that the sentence of life imprisonment in Namibia can therefore not be constitutionally sustainable if it effectively amounts to an order throwing the prisoner into a cell for the rest of the prisoner's natural life as if he was a 'thing' instead of a person without any continuing duty to respect his dignity.”

In the South African case of State v Bull & Another 2002 (1) SA 535 (SCA)… the court adopted a similar approach and noted that the possibility of parole saves a whole life sentence from being cruel, inhuman and degrading punishment.

In a case emanating from Mauritius, de Boucherville v The State of Mauritius [2008] UKPC 37, the Judicial Committee of the Privy Council dealt with an irreducible life sentence from a different perspective.  Having noted that the legislative provisions for parole and remission did not apply to a prisoner in penal servitude, leaving him without hope of release for the rest of his life, the Committee held that the sentence imposed was so manifestly disproportionate and arbitrary as to contravene the right to a fair trial and procedural safeguards for prisoners. The Committee considered that a whole life sentence must allow for the prisoner to appreciate from the outset the possibility and timing of his sentence being reviewed.

The European Court of Human Rights has dealt with several cases involving the compatibility of whole life sentences with specific provisions of the European Convention on Human Rights. Of particular concern is Article 3 of the Convention which prohibits torture and inhuman and degrading treatment. In Dickson v The United Kingdom (2007) ECHR (44362/04), the Grand Chamber underscored the role of rehabilitation as follows:

“In recent years, there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe's legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently and more positively it constitutes rather the idea of re-socialisation through the fostering of personal responsibility. This objective is reinforced by the development of the 'progression principle': in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release.”

Again, in Vinter & Others v The United Kingdom (2013) ECHR (66069/09, 130/10, 3896/10)…, the Grand Chamber further expounded the integral relationship between rehabilitation and the prospect of release:

“It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.

Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment….,.

Indeed, there is also now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.”

A comparative survey of international law further fortifies the point that penological theory has evolved from sentencing as a tool of retribution to one of rehabilitation and the re-socialisation of prisoners. Thus, Article 10 of the International Covenant on Civil and Political Rights (1976), in its relevant portions, declares that:

“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2….,.

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation….,.”

This position is echoed by the United Nations Human Rights Committee in CCPR General Comment No. 21 (1992) relative to Article 10:

“No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.”…,.

The traditional approach to punishment for serious offences is derived from the Roman lex talionis and its equivalents in other ancient societies, whereby justice is to be attained through the exaction of an eye for an eye, a tooth for a tooth and a life for a life.

The new Constitution ushers in a fundamental departure from this archaic retributive approach to one of social reintegration. This is emphasised in section 227(1) which articulates the rehabilitative functions of the Prisons and Correctional Service:

“There is a Prisons and Correctional Service which is responsible for –

(a) The protection of society from criminals through the incarceration and rehabilitation of convicted persons and others who are lawfully required to be detained, and their reintegration into society; and

(b) The administration of prisons and correctional facilities.”

The regional and European case authorities that I have cited …, all point to the conclusion that whole life imprisonment, without rehabilitative treatment coupled with the possibility of release, is tantamount to inhuman and degrading treatment in contravention of the relevant constitutional and conventional rights. Similarly, all the international instruments alluded…, viz. the 1976 Covenant and the Standard Minimum Rules of 1957 and 2015, capture the essentially twofold purpose of penal servitude as it has developed over the years within the broad framework of societal protection:

(i) Firstly, the infliction of a punishment that is condign to the nature and gravity of the crime committed;

(ii) Secondly, the rehabilitative re-orientation of the offender to render him fit and suitable for societal reintegration as a law-abiding and self-supporting citizen. 

These two objectives are intrinsically interconnected, so that the unavoidable cruelty of incarceration without the correlative beneficence of rehabilitation would unnecessarily aggravate and dehumanise the delivery of corrective justice. In short, every prisoner should be able to perceive and believe in the possibility of his eventual liberation after a period of incarceration befitting his crime and his capacity for reformation.

Having regard to our own constitutional provisions, viz.sections 50 and 227(1) which establish revised liberal guidelines on the treatment of prisoners and the rehabilitative responsibilities of correctional institutions, I see no reason to depart from the foreign and international jurisprudence that has developed on the subject over the past sixty years.

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 in-alienable - they are also inviolable.

In S v Ncube and Ors 1987 (2) ZLR 246 (S)…, 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”) emphasizes 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 paragraph 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 recognize 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 inter-dependence. 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)…, 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 un-impaired 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 1987 (2) ZLR 246 (S)…, 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 1987 (2) ZLR 246 (S)…,.

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 1987 (2) ZLR 246 (S)…,.

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 authorizes 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)…,.). 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?

Counsel for the State, for the Attorney General and Mr Mpofu (amicus curiae) argued that the punishment, as prescribed under section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] does not amount to inhuman or degrading punishment. The contention was that the precautionary measures required by the Regulations (S.I.308 of 1993) 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.

Counsel for Justice for Children's Trust and counsel for Zimbabwe Lawyers for Human Rights 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.

Counsel for Justice for Children's Trust and counsel for Zimbabwe Lawyers for Human Rights supported their contention that the sentence of moderate corporal punishment, imposed in terms of section 353 of the Criminal Procedure and Evidence 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 1989 (2) ZLR 61 (S), 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 (S.I. 308 of 1993), 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)…,.).

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 1989 (2) ZLR 61 (S)…,.

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 Criminal Procedure and Evidence Act [Chapter 9:07] 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 paragraph 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 United Nations Convention on the Rights of the Child (1989) (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 emphasizes 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 Criminal Procedure and Evidence 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 International Covenant on Civil and Political Rights (1976) (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 of the International Covenant on Civil and Political Rights (1976) (ICCPR). 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…, 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 European Convention on Human Rights 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 European Convention on Human Rights (ECHR). In its Report, the Commission expressed the opinion that judicial corporal punishment, being degrading, violated Article 3 of the European Convention on Human Rights (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 European Convention on Human Rights (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 European Convention on Human Rights 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 European Convention on Human Rights (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 v United Kingdom [1978] EHRR 1 was cited with approval in S v A Juvenile 1989 (2) ZLR 61 (S). DUMBUTSHENA CJ commented on the decision of the European Court of Human Rights in Tyrer v United Kingdom [1978] EHRR 1 and its implications on the determination of the question whether judicial corporal punishment, authorized 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 institutionalized 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 v United Kingdom [1978] EHRR 1 that the judicial corporal punishment inflicted on the male juvenile offender amounted to degrading punishment only, the majority in S v A Juvenile 1989 (2) ZLR 61 (S) held that judicial corporal punishment amounted to inhuman and degrading punishment. GUBBAY JA…, 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 1989 (2) ZLR 61 (S)…, held that any law which allows a person to be blind-folded 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 In Re Corporal Punishment by Organs of the State 1991 (3) SA 76 (Nm. SC), 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 Criminal Procedure and Evidence 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 (S.I.308 of 1993).

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…, the court said…,:

“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 civilized 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 organized 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 S v Williams and Ors 1995 (3) SA 632 (CC)…,.

At 644C-645C of S v Williams and Ors 1995 (3) SA 632 (CC), LANGA J…, 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 American Convention on Human Rights (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:

(1) The first ground was that the precautionary measures required by the Regulations (S.I.308 of 1993) 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 institutionalized 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 In Re Corporal Punishment by Organs of the State 1991 (3) SA 76 (Nm. SC) …, MAHOMED AJA…, 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 S v Williams and Ors 1995 (3) SA 632 (CC)…,.

BRANDIES J observed, in a dissenting opinion in Olmstead v United States 277 US 438 (1928)…, 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.

(2) The second ground on which it was argued that section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] 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 Criminal Procedure and Evidence 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 S v Williams and Ors 1995 (3) SA 632 (CC)…, LANGA J…, 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.”

(3) The third ground on which the constitutionality of section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] 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.

Counsel for the State and Mr Mpofu (amicus curiae) relied on what MCNALLY JA said in the dissenting judgment in S v A Juvenile 1989 (2) ZLR 61 (S). 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 S v A Juvenile 1989 (2) ZLR 61 (S) 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)…, 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).., reference is made to “contemporary concepts of decency and human dignity and precepts of civilisation which we profess to possess”. In Tyrer v United Kingdom [1978] EHRR 1, 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 1989 (2) ZLR 61 (S), 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 In Re Corporal Punishment by Organs of the State 1991 (3) SA 76 (Nm. SC)…, MAHOMED AJA…, 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 Criminal Procedure and Evidence Act [Chapter 9:07] 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 Criminal Procedure and Evidence 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 United Nations Convention on the Rights of the Child (1989) (CRC). The primary objectives the court is required by the United Nations Convention on the Rights of the Child (1989) (CRC) to bear in mind when choosing and assessing an appropriate sentence for a juvenile offender are the re-integration 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 International Covenant on Civil and Political Rights (1976) (ICCPR).

