Zimbabwe 2014 High Court judgment
Condemnation of judicial corporal punishment – 31 December 2014, The State v. C (a Juvenile), HH 718-14 / CRB R 87/14
This judgment by the Harare High Court stated that judicial corporal punishment violated the provisions of the new 2013 Constitution prohibiting physical or psychological torture and cruel, inhuman or degrading treatment or punishment.
The judgment followed an appeal by a 14-year-old boy who was convicted for rape and sentenced in September 2014 to judicial corporal punishment under Section 353(1) of the Criminal Procedure and Evidence Act.
In its decision the Court referred to the previous Constitution which prohibited “torture and inhuman and degrading treatment” but authorised “moderate corporal punishment” inflicted by parents, guardians or persons acting in loco parentis or ordered by a court as a sanction to a male under 18 years of age (section 15), giving at the time legal grounds to judicial corporal punishment. The Court highlighted that the sentence was however given after the new Constitution came into effect. In the new Constitution the right to protection from “physical or psychological torture or to cruel, inhuman or degrading treatment or punishment” (section 53) is not limited by a right to administer “moderate corporal punishment”; section 86(3)(c) states “No law may permit the following rights enshrined in this Chapter and no person may violate them:… (c) the right not to be tortured or subjected to cruel, inhuman or degrading treatment punishment”.
The Court stated:
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 corporal punishment inflicted in execution of the judgment or order of a court shall not be held to be in contravention of that right as was the case under the old Constitution.”
The Court further invoked other provisions of the Constitution guaranteeing the “right to freedom from all forms of violence from public or private sources” (section 52(a)) and the right to equal treatment before the law (section 56), as well as the international human rights instruments ratified by Zimbabwe that have guaranteed the right to freedom from torture, inhuman and degrading punishment, including the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
The Court also drew upon the new constitutional provisions protecting children’s rights, in particular the right to equal treatment before the law and the right to protection from maltreatment and any form of abuse (section 81(1)).
The Court concluded that section 353(1) of the Criminal Procedure and Evidence Act was unconstitutional.
This elaboration of the children’s rights in conformity with the regional and international conventions that Zimbabwe has ratified demonstrates that the new Constitution does not allow for the imposition of corporal punishment anymore. Clearly s 353 (1) of the Criminal Procedure and Evidence Act [Cap 9:07] is now a law which is inconsistent or ultra vires the Constitution.”
Venturing outside of the scope of its decision, the Court held that corporal punishment seemed to have been rendered unconstitutional in all settings by the new Constitution:
One other issue that I feel obliged to comment on although it is not an issue before me is that s53 of the new Constitution seems to outlaw the infliction of corporal punishment on children by their parents, guardians or by persons in loco parentis. As already explained above the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment is an absolute right.
Under the old Constitution parents, guardians and persons in loco parentis were allowed to inflict moderate corporal punishment on children. It appears that that position has since changed.”
The Court concluded by calling for the Constitutional Court to confirm its decision, as “any order of constitutional invalidity of any law that is made by another court other than the Constitutional court has no force unless it is confirmed by the Constitutional court.”
Subsequent law reform
No legal reform has been undertaken since the decision. The Constitutional Court was asked by the Government to rule upon the matter shortly after the High Court gave its ruling. However in 2015 the Constitutional Court provisionally and indefinitely set aside the High Court order pending further submissions, stating that in the meantime magistrates could impose corporal punishment on male juvenile offenders. The Government has stated that any law reform would have to await the outcome of the Constitutional Court judgment on the matter.
In February 2017, a High Court decision ruled that corporal punishment of children in homes and in schools was unconstitutional, under the same provisions as above. As for the 2014 decision, this ruling of unconstitutionality will not be effective unless confirmed by the Constitutional Court.