The constitutional matter before the Constitutional Court (“the Court”) for determination is whether s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) is constitutionally invalid. The section authorises the imposition of a sentence of moderate corporal punishment on a male person under the age of eighteen years who is convicted of any offence. The matter came to the Court by way of the procedure for confirmation of orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament made by another court. ...
The High Court made an order declaring s 353 of the Act constitutionally invalid on the ground that it contravenes s 53 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (“the Constitution”). The section protects the fundamental right of every person not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The protected right is absolute and non-derogable. The High Court held that judicial corporal punishment inflicted on a male juvenile in execution of a sentence for any offence of which he is convicted is an inhuman and degrading punishment within the meaning of s 53 of the Constitution.
In the determination of the question whether the law or the conduct of the President or Parliament held by another court to be constitutionally invalid is indeed so, the Court is not bound by the other court’s order of invalidity. It must satisfy itself, upon the interpretation and application of the constitutional provisions allegedly contravened by the legislation or the conduct concerned, that the court a quo came to the correct decision concerning its invalidity....
The order of the court a quo declaring s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] to be invalid for the reason that it is in contravention of s 53 of the Constitution is confirmed.
The declaration of invalidity of s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall take effect from 03 April 2019, which is the date of delivery of this judgment. As of that date s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] is struck down.
With effect from 03 April 2019 no male juvenile convicted of any offence shall be sentenced to receive moderate corporal punishment. The prohibition shall apply to sentences to receive moderate corporal punishment that have already been imposed and are awaiting execution.
The complete judgment of the unanimous court, written by Malaba CJ, can be downloaded below.