CONSTITUTION WATCH 16/2016
[10th August 2016]
Prisons Act Amended by Constitutional Court
Parole for Life Prisoners
Last month, in a landmark judgment delivered in a case brought by Veritas, the Constitutional Court declared that prisoners undergoing life imprisonment were entitled to be considered for release on parole in the same way as other prisoners.
Subsequently, at a workshop to consider amendments to the Prisons Act, a senior officer in the Prisons and Correctional Service announced that some 20 life prisoners, each of whom had served at least 20 years of their sentences, had been released from prison through presidential pardon. He indicated they had been released in this way because the Prisons Act did not allow life prisoners to be granted parole through the Parole Board. Before they could be released on parole, he implied, the Act would have to be amended.
While the Prisons and Correctional Service is to be commended for the caring attitude it displayed in securing the release of these prisoners, the senior officer was not correct in saying that the Prisons Act prohibited the prisoners’ release on parole.
Grant of Parole under the Prisons Act
Section 115 of the Act gives the Minister of Justice, Legal and Parliamentary Affairs power to release prisoners on licence [i.e. on parole]before they have served out their sentences. Before doing so he or she must consult:
· the Parole Board, where the prisoner concerned is serving a sentence of extended imprisonment, i.e. a sentence of between seven and fifteen years, imposed on habitual criminals, or
· the Prisoners Release Advisory Board, for all other prisoners.
The Act read in isolation excludes two categories of prisoners: prisoners who have been sentenced to death and prisoners undergoing sentences of life imprisonment [section 115(1)].
The section cannot be looked at in isolation, however: it must be considered in the light of the judgment in the case mentioned above,Makoni v Commissioner of Prisons & Another [Judgement Number CCZ 8-2016 [judgment available on Veritas website here].
In that judgment the Constitutional Court held:
· 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.
· 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 gave the following order:
“Pending the enactment of legislation amending the provisions of Part XX of the Prisons Act [Chapter 7:11] so as to conform with the right to equal protection and benefit of the law under section 56(1) of the Constitution, the respondents [i.e. the Commissioner-General of Prisons and Correctional Service and the Minister of Justice, Legal and Parliamentary Affairs] shall apply those provisions, mutatis mutandis, to every prisoner sentenced to imprisonment for life …”
Shorn of its legal Latin, this order means that section 115 of the Prisons Act must be applied as if the words excluding “life prisoners” from the benefit of parole were deleted. The Court has power to make such an order because the Constitution states that pre-existing laws – and the Prisons Act is such a law – must be construed in conformity with the Constitution [paragraph 8 of the Sixth Schedule]. Since the exclusion of life prisoners from the benefits of section 115 was unconstitutional the Court was able to say that the section should be interpreted as if the words excluding them had been deleted. This sort of alteration is commonly made by courts to make laws valid or constitutional.
Hence even before the Act is amended, life prisoners must be considered for parole under section 115 of the Act in the same way as all other prisoners.
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