Constitution Watch 13-2016

CONSTITUTION WATCH 13/2016

[14th July 2016]

Veritas Wins Court Case Against Life Imprisonment Without Parole

Another Landmark Constitutional Court Judgment

 

Introduction

Once again Veritas has succeeded in advancing human rights through the Constitutional Court.  This time the rights are those of prisoners who have been sentenced to life imprisonment.  Yesterday in a landmark judgment in the case of Makoni v Commissioner of Prisons and Another, brought by Veritas, the Court ruled that life prisoners will now be eligible for release on parole like all other prisoners. The full court judgment is available on this link.

Background to the Case

The parole system allows the Minister of Justice, on the advice of a Board, to grant prisoners early release from prison before they have fully served their sentences.  Prisoners can be released on parole on various grounds – for example humanitarian reasons – that they have become too old or ill to be kept in prison, or, that their good behaviour in prison shows that they have reformed and will not return to a life of crime.

Only one class of prisoner was completely debarred from release on parole:  prisoners sentenced to life imprisonment.  Under section 115 of the Prisons Act the Minister was permitted to release any prisoner on licence – i.e. on parole – “other than a prisoner who has been sentenced to death or to imprisonment for life”.  What this meant was that however young a person might have been when sentenced to life imprisonment, he [and they were almost all male] would remain in prison for the rest of his life.

It was this that Veritas challenged in the Constitutional Court, arguing that sentencing someone to prison with no hope of release violated the person’s dignity and amounted to cruel or inhuman punishment in contravention of section 53 of the Constitution.

The Judgment

The Constitutional Court agreed with Veritas’ arguments.  In a unanimous judgment delivered by Patel J the Court decided that:

- The Constitution ushered in a departure from the old approach to punishment, which emphasised retribution, towards one of social re-integration and rehabilitation of prisoners.

- “Whole life imprisonment”, i.e. imprisonment for life without the possibility of release, constitutes a violation of human dignity and amounts to inhuman and degrading treatment or punishment in breach of sections 51 and 53 of the Constitution.

- The power of the President to order the release of life prisoners under his power of mercy in terms of section 112 of the Constitution is entirely discretionary and cannot be enforced or questioned by courts of law.  As such it does not afford adequate redress for the purpose of enforcing such prisoners’ fundamental human rights under the Constitution.

- There was no justifiable reason, based on the public interest, to distinguish between life prisoners and other prisoners in the matter of parole;  hence the exclusion of life prisoners from the parole process contravened their right to equal protection and benefit of the law under section 56(1) of the Constitution.

- The court accordingly ordered that, until the Prisons Act was amended to bring it into line with the Constitution, its provisions should be applied so as to extend the right of parole to every prisoner, including those sentenced to imprisonment for life.

International conventions and foreign law

As in the child marriage case, which was also brought by Veritas, the Constitutional Court relied extensively on international treaties and instruments, and on foreign case law, as it is enjoined to do by section 46 of the Constitution.

International instruments:  Among the instruments the court referred to were:

The International Covenant on Civil and Political Rights (1976)

The International Covenant on Economic, Social and Cultural Rights (1976)

The UN Standard Minimum Rules for the Treatment of Prisoners (1957)

The UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (2015)

Foreign case law:  the judgment referred to cases decided by courts in Namibia, South Africa, Mauritius and the European Union.

Conclusion

The judgment is a landmark in the advancement of human rights in Zimbabwe.  It serves as a reminder that prisoners, however heinous their crimes may have been, are human beings entitled to humane treatment.

This decision of the Zimbabwe Constitutional Court is a contribution to the progressive constitutional jurisprudence which the court is building up for Zimbabwe.

Congratulations to the lawyer Mr Tendai Biti who argued the case extremely well before the Bench of the Constitutional Court on 27th January 2016.

Veritas wishes the applicant Mr Makoni all the best and hopes that he will succeed in his parole application.  He was aged 19 at the time of his conviction and has been in gaol since 1995, for almost 21 years.

 

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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