The High Court in Zimbabwe has abolished corporal punishment against juvenile offenders saying the practice was illegal under the new constitution and, globally, regarded as violence against children.
Instead of caning, the court directed that rehabilitation should, instead, be used in cases involving young offenders.
The ruling was made by Justice Esther Muremba while reviewing a lower court sentence on a 15-year-old boy who was found guilty of raping a 14-year-old female neighbour and was subsequently sentenced to moderate corporal punishment of three strokes with a rattan cane.
The judge said, according to the new constitution, corporal punishment was now illegal.
Said Justice Muremba: “In the new constitution the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is under section 53 which reads, ‘no person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment’.
“Section 86 thereof deals with limitation of rights and fundamental human freedoms. Section 86 (3)(c) reads that no law may limit the following rights enshrined in this chapter and no person may violate them, the right not to be tortured or subjected to cruel inhuman or degrading treatment/punishment.
“My interpretation of sections 53 and 86 of the new constitution brings me to the conclusion that corporal punishment is now unconstitutional.”
Muremba added that there were further provisions in the new constitution which promoted equality among all citizens of Zimbabwe.
“What strengthens my conclusion are further provisions in the new constitution which protect the right to personal security, equality and non-discrimination such as section 52 which states that every person has the right to bodily and psychological integrity which includes the right to freedom from all forms of violence from public or private sources.
“Section 56 deals with equality and non-discrimination stating that all persons are equal before the law and have the right to have equal protection and benefit of the law.”
Corporal punishment, Justice Muremba added, was now internationally regarded as violence against children and a breach of fundamental human rights.
Zimbabwe, the judge added, was a signatory to international charters such as the African Charter on Human and People’s Rights, the International Covenant on Civil and Political Rights which call for the right to uphold human dignity and bans subjection of people to torture.