Corporal punishment under spotlight

THE Constitutional Court (ConCourt) on Wednesday 11 November, 2015 reserved judgement in a case where the State opposing a declaration by the High Court outlawing the imposition of corporal punishment on juveniles.

Zimbabwe Lawyers for Human Rights Communications officer Kumbirai Mafunda posted that the State petitioned the ConCourt in May 2015 asking the apex court to decline confirming the order granted by High Court Judge Justice Esther Muremba in December 2014 declaring as unconstitutional the imposition of corporal punishment on children.

Mafunda said Justice Muremba made an order on 31 December 2014 in a rape case brought on automatic review from the Magistrates Court to the effect that Section 353 (1) of the Criminal Procedure and Evidence Act (CPEA) (Chapter 9:07) was constitutionally invalid.

"The Judge's order was premised on a finding that Section 353 (1) of the CPEA, which allows for the imposition of corporal punishment on male juveniles violates fundamental rights enshrined in the Zimbabwean Constitution specifically Sections 53 and 86 (3)," he said.

"Resultantly, Justice Muremba declared the provision null and void. Justice Muremba ruled that the trial Magistrate Estere Chivasa should have considered other sentencing options in rape cases in respect of juvenile offenders."

This was after Magistrate Chivasa in September 2014 convicted and sentenced a 15 year-old juvenile charged and convicted of rape as defined in Section 65 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) to receive a moderate corporal punishment of three strokes with a rattan cane.

The 15 year old juvenile was sentenced on the strength of Section 353 (1) of the CPEA (Chapter 9:07), which allows for the imposition of corporal punishment. Section 353 of the CPEA provides that where a male person under the age of eighteen years is convicted of any offence, the court which imposes sentence upon him, may sentence him to receive moderate corporal punishment, not exceeding six strokes.

The matter was referred to the ConCourt following the pronouncement by Justice Muremba that the order she had granted should be brought to the attention of Prosecutor-General (PG) Johannes Tomana since the court held the view that it is the PG who should apply to the Constitutional Court to have the declaration of constitutional validity confirmed.

And this prompted Chief Justice Godfrey Chidyausiku to request the PG and Attorney-General Advocate Prince Machaya to file heads of argument in the matter in the ConCourt on whether or not Justice Muremba's order of constitutional invalidity should be confirmed.

In its appeal, the State asked the ConCourt to decline conformation of the High Court order and indicated that it does not support the declaration of constitutional validity made by Justice Muremba. The State argued that the declaration was based on a wrong interpretation of Section 53 of the Constitution of Zimbabwe and that corporal punishment is a form of chastisement and not abuse and that moderate corporal punishment is neither inhuman nor degrading treatment or punishment on a male juvenile.

In its heads or argument filed in the ConCourt, Zimbabwe Lawyers for Human Rights (ZLHR) as amicus curiae (friend of the court) submitted that the ConCourt should confirm the judgment of the High Court and strike off Section 353 of the CPEA as unconstitutional.

ZLHR intervened to protect the best interests of the child and protection against inhuman and degrading treatment.
Another amicus curiae (friend of the court), Tendai Biti of Tendai Biti Law and Justice for Children Trust, who appeared and argued as an Intervening Party also submitted that the ConCourt must uphold the decision of the court a quo as Zimbabwe doesn't deserve to be in the company of some countries that are still retaining the use of corporal punishment such as Afghanistan, Brunei, Burma, Eritrea, Iran, Libya, Malaysia, Pakistani, Qatar, Saudi Arabia, Singapore, Somalia, Sudan, United Arab Emirates and Yemen.

Biti argued that there is a connection between the pariah, undemocratic state and the use of shock punishments such as corporal and capital punishment. The human rights lawyer added that corporal punishment and capital punishment which are two punishments commonly known as 'shock treatment' are not consistent with most societies, that are based on openness, justice, human dignity, equality and freedom.

The Constitution and the Bill of Rights, Biti argued, promotes the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom.