Corporal punishment ‒ the beating of a person with a cane or stick as punishment for committing a crime ‒ has been a sentence that Zimbabwean courts could impose on convicted criminals, usually as an alternative to imprisonment but sometimes in addition to it. The courts always treated it as a severe punishment, however, and in recent times more enlightened judges and lawyers have regarded it as downright vicious. Hence judges have steadily reduced its application.
The courts never imposed corporal punishment on women or girls, only on males. In 1987 our Supreme Court ruled that corporal punishment of adult men violated the then constitution’s prohibition against inhuman or degrading punishment. In 1989 the court went further, ruling that sentences of corporal punishment on boys ‒ males under the age of 18 ‒ also violated the constitution. The government disagreed with this latter judgment however and had the Lancaster House constitution amended in 1991 to state specifically that “moderate” corporal punishment when imposed on boys was neither inhuman nor degrading.
There things remained until 2013 when the present Constitution came into force. It contains a provision (section 53) which prohibits “cruel, inhuman or degrading treatment or punishment” and makes no exception for corporal punishment. Several High Court judges since then have ruled that the earlier Supreme Court judgment became a correct statement of the law once again and that section 353 of the Criminal Procedure and Evidence Act, which allows courts to sentence boys to “moderate corporal punishment” of up to six strokes, was unconstitutional. Section 353 was not invalidated by those rulings, however, because court orders declaring an Act of Parliament to be unconstitutional have no force until they are confirmed by the Constitutional Court: this is provided for in section 167(3) of the Constitution.
One of the judgments duly came before the Constitutional Court in November 2015 for confirmation. The Court postponed its decision after hearing argument, and the then Chief Justice, Chidyausiku CJ, said that pending the Court’s decision magistrates could continue imposing corporal punishment on juvenile offenders.
Last month ‒ nearly 3½ years after the case was heard and almost a year after Chidyausiku died ‒ the Constitutional Court finally gave its judgment, outlawing corporal punishment as cruel, inhuman and an affront to human dignity.
Analysis of the Judgment
The judgment is a long one ‒ 71 pages ‒ and was delivered by Mr Justice Malaba, the present Chief Justice.
The court’s decision was that:
· judicial corporal punishment, by its nature, intent and effect, is an inhuman and degrading punishment prohibited by section 53 of the Constitution.
· section 353 of the Criminal Procedure and Evidence Act, which authorised such punishment, is therefore inconsistent with section 53 of the Constitution and void.
The decision took effect from the date of the judgment (3rd April 2019). It did not therefore affect the validity of sentences of corporal punishment already inflicted on boys before that date.
The court reached its decision through the following reasoning:
· The object of section 53 of the Constitution, which outlaws cruel, inhuman or degrading punishment, is to protect human dignity as well as physical and mental integrity.
· As to the importance and meaning of human dignity:
· Human dignity, recognised by section 3 of the Constitution as one of the values and principles on which Zimbabwe is founded, gives rise to all fundamental rights and forms the essence of each of them. 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.
· Section 46 of the Constitution 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.
· Human dignity 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, and it is human dignity that makes a person worthy of rights. All human beings have inherent dignity in equal measure regardless of their social, economic or political status; 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 recognise the inherence of human dignity in a person and provide for its equal respect and protection.
· As to the interpretation of section 53 of the Constitution:
· The wording of the section is similar to that of provisions of International Human Rights Instruments, so when interpreting the section it is proper to have regard to international human rights norms for assistance.
· The section must be interpreted in accordance with evolving standards of decency: punishment that was acceptable in the past may not be so now.
· The right to have inherent dignity respected and protected means that a person must be punished as a person, not as if they were non-human. 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.
· Inhuman punishment: a punishment 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.
· Degrading punishment: a punishment which involves debasement or humiliation of the person in his or her own esteem or self-respect does not comport with human dignity and 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.
· A punishment which is not by nature inhuman or degrading may be such if it is grossly disproportionate to the seriousness of the offence. A disproportionate punishment is inhuman or degrading if 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.
· Judicial corporal punishment is inhuman and degrading:
· Internationally and regionally there is a growing consensus that judicial corporal punishment in the execution of a sentence for crime is 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 violation of the non-derogable right protected by section 53 of the Constitution.
· The State is obliged by section 52(a) of the Constitution to protect every person’s physical integrity against all forms of violence. This does not leave room for any level of legalised violence against boys convicted of offences. There is no way the State can claim to be performing its obligation of protecting the physical integrity and human dignity of a boy when it inflicts pain and suffering on him through corporal punishment, in execution of a sentence for an offence of which he has been convicted.
· Even if the object of corporal punishment is to keep boys out of prison, that cannot justify imposing an inhuman or degrading punishment on them. The objective cannot alter the inherent nature of the punishment.
· The Court reviewed the current options for sentencing juvenile offenders and concluded that courts have to promote and develop 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.
Corporal Punishment in Schools and in the Home
The Court emphasised that its judgment applied only to judicial corporal punishment, i.e. to corporal punishment inflicted as part of a sentence imposed by a court. Corporal punishment imposed in schools or by parents or guardians of children was not covered in the judgment. Anyone contesting the legality of those forms of punishment will have to institute fresh proceedings in the courts. It may be noted, however, that the current policy of the Ministry of Education and Child Welfare is against corporal punishment, though the policy is not clearly enunciated in the Education Amendment Bill that is soon to be introduced in Parliament.
Conclusion : Admirable, But Why the Delay?
The judgment is a valuable addition to our constitutional and human-rights jurisprudence, emphasising as it does the importance of human dignity, the need for courts to pay regard to international norms, and the need to reform and rehabilitate young offenders rather than simply punish them. It is noteworthy too that all the surviving judges who heard the case concurred in the judgment, so they must all presumably agree with the progressive sentiments expressed by the Chief Justice.
The only unfortunate thing about the judgment is the delay in delivering it. The reasons for the delay are not revealed in the judgment itself but the internal dynamics of the Court may have had something to do with it. The former Chief Justice showed at the hearing that he was strongly in favour of corporal punishment and he castigated the lawyers who argued against it for trying to impose foreign standards on Zimbabwe. As it turns out, his views were not shared by the rest of the Bench.
Whatever the reason for the delay, it is most unfortunate. As we noted at the beginning of this bulletin, the former Chief Justice said that pending the Court’s decision magistrates could continue to impose corporal punishment ‒ and no doubt they did so in the 3½ years it took the Court to deliver the judgment. So during those years boys were subjected to a punishment which the Court has now unanimously held to be inhuman and degrading. For those boys, justice delayed was indeed justice denied.