Applicants' Supplementary 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

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 [1996] 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.

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