S v C (A JUVENILE) 2014 (2) ZLR 876 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of C Rights — right to freedom from torture or cruel, inhuman or degrading treatment or punishment (s 53) — no limitation on such right permissible — corporal punishment of male juveniles in terms of s 353(1) of Criminal Procedure and Evidence Act — no longer consistent with the Constitution

Criminal procedure (sentence) — general principles — young offenders — D corporal punishment of male juveniles in terms of s 353(1) of Criminal Procedure and Evidence Act — no longer consistent with Constitution — other sentencing options available

Headnote

The accused, who was aged 15 years, was convicted of the rape of a 14-year-old girl. He was sentenced to receive a moderate correction of three strokes with a cane, this punishment being allowed for by s 353(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. It was also specifically allowed for by s 15(3) of the 1980 Constitution. The issue was whether, with the introduction of the 2013 Constitution, such punishment remained lawful.

Held, that in the 2013 Constitution the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is provided by s 53, which states that "No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment". Section 86(3)(c) provides that no law may limit, inter alia, the right not to be tortured or subjected to cruel, inhuman or degrading treatment punishment. 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 corporal punishment inflicted in execution of the judgment or order of a court shall not be held to be in contravention of that right, as was the situation under the old Constitution. Further provisions in

the new Constitution protect the right to personal security, equality and non-discrimination. Section 52(a) provides for the right to bodily and psychological integrity, which includes the right to freedom from all forms of violence from public or private sources, while s 56(3) provides for freedom from discrimination on the grounds of, among other things, sex, gender or age.

Held, further, that internationally, corporal punishment is regarded as violence against children and as a breach of fundamental human rights. It is considered inhuman and degrading as it violates children's physical integrity and demonstrates disrespect for human dignity and undermines the self-esteem of children. It is said to treat children as half-human beings, thereby breaching the principle of equal protection before the law and non-discrimination. There are regional and international conventions which protect these rights and the right to freedom from torture, inhuman and degrading punishment. Zimbabwe has ratified and acceded to some of them: the Convention on the Rights of the Child, the African Charter on Human and Peoples' Rights, the International Covenant on Civil and Political Rights, and the African Charter on the Rights and Welfare of the Child.

Held, further, that becoming a State Party to these conventions, Zimbabwe agreed to be bound by these conventions. As such, it had international legal obligations to respect, protect and fulfil human rights for everyone within its jurisdiction. As a State Party, it was duty-bound to enact the necessary legislation to give domestic effect to them. It was evident from Part 3 of Chapter 4 of the new Constitution that Zimbabwe has endeavoured to fulfil its international legal obligation in protecting the rights of the child. Section 81 thereof elaborates on the rights of children. Of significance are paras (a) and (b) of s 81(1) which make it clear that children are not half-human beings, as they ought to be treated equally as adults and protected from all forms of abuse, including violence. It follows that the new Constitution does not allow for the imposition of corporal punishment and thus s 353 (1) of the Criminal Procedure and Evidence Act is now a law which is inconsistent with, or ultra vires, the Constitution.

Held, further, that 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. Since the new Constitution had outlawed corporal punishment, the trial magistrate should have considered other sentencing options in rape cases in respect of juvenile offenders. What is important when punishing juveniles is the need to have the child rehabilitated back into a society and his family. Options available include: (a) under s 351(2)(a) of the Criminal Procedure and Evidence Act, the court may refrain from passing sentence and refer the matter to the Children's Court if the juvenile is a child who is in need of care; (b) under s 351(2)(b), the court may have the juvenile offender placed or institutionalized in a reformatory or in a training institution; or (c) the court may impose a wholly suspended prison sentence.

Quaere, whether s 53 outlaws the infliction of corporal punishment on children by their parents, guardians or persons in loco parentis.

Editor's note: On whether corporal punishment, even in the home or school environment, is always and necessarily inhuman or degrading, the Supreme Court was split on the issue in S v A Juvenile 1989 (2) ZLR 61.