MIDLANDS STATE UNIVERSITY

Name REAGAN MADOCHI

Reg No. R215869Z
Module Criminal Law
Level 1.2
Year 2022
Lecturer Mr Hore
Question “ Criminal punishment is for the purpose of
rehabilitation of the criminal and nothing else” Discuss
The assertion in the question is an over emphasised fact which is biased on the
absoluteness of its reference to rehabilitation being the sole purpose of punishment A
more valid approach gives the credit that is due to rehabilitation but also alludes to a
holistic approach to the punishment theories that exist in the Zimbabwean legal
spheres. Punishments are the immediate consequences that follow a criminal act and
this can be suffering, loss, pain or any other penalty. 1 In criminal Law there are a hand
full of punitive measures taken with each measure aimed at achieving a certain
distinctive goal and these are referred to as ‘theories of punishment.” These theories
are interrelated and in certain instances contradict each other. A close analysis of all of
these theories helps in the understanding of how presiding officers in courts are
influenced by them when passing sentences. Some instances of such theories are the
Rehabilitation theory, the Retributive theory, Preventive theory, Incapacitation theory, the
General Deterrent theory, Specific Deterrent theory, Compensatory theory and the Utilitarian
theory. The use of case law is of essence in a bid to evaluate the practicability of these
theories in Zimbabwe and the sentences they influence.

First and foremost, the rehabilitation theory is the most recent theory of punishment. As
is suggested by the name it aims at providing a chance of reform or change. This theory
purports that the purpose of punishment is to apply treatment and training to the
offender so that he is capable of returning to society and function as a law- abiding
member of the community. In the past crime was considered as a sickness and the
solution to it was isolation, labour and punishment. Restoration programs such as faith-
based programs, drug treatment programs, anger management programs amongst
others are offered to convicted people in today’s prisons. Section 51 of the Prison Act
makes provision for ministers of religion visitations to inculcate religious values in
prisons which act as a rehabilitation tool in the prisoners’ lives. 2 In some countries the
prisoners are assisted with job placements and taught livelihood and skill training so as
to be able to support themselves once back in the real world.

1
S Leon` Modern Thinking on Theories of Punishment` (1972) Vol 12, Issue No. 1, The Rhodesia Law Journal pg
102- 113

2
Prisons Act [Chapter 7.11]
In Zimbabwe, section 128 of the Prisons and Correctional Service Act provides for
rehabilitation services. It states that inmates must engage in activities that provide and
promote therapy.3 Therapy is considered as a healing mechanism that assist the
inmates come to terms with their lives. Zimbabwe Association for Crime Prevention and
Rehabilitation of the Offender is a non- profit organisation which goes a step further in
providing support and rehabilitation programs. Support of such organisations makes
rehabilitation theory a possibility in Zimbabwe.

In the case of S v FM, the rehabilitation theory was put into practise in coming up with a
sentence. In this case a juvenile was convicted of numerous counts of unlawful entry
and theft which gained him 9 years imprisonment. Upon a review and consideration of
section 81 of the constitution which advocates for a short- term imprisonment for
juveniles, the sentence was reduced to two years imprisonment. 4 The case also
brought out the proper procedure when dealing with juveniles as stipulated at sections
351 and 352 of the Criminal Procedure and Evidence Act. Juveniles must be tried in a
children’s court and if convicted sent to institutes or reform schools. 5 The idea behind
the sentence and the provision of the act is that a juvenile must not be corrupted by
prison environment and rather must be given room to understand and mend their
mistakes, thereby restoring them into the community.

However, this theory has not been found successful in Zimbabwe to a very large
extend. Prisons are often understaffed and the idea itself is ill-conceived or poorly
executed, leading to failure of effect on criminals. 6 The prisons are mostly overcrowded
and the resources limited meaning that personal attention is not awarded. This leads to
some criminals coming out of prisons hardened and worse off instead of rehabilitated.

The theory of retribution propounds that when an offender breaks the law, justice
requires that they suffer in return and that the response to a crime is proportional to the

3
Prisons and Correctional Service Act (2016)

4
Constitution of Zimbabwe Amendment (No. 20) 2013

5
Criminal Procedure and Evidence Act [Chapter 9.07]

6
http//courses. Lumen learning.com
offence.7 The theory applies under 3 principles that is those who commit certain kinds of
wