Equal
Protection and Benefit of the LawSection
56(1) of the Constitution guarantees the right to equality and equal protection
in the following terms:“All persons are equal
before the law and have the right to equal protection and benefit of the law.”The remaining provisions of
section 56 pertain to gender equality and the right not to ...
Equal
Protection and Benefit of the Law
Section
56(1) of the Constitution guarantees the right to equality and equal protection
in the following terms:
“All persons are equal
before the law and have the right to equal protection and benefit of the law.”
The remaining provisions of
section 56 pertain to gender equality and the right not to be treated in an
unfairly discriminatory manner on specified grounds that are irrelevant to the
questions at hand. What is in issue in the present matter is the legality of
differentiation in treatment as between different categories of persons who are
imprisoned.
The applicant contends that certain provisions contained in
Part XX of the Prisons Act [Chapter 7:11], in particular, sections 112, 113,
114 and 115, are unconstitutional to the extent that they exclude whole life
prisoners from the parole process and thereby contravene the right to equal
protection and benefit of the law under section 56(1) of the Constitution.
The respondents argue that the Prisons Act [Chapter 7:11]
properly differentiates between serious and trivial offenders. Thus, a
different system is in place for life and death row prisoners who are dealt
with under section 121 of the Prisons Act [Chapter 7:11] conjunction with section
112 of the Constitution. These sections
provide for Executive clemency and constitute an adequate remedy in the instant
case. However, as regards the prerogative of clemency, counsel for the
respondents was unable to provide any statistics as to how many life prisoners
have actually been released under that system. Moreover, he accepts that this
process lies entirely within the realm of Executive discretion and is therefore
not justiciable.
Section 112 of the
Prisons Act [Chapter 7:11]
establishes the Prisoners Release Advisory Board. It also provides for the
composition, functions and proceedings of the Board, the tenure of office of
its members and their terms and conditions of office. The principal functions
of the Board are to consider cases involving the release of prisoners and to
make recommendations for that purpose.
In my view, there is
nothing intrinsically objectionable in these provisions of section 112 of the
Prisons Act [Chapter 7:11] per se
that might invite constitutional censure, whether under section 56(1) of the
Constitution or otherwise.
Section 113 of the
Prisons Act [Chapter 7:11]
establishes the Parole Board and prescribes its composition, the tenure and
terms of office of its members and its proceedings. In terms of section 113(5) of the
Prisons Act [Chapter 7:11], the
primary function of the Parole Board is to consider the cases of prisoners who
are serving sentences of extended imprisonment and to make reports to the
Minister (the second respondent) as to the treatment and release, on licence,
of such prisoners. The phrase 'extended imprisonment' is defined in section 2 of the
Prisons Act [Chapter 7:11] to mean
extended imprisonment imposed in terms of section 346 of the Criminal Procedure
and Evidence Act [Chapter 9:07], i.e. a sentence of imprisonment, ranging from
a minimum of seven years to a maximum of twenty years, imposed upon habitual
offenders convicted of very serious offences specified in the Seventh Schedule
to that Act.
Section 114(1) of the
Prisons Act [Chapter 7:11] enjoins
the Parole Board to consider and report on the case of each prisoner who is
serving a sentence of extended imprisonment, at regularly prescribed intervals
or at any other times that the Board thinks appropriate. In terms of section
114(2) of
the Prisons Act [Chapter 7:11], when
making a report to the Minister as to the release of any prisoner, the Board
must have regard to all the relevant circumstances of the case and of the prisoner.
In particular, it must consider the number and nature of the offences committed
by the prisoner, the period during which the prisoner has been detained, the
behaviour of the prisoner while in prison, the likelihood of the prisoner
leading a useful and law-abiding life outside prison, and the need to protect
the public. Thereafter, section 114(3) of the Prisons Act [Chapter
7:11] requires the Board to
inform the prisoner whether or not it has recommended his release and, if it
has not recommended his release, to inform him briefly of the reasons why no
such recommendation was made.
Subsections (1) and (3) of
section 115 of
the Prisons Act [Chapter 7:11] empower
the Minister, after consultation with the Parole Board or the Advisory Board,
as the case may be, to release a prisoner, on licence, for such period and
subject to such conditions as may be specified in the licence. This power
applies to “any convicted prisoner, including a prisoner who has been sentenced
to periodical or extended imprisonment, other than a prisoner who has been
sentenced to death or to imprisonment for life”…,. Subsections (2)
and (4) of section 115 of the Prisons Act [Chapter 7:11] enable the Minister, at any time but subject to
consultation with the relevant Board, to amend, cancel or add to any of the
conditions of a licence or to cancel a licence and direct that the person
concerned be returned to a prison.