The goal is critical to community safety.

Underpinning several of the United Nations Convention on the Rights of the Child (1989) provisions is the fundamental recognition of the juvenile offender's potential for rehabilitation. The United Nations Convention on the Rights of the Child (1989) (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 United Nations Convention on the Rights of the Child (1989) (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 United Nations Convention on the Rights of the Child (1989) (CRC), a child's wellbeing is not merely a primary consideration but has to be ensured.

Article 14.4 of the International Covenant on Civil and Political Rights (1976) (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 International Covenant on Civil and Political Rights (1976) (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)…,.

Rule 5.1 of the Beijing Rules asserts that the aim of a juvenile justice system shall be to emphasize and promote the well-being 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.

(1) The first objective is the promotion of the well-being of the juvenile. The objective relates to the criminal justice system and contributes to the avoidance of merely punitive and retributive sanctions.

(2) 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…,.: 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, re-integration 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 United Nations Convention on the Rights of the Child (1989) (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.

(1) The first fundamental principle is one contained in the provisions of Article 3.1 of the United Nations Convention on the Rights of the Child (1989) (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 African Charter on the Rights and Welfare of the Child (ACRWC).

The best interest of the child is the most important principle laid down by the United Nations Convention on the Rights of the Child (1989) (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.

(2) 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)…,.

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 International Covenant on Civil and Political Rights (1976) (ICCPR) specifically acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of their rehabilitation. Human Rights General Comment No.1 (1992)…,.

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 recognizes 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.orgreports9.htm.

See also In re Stanford 537 US 968,970-71 (2002).

(3) 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 emphasizes 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 Criminal Procedure and Evidence Act [Chapter 9:07]. 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 United Nations Convention on the Rights of the Child (1989) (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 United Nations Convention on the Rights of the Child (1989) (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 United Nations Convention on the Rights of the Child (1989) (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 United Nations Convention on the Rights of the Child (CRC).

Article 37(b) of the United Nations Convention on the Rights of the Child (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 well-being 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 -

(i) Firstly, the younger the juvenile offender the more inappropriate a sentence of direct imprisonment.

(ii) Secondly, direct imprisonment is especially inappropriate for a juvenile offender who is a first offender.

(iii) Thirdly, short term imprisonment is seldom appropriate for a juvenile offender.

In S v Nkosi 2002 (1) SA (WD)…, 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 re-integration 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 International Covenant on Civil and Political Rights (1976) (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: https://wwco.hrw.orgreports9.htm.

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 Criminal Procedure and Evidence Act [Chapter 9:07].

COMMUNITY SERVICE

In terms of section 350A of the Criminal Procedure and Evidence 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-emphasized, 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)…,. 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 dis-integration 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 S v Williams and Ors 1995 (3) SA 632 (CC)…,.

PICKERING J, in S v Sikunyana 1994 (1) SACR 206 (Tk) 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 Criminal Procedure and Evidence Act [Chapter 9:07] refers to postponement of passing sentence. Section 358(2)(a) of the Criminal Procedure and Evidence 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 Criminal Procedure and Evidence Act [Chapter 9:07] 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 Criminal Procedure and Evidence Act, the discharge follows a conviction for an offence other than an offence specified in the Eighth Schedule to the Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 section 358(3) of the Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 Criminal Procedure and Evidence Act [Chapter 9:07] 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 United Nations Convention on the Rights of the Child (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 well-being 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: https://wwco.hrw.orgreports9.htm…,.

Section 351(2) of the Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 Criminal Procedure and Evidence 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 sub-paragraphs (ii), (iii) or (iv) of subsection (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 subparagraphs (ii), (iii) or (iv) of subsection (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 subsection(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, re-integration and rehabilitation into society can promote positive legal socialisation, reinforce a pro-social 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 S v Williams and Ors 1995 (3) SA 632 (CC)…,.

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 anti-thesis of compliance with the values recognised in section 53 of the Constitution.

To emphasize 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…, 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 3 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 3 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.