MAKONI v COMMISSIONER OF PRISONS & ANOR

CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 8-16]

January 27 and July 13, 2016

CHIDYAUSIKU CJ, GWAUNZA, GARWE, HLATSHWAYO,
PATEL, MAVANGIRA, BHUNU, UCHENA JJCC AND CHITAKUNYE AJCC

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Sections 51 and 53 – Rights to human dignity and to freedom from torture or cruel, inhuman or degrading treatment or punishment respectively – Whether a life sentence without the possibility of parole is a violation of sections 51 and 53.

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 56 – Equality and non-discrimination – Prisons Act [Chapter 7:11] – Whether provisions thereof providing for parole to prisoners on extended imprisonment but excluding prisoners on life sentences contravene section 56.

The applicant, a convicted murderer, had been sentenced to, and was serving, life imprisonment. He could not be considered for parole because the relevant provisions of the Prisons Act [Chapter 7:11] did not cover prisoners on life sentences. The provisions only applied to prisoners on extended imprisonment. The applicant approached the Constitutional Court seeking a declaration that life imprisonment without the possibility of parole or judicial review was unconstitutional.

Held, that a life sentence without the possibility of release under parole or other appropriate circumstances is a violation of the right to human dignity protected by s 51 of the Constitution and also amounts to cruel, inhuman or degrading treatment or punishment in breach of s 53 of the Constitution.

Held, further, that ss 113, 114 and 115 of the Prisons Act, in so far as they exclude prisoners serving life sentences, contravene the right to equal protection and benefit of the law guaranteed by s 56 of the Constitution.

Cases cited:

De Boucherville v Mauritius [2008] UKPC 37; 155 ILR 466, referred to

Dickson v United Kingdom [2007] ECHR 1050; (2007) 24 BHRC 19; (2008) 46 EHRR 41, referred to

Kachingwe & Ors v Minister of Home Affairs & Anor 2005 (2)
ZLR 12 (S), referred to

Kafkaris v Cyprus [2008] ECHR 143, (2008) 25 BHRC 591;
(2009) 49 EHRR 35, referred to

Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Reports 226, referred to

Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (S);1994 (3) SA 34 (ZS), referred to

R v Big M Drug Mart Ltd [1985] 1 SCR 295; 18 DLR (4th) 321; 3 WWR 481; 18 CCC (3d) 385; 37 Alta LR (2d) 97, followed

S v Bull and Another 2002 (1) SA 535 (SCA), referred to

S v Tcoeib 1999 NR 24 (SC), 1996 (1) SACR 390 (NmS); 1996 (7)
BCLR 996 (NmS), applied

S v Zuma 1995 (2) SA 642 (CC), 1995 (1) SACR 568 (CC); 1995 (4)
BCLR 401 (CC), followed

Vinter and Others v The United Kingdom [2013] ECHR 645, followed

Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S),
referred to

Legislation considered:

Administrative Justice Act [Chapter 10:28], s 3

Constitution of Zimbabwe Amendment (No 7) Act, 1987, s 17

Constitution of Zimbabwe Amendment (No 12) Act, 1993, s 12 (2)

Constitution of Zimbabwe, 2013, ss 46 (1)(c), (e), 49, 50, 50 (1)(c), (5)(d), (8), 51, 53, 56, 56 (1), 86, 86 (3)(b), (c), 112, 112 (1), 175 (6), 227 (1), Sixth Schedule para 10

Criminal Procedure and Evidence Act [Chapter 9:07], ss 344A, 346

Prisons Act [Chapter 7:11], ss 2, 112, 113, 113 (5), 114, 114 (1), (2), (3), 115, 115 (1), (2), (3), (4), 121, 121 (1a), (1)(a), (2), Parts XX, XXI

Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order, 1980 (SI 395 of 1980 of the United Kingdom),
s 15 (1), 111B (1)(a)

International instruments considered:

European Convention on Human Rights, Art 3 (1)

International Covenant on Civil and Political Rights, 1976, Arts 3, 10

International Covenant on Economic, Social and Cultural Rights, 1976

United Nations Human Rights Committee in CCPR General Comment No 21 (1992): Article 10 (Humane Treatment of Persons Deprived of Their Liberty)

United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955, rr 56-64

United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) Resolution 70/175, rr 86-90

Book cited:

Dugard J International Law: A South African Perspective (4th edn, Juta & Co Ltd, Cape Town, 2011) pp 33-34

T Biti, for the applicant

M Chimombe, for the respondents

PATEL JCC:

The applicant in this matter was convicted of the murder of his girlfriend. Because of extenuating circumstances, he was sentenced to life imprisonment. He was aged 19 at the time of his conviction and has been in gaol since 1995 for almost 21 years. The gravamen of his application is that life imprisonment without the possibility of judicial review or parole is unconstitutional.

The applicant avers that his dignity and expectations have been crushed. Despite his excellent behaviour whilst in prison, which behaviour is acknowledged and conceded by the respondents, he has absolutely no hope of any amnesty or release from prison. He further avers that the conditions in Zimbabwean prisons are horrendous due to prevailing economic constraints. This compounds the psychological stress of knowing that he will never be released. He notes that Part XX of the Prisons Act [Chapter 7:11] allows for the release on parole of prisoners on extended imprisonment. However, there is no similar administrative process in place for prisoners serving life sentences. In any event, the grant of parole should not be left to executive discretion but should be subjected to mandatory judicial review after the lapse of 10 years imprisonment.

The applicant accordingly seeks a declaratur that a life sentence imposed without the possibility of parole amounts to inhuman and degrading treatment and constitutes a violation of human dignity in breach of ss 51 and 53 of the Constitution of Zimbabwe, 2013 (“the Constitution). He also seeks a declaratur that ss 112, 113, 114 and 115 of the Prisons Act contravene s 56 of the Constitution and that his further incarceration in prison is in breach of his rights under ss 49, 51 and 53 of the Constitution. In the event, he applies for an order requiring the respondents to release him from prison forthwith.

The first respondent, the Commissioner of Prisons, points to the possibility of reprieve for life prisoners through presidential pardon or commutation of sentence available under s 121 of the Prisons Act. He avers that the nature of a life sentence requires executive rather than judicial review. Although this process is different from release on parole, there is no discrimination between life prisoners and others because of the availability of executive reprieve. The Commissioner accepts that prison conditions in Zimbabwe are not ideal due to current economic hardships. However, they meet the requisite needs of prisoner correction and rehabilitation. At any rate, poor prison conditions cannot be relied upon to escape criminal liability.

The second respondent is the Vice-President who is also responsible for the administration of justice, legal and parliamentary affairs. He refers to s 112 of the Constitution which empowers the President to grant pardons or vary life sentences. He avers that this provision affords the applicant the hope of release from prison and that, therefore, there is no violation of his constitutional rights. The alternative of parole for life prisoners would serve to trivialise the heinous crimes which they have committed and which society abhors. He further contends that the judiciary cannot arrogate to itself the power to review life sentences without legislative authority to do so.

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