FACULTY OF COMMERCE, MANAGEMENT AND LAW
SCHOOL OF LAW
COURSE CODE: L3501BC
COURSE TITLE: Criminal Law 1
PROGRAMME: Bachelor of Laws (LL B) (Honours) Degree
COURSE LECTURER: DR. Tapiwa V.
Warikanda
EMAIL: twarikanda@unam.na
STUDENT NAME: Usivi Lukas Ngunda
STUDENT NO: 202084701
Tel:
081 372 9024
Assignment 1/2023
Assignment Question:
Discuss the preceding statement in light of the relevant penalty and sentencing
theories applicable to law. In your response, explain how the constitutional and
Afrocentric jurisprudential conceptualization of humaneness could be used to advance
the presiding judge`s primary arguments and resultant findings as well as judgement
in the matter.
1 of 5 | P a g e
According to criminal procedure Act, 51 of 1977,1 provision is given in terms of section 276
(1)2 of what types of sentences or punishments shall be given or passed upon a person
convicted of an offence. Among the sentences are (a) The sentence of death, (b)
Imprisonment, (c) Periodical imprisonment, (d) declaration as an habitual criminal, (e)
committal to any institution established by law, (f) a fine and (g) a whipping3 which in the
case of Ex parte: Attorney- General, Namibia: In Re: Corporal Punishment by organs of the
state.4 The court in exercising its constitutional power in terms of Article 25 of the Namibian
constitution5, declared that “ The imposition of any sentence by any judicial or quasi- judicial
authority, authorising or directing any corporal punishment upon any person is unlawful and
in conflict with Article 8 of the Namibian constitution.”6 Such a sentence, being a derogation
of Article 8.7 Means no competent court shall impose any type or nature of such sentence
referred to in subsection 276(1) (g) as a form of punishment for an offence. “All that is
therefore required to establish a violation of Article 8 is a finding that the particular statue or
practise authorised or regulated by a state organ falls within one or the other of the seven
permutation of Article 8 (2) set out above.”8
In exception of subsec1(g), the courts, however, within the power vested in them in terms of
article 789 can impose or pass any sentence under s 271 of the Criminal Procedure Act using
various or different types sentencing theories which they perceive applicable or relevant in
such matter.
The courts usually make use of different types of sentencing theories to decide the fate of the
offender or accused. Such sentencing theories varies and each have a different goal and
purposes. One of this theories of punishment is attribute theory which falls under absolute
theory. In this theory the motto is to restore the legal balance that has been disturbed by the
1
Criminal Procedure Act, 51 of 1977
Ibid s 276 (1)
3
ibid
4
Ex parte: Attorney- General, Namibia: In Re: corporal punishment by organs of the state 1991 NR 178 (sc)
5
Article 25 (1)(b) of the Namibian Constitution
6
Ex parte: Attorney- General P. 40
7
Ibid at 19
8
ibid
9
Article 78 (1) of the Namibian Constitution
2
2 of 5 | P a g e
commission of a crime committed.10 The measure of the crime in this theory is proportionate
to the extent of the harm done or being perpetuated by the perpetuator.
This simply means that if a person commits a petty crime his punishment will be less severe
than he who commits a major crime. The other theory that the courts make use of is deterrent
theory. The type of theory is aims at making somebody especially the perpetrator not to do
something by making them to understand the difficulty and unpleasant result of their action.
It deters criminals and prospective criminals from committing or repeating the same crime in
the future. The theory is generally sub divided into two categories; the individual deterrent
and the general deterrent. The idea of the individual deterrent is to teach the offender at an
individual level a lesson which will deter him from committing future crimes.11 The other
deterrent, the general one is simply to emphasis the effect of punishment on society in
general.12
In addition to this theory, there is reformative theory. Its premise is that the purpose of
punishment is to reform the offender as a person, so that he may become a normal lawabiding member of the community once again.13 This theory looks at an offender from a
personality and circumstances point of view. What are the circumstances that made an
offender to commit a crime- and the possibility to rehabilitate and reform such an offender
into a law abiding citizen. In the case of ex parte in RE: Corporal punishment by organs of
the state. In my view, the decision which the court took to Outlaw the corporal punishment
was to a certain extend influenced by the feeling for humanity- that a human being`s value
should and must be respected and not be subjected to cruel and inhuman punishment which at
the end will only compound to an indelible impression and felling of resentment to the
subject people.
The judge’s in their primary arguments considered and gave valuation of an African cultural
perspective under their former colonial rulers. They determine that Namibia being an
independent country free from ideologies and beliefs of their former colonial master which is
South Africa, are in a position to determine their own fate and can no longer live under the
discriminatory laws of their former ruler14. Being in an independent and justification regimes
10
CR Snyman Criminal Law 6 ed (2014) 11
Ibid at 11
12
Ibid at 12
13
Ibid at 17
14
Ex- Parte: Attorney-General P.2
11
3 of 5 | P a g e
value judgement and consideration should be on the norms, approaches, moral standards,
aspiration and a host variable beliefs of the Namibian people.15
In its finding the court emphasised about a developing deep revulsion in in respect of
corporal punishment.16 In that such revulsion lead to the condemnation and protection against
punishments which are deemed cruel and derogating to human beings in that such revulsion
has found manifestation in the context of bill of rights enshrined in constitution.17Particularly,
Article 8 (2) (a) which protects the dignity of every person even in the enforcement of a
penalty legally imposed. Taking consideration the changing perception of African countries
and the rest of the world changing their laws and global and regional instrument dealing inter
alia with such specific problems- are influencing the thinking and result in changing
perceptions and norms of our community and legal system.18
In the judgement the court related it towards the evolution of an independent community in
which they argued that its decision which was based on value judgement was highly
influenced by a community change and freedom of choice and sovereignty. Taking into
consideration the historic background and the ultimate crystallisation of the basic beliefs and
aspirations of the people of the republic in the provision in the bill of fundamental human
rights and freedoms.19 In its decision the court saw it necessary for punishment of that nature
not to take a longer route to reach parliament to be declared unconstitutional.20 It thus
declared that “The imposition of any sentence by any judicial or quasi- judicial authorities,
authorising or directing any corporal punishment upon any person is unlawful and in conflict
with Article 8 of the Namibian Constitution”.21
15
ibid
Ibid
17
Ibid at 3
18
ibid
19
Ibid
20
Ibid at 40
21
ibid
16
4 of 5 | P a g e
Reference List
1. Books
CR Snyman Criminal Law 6 ed (2014)
2. Legislation
Criminal Procedure Act, 51 of 1977
The Namibian Constitution
3. Cases
Ex Parte: Attorney- General, Namibia: In Re: Corporal Punishment by organs of the
state 1991 NR 178 (SC)
5 of 5 | P a g e