Skip to content

S v. Morrison Ncube and Others

  • by

Court/Judicial body:  High Court of Zimbabwe
Date: 24 June 2011 CRC
Provisions:  Article 40: Administration of juvenile justice
Other international provisions:African Charter on the Rights and Welfare of the Child, Article 17: Administration of juvenile justice
Domestic provisions: Section 113(1) of the Criminal Law (Codification and Reform) Act: Theft

Case summary

Background: In this criminal review the High Court heard two appeals against sentences of corporal punishment handed by the same provincial magistrate. The first case concerned four juveniles, two 16-year-olds and two 17-year-olds, who pled guilty to the theft of computer equipment from their high school. They were each sentenced to corporal punishment of two strokes of the cane. The defendants did not receive any legal representation or assistance at the proceedings. The magistrate made no enquiries as to whether there were any mitigating factors related to the juvenile’s offences. In the second case, two 17-year-old juveniles pled guilty to theft of computer equipment from their college. Both were sentenced to corporal punishment of two strokes of the cane and to three months imprisonment wholly suspended on conditions of good behaviour. The magistrate did not make any enquiry to determine the age of the offenders who were listed to be 18 years old but stated to be 17 years old.

Issue and resolution: Administration of juvenile justice. Whether the magistrate failed to consider the protections afforded to the juvenile defendants. The High Court held the magistrate failed to take into account the particular needs of children in conflict with the law.

Court reasoning: The Court explained that judicial officers should understand and always bear in mind that children in conflict with the criminal law are a special category of offenders. There are specific and peculiar legislative provisions designed to deal with juvenile offenders both within national law and international conventions. The Court was dissappointed that in both cases the minors had no legal representation and their natural or legal guardians were not present during the proceedings. This violated children’s rights enshrined in the African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child. The Charter provides for rights of juveniles under Art.19 and Art. 40 of UNCRC should be regarded as setting the minimum standards to be met by the criminal justice system when dealing with children. The criminal law provides that children under 16 years old being tried in the magistrates court may be assisted by a natural or legal guardian or the court may appoint another person to assist the juvenile. The Court expressed the opinion that it would be desirable for juveniles over 16 years of age to have that same guarantee, particurly as civil law proceedings forbid minors under 18 years of age from representing themselves.     The Court also found that in the second case the magistrate was wrong not to ascertain the age of the accused. The age of juveniles is a critical factor in criminal proceedings. The Court suggested that an inquiry into the juvenile’s age must take place at the time of arrest to protect the rights of children. The Court expressed its concerns that magistrates have shown enthusiasm for corporal punishment when sentencing minors, which prioritises completing proceedings quickly over safeguarding the rights of children and leads to a retributive rather than rehabilitative sentence. The Court stated that juveniles in conflict with criminal law should instead be referred to a children’s court where there are various options for dealing with minors. The Court explained that it was not possible to correct the corporal punishment sentences, which had already been administered. The Court decided to withhold a certificate confirming the proceedings were in accordance with real and substantial justice.
Excerpt citing CRC and other relevant human rights Useful guidance can be sought from both the United Nations Convention on the Rights of the Child (1990) and the African Charter on the Rights and Welfare of the Child (1999) (hereinafter the convention and the charter respectively. In specific terms Article 17 of the Charter deals in some useful detail with the administration of juvenile justice in relation to children in conflict with the criminal law. Guidelines are given on issues like arrest, detention, presumption of innocence, legal representation and other related matters. Article 40 of the Convention sets out what may be deemed to be minimum standards to be met by the criminal justice system in dealing with children in conflict with the criminal law. In our jurisdiction the Criminal Procedure and Evidence Act [Cap 9:07]. See ss 191, 195, 196, 197, 351, 352 and 353 and the Criminal Law (Codification and Reform Act) [Cap 9:23]. (See ss 6, 7, 8, 63 and 70) have a number of sections that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses who are both in contact or in conflict with the criminal law.

Notes: See summary for State v. C (a Juvenile) and CRIN’s report on inhuman sentencing in Zimbabwe. For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN’s ‘Inhuman sentencing’ campaign.

CRIN comments:  CRIN believes this decision is partly in compliance with the CRC. Under Article 40 children are end to basic guarantees as well as legal or other assistance for their defence. The Court correctly recognised that basic protections for children in conflict with the law were not in place. However, sentences of corporal punishment are a serious children rights violation as a form of inhuman sentencing which is prohibited under Article 37 CRC. In it’s 2016 Concluding Observations the Committee on the Rights of the Child urged the Zimbabwean government to repeal or amend legislation to explicitly prohibit corporal punishment as a correction or disciplinary measure in all settings. (para.43)

Citation:  HH 139-11 / CRB SIL 9-12/10 / CRB KK 1062-3/10

Link to full judgement: