MUNASHE MUKWENYA
R209460G
R209460G@STUDENTS.MSU.AC.ZW
CONSTITUTIONAL LAW
MR MUTATU
PICK ANY RIGHT IN THE CONSTITUTION AND DISCUSS HOW THE COURTS
HAVE INTERPRETATED IT. [30 MARKS]
Zimbabwe as a democratic republic is basically founded on respect of values and
principles enshrined under section 3 of the Constitution. Among these consequential
founding values and principles is the respect for fundamental human rights and freedoms.
The interpretation clause on section 46(1)(a) which is a peremptory provision demands
that a court, tribunal, forum or body must give full effect to the rights and freedoms
enshrined under the declaration of rights.1 The Constitution is enshrined with many rights
but to my discretion I am going to analytically scrutinize how the Courts have dealt with
the right of freedom from torture or cruel, inhuman or degrading treatment under section
53 of the Constitution.2 This right is one of the seminal rights under the declaration of
rights which has been declared to not constitute any restriction under the limitation clause
section 86(3).3
The right of freedom from torture and degrading or inhuman punishment is provided for
under section 53 of the Constitution. Since torture is a common occurrence in Zimbabwe
and the courts have litigated on various cases which includes the party whose right has
been or is likely to be infringed seeks relief. In the landmark case of S v Ncube the court
was confronted with the issue of whether whipping of adults constituted torture or
inhuman and degrading punishment. The judges examined international developments
1
Section 46 (1)(a) of the Constitution of Zimbabwe Amendment [No.20] 2013.
Section 53) of the Constitution of Zimbabwe Amendment [No.20] 2013.
3
Section 86(3)) of the Constitution of Zimbabwe Amendment [No.20] 2013.
2
on the issue including the jurisprudents of the European Convention on Human Rights.
During the analytical process the court remarked that “the manner in which it is
administered, is somewhat reminiscent of flogging at the whipping post, it is a punishment
not only inherently brutal and cruel, for its infliction is attended by acute pain and much
more physical suffering but one which strips the recipient of all dignity and self-respect. It
is relentless in its severity and is contrary to the traditional humanity practiced by almost
the whole civilized world. The judges unanimously held that the sentence of whipping
contravened the right of freedom of torture which is now enshrined under section 53 of
the Constitution. The Supreme Court paid due regard to the manner in which judicial
corporal punishment is administered.4
In the case S v A juvenile the Court had to decide whether the imposition of a corporal
punishment upon juveniles constitutes torture and degrading punishment which infringes
the right under section 15 of the Lancaster Constitution.5 The case concerned an 18 year
old male sentenced to be whipped under article 330 of the Criminal Procedure and
Evidence Act, which allowed a moderate correction of whipping for ,males under the age
of 19. The then chief justice Dumbutshena relied heavily on the judgement in the earlier
Ncube ruling and reliance on international standards including the European Convention
on Human Rights. The courts also made it clear to endorse international and regional
provisions thus they concluded that interhuman rights and norms will become part of the
domestic law. The court ruled by a 3-2 majority that corporal punishment of juveniles
violated the Constitutional protection from inhuman or degrading punishment for
juveniles, as it did for adults. It was also ruled that judicial whipping, no matter the nature
of instrument used and manner of execution it was a punishment inherently brutal and
cruel. In a dissenting minority judgement, it was posed that because a court invalidated
adult whipping as unconstitutional it didn’t mean that juvenile whipping should also be
held outravires the Constitution. His argument was based on the fact that corporal
punishments in schools and by parents did not constitute such abuse but it was needed
for naught children placing regard on the manner it was done. Subsequent to the
judgement legislations were passed under the 1990 Constitutional Amendment which
4
5
S V Ncube 1987 (2) ZLR 246 SC
S V A juvenile 1989 (2) ZLR 61 SC
backed up the minority judgment and allowed the infliction of moderate corporal
punishment upon persons under the age of 18. However, the current Constitution does
not have such a clause which upholds corporal punishment for young people. On the
contrary it protects the right of every person in relation to freedom of physical and
psychological torture. The case of S v Chokuramba is of seminal reliance as the court
confronted an issue of whether section 353 of the Criminal Procedure and Evidence Act
was outravires section 53 of the Constitution. In this popular case the respondent who
was 15 years was being charged for committing offence of rape on 14-year-old girl. 6On
the authority of section 353 of the Criminal Procedure Act, the juvenile boy was given a
sentence of 3 strokes with a cane. The courts adopted the principle of Constitutional
supremacy under section 2 which declares the Constitution as the Supreme law and that
any other law inconsistent with it will be invalid. The presumption of Constitutionality was
simultaneously applied in order to arrive at the final decision. The sentence of corporal
was struck down as it constituted inhuman treatment thus violating section 53 of the
Constitution which protects the right to freedom of inhuman treatment and torture. The
court also declared the aforementioned inconsistent section to be invalid as starting from
that date.
The question of poor facilities and conditions in prisons has recently became an issue of
ongoing concern when it comes to whether or not these poor conditions are degrading to
prisoners. A prime example is of the case of Kachingwe v Commissioner of Police where
the applicants approached the courts seeking for relief in terms of section 24 of the
Lancaster Constitution alleging that their right under section 15(1) entailing freedom from
torture or degrading and inhuman treatment had been infringed.7 As a matter of question
the courts had to determine whether or not the conditions under which the first applicant
was detained constitute inhuman and degrading treatment and violated her fundamental
right conferred by section 15(1) of the previous Constitution which is now section 53 of
the current one. She particularized that the cell she was detained in was filthy with human
excrement and urine collected in an open bowl and there was no privacy in the use of the
toilet. She further complained that there was no ventilation nor any lighting such that even
6
7
S V Chokuramba jud No. CCZ 10/19 Con App No. CCZ 29/15
Kachingwe & others v Commissioner of Prisons
in the afternoons it was still dark within the room and above it was overcrowded with no
drinking water. In coming up to a conclusion the court made reference to the police
standing orders which stated the obligations of the member in charge to provide the
prisoners with a hygienic cell and all necessary equipment like blankets. The court also
resorted to the guidance of some international tribunals on human rights and reports of
African Commission on Human and Peoples Rights to determine what constitutes torture,
inhuman and degrading punishment or treatment. Also precedence in the case of Hilaire
v Inter American Court of Human Rights was of persuasive authority because the horrible
conditions mentioned above where strikingly similar to the ones determined in this
precedence. The Court ultimately concluded that the conditions which the detainees were
subjected to were in violation of article 3 of the International Convention on civil and
Political Rights which was part of the law. Henceforth the court finally concluded that the
conditions did not comply with elementary norms of human decency and internationally
accepted standards, so accordingly the court concluded that there was indeed gross
inhuman and degrading treatment thus violating section 15 of the earlier Constitution now
section 53.
Determination of the right under section 53 was also carried out in the case of Mukoko v
Attorney General.8 The applicant in this case alleged that she had been abducted from
home and subjected to torture and inhuman or degrading punishment by the State
Security agents. The applicant Mukoko alleged that she was kidnapped from her home
and kept in solitary confinement were she was being secretly interrogated while she was
blindfolded with her hands and feet tied. She was also made to kneel and repeatedly
beaten up under her foot as she was being compelled to provide information which
constituted a plot against the state. The court challenged o allow the validity of the
decision to institute the criminal prosecution because it was unlawful as it was based on
information or evidence obtained from the applicant by way of torture, inhuman and
degrading treatment. The issue which arose in line with the argument was whether or not
section 15(1) of the constitution contains a rule prohibiting the admission or use, in any
legal proceedings, of information or evidence obtained from an accused person or
8
Mukoko v Attorney General (SC 11/12 Cons.Appl No. 36/09) 2017 ZWCC.
defendant by infliction of torture or inhuman treatment. The court’s decision on the issue
was that section 15 of the Constitution contains the rule by which it imposes on the State
through its agents, the obligation not to admit or use in any legal proceedings, information
obtained from any person by torture or inhuman treatment. The judges encapsulated that
torture was barbaric, illegal and inhuman and it was one of the serious of human rights
violations. The court relied on a South African case which c also applied the exclusionary
rule against the admission of information as evidence obtained by torture as an exception.
The judgment in this case was persuasive. It held that “evidence obtained in a manner
that violates any right in the Bill of Rights must be excluded if the admission of that
evidence would render that trial unfair or be detrimental to the administration of justice.
The exclusionary rule invoked was to the effect that evidence obtained through torture
and violation of human rights was not admissible. Similarly in the case of S v Slatter it
was held that confessions obtained through torture or some other forms of physical and
psychological ill-treatment have been held to be illegal and inadmissible evidence.9They
finally concluded that it was vital in a society governed by the rule of law that persons in
the custody of public official should not be subjected to ill treatment of the level of severity
prohibited by section 15 which is now section 53 of the current Constitution. Therefore,
the criminal prosecution was a direct consequence of the violation of section 15 of the
Lancaster Constitution on freedom from torture.
In the case of Makoni v Commissioner of Prisons the applicant who had been given a life
sentence in jail after being found guilty of murder approached the courts seeking a
decelerator that a life sentence imposed without the possibility of parole amounts to
inhuman and degrading treatment which constitutes a breach of section 53 of the
Constitution.10 The applicant also averred that his further incarceration in prison is in
breach of his rights under the same mentioned section. He therefore applied for an order
requiring the respondents to release him from prison. The issues for determination was
therefore whether a life sentence without the possibility of parole under Part XX of the
Prisons Act constitutes a violation of human dignity or amounts to inhuman or degrading
treatment in breach of section 53 of the Constitution. The second issue was to determine
9
10
S V Slatter & others 1983 (2) ZLR 144 H
Makoni v Prisons Commissioner & another (CCZ 8/16 Const. App No. CCZ 48/15) [2016] ZWCC
whether the further incarceration of the applicant amounts to inhuman and degrading
treatment. In determination, the courts initially used the literal rule to interpret section
86(3) of the Constitution which gives an exclusion to the rights which must not be violated
by any law or person.11 By virtue of section 86(3) the court literally held that the right to
freedom from torture and inhuman or degrading treatment was inviolable. The applicant
had been given the sentence in terms of part XX of the Prisons Act which under its
authority deprives parole to prisoners serving life sentence.12 The court preferably took
an approach to interpret the construction of the enactment in a manner that is liberal,
generous an purposive in its impact on fundamental rights .The judges made an
assessment that the impugned provisions of the Prisons Act operate to deprive whole
life prisoners equal protection of the law. Furthermore, by further incarcerating the
applicant without consideration for parole and the possibility of release amounts to the
breach of their rights to freedom from inhuman or degrading treatment. Accordingly, the
courts ruled that this principally entails that the impugned provision was inconsistent with
the rights enshrined in the Constitution. The court therefore aligned part XX of the Act to
the Constitution by extending the scope of their coverage to all prisoners including those
sentenced to life imprisonment.
In the case of S v Masitere the applicant had been convicted of housebreaking with intent
to steal and was therefore sentenced to 3 years’ imprisonment. The magistrate ordered
that the first and last fortnights of the terms of imprisonment be spent in solitary
confinement. The Court held that solitary confinement and spare diet amounted to torture,
and inhuman and degrading punishment. The attorney General to whom the matter was
referred remarked that the punishment was of reminiscent of the dark ages. Consequently
the punishment was prohibited by section 15 of the then Constitution now 53 of the
current Constitution.13 It was thus held unconstitutional and set aside as being null and
void.
11
Section 86(3) Of the Constitution of Zimbabwe Amendment (No. 20) Act
Part XX of the Prisons Act [Chapter 7:11]
13
S V Masitere 1990 (2) ZLR 144(H).
12
In the case of Conjwayo v Minister of Justice the applicant who was a prisoner under
death sentence was being held in a windowless cell.14Inside of the cell was a self-flushing
toilet and allow concrete platform covered by sleeping mat. The matter was an application
in respect of an alleged violation of section 15 of the declaration of rights under the
Lancaster Constitution. The applicant’s plea was that the periods over which he is
confined to his cell, both on weekdays and particularly week ends and public holidays
without access to sunshine, open air and the inability to exercise effectively are so
excessive as to amount to inhuman treatment. The court remarked that “to deprive the
applicant access to fresh air, sunlight and ability to exercise properly for a period of 23
hours per day by holding him in a confined space is virtually to treat him as non-human.”
It was further held to be repugnant to the attitude of contemporary society. Further held
that “the emphasis must be always on basic man’s dignity, on civilized precepts and on
flexibility and improvement in standards of decency as society progress and matures.”
The court therefore endorsed a value based approach which incorporates the social
values of dignity, humanity and decency. It thus concluded that the punishment given to
the applicant was incompatible with the evolving standards of decency that marks the
standard of a maturing society. In regards to this the court conclusively held that inability
of exercise to prisoners constituted violation of the right to freedom of torture and inhuman
or degrading treatment.
In the case of CCJP v attorney general the arising issue was to determine whether delay
in the execution of prisoners sentenced to death constituted inhuman and psychological
torture.
15The
court found that sentence of death must be carried out expeditiously as
possible. Delaying the death sentence by confinement invoked trauma, fear in the people
to be executed thus constituting psychological torture. It was held that the moment he
enters in prison he will be enmeshed in a dehumanizing environment of near
hopelessness and is in a place where the sole object is to preserve his life so that he may
be executed and therefore he is a living dead. The court made reference to international
law and precedents before coming to the conclusion that indeed delay in execution of
prisoners sentenced to death constituted psychological torture thus violating section 15(1)
14
15
Conjwayo v Minister of Justice, Legal and Parliamentary Affairs 1991 (1) ZLR 105 (SC).
CCJP v Attorney General 1993 (4) SA 239 (zc)
of the constitution. The court ultimately set aside the death sentence and replaced it with
life imprisonment. In the case of Nkomo v Attorney general the court declared that
execution of death sentence constituted inhuman or degrading punishment in
contravention of section 15(1) of the Constitution.16
BIBLIOGRAPHY
CASES
CCJP v Attorney General 1993 (4) SA 239 (zc)
Nkomo v attorney General & others 1993 (2) ZLR 422 [5]
S V Masitere 1990 (2) ZLR 144(H).
Conjwayo v Minister of Justice, Legal and Parliamentary Affairs 1991 (1) ZLR 105 (SC).
S V Slatter & others 1983 (2) ZLR 144 H
Makoni v Prisons Commissioner & another (CCZ 8/16 Const. App No. CCZ 48/15)
[2016] ZWCC
Mukoko v Attorney General (SC 11/12 Cons.Appl No. 36/09) 2017 ZWCC
S V Ncube 1987 (2) ZLR 246 SC
S V A juvenile 1989 (2) ZLR 61 SC
S V Chokuramba jud No. CCZ 10/19 Con App No. CCZ 29/15
Section 86(3) Of the Constitution of Zimbabwe Amendment (No. 20) Act
16
Nkomo v attorney General & others 1993 (2) ZLR 422 [5]
Part XX of the Prisons Act [Chapter 7:11]