Section 121, which appears
in Part XXI of
the Prisons Act [Chapter 7:11],
governs the reporting procedure on long term prisoners with reference to the
power of mercy exercisable under section 112 of the Constitution. Section
121(1a) of
the Prisons Act [Chapter 7:11] deals
specifically with prisoners undergoing imprisonment for life. It enjoins the
Commissioner (the first respondent) to prepare a report at the end of every
five years after the first ten years served by each life prisoner. The
Commissioner must forward every such report to the Minister 'who may, if he
thinks fit, submit it to the President.' Section 121(2) requires the
Commissioner to supply more frequent reports if so requested by the Minister.
It also requires the Commissioner to arrange for compliance with any
instructions as to pardon, respite, reprieve, commutation or remission of
sentence given by the President.
Section 112(1) of the Constitution empowers the President, after consultation with the Cabinet, to
exercise the power of mercy, i.e. to grant a pardon or respite from the
execution of any sentence, or to substitute or suspend or remit the whole or
part of a sentence. In so doing, the President may impose conditions on any
such pardon, respite, substitution or suspension.
Several critical points arise for consideration from the
foregoing provisions of the Prisons Act and the Constitution.
First and foremost, the reporting requirements and the
possibility of release on parole or licence, under sections 113, 114 and 115 of
the Prisons Act [Chapter 7:11] are largely restricted to the situation of
prisoners serving sentences of extended imprisonment. They explicitly exclude
from their ambit those prisoners who are sentenced to imprisonment for life.
Such prisoners cannot be released on parole or licence.
Secondly, to the extent that life prisoners may be
considered for clemency under section 121 of the Prisons Act [Chapter 7:11],
the reporting obligation imposed upon the Commissioner is mandatory but the
consequential power conferred upon the Minister to take the matter further is
clearly discretionary.
Thirdly, even if the Minister should deign to submit a
recommendation for the release of any prisoner to the President, there is no
assurance that such release will be forthcoming. The power of mercy reposed in
the President, under section 112 of the Constitution, although exercisable
after consultation with the Cabinet, is entirely discretionary. Equally
significantly, unlike the powers of release conferred upon the Minister under section 115
of the Prisons Act [Chapter 7:11], it constitutes a prerogative power that is
not ordinarily justiciable: Nkomo & Another v Attorney-General & Others
1994 (3) SA 34 (ZS)…,; Woods v Commissioner of Prisons & Another 2003 (2)
ZLR 421 (S)…,.
In short, it does not afford adequate redress for the
purpose of enforcing the Declaration of Rights.
The critical aspect of the reducibility or otherwise of a
life sentence was considered by the Grand Chamber of the European Court of
Human Rights in Kafkaris v Cyprus (2008) ECHR (21906/04)…, as follows:
“In determining whether a life sentence in a given case can
be regarded as irreducible, the Court has sought to ascertain whether a life
prisoner can be said to have any prospect of release. An analysis of the
Court's case law on the subject discloses that where national law affords the
possibility of review of a life sentence with a view to its commutation,
remission, termination or the conditional release of the prisoner, this will be
sufficient to satisfy Article 3. The Court has held, for instance, in a number
of cases that where detention was subject to review for the purposes of parole
after the expiry of the minimum term for serving the life sentence, that it
could not be said that the life prisoners in question had been deprived of any
hope of release….,. The Court has found that this is the case even in the
absence of a minimum term of unconditional imprisonment and even when the
possibility of parole for prisoners serving a life sentence is limited….,. It
follows that a life entence does not become 'irreducible' by the mere fact that
in practice it may be served in full. It is enough for the purposes of Article
3 that a life sentence is de jure and de facto reducible.
Consequently, although the Convention does not confer, in
general, a right to release on licence or a right to have a sentence
reconsidered by a national authority, judicial or administrative, with a view
to its remission or termination…, it is clear from the relevant case-law that
the existence of a system providing for consideration of the possibility of
release is a factor to be taken into account when assessing the compatibility
of a particular life sentence with Article 3. In this context, however, it
should be observed that a State's choice of a specific criminal justice system,
including sentence review and release arrangements, is, in principle, outside the
scope of the supervision the Court carries out at European level, provided that
the system chosen does not contravene the principles set forth in the
Convention.”
In Vinter & Others v The United Kingdom (2013) ECHR
(66069/09, 130/10, 3896/10), the European Court reiterated that the imposition
of a whole life sentence for especially serious crimes was not in itself
incompatible with Article 3, so long as the sentence is de jure and de facto
reducible. Thus, in order to be compatible with Article 3, a life sentence must
include the possibility of review and the prospect of release.
The same concerns were expressed by Mahomed CJ in State v
Tcoeib (1996) 7 BCLR 996 (NmS)…,:
“The nagging question which still remains is whether the
statutory mechanisms to which I have referred, constitute a sufficiently
'concrete and fundamentally realisable expectation' of release adequate to
protect the prisoner's right to dignity, which must include belief in, and hope
for, an acceptable future for himself.”
Consequently, having found, at 1007, that the statutory
arrangements were not arbitrary or unpredictable, because the parole and
release Boards were required to act impartially, in accordance with the law and
subject to the supervision of the courts, it was concluded, at 1009:
“For the reasons which I have articulated, I am unable to
hold that life imprisonment, as a sentence, is per se unconstitutional in
Namibia, regard being had to the fact that the relevant legislation permits
release on parole in appropriate circumstances.”
Insofar as concerns the provisions of Part XX of the
Prisons Act [Chapter 7:11], there is no doubt that they differentiate between
prisoners generally and those sentenced to life imprisonment. By excluding life
prisoners from the statutory process of possible release on parole availed to
other prisoners they operate to deny them the constitutional guarantee of the right to equal protection and benefit of the
law. Apart from the argument that persons sentenced to life imprisonment would
have been so sentenced for having committed some heinous or atrocious crime,
the respondents have proffered no reasonable or justifiable basis for the
limitation of their rights within the contemplation of section 86 of the
Constitution. It is not clear what legitimate public interest is served by
depriving life prisoners of the possibility of their release following an
appropriate period of reformative and rehabilitative incarceration. In the
absence of any such justification, it follows that the impugned provisions are
unconstitutional to the extent that they exclude whole life prisoners from the
parole process and thereby contravene the right to equal protection and benefit
of the law under section 56(1) of the Constitution.
This conclusion per se does not end the present enquiry.
It is still necessary to consider the objectives of the
impugned provisions in the context of their potential scope of coverage, i.e. their possible extension to all
prisoners undergoing imprisonment, whatever the length of their period of
imprisonment - including whole life prisoners. In this regard, I am unable to
perceive any rational or practical objection to applying the reporting
procedures and powers of release vested in the authorities under Part XX of the
Prisons Act [Chapter 7:11] to those prisoners who have been sentenced to life
imprisonment. In principle, this approach is perfectly concordant with paragraph
10 of the Sixth Schedule to the Constitution, which provides for the
continuation of existing laws, as follows:
“Subject to this Schedule,
all existing laws continue in force but must be construed in conformity with
this Constitution.”
The established approach espoused in constitutional
interpretation is to adopt a purposive and generous rather than a pedantic or
restrictive interpretation. As was enunciated in the celebrated decision of the
Canadian Supreme Court in R v Big M Drug Mart Ltd (1985) 1 SCR 295….,:
“The meaning of a right or freedom guaranteed by the
Charter was to be ascertained by an analysis of the purpose of such a
guarantee; it was to be understood, in other words, in the light of the
interest it was meant to protect.
In my view, this analysis is to be undertaken, and the
purpose of the right or freedom in question is to be sought, by reference to
the character and larger objects of the Charter itself, to the language chosen
to articulate the specific right or freedom, to the historical origins of the
concepts enshrined, and where applicable, to the meaning and purpose of the
other specific rights and freedoms with which it is associated within the text
of the Charter. The interpretation should be…, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter's protection.”…,.
The adoption of the approach that I commend in the
construction of Part XX of the Prisons Act [Chapter 7:11] would, to use the
words of MAHOMED CJ in State v Tcoeib (1996) 7 BCLR 996 (NmS), 'constitute a
sufficiently concrete and fundamentally realisable expectation of release
adequate to protect the prisoner's right to dignity.' It would thus attain the
constitutional objective of advancing rather than diminishing fundamental
rights and construing existing laws in conformity with that objective in a
manner that is expressly sanctioned by paragraph 10 of the Sixth Schedule
to the Constitution.
