WOODS v COMMISSIONER OF PRISONS & ANOR 2003 (2) ZLR 421 (H)

Flynote

Constitutional law — Constitution of Zimbabwe, 1980 — Declaration of Rights — s 12 — right to life — nature of right protected by s 12

Constitutional law — Constitution of Zimbabwe, 1980 — Declaration of Rights — s 15 — protection from inhuman or degrading treatment or punishment — what constitutes inhuman or degrading treatment or punishment — refusal to permit prisoner undergo medical test — D whether inhuman or degrading treatment — refusal to exercise prerogative of mercy towards prisoner serving life sentence — whether renders imprisonment inhuman or degrading

Constitutional law — Constitution of Zimbabwe, 1980 — s 311 — President's prerogative of mercy — when exercisable — refusal to exercise prerogative E in regard to prisoner serving life sentence — whether renders sentence inhuman or degrading

Words and phrases — inhuman or degrading punishment or treatment — Constitution of Zimbabwe, 1980 — s 15 — what constitutes inhuman or degrading punishment or treatment

Headnote

Not all forms of maltreatment amount to inhuman or degrading treatment prohibited by s 15 of the Constitution. It has been held that to be inhuman, treatment must cause intense physical and mental suffering or be recognisably barbarous, savage, brutal or cruel. In regard to degrading treatment, the relevant notions are those of humiliation and debasement which, in relation to prisoners, must be other than the general or usual element of humiliation associated with imprisonment after a criminal conviction.

The hope of release from prison is inherent in the statutory mechanisms which incorporate the President's prerogative of mercy under s 311 of the Constitution. It is exercisable at any time according to the circumstances, and the fact that the President has refused in the past to exercise it in

relation to a prisoner serving a sentence of life imprisonment does notrender the sentence an inhuman or degrading punishment.

Section 12 of the Constitution, which protects the right to life, prohibits deliberate acts of violence directed at the person of another with the intention of killing him or her; the right protected is the right not to be intentionally killed except in the instances specified in the section.

The applicant was a prisoner who had served nearly 15 years of a sentence of life imprisonment imposed on him for murder. He wanted the prison authorities to transfer him to South Africa for medical tests to ascertain whether he was suffering from a life-threatening heart complaint. The tests that had been done on him in Zimbabwe were equivocal, and the medical officer of the prison in which he was incarcerated concluded that he was not seriously ill at all. He had twice petitioned the President for the exercise of the prerogative of mercy, but the petitions were unsuccessful. He applied to the Supreme Court in terms of s 24 of the Constitution for an order that the prison authorities' refusal to transfer him to South Africa for medical tests amounted to inhuman or degrading treatment in contravention of s 15(1) of the Constitution; he also alleged that their refusal violated his right to life guaranteed by s 12(1) of the Constitution. In addition, he claimed that the President's failure to exercise the prerogative of mercy in his case destroyed any hope he might have of regaining his freedom and turned his life sentence into an inhuman and degrading punishment.

Held, that before the court could find that the prison authorities' refusal to transfer him to South Africa constituted inhuman or degrading treatment, the applicant had to show that he had a serious medical need for the tests or that he was seriously ill, and that with full knowledge of his affliction the prison authorities refused him access to tests which would have led to the treatment of his disease; an inference would then have been made that the object of their decision was the infliction of unnecessary and wanton pain on him. All that the evidence established, however, was that the authorities had refused to allow him to undergo an additional test on the ground that it was not necessary. This could not found a case for a contravention of s 15 of the Constitution.

Held, further, that the President's prerogative of mercy could still be exercised in favour of the applicant at any time in the future. It could not therefore be said that the applicant had been abandoned in prison so as to render his continued sentence an inhuman and degrading punishment.

Held, further, that it could not be said that when the prison authorities refused to transfer the applicant to South Africa they intended to bring about his death. Their refusal was not a contravention of s 12 of the Constitution.