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. Herald
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