Innocent Ruwende Senior Reporter—-
JUVENILE offenders will no longer be sentenced to caning after the High Court recently ruled that corporal punishment is unconstitutional and has no place in the country’s statutes because it is inhuman and degrading. Justice Esther Muremba ruled against sentencing under-age offenders to strokes while upholding the conviction of a 15-year-old boy of rape.
The Supreme Court ruled more than two decades ago that caning adults was unconstitutional.
The boy had been sentenced to receive moderate corporal punishment of three strokes with a rattan cane by a magistrate, but appealed against the sentence at the High Court.
He was sentenced on September 26 last year on the strength of Section 353(1) of the Criminal Procedure and Evidence Act which allows for the imposition of corporal punishment.
The boy’s challenge was just of an academic interest after it came to the High Court when he had already received the three strokes.
Justice Muremba said her interpretation of Section 53 and 86 of the new Constitution brought her to the conclusion that corporal punishment is now unconstitutional.
“What gave rise to the enactment of Section 353(1) of the Criminal Procedure and Evidence Act is the old Constitution of Zimbabwe which permitted the imposition of corporal punishment on boys below the age of 18 years,” she said.
“While it was constitutional under the old Constitution to impose corporal punishment, what is of significance in the present case is that the accused was sentenced after the new Constitution, that is, the Constitution of Zimbabwe Amendment (No20) Act 2013 had come into operation.”
Justice Muremba said there was need to examine the provisions of the new Constitution and see if it was still competent for courts to impose corporal punishment on male juvenile offenders.
She said the new Constitution outlawed torture or cruel, inhuman or degrading treatment or punishment.
Justice Muremba said it was clear that the way the new Constitution is worded on the right to protection from inhuman treatment is different from the way the wording is put across under the old Constitution.
“If the legislature had intended corporal punishment to remain as part of our law it would have limited the right by categorically stating that moderate punishment inflicted in execution of the judgement or order of a court shall not be in contravention of that right as was the case under the old Constitution,” she said.
“My interpretation of sections 53 and 86 of the new Constitution brings me to the conclusion that corporal punishment is now unconstitutional. What strengthens my conclusion are further provisions in the new Constitution which protects the right to personal security, equality and non-discrimination.”
Justice Muremba said internationally, corporal punishment was regarded as violence against children.
The punishment, she said, was considered inhuman and degrading at it violated children’s physical integrity and demonstrated disrespect for human dignity and undermines the self-esteem of children.
Justice Muremba said while the Criminal Procedure and Evidence Act remained in force, its Section 353(1) was an invalid law.
“In view of the fact that the accused was sentenced after the new Constitution had come into operation, the trial magistrate ought to have employed the provisions of the new Constitution in sentencing the accused,” she said. “Since the new Constitution outlawed corporal punishment the trial magistrate should have considered other sentencing options in respect of juvenile offenders.”
Justice Muremba said an alternative was for the court to have the juvenile placed or institutionalised in a reformatory or in a training institute conceding that such institutions were few in the country.
She said courts had an option of imposing wholly suspended prison terms or jail terms in extreme cases.