To conclude on this aspect, it is clear that the impugned
provisions of the Prisons Act [Chapter 7:11] operate to deprive whole life
prisoners of the equal protection and benefit of the law. Furthermore, by
excluding them from the possibility of release, they also violate their rights
to human dignity and freedom from inhuman and degrading treatment or
punishment. In principle, this would entail the invalidation of all the
offending provisions. However, in order to avoid the complete and total
nullification of these provisions, I take the view that Part XX of the Prisons
Act [Chapter 7:11] should be construed and applied in conformity with the
Constitution, by extending the scope of their coverage to all prisoners -
including prisoners sentenced to life imprisonment….,.
Breach of
Applicant's Rights
Without delving into the details of the specific conditions
to which the applicant has been subjected at Chikurubi Prison, I have no doubt
that they are, euphemistically speaking, far from ideal. Moreover, it is not in
dispute that they have been exacerbated by the prevailing economic constraints
that bedevil the Prisons and Correctional Service in its operations throughout
the country. Be that as it may, it seems to me that the more critical feature
to be considered in casu is not so much the physical fact of imprisonment per
se, a condition that is common to every prisoner, as much as the effects of
irreducible incarceration on the emotions and psyche of a life prisoner.
In the instant case, the applicant's assertions as to the
acute angst that he continues to endure are uncontroverted and the sheer
hopelessness of his mindset cannot be denied. It must be accepted as being
truly reflective of the highly deleterious impact of indeterminate imprisonment
on his emotional and psychological well-being. Having regard to the conclusions
arrived at earlier vis-à-vis whole life prisoners, I am satisfied that the
further incarceration of the applicant, without consideration for parole and
the possibility of release, amounts to a breach of his rights to human dignity
and protection against inhuman or degrading treatment or punishment under sectionss
51 and 53 of the Constitution. It also constitutes a contravention of his right
to equal protection and benefit of the law under section 56(1) of the
Constitution.
However, all of this is subject to what I have stated in
relation to the extended application of the provisions of Part XX of the
Prisons Act [Chapter 7:11].
In adopting this approach, I am alive to the critical
consideration that it appears to involve judicial encroachment into the legislative
domain of Parliament, in disregard of the time-honoured doctrine of the
separation of powers.
Nevertheless, it seems to me perfectly possible to obviate
this apparent conflict by applying the broad remedial powers conferred upon the
courts in constitutional matters. I refer, in particular, to section 175(6) of
the Constitution which provides that:
“(6) When deciding a constitutional
matter within its jurisdiction a court may -
(a) Declare that any law or conduct
that is inconsistent with the Constitution is invalid to the extent of the
inconsistency;
(b) Make any order that is just and
equitable, including an order limiting the retrospective effect of the
declaration of invalidity and an order suspending conditionally or
unconditionally the declaration of invalidity for any period to allow the
competent authority to correct the defect.”
I take the view that it would be just and equitable, in the
circumstances of this case, to invoke and apply the wide discretion allowed by
this provision in order to address and appropriately modify the declaratory and
consequential relief sought by the applicant….,.
In the result, the application is granted in the following
terms and with the following conditions:
It is declared that:
1. A life sentence imposed on a convicted prisoner without
the possibility of parole or release on licence constitutes a violation of
human dignity and amounts to cruel,
inhuman or degrading treatment or punishment in breach of sections 51 and 53 of
the Constitution.
2. The provisions of Part XX of the Prisons Act [Chapter
7:11], to the extent that they exclude prisoners sentenced to imprisonment for
life from the parole or release on licence process, contravene the right to
equal protection and benefit of the law under section 56(1) of the
Constitution.
3. Subject to paragraph 4 below, the further incarceration
of the applicant amounts to a breach of his right to human dignity, right to
protection against cruel, inhuman or degrading treatment or punishment and
right to equal protection and benefit of the law under sections 51, 53 and
56(1) of the Constitution.
It is accordingly ordered that:
4. Pending the enactment of legislation amending
the provisions of Part XX of the Prisons Act [Chapter 7:11] so as to conform
with the right to equal protection and benefit of the law under section 56(1)
of the Constitution, the respondents shall apply those provisions, mutatis
mutandis, to every prisoner sentenced to imprisonment for life - including the
applicant.
