MAKONI v COMMISSIONER OF PRISONS & ANOR 2016 (2) ZLR 69 (C)

Flynote

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights " right to human dignity (s 51) " right to freedom from cruel, inhuman and degrading treatment and torture (s 53) " right to non-discrimination and equality (s 56) " sentence of life imprisonment without judicial review or parole " absence of any expectation of judicial process of review violating all of these rights

Prisons: " release of prisoners on parole or licence " exclusion of prisoners serving whole life sentence from any form of judicial review " such exclusion denying such a prisoner any hope " violates against constitutional right to non-discrimination

Statutes: " Prisons Act [Chapter 7:11] " provisions for release of prisoners on parole or licence " exclusion of prisoners serving whole life sentence from any form of judicial review " such exclusion denying such a prisoner any hope " violates constitutional right to non-discrimination

Headnote

The applicant was a prisoner who was serving a life sentence for murder; he had served already 21 years. He applied for immediate release from prison on the grounds that a whole life sentence without hope of release on parole or licence violated his constitutional rights to human dignity (s 51), and to freedom from cruel, inhuman and degrading treatment and torture (s 53). He also sought a declaratur that a life sentence without hope of ever being released is unconstitutional.

Further, he maintained that since ss 112, 113, 114 and 115 of the Prisons Act [Chapter 7:11], which provide mechanisms for release on parole or licence, exclude prisoners serving a whole life sentence, thus discriminating against him, violating his right to equality (s 56).

The respondents maintained that the constitutional provision for presidential pardon or commutation of sentence does provide some hope of release, but the applicant countered that that is an executive rather than judicial function, subject to the discretion of the President, and in this case a judicial process is required.

In considering the matter, the court considered various international treaties and foreign law precedents. It cited cases from Namibia, South Africa, United Kingdom and the European Court of Human Rights, as well as provisions of the International Covenant on Civil and Political rights and the UN Standard Minimum Rules for the Treatment of Prisoners, as well as the Constitution of Zimbabwe 2013

Held, that the rights in ss 51 and 53 are non-derogable and when interpreting constitutional rights courts are obliged by virtue of ss 46, 326 and 327 of the Constitution to consider both international and foreign law and provide an interpretation which coincides with both customary international law and any international treaty which binds Zimbabwe. In the light of the authorities referred to, the applicant's rights had indeed been violated.

Held, that given that the purpose of incarceration of offenders is their rehabilitation and reintegration into society, the unavoidable cruelty of incarceration without the correlative beneficence of rehabilitation would unnecessarily aggravate and dehumanise the delivery of corrective justice. Every prisoner should be able to perceive and believe in the possibility of his eventual liberation after a period of incarceration befitting his crime and his capacity for reformation. Hence, an irreducible life sentence without the possibility of release in appropriate circumstances, constitutes a violation of human dignity and amounts to cruel, inhuman or degrading treatment or punishment in breach of ss 51 and 53 of the Constitution.

Held, further, that the process of recommendation for the President's exercise of pardon is discretionary and non-judiciable, hence it does not afford adequate redress for the purpose of enforcing the Declaration of Rights.

Held, further, that by excluding life prisoners from the statutory process of possible release on parole availed to other prisoners they operate to deny them the constitutional guarantee of the right to equal protection and benefit of the law. No clear legitimate public interest is served by depriving life prisoners of the possibility of their release following an appropriate period of reformativ and rehabilitative incarceration, hence it followed that the impugned sections of the Prisons Act were unconstitutional to the extent that they excluded whole life prisoners from the parole process and thereby contravene the right to equal protection and benefit of the law under s 56(1) of the Constitution.

Held, further, that the further incarceration of the applicant, without consideration for parole and the possibility of release, amounted to a breach of his rights to human dignity and protection against inhuman or degrading treatment or punishment under ss 51 and 53 of the Constitution and of his right to equal protection and benefit of the law under s 56(1) of the Constitution.

Held, further that, pending the amendment of the Prisons Act to conform with the constitution, all prisoners, including those serving life sentences, must be considered for parole or licence under the provisions currently relating only to prisoners on extended sentence.

Held, further, that the applicant should be considered under the provisions of the Prisons Act allowing for release on parole or licence. The declarations requested were made.