The State v. C (a Juvenile)
High Court of Zimbabwe
31 December 2014
Article 1: Definition of a child
Article 2: Non-discrimination
Article 37: Torture and cruel, inhuman, or degrading treatment
Article 40: Juvenile justice
Other International Provisions:
International Covenant on Civil and Political Rights
African Charter on Human and Peoples’ Rights
African Charter on the Rights and Welfare of the Child
Constitution of Zimbabwe 2013
Criminal Procedure and Evidence Act (the “CPE Act”)
C was charged with and convicted of rape at the age of 15 and sentenced on 26 September 2014 to receive a moderate corporal punishment of 3 strokes with a rattan cane under Section 353(1) of the CPE Act. This sentence was appealed on the grounds that it violates the right to be free from torture in Section 53 of Zimbabwe’s Constitution of 2013.
Issue and resolution:
Judicial use of corporal punishment. In light of the new Constitution and the international conventions to which Zimbabwe is a State Party, the High Court ruled that corporal punishment was unconstitutional and discriminatory, and withheld its certification of C’s sentence.
Section 353(1) of the CPE Act provides that, “where a male person under the age of eighteen years is convicted of any offence”, the court is entitled to sentence him to “receive moderate corporal punishment, not exceeding sixty strokes”. Section 15(3) of Zimbabwe’s previous Constitution (superseded by the 2013 Constitution) further clarified that the prohibition of torture and inhumane or degrading punishment will not be breached where “moderate corporal punishment” was inflicted upon […] a male under the age of 18 years “in execution of the judgment or order of a court…as a penalty for breach of any law”.
However, Zimbabwe’s new Constitution of 2013 (which had come into operation before C’s sentencing) does not contain such an exception and a person’s right “not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment” is expressly stated to be inviolable and without exception.
Furthermore, Zimbabwe has ratified and acceded to also expressly prohibit (i) inhuman or degrading punishment and/or treatment and (ii) the violation of a person’s rights on the basis of their age under various international human rights instrument. The Court noted that corporal punishment is regarded internationally as a form of violence against children in which children are treated as “half-human beings”.
On the basis of the new Constitution’s text and the State’s international obligations, the Court ruled that judicial sentences of corporal punishment of children are unconstitutional and discriminatory and that Section 15(3) of the CPE Act was legally invalid.
Excerpts citing CRC and other relevant human rights instruments:
“There are regional and international conventions which protect these rights and the right to freedom from torture, inhuman and degrading punishment. Zimbabwe has ratified and acceded to some of them. It ratified the Convention on the Rights of the Child on 11 September 1990 and the African Charter on Human and Peoples’ Rights (ACHPR) on 30 May 1986. It acceded to the International Covenant on Civil and Political Rights (ICCPR) on 13 May 19991 and to the African Charter on the Rights and Welfare of the Child on 19 January 1995.”
“Under The Convention on the Rights of the Child the following provisions are relevant.
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
States Parties shall ensure that:
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”
“Article 40 (1) of the Convention on the Rights of the Child also states that:
State Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
The above provisions show that what is important when punishing juveniles is the need to have the child rehabilitated back into society and his family.”
“Under the African Charter on Human and Peoples’ Rights under Article 3
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
Under Article 5,
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
“Under The International Covenant on Civil and Political Rights under Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment.
Under Article 4 (2) even in times of public emergency no derogation from Article 7 may be made.
Under Article 26, All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
“Under the African Charter on the Rights and Welfare of the Child the following are the relevant provisions.
Article 1: Obligation of States Parties
1. Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.
2. Nothing in this Charter shall affect any provisions that are more conductive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State.
3. Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency be discouraged.
Article 2: Definition of a Child
For the purposes of this Charter, a child means every human being below the age of 18 years.
Article 3: Non-Discrimination
Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.
Article 16: Protection Against Child Abuse and Torture
1. States Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of the child.
2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting referral investigation, treatment, and follow-up of instances of child abuse and neglect.
Article 17: Administration of Juvenile Justice
1. Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child’s sense of dignity and worth and which reinforces the child’s respect for human rights and fundamental freedoms of others.
2. State Parties to the present Charter shall in particular:
(a) ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.”
“Article 17 (3) of the African Charter on the Rights and Welfare of the Child states that, the essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, re-integration into his or her family and social rehabilitation.”
“As a State Party it is duty-bound to enact the necessary legislation to give domestic effect to them. It is evident from Part 3 of Chapter 4 of the new Constitution that Zimbabwe has endeavored to fulfil its international legal obligation in protecting the rights of the children.”
Reactions in Zimbabwe were initially mixed – while child rights advocates celebrated the ruling, some members of the public denounced it as unsuitable for the Zimbabwean context.
Findings of breaches of the Constitution by other courts need to be approved by Zimbabwe’s Constitutional Court, whose decision is final. The issue of corporal punishment is currently pending before it; though, in June 2015, the Constitutional Court suspended this High Court ruling until a final determination is reached. This means that corporal punishment remains a legitimate sentence for male child offenders 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 and read CRIN’s report on the legality of inhuman sentencing in Zimbabwe.
CRIN believes this decision is consistent with the CRC. Corporal punishment is a form of inhuman sentencing which constitutes a clear violation of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment as provided for by Article 37 of the Convention on the Rights of the Child and numerous other human rights treaties. CRIN urges the Constitutional Court to confirm this judgement and ensure that such sentences are not legal for child offenders.
Link to Full Judgment:
Available on request.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.