The constitutional matter before the Constitutional Court (“the Court”) for determination is whether s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) is constitutionally invalid. The section authorises the imposition of a sentence of moderate corporal punishment on a male person under the age of eighteen years who is convicted of any offence. The matter came to the Court by way of the procedure for confirmation of orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament made by another court.
The High Court made an order declaring s 353 of the Act constitutionally invalid on the ground that it contravenes s 53 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (“the Constitution”). The section protects the fundamental right of every person not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The protected right is absolute and non-derogable. The High Court held that judicial corporal punishment inflicted on a male juvenile in execution of a sentence for any offence of which he is convicted is an inhuman and degrading punishment within the meaning of s 53 of the Constitution.
Under the Constitution, the Court is the only tribunal with the power to make a final and binding decision on the question of the constitutionality of an Act of Parliament or conduct of the President or Parliament. An order concerning the constitutional invalidity of a law or conduct of the President or Parliament made by another court has no force unless it is confirmed by the Court.The involvement of the Court in the process of determination of the constitutionality of the law or the conduct of the President or Parliament through confirmation proceedings is mandatory.
In the determination of the question whether the law or the conduct of the President or Parliament held by another court to be constitutionally invalid is indeed so, the Court is not bound by the other court’s order of invalidity. It must satisfy itself, upon the interpretation and application of the constitutional provisions allegedly contravened by the legislation or the conduct concerned, that the court a quo came to the correct decision concerning its invalidity.
The Issues for Determination
The main issue for determination is whether or not s 353 of the Act contravenes s 53 of the Constitution. There are two other questions that need to be determined for the Court to be able to answer the main question. The first of the other questions relates to the meaning of the phrases “inhuman punishment” and “degrading punishment”. The second question is whether judicial corporal punishment amounts to “inhuman” or “degrading” punishment or both.
The Court holds that judicial corporal punishment is, by its nature, intent and effect an inhuman and degrading punishment within the meaning of s 53 of the Constitution. The Court also holds in respect of the main question that s 353 of the Act is inconsistent with s 53 of the Constitution. The order of the High Court concerning the constitutional invalidity of s 353 of the Act is confirmed. The detailed reasons for the decision now follow.
The elimination of judicial corporal punishment from the penal system is an immediate and unqualified obligation on the State. Judicial corporal punishment constitutes a serious violation of the inherent dignity of a male juvenile offender subjected to its administration. It is an antithesis of compliance with the values recognised in s 53 of the Constitution.
To emphasise human dignity is to engage with our conception of what it is to be human. It is also a point of closure: it is definitive and universal. It is not a value that tolerates either derogation or dissent. We recognise this in all sorts of areas, including constitutional law.(See Michael D A Freeman “Upholding the Dignity and Best Interests of Children”; “International Law and the Corporal Punishment of Children”; The Law and Contemporary Problems Vol 73 (Spring 2010) 211 at 251 or scholarship.law.duke.edu
The order of the court a quo declaring s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] to be invalid for the reason that it is in contravention of s 53 of the Constitution is confirmed.
The declaration of invalidity of s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall take effect from 03 April 2019, which is the date of delivery of this judgment. As of that date s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] is struck down.
With effect from 03 April 2019 no male juvenile convicted of any offence shall be sentenced to receive moderate corporal punishment. The prohibition shall apply to sentences to receive moderate corporal punishment that have already been imposed and are awaiting execution.
Source: Constitutional Court of Zimbabwe