CHIEF Justice Godfrey Chidyausiku yesterday took to task lawyers advocating the abolition of corporal punishment, asking them to explain the impact of such an action on the behaviour of children in Zimbabwe.
The Chief Justice questioned the idea of seeking to invalidate Section 353 of the Criminal Procedure and Evidence Act, hinting that it may impact negatively on the behaviour of children in the country.
This came after Tendai Biti of Biti Law Chambers and David Hofisi of the Zimbabwe Lawyers for Human Rights cited international journals and foreign judgments in trying to push for the abolition of caning as judicial punishment as well as chastisement at home and schools.
Chief Justice Chidyausiku made the remarks in a case in which the Constitutional Court was being asked to confirm a High Court judgment outlawing corporal punishment in a case involving a teenage boy who was sentenced to caning for rape.
The Chief Justice asked the lawyers if it was prudent that Zimbabwe simply adopts the decisions of other countries to scrap the penalty without assessing its applicability in the local context.
“In countries that don’t allow corporal punishment, how do the children behave?” he asked the lawyers. “Do you think it’ll be acceptable in Zimbabwe to have cases of children going to school with knives and guns in their jackets?
“Are those children better off than those that are subjected to corporal punishment? We hear some Zimbabwean teachers who have gone to teach in such countries have abandoned the profession because the children are uncontrollable.”
The lawyers insisted on the use of international instruments and judgments in coming up with a proper decision, saying it was actually an obligation of the court.
“The court is obliged to follow international instruments in coming up with a decision on whether or not corporal punishment is cruel, inhuman and degrading treatment,” said Biti.
“This court must place our law at par with international conventions. Any attempt by the National Prosecuting Authority, Attorney General and the Amicus Curiae (friend of the court) for the State to disregard the instruments is meant to drag our law into the 13th century.”
Advocate Thabani Mpofu (who is the friend of the court in the case) argued that only Zimbabweans could determine whether corporal punishment was cruel or not.
He equated the debate on corporal punishment to that of homosexuality, saying foreign views should not be relied on when coming up with a determination on propriety or otherwise.
“What’s degrading and inhuman should be determined by Zimbabweans and we can’t rely on decisions of other countries next door,” said Adv Mpofu.
“Zimbabweans must not be told by foreigners that corporal punishment is cruel, inhuman and degrading, but the decision must be made in terms of Zimbabwean values.”
Adv Mpofu said when the High Court ruled against corporal punishment it ought to have heard views of the State, the Minister of Justice, Legal and Parliamentary Affairs, probation officers, psychologists and sociologists to get the views of Zimbabweans.
A representative of the AG’s office, Olivia Zvedi, argued that there was nothing cruel and inhuman about corporal punishment in Zimbabwe.
Instead, Zvedi said, caning was a better penalty for serious offences like rape because the child would be saved from incarceration where the juveniles would share cells with hardcore criminals.
She said the manner in which the punishment was administered in Zimbabwe did not amount to cruel, inhuman and degrading treatment.
“Before the strokes are administered in Zimbabwe, the juvenile is supposed to be clothed,” said Zvedi. “They’re not beaten up naked. Strokes are administered on the buttocks and on no account shall the strokes be administered on the back or on the same spot repeatedly.
“Section 8 of the Corporal Punishment Prison Regulations requires a medical officer or registered nurse and the officer-in-charge of Zimbabwe Prisons and Correctional Services to be present to ensure that it’s administered in accordance with the law.”
NPA representative Justin Uladi said in terms of the Criminal Procedure and Evidence Act, the punishment must be “moderate” and not inhuman or degrading as alleged by the anti-corporal punishment lawyers.
He said cruelty could be witnessed where a juvenile was jailed and exposed to hardcore criminals, which was the only other option available for juvenile rape offenders.
Uladi said chastisement of children at home and at school had always been there since time immemorial and there was nothing unconstitutional about it.
Chief Justice Chidyausiku reserved judgment in the case.