Condemnation of judicial corporal punishment of adults – S v Ncube 1988 (2) S. A. 702; [1988] L. R. C. (Const.) 442

In 1987, the Supreme Court unanimously held that the sentence of whipping for adults breached the Constitutional protection from inhuman and degrading punishment. In the judgment, Judge Gubbay considered current thinking on the issue, the abolition of judicial whipping in many other countries and the limitation of its use in other countries to very serious crimes, and the decreasing resource to judicial whipping over the years in Zimbabwe. The judgment examined international developments on the issue, including the jurisprudence of the European Convention on Human Rights. It made the following comments about whipping:

l. The manner in which it is administered . . . is somewhat reminiscent of flogging at the whipping post, a barbaric occurrence.... It is a punishment, not only inherently brutal and cruel, for its infliction is attended by acute pain and much 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 practised by almost the whole civilized world.…

2. By its very nature it treats members of the human race as nonhumans. Irrespective of the offence he has committed, the vilest criminal remains a human being possessed of common human dignity. Whipping does not accord him human status.

3. No matter the extent of regulatory safeguards, it is a procedure easily subject to abuse in the hands of a sadistic and unscrupulous prison officer who is called to administer it.

4. It is degrading to both the punished and the punisher alike. It causes the executioner, and through him society, to stoop to the level of the criminal. It is likely to generate hatred against the prison regime in particular and the system of justice in general.”

The judgment did not address judicial corporal punishment of juveniles.

Condemnation of judicial corporal punishment of juveniles – Juvenile v The State S.C. 64/89

In 1989, the Supreme Court addressed judicial whipping of juveniles. 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 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. Chief Justice Dumbutshena relied heavily on the judgment in the earlier Ncuberuling; Judge Gubbay emphasised the brutal nature of whipping, and referred to international standards including the European Convention on Human Rights and the Beijing Rules. He stated that the Constitutional prohibition of inhuman or degrading punishment was absolute, and could not be limited for reasons of providing juvenile with a sentence of whipping in order to keep them out of prison.

Subsequent law reform

Following S v Ncube ruling, legislation was quickly enacted prohibiting corporal punishment for adults. However, following Juvenile v The State initial moves to abolish judicial whipping for juveniles were overturned; instead, the constitution was amended in 1990 to allow corporal punishment of males under the age of 18.

In 2013, a new Constitution was enacted which does not include the provision authorising corporal punishment of juveniles. Rather, it protects the rights of all persons to respect for and protection of their human dignity and physical integrity, including the rights “to freedom from all forms of violence from public or private sources”, and not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; it states that no law may limit these rights. Legislation has not yet been enacted which clearly prohibits corporal punishment and repeals all laws currently providing for it, but the Government has stated its commitment to prohibition. At the Universal Periodic Review of Zimbabwe in 2011, the Government accepted recommendation to prohibit corporal punishment as a sentence for crime and in all other settings.

A 2019 Constitutional Court decision found judicial corporal punishment of juveniles to be unconstitutional and struck down article 353 of the Criminal Procedure and Evidence Act. Although the decision effectively bans judicial corporal punishment of juveniles in Zimbabwe, some legislation must still be repealed to confirm this.

Further information

• For further details of both judgments see Hatchard, J. (1991), “The Fall and Rise of the Cane in Zimbabwe”, Journal of African Law, 35 (1/2), 198-204, available at www.jstor.org.
• For further information on the law relating to corporal punishment and progress towards full prohibition, see the Global Initiative country report for Zimbabwe.