Corporal punishment cases flood Concourt Chief Justice Chidyausiku
Chief Justice Chidyausiku

Chief Justice Chidyausiku

Daniel Nemukuyu Senior Court Reporter
The High Court has referred to the Constitutional Court four more cases in which it seeks confirmation of the judgment outlawing the imposition of corporal punishment on juveniles.

Justice Joseph Mafusire, who ruled against the caning of children in the four cases, referred them to the Constitutional Court for confirmation.

The four cases were taken to the Constitutional Court at a time when the highest court in the land had suspended a related High Court judgment by Justice Esther Muremba.

Three of the cases involved teenagers who raped other minors while one was on aggravated indecent assault.

Justice Mafusire on review treated the four cases as one and ruled that corporal punishment was unconstitutional and that a wholly suspended custodial sentence was even better for those convicted of rape.

“In the circumstances, the four cases above, like (Justice) Muremba did before me, I cannot certify the sentences of caning to be in accordance with real and substantive justice.

“Given the average ages of the accused persons and those of their victims and, given that community service is wholly inappropriate in rape cases and in my view, cases of aggravated indecent assault such as the situation in case number 3 above, I consider that sentences of imprisonment of three to five years wholly suspended would have been appropriate,” said Justice Mafusire.

Justice Mafusire agreed with Justice Muremba that corporal punishment had no place in the country’s supreme law.

“In my view and with due respect, my learned sister judge hit the bull’s eye. I agree entirely with those findings and those conclusions.

“There can be no question that corporal punishment of juveniles has become unlawful in this country. The old constitution made this country an outpost of tyranny and cruelty against children. Our stance on corporal punishment stuck up like a sore thumb.”

The Constitutional Court on Wednesday suspended Justice Muremba’s order and deferred the constitutional challenge indefinitely after realising that all the parties involved were pushing for the imposition of corporal punishment on children.

In constitutional matters of that nature, the Chief Justice Godfrey Chidyausiku, said there was need for the court to at least hear some opposing arguments before making a proper decision.

While the case awaited hearing by the nine-member bench, Chief Justice Godfrey Chidyausiku ruled that magistrates could impose corporal punishment on juvenile offenders.

The landmark case is also expected to determine whether or not parents are allowed at law to beat up their delinquent children.

It will also settle the matter of whether or not teachers are allowed at law to discipline pupils through beating.

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