Applicants' Consolidated Heads of Argument in Makoni v The Commissioner of Prisons and Another

IN THE CONSTITUTIONAL COURT OF ZIMBABWE HELD AT HARARE

 

In the matter between:-

OBADIAH MAKONI                                                                                                         APPLICANT

AND

THE COMMISSIONER OF PRISONS                                                                            1ST RESPONDENT

THE MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS                               2ND RESPONDENT

 

APPLICANT’S CONSOLIDATED HEADS OF ARGUMENT

  1. GENERAL

This matter raises the important issue of whether a sentence of life imprisonment imposed in Zimbabwe is constitutional or whether it breaches the protections under Sections 51 and 53 of the Constitution of Zimbabwe. 

A secondary issue is the constitutionality of Section 112 of the Prisons Act [Chapter 7:11] when read in conjunction with Section 56 of the Constitution, which gives rights to parole to all prisoners except those sentenced to a life term. 

Lastly, whether to subject the Applicant, who has been incarcerated for more than 20 years, to further imprisonment is a breach of Sections 49, 51, 53 and 56 of the Constitution of Zimbabwe. 

  1. THE APPLICANT’S POSITION IN OUTLINE

The Applicant is not advancing that a term of life imprisonment that is served in full, without release on parole, constitutes inhuman and degrading punishment. The Applicant recognises that serving a natural life sentence until the offender dies in prison may be appropriate in some cases. Some prisoners’ offences may be so serious, and their lack of rehabilitation so significant, that the requirements of just punishment and public protection require imprisonment for the offender’s whole life. So the Applicant does not suggest that requiring a prisoner to spend his whole life in prison can never be appropriate or compatible with the Constitution.

What the Applicant does submit in this case is that:

The decision whether to release a life prisoner should be taken by the parole board (or even by a court), independently from the Executive, so as to protect the separation of powers that inheres to the Constitution.

The decision should be taken according to established and available criteria (with a clear emphasis on rehabilitation), in an open process, where the reasons for permitting or refusing release must be given and, crucially, the decision must be subject to review by the courts.

He submits that, broadly speaking, this was the principled approach taken by the Namibian Supreme Court in State v Tcoeib (2001) AHRLR 158 (NaSC 1996) (see Part E below) and that this is the appropriate approach to be taken in Zimbabwe, as has been followed in many other common law jurisdictions. The absence of such a process in Zimbabwe renders imprisonment for the whole of an offender’s natural life, with no realistic hope of release on parole, arbitrary, inhuman and incompatible with the Constitution. The theoretical availability of executive clemency, which is central to the Respondents’ position, but is in practice arbitrary, opaque, rarely exercised and outwith effective judicial supervision, does not save the constitutionality of the current arrangements in Zimbabwe.

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