Unconstitutionality of judicial corporal punishment – 3 April 2019, The State v. Willard Chokuramba, CCZ 10/19, Constitutional Application No. CCZ 29/15

This decision from the Zimbabwe Constitutional Court confirmed the 2014 judgment by the Harare High Court which had found that judicial corporal punishment violated section 53 of the Constitution and as such was unconstitutional.

The Constitutional Court was asked to examine whether section 353 of the Criminal Procedure and Evidence Act on the “corporal punishment of male juveniles” was constitutionally invalid, specifically in light of section 53 of the 2013 Constitution which guarantees the right to be protected from physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The Court also drew upon section 51 of the Constitution on the “right to human dignity”.

In constructing its reasoning, the Court looked at the history of judicial corporal punishment of juveniles in Zimbabwe. Following a 1989 decision from the then Supreme Court, judicial corporal punishment of juveniles was found to be in breach of the Constitutional protection from inhuman or degrading punishment. As a response, the Constitution was amended in 1990 to explicitly allow judicial corporal punishment of males under the age of 18. However, the new 2013 Constitution did not reiterate this explicit authorisation of judicial corporal punishment of juveniles.

In its ruling, the Constitutional Court declared that the concept of human dignity must be the “foundational value” when interpreting the Constitution and held that the “object and purpose of

Human dignity is (…) inherent in every person all the time and regardless of circumstances or status of the person. All human beings are equal, in the sense that each has inherent dignity in equal measure.”

The Court examined whether judicial corporal punishment amounted to inhuman or degrading punishment, drawing upon the basic principles of international human rights law and various international and regional human rights instruments and jurisprudence. The Court declared:

Judicial corporal punishment by nature involves the use of physical and mental violence against the person being punished. (…) In the case of a punishment for crime, the infliction of the pain and suffering is intended to be severe to achieve the purposes of the punishment. The infliction of the punishment in the circumstances would inevitably involve one human being assaulting another human being under the authority and protection of the law. Forcibly subjecting one person to the total control of another for the purposes of beating him or her is inherently degrading to the victim’s human dignity.”

Corporal punishment is not simply about the actual pain and humiliation of a caning, but also about the mental suffering that is generated by anticipating each stroke. A human being (…) is a subject with inherent dignity to be respected and protected.”

The Court rejected arguments that an exception should be made for judicial corporal punishment of juveniles on the grounds that, due to their young age, corporal punishment would benefit children in a way that it would not benefit adults, instead highlighting that:

[This] approach is not based on the principle that a male juvenile offender is a child who, like another human being, has inherent dignity to be equally respected and protected. It looks at the male juvenile offender purely as a criminal who deserves corporal punishment. (…) a close examination of the basis of the argument advanced reveals that it is an attempt at the justification of violation of the right of the male juvenile offender to equal respect for his human dignity. Human dignity is always and unconditionally violated when infringed.”

The Court concluded that:

The elimination of judicial corporal punishment from the penal system is an immediate and unqualified obligation on the State. Judicial corporal punishment constitutes a serious violation of the inherent dignity of a male juvenile offender subjected to its administration.”

As a result, the Court struck down section 353 of the Criminal Procedure and Evidence Act as unconstitutional and further ruled that, with effect from 3 April 2019, no male juvenile convicted of any offence could be sentenced to receive corporal punishment. The prohibition was extended to apply to sentences of corporal punishment which had already been imposed but were awaiting execution.

Subsequent law reform

The Government of Zimbabwe has yet to react to the Constitutional Court decision. Although the decision effectively bans judicial corporal punishment in Zimbabwe, legal reform must still be enacted to remove any reference to judicial corporal punishment from legislation.

Although the 2014 High Court decision had found that corporal punishment seemed to have been rendered unconstitutional in all settings by the 2013 Constitution, in this decision the Constitutional Court refused to go outside of the mandate of the judgment and rule on the constitutionality of corporal punishment in homes and schools. A 2017 High Court decision which ruled that corporal punishment of children in homes and in schools was unconstitutional has not yet been ruled upon by the Constitutional Court.

Further information

• The full text of the judgment is available here.

• For further information on subsequent law reform to prohibit all corporal punishment of children, see the Global Initiative’s detailed report on Zimbabwe.