IN THE CONSTITUTIONAL COURT OF ZIMBABWE HELD AT HARARE
In the matter between:-
OBADIAH MAKONI APPLICANT
THE COMMISSIONER OF PRISONS 1ST RESPONDENT
MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS 2ND RESPONDENT
APPLICANT’S SUPPLEMENTARY HEADS OF ARGUMENT
The Applicants make the following further submissions in response to the Respondents’ Heads of Argument.
The Applicant’s position in outline
In the light of the Respondents’ submissions, it may first help the Court if the Applicant makes clear what he is and is not advancing as part of his first submission, namely that life imprisonment with no prospect of release on parole constitutes inhuman and degrading punishment.
The Applicant recognises that the serving of natural life sentences 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 is not suggesting 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 in 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 Tcoeib (see below) and that this is the appropriate approach to be taken in Zimbabwe. It is also consistent with the caselaw in many other common law jurisdictions. The absence of such a process in Zimbabwe renders imprisonment to the end of an offender’s natural life, with no 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. These submissions are developed in more detail in the Applicant’s Heads of Argument.
The Namibian judgment in Tcoeib and the Respondents’ reliance on Woods
The Respondents place significant reliance in their Heads of Argument (paragraph 21) on the Supreme Court of Zimbabwe’s ruling in Woods v Commissioner of Prisons & Anr 2003 (2) ZLR 421 (S). In that case the Court cited with approval an earlier ruling of the Namibian Supreme Court, S v Tcoeib  NASC1, 1996 (1) SACR 390 (NmS). Given the significance of that case in the Woods ruling and its relevance to the issues in the present application, some observations on Tcoeib may assist the Court.