OBEDIAH MAKONI

v

    COMMISSIONER OF PRISONS

    MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, GWAUNZA JCC, GARWE JCC,

HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC,

BHUNU JCC, UCHENA JCC, CHITAKUNYE AJCC

HARARE, JANUARY 27 & JULY 13, 2016

T. Biti, for the applicant

M. Chimombe, for the respondents

PATEL JCC:  The applicant in this matter was convicted of the murder of his girlfriend.  Because of extenuating circumstances, he was sentenced to life imprisonment.  He was aged 19 at the time of his conviction and has been in gaol since 1995 for almost 21 years.  The gravamen of his application is that life imprisonment without the possibility of judicial review or parole is unconstitutional.

The applicant avers that his dignity and expectations have been crushed. Despite his excellent behaviour whilst in prison, which behaviour is acknowledged and conceded by the respondents, he has absolutely no hope of any amnesty or release from prison.  He further avers that the conditions in Zimbabwean prisons are horrendous due to prevailing economic constraints. This compounds the psychological stress of knowing that he will never be released.  He notes that Part XX of the Prisons Act [Chapter 7:11] allows for the release on parole of prisoners on extended imprisonment.  However, there is no similar administrative process in place for prisoners serving life sentences.  In any event, the grant of parole should not be left to executive discretion but should be subjected to mandatory judicial review after the lapse of 10 years imprisonment.

The applicant accordingly seeks a declaratur that a life sentence imposed without the possibility of parole amounts to inhuman and degrading treatment and constitutes a violation of human dignity in breach of ss 51 and 53 of the Constitution.  He also seeks a declaratur that ss 112, 113, 114 and 115 of the Prisons Act contravene s 56 of the Constitution and that his further incarceration in prison is in breach of his rights under ss 49, 51 and 53 of the Constitution.  In the event, he applies for an order requiring the respondents to release him from prison forthwith.

The first respondent, the Commissioner of Prisons, points to the possibility of reprieve for life prisoners through presidential pardon or commutation of sentence available under s 121 of the Prisons Act.  He avers that the nature of a life sentence requires executive rather than judicial review. Although this process is different from release on parole, there is no discrimination between life prisoners and others because of the availability of executive reprieve.  The Commissioner accepts that prison conditions in Zimbabwe are not ideal due to current economic hardships.  However, they meet the requisite needs of prisoner correction and rehabilitation.  At any rate, poor prison conditions cannot be relied upon to escape criminal liability.

The second respondent is the Vice-President who is also responsible for the administration of justice, legal and parliamentary affairs.  He refers to s 112 of the Constitution which empowers the President to grant pardons or vary life sentences.  He avers that this provision affords the applicant the hope of release from prison and that, therefore, there is no violation of his constitutional rights. The alternative of parole for life prisoners would serve to trivialise the heinous crimes which they have committed and which society abhors.  He further contends that the judiciary cannot arrogate to itself the power to review life sentences without legislative authority to do so.

In response, the applicant invokes s 227(1) of the Constitution which calls for the rehabilitation of offenders and their reintegration into society.  This overrides the concurrent objectives of retribution and deterrence which have now become secondary in penological theory.  As regards the available options of executive reprieve, he accepts that the process of parole under the Prisons Act is reviewable.  However, the refusal of executive pardon under the Constitution is not justiciable.  This remedy is subject to executive whim and is therefore inadequate. Moreover, it is not effectively utilised in practice.  Lastly, the applicant avers that this Court is the legitimate constitutional watchdog and does not require executive or legislative authority in order to adjudicate in the interests of justice.

Having regard to the respective arguments of the parties and the relief sought by the applicant, I perceive the issues for determination in casu to be the following:

- Whether a life sentence imposed without the possibility of parole constitutes a violation of human dignity or amounts to inhuman or degrading treatment in breach of sections 51 and 53 of the Constitution.

- Whether sections 112, 113, 114 and 115 of the Prisons Act are unconstitutional to the extent that they exclude whole life prisoners from the parole process and thereby contravene the right to equal protection and benefit of the law under section 56 of the Constitution.

- Whether the further incarceration of the applicant amounts to a breach of his rights to liberty, human dignity and protection against inhuman or degrading treatment under sections 49, 51 and 53 of the Constitution.

In the event of an affirmative answer to any or all of the foregoing, the nature and extent of the relief that should be granted to the applicant, i.e. his immediate release from prison or some other appropriate remedy.