Corpun file 25858 at www.corpun.com
The Herald, Harare, 17 January 2015
High Court outlaws caning of offenders
Corporal punishment unconstitutional, degrading -- Judge
By Innocent Ruwende
Senior Reporter
JUVENILE offenders will no longer be sentenced to caning after the High Court recently ruled that corporal punishment is unconstitutional and has no place in the country's statutes because it is inhuman and degrading. Justice Esther Muremba ruled against sentencing under-age offenders to strokes while upholding the conviction of a 15-year-old boy of rape.
The Supreme Court ruled more than two decades ago that caning adults was unconstitutional.
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.
The boy's challenge was just of an academic interest after it came to the High Court when he had already received the three strokes.
Justice Muremba said her interpretation of Section 53 and 86 of the new Constitution brought her to the conclusion that corporal punishment is now unconstitutional.
"What gave rise to the enactment of Section 353(1) of the Criminal Procedure and Evidence Act is the old Constitution of Zimbabwe which permitted the imposition of corporal punishment on boys below the age of 18 years," she said.
"While it was constitutional under the old Constitution to impose corporal punishment, what is of significance in the present case is that the accused was sentenced after the new Constitution, that is, the Constitution of Zimbabwe Amendment (No 20) Act 2013 had come into operation."
Justice Muremba said there was need to examine the provisions of the new Constitution and see if it was still competent for courts to impose corporal punishment on male juvenile offenders.
She said the new Constitution outlawed torture or cruel, inhuman or degrading treatment or punishment.
Justice Muremba said it was clear that the way the new Constitution is worded on the right to protection from inhuman treatment is different from the way the wording is put across under the old Constitution.
"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 punishment inflicted in execution of the judgement or order of a court shall not be in contravention of that right as was the case under the old Constitution," she said.
"My interpretation of sections 53 and 86 of the new Constitution brings me to the conclusion that corporal punishment is now unconstitutional. What strengthens my conclusion are further provisions in the new Constitution which protects the right to personal security, equality and non-discrimination."
Justice Muremba said internationally, corporal punishment was regarded as violence against children.
The punishment, she said, was considered inhuman and degrading at it violated children's physical integrity and demonstrated disrespect for human dignity and undermines the self-esteem of children.
Justice Muremba said while the Criminal Procedure and Evidence Act remained in force, its Section 353(1) was an invalid law.
"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," she said. "Since the new Constitution outlawed corporal punishment the
trial magistrate should have considered other sentencing options in respect of juvenile offenders."
Justice Muremba said an alternative was for the court to have the juvenile placed or institutionalised in a reformatory or in a training institute conceding that such institutions were few in the country.
She said courts had an option of imposing wholly suspended prison terms or jail terms in extreme cases.
© 2013 The Herald
Follow-up: 17 June 2015 - The return of corporal punishment in Zim (Constitutional Court provisionally overturns High Court order)
Corpun file 25900 at www.corpun.com
Bulawayo Chronicle, 31 January 2015
Magistrate attacks juvenile caning ban
By Walter Mswazie
Masvingo Correspondent
A senior Masvingo magistrate yesterday warned of dire consequences for the justice system following the outlawing of corporal punishment for juvenile offenders.
Regional magistrate Colet Ncube said the country cannot afford to do away with corporal punishment for convicted youths.
Describing himself as an advocate of corporal punishment, Ncube said outlawing caning would have a negative impact on juvenile offenders and the judicial system.
Speaking at a Victim Friendly committee meeting, he said outlawing corporal punishment was proving costly to the courts which are faced with a perpetual paucity of resources.
He said while provisions of the constitution should be respected, there were many benefits to be drawn from caning young offenders.
"My conviction is that outlawing corporal punishment is not a good idea given that we do not have the resources. I'm an advocate of corporal punishment myself. It is instant punishment that helps decongest prisons. The prevailing economic conditions have seen convicted juveniles mixing with hardcore criminals instead of going straight to reformatory school," said Ncube.
He said it had become difficult to avoid mixing juvenile offenders with hard core criminals because there won't be transport to send the young offenders promptly after they are convicted and sentenced.
"The situation is pathetic and yet on the other hand, justice should take its course accordingly. If a juvenile offender is aged, 17 or below, he or she will be sent to a reformatory school in Gweru or Luveve in Bulawayo. The process has many challenges, transport is just one of them," said Ncube.
He cited an incident of a juvenile who returned from reformatory claiming that he had been sent to collect his medication.
Ncube said the juvenile had been convicted last year and was in a reformatory in Gweru.
"I convicted the juvenile last year and sent him to a reformatory in Gweru. Today that juvenile has returned and is saying he was ordered to go and collect his medical records since he says he is sick. The boy travelled without bus fare. Just imagine the harrowing task of looking for transport and negotiating for a free lift from Gweru and Masvingo. Now he is here at the court and wants to be taken to his home area to collect medication or his medical aid card," he said.
Ncube said the courts did not have an effective mechanism to prevent juvenile offenders from mixing with hardcore criminals.
He said most of the time, convicted juveniles spend time at Mutimurefu Prisons before they can get transport to reformatories.
"There are incidents where juvenile offenders spend time in prisons which have seasoned adult offenders because of lack of transport to take them to their intended destination. This is not healthy. In my opinion, corporal punishment should only be the solution."
"The juvenile offenders would be caned and left to go to their respective homes. It would save the courts and government a lot of trouble," he said.
The constitution of Zimbabwe outlawed corporal punishment despite spirited efforts by interested groups like teachers' organisations for the government to reintroduce caning among delinquent juveniles.
The teachers said there was an increase in school child delinquencies following the banning of caning in schools.
Progressive Teachers Union of Zimbabwe (PTUZ) secretary general Raymond Majongwe was recently quoted in the Press lobbying for the reinstatement of corporal punishment arguing that there was an increase of juvenile delinquency cases and drug abuse among school children.
Early this month, High Court judge Justice Esther Muremba ruled that corporal punishment on male juvenile offenders is unconstitutional because it violates the right to protection from inhuman treatment.
Justice Muremba averred that Section 353(1) of the Criminal Procedure and Evidence Act Chapter 907 was invalid in terms of Section 167 (3) and Section 175 (1) of the new Constitution.
The Zimbabwe constitution adopted in 2013 bars education officers and teaching staff from administering corporal punishment on pupils.
© 2013 The Chronicle.
