Source: Judicial corporal punishment outlawed | The Herald April 4, 2019
Daniel Nemukuyu Senior Court Reporter
THE Constitutional Court (Concourt) has outlawed judicial corporal punishment, saying it amounts to inhuman and degrading punishment.
Chief Justice Luke Malaba, sitting with eight other judges of the apex court, ruled that such inhuman treatment had no place in a democratic society.
The court struck down Section 353 of the Criminal Procedure and Evidence Act, which provides for the caning of juvenile offenders, saying it was in conflict with Section 53 of the Constitution of Zimbabwe.
The latest decision was made in a case in which a 15-year-old boy, who was convicted of raping a 14-year-old girl, was contesting the legality of the sentence of six strokes of the cane.
High Court judge, Justice Joseph Mafusire in 2014, found the sentence to be unconstitutional but in terms of the law, the case was referred to the Constitutional Court for confirmation.
Advocate Thabani Mpofu filed heads of argument as a friend of the court in the matter, while Messrs Tendai Biti and David Hofisi represented the Justice for Children Trust and the Zimbabwe Lawyers for Human Rights (ZLHR), respectively.
Mr Justin Uladi represented the State, while Mrs Olivia Zvedi acted for the Attorney-General.
The nine-member bench heard the matter in 2015 during the tenure of the now late former Chief Justice Godfrey Chidyausiku and reserved judgment.
Chief Justice Malaba had to write the judgment which was availed yesterday.
The issue of caning had sparked legal challenges in Zimbabwe, with others even contesting caning at school and in the home.
However, the Concourt had to make a ruling in relation to the sentencing of juveniles to strokes of the cane, which was before it.
“The court holds that judicial corporal punishment is, by nature, intent and effect, an inhuman and degrading punishment within the meaning of Section 53 of the Constitution.
“The court also holds in respect of the main question that Section 353 of the Act is inconsistent with Section 53 of the Constitution.
“The order of the High Court concerning constitutional invalidity of Section 353 of the Act is hereby confirmed,” ruled Chief Justice Malaba.
Chief Justice Malaba said the judgment also applied to those who have been convicted of offences, but awaiting caning.
“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 juveniles already sentenced but awaiting execution,” he said.
The chief Justice said any punishment which involves the infliction of physical mental violence on a person which caused pain and suffering was inhuman.
Many countries, the court said, had since done away with corporal punishment.
“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,” the court ruled.
He said there were several other alternatives lawful sentences that can be imposed to rehabilitate the juvenile offenders.
The chief justice said community service, suspended sentence or even postponement of the sentence are other alternatives available for juvenile offenders. Other judges who heard the case were Justices Vernanda Ziyambi, Elizabeth Gwaunza, Susan Mavangira, Ben Hlatshwayo, Chinembiri Bhunu, Tendai Uchena and Lavender Makoni.