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The landmark decision by Zimbabwe’s constitutional court, delivered this week, had the unanimous agreement of the entire bench.
At issue was an earlier decision by high court judge Esther Muremba, delivered in January 2015, in which she found that court-imposed corporal punishment on male juvenile offenders was not constitutional.
The country’s constitutional court has to ratify all decisions by lower courts declaring legislation invalid, and so the Muremba judgment had not yet becoming binding. That it has taken time to reach finality is clear: the matter was argued in mid-November 2015, and the decision reflects its author as Deputy Chief Justice Luke Malaba, with the Chief Justice, Godfrey Chidyausiku among those agreeing. However, Justice Malaba took over as Chief Justice in March 2017, so the exact time line for writing the decision is not clear, nor is the reason for the delay.
Once he began, however, the drift of Justice Malaba's thinking was immediately clear. “All human beings are equal,” he wrote, “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 stage of development in life.”
In other words, he was indicating, it doesn’t matter whether you are a child or an adult, your dignity is a paramount consideration.
While punishment is a necessary part of the justice system, the obligation on the state to respect and protect the inherent dignity of every person meant that each person’s inherent dignity had to remain intact, even when they were being punished. Punishment had to be of such a form that it was consistent with and respected the inherent dignity of an offender, he said.
Contemporary standards of decency and prevailing ideas on the meaning of human dignity would view punishment as inhuman if it used violence to cause severe physical and mental pain and suffering. That would amount to a punishment that “brutalises the person being punished and the one punishing, alike.”
“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.”
When a court ordered corporal punishment it necessarily involved the use of physical and mental violence against the one being punished. The infliction of pain and suffering was intended to be severe to achieve the purposes of the court-imposed punishment. And this in turn meant one human being had to assault another human being “under the authority and protection of the law”.
“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.”
This in turn meant that the “precautions” listed by the attorney general in defending the practice of corporal punishment – kidney protectors and a medically trained person who would ensure that the punishment was not too much for the young person receiving it – were “of no consequence” in deciding whether it was a degrading practice.
Caning invaded the integrity of the human body, said the Chief Justice. It was an “inhuman punishment” and had been abolished in many countries as incompatible with “contemporary concepts of humanity, decency and fundamental fairness.”
The government was supposed to teach the people by example. Judicial corporal punishment sent a message that the government sanctioned violence to achieve its aims – and that this was “socially acceptable conduct”.
The state was also bound to protect every child from violence. International legal instruments further bound all judicial officers in their sentencing options in relation to juvenile offenders. The African Charter on the Rights and Welfare of the Child, for example, said that the main aim if a child is found guilty of infringing penal law was “reformation, reintegration and social rehabilitation”. Even when the crime was very serious, this did not extinguish a child’s claim to just treatment. “Nor does it free a government to ignore fundamental rights.”
The Chief Justice then examined other options for dealing with children convicted of breaking the law and pointed out that whatever form of punishment was chosen it had to be appropriate to the age and legal status of the child.
Community service as an element of a sentence “cannot be over-emphasised” in relation to juveniles, he said. “It is beyond doubt that community service orders are key in the rehabilitation of a juvenile offender.” It helped facilitate the integration of a young offender into society while the community benefited from the work performed by the offender.
A new culture of juvenile sentencing was needed, with the courts playing a key role to ensure the culture was founded on the recognition of human rights.
In Zimbabwe, more probation officers were needed because the reports they prepared were an indispensable aid in cases involving children.
The elimination of judicial corporal punishment from the penal system was an “immediate and unqualified obligation” on the state, he concluded, and if facilities and resources were inadequate for provide alternatives, the government was being given a “timely challenge” to ensure an effective juvenile justice system was made available.
The final order was that judicially sanctioned corporal punishment of male juvenile offenders (as in s 353 of the Criminal Procedure and Evidence Act) was declared unconstitutional. “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 handed down and are waiting to be carried out.
