Judicial Corporal Punishment Declared Unconstitutional by the Supreme Court of Zimbabwe
![handle is hein.journals/afjincol2 and id is 151 raw text is: CASE AND COMMENT
Judicial Corporal Punishment declared Unconstitutional by
the Supreme Court of Zimbabwe
GINO J. NALDI*
In the joined cases of State v. Ncube; State v. Tshuma; State v. Ndhlovu' the
Supreme Court of Zimbabwe was for the first time faced with the question
whether the imposition of a sentence of whipping upon an offender
constituted inhuman or degrading punishment. In reaching the conclusion
that corporal punishment is both inhuman and degrading the Court carried
out an interesting comparative study of the laws of other States and the
jurisprudence of the European Court of Human Rights.
THE FACTS
In 1987 the three appellants were separately convicted by a regional
magistrates' court of rape and sentenced to varying periods of
imprisonment and a whipping of six strokes. The appellants sought leave to
appeal against, inter alia, the imposition of the sentence of whipping
arguing that the power of the magistrate to impose a sentence of corporal
punishment was unconsitutional as being in violation of the protection
from inhuman or degrading treatment enshrined in s 15(1) of the
Declaration of Rights contained in the Constitution of Zimbabwe which
provides, inter alia, that [n]o person shall be subjected to torture or to
inhuman or degrading punishment or other such treatment.
THE JUDGMENT
Delivering the unanimous judgment of the Court Justice Gubbay
comprehensively reviewed the legal position relating to corporal
punishment in Zimbabwe and drew upon the comparative position in
common law jurisdictions in particular.
The imposition of corporal punishment was available as an optional form
of punishment under various Zimbabwean statutes2 but the imposition of
* LL.M., Ph.D., Lecturer in Law, University of East Anglia.
'[1988] (2) SA 702.
2 Justice Gubbay cited the Criminal Procedure and Evidence Act, the Magistrates Court
Act, the Law and Order (Maintenance) Act, the Witchcraft Suppression Act, the Forest Act,
the Road Traffic Act, the Prisons Act and the Dangerous Drugs Act, ibid., pp. 704-5.
2 RADIC (1990)](ViewImageLocal?handle=hein.journals/afjincol2&div=14&collection=&method=preview&ext=.png&size=3)
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Judicial Corporal Punishment Declared Unconstitutional by the Supreme Court of Zimbabwe
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