'Corporal Punishment barbaric, archaic'

Child rights lawyers have urged the Constitutional Court to remove corporal punishment from the statute books, saying it was barbaric, archaic and a breach of the juveniles' constitutional rights.

The lawyers, who volunteered to protect the rights of child offenders, said the High Court judgment outlawing the punishment was proper and it should be confirmed.

In the heads of argument filed in a case in which the High Court is seeking confirmation of its judgment, Mr Tendai Biti of Tendai Biti Law Chambers, argued that corporal punishment was inhuman, degrading and premised on a primitive notion of "an eye for an eye".

"Regrettably, despite major progress on the principles and views of punishment, which in our jurisdiction, have resulted in a massive shift towards alternative sentences in particular community service, corporal punishment remains a sore thumb from a barbaric past where retribution was the order of the day.

"The question to be asked, from a jurisdiction that promotes constitutionalism, is whether a form of punishment founded on pure undiluted retribution still has room in a democratic society based on openness, justice, human dignity, equality and freedom," reads part of the heads.

Corporal punishment, according to Mr Biti, was a form of violence and torture against juveniles.

"There is no question that corporal punishment is a form of State inflicted violence. Many authorities now accept that it is in fact institutionalised violence.

"It must be submitted that corporal punishment must qualify as torture. If not on the physical component of it, that is the act of a person being assaulted while blindfolded and on the buttocks, then certainly just the mental fear of the same," he said.

Any form of assault, according to Mr Biti, was inhuman or degrading treatment.

He added that corporal punishment was tantamount to subjecting the juveniles to inhuman and degrading conditions in violation of the provisions of the Constitution of Zimbabwe.

The Zimbabwe Lawyers for Human Rights also filed heads of argument arguing that Section 353 of the Criminal Procedure and Evidence Act, which provides for corporal punishment, was discriminatory and cruel.

"Corporal punishment for juveniles constitutes a discriminatory act in the form of a violent and degrading punishment on young males to which neither females nor older men are subjected to.

"It is more human to nature and protect our children than to expose them to an arbitrary and harsh punishment that has long since been declared inhuman and degrading for adults," read the heads or argument.

ZLHR argued that in countries such as Namibia, South Africa and Zambia have since abolished corporal punishment and it was now time for Zimbabwe to declare the practice unconstitutional and to have it removed from the system.

High Court judge Justice Esther Muremba, earlier this year ruled that corporal punishment was unconstitutional and had no place in the country's statutes because it was inhuman and degrading.

She ruled against sentencing under-age offenders to strokes of the cane, while upholding the conviction of a 15-year-old boy on rape.

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.

Justice Muremba said her interpretation of Section 53 and 86 of the new Constitution brought her to the conclusion that corporal punishment was now unconstitutional.

The Constitutional Court has invited Advocate Thabani Mpofu, Mr Biti and the Justice for Children Trust to assist with arguments as friends of the court (amicus curiae).