Court/Judicial body: High Court of Swaziland
Date: 29 April 2011 CRC
Provisions: Article 1: Definition of a child Article 37(b): Torture and deprivation of liberty Article 40: Administration of juvenile justice
Domestic provisions: Swaziland Constitution, sections 18(2), 19(2), 29(2), and 38(e) Criminal Procedure and Evidence Act, sections 185 bis (1) and 313(1)-(2) Children’s Protection and Welfare Act
Background: Masinga was convicted of rape with aggravating circumstances and sentenced to nine years’ imprisonment, the statutory mandatory minimum sentence for the offence, even though he was only 15-years-old at the time of the crime. The defendant appealed the sentence on the grounds that it violated section 29(2) as read with sections 18(2) and 38(e) of the Constitution, which prohibits abuse and other cruel, inhuman or degrading treatment of children and allows only moderate chastisement of children for the purposes of correction.
Issue and resolution: Juvenile justice; mandatory sentencing. The Court held that the mandatory minimum sentence of imprisonment was unconstitutional as applied to a child. The Court declared the legal provisions at issue invalid as of the date of the defendant’s conviction, but suspended the declaration of invalidity pending Parliament’s passage of the Children’s Protection and Welfare Act. Until then, the Court limited the applicability of the legal provisions at issue to adult offenders. As redress for the constitutional violation, the Court allowed the defendant to appeal his sentence to the Supreme Court.
Court reasoning: The Court determined that the mandatory minimum sentence would generally be applied to children because it applied to any “person”, which includes children by definition. However, the Constitution prohibits torture and cruel, inhuman or degrading treatment or punishment of children. There is a judicial consensus that a child, “by reason of the frailties of his physical, emotional and psychological circumstances, is exempt from mandatory sentences”, and that “imprisonment must be a last resort for the child”. Moreover, Articles 37(b) and 40 of the CRC, which has been ratified by Swaziland but not incorporated into domestic law, requires States to use imprisonment only as a last resort and to treat child offenders in a manner that is consistent with the promotion of their sense of dignity and self-worth. The Court concluded that imposition of a mandatory minimum sentence for children would constitute inhuman treatment or punishment, and would therefore be unconstitutional as applied to children.
Excerpt citing CRC and other relevant human rights It cannot be controverted that a convention that is ratified by the Kingdom of Swaziland, but not yet enacted locally as an Act of Parliament, is not part of the laws of the Kingdom. An example of such a convention is the Convention of the Rights of the child, which was acceded to by the Kingdom on the 6th October 1995, but is yet to be incorporated into the domestic law. It is however an accepted rule of judicial interpretation, one of universal and hallowed application, that regard must be had to international conventions and norms in construing domestic law, when there is no inconsistency between them and there is a lacuna in the domestic law. … … in Theo v Minister of Immigration and Ethnic Affairs (1995) 183 CLR 273 (HC) and B v B Appeal No NA 357, File No 1833 of 1996, the Australian Courts invoked the Child Rights Convention as a universally accepted human rights instrument, even though Australia was yet to implement it nationally. Similarly, in the case of Ousman Sabally v The Inspector General of Police 1997 – 2001 GLR, the Supreme Court of The Republic of The Gambia, invoked the African Charter on Human and Peoples Rights, though then not yet a domestic law, and in the case of Batista v Batista 1808 (sup et comm.) June 18, a Court in the United States of America, invoked the Child Rights Convention even though the United States of America was yet to ratify that convention. The totality of the foregoing demonstrates beyond any per adventure, that this Court can invoke the provisions of the Convention of the Rights of the Child, albeit not yet domesticated, in interpreting the word ‘‘child’’ as it appears in section 29 (2) of the Constitution, since the Constitution itself is silent on an interpretation of that word and in the face of a dearth of local case law on the subject matter. … Now Article 1 of the Convention of the Rights of the Child defines a child as a human being below the age of 18 years. This definition must by necessity be ascribed to the meaning of the word ‘child’ as appears in section 29 (2) of the Constitution. It follows therefore, that a child within the connotations of the Constitution of The Kingdom of Swaziland, is a person below the age of 18 years. The foregoing facts put the Applicant, who was 15 years of age at the time of the commission of the offence, squarely within the province of the group of people contemplated by section 29 (2), and I so hold. … … Article 37(b) of the Convention for the Rights of the Child admonishes the following, “37 (b) The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period.” Then there is also Article 40 of the same Convention which provides that child offenders should be “treated in a manner that is consistent with the promotion of the child’s sense of dignity and self-worth, which reinforces the child’s respect for human rights and fundamental freedoms of others and takes into account the child’s age and the desirability of promoting the child’s integration and the child’s assuming a constructive role in society.” … Therefore perhaps, a court faced with a conflict between the constitution and a statute, like that demonstrated by the criminal statutes herein, could ameliorate the unconstitutionality of those provisions as far as the child is concerned, by interpreting them in such a way as to bring them in conformity with the interest of the child as elucidated in the constitution, as well as the [Convention of the Rights of the Child] to which the nation had acceded.
Follow up: This decision was overturned in November 2012 by the Supreme Court of Swaziland, which held that it was not unconstitutional to treat the defendant – who was aged 21 at the time of sentencing – as an adult offender and to impose the mandatory minimum sentence of nine years’ imprisonment. The Supreme Court only cited the CRC to define a child, but also clearly pointed out the CRC had not been incorporated into Swaziland law. For more information, see CRIN’s case summary of the Supreme Court judgment in Masinga v. Rex. In November 2012, Swaziland enacted the Children’s Protection and Welfare Act, which provides that “[i]mprisonment for a maximum period of five years may be imposed as a sentence for the purposes of this Act except that this sentence may not be imposed on a child below the age of 16 years” (section 156(1)).
CRIN comments: CRIN believes this decision is consistent with the CRC. As recognised by the Court, the CRC, which applies to all children (under-18s), requires that imprisonment be used only as a last resort ( Article 37(b)), and that children in conflict with the law be treated in a manner consistent with the promotion of the child’s sense of dignity and worth ( Article 40). Furthermore, Article 3 provides that the best interests of the child be the primary consideration in all actions concerning children. Mandatory minimum sentences of imprisonment for children are not consistent with the above CRC provisions.
Citation: Sikhumbuzo Masinga v Director of Public Prosecutions and Others (21/07)  SZHC 58 (29 April 2011)
Link to full judgement: http://www.swazilii.org/sz/judgment/high-court/2011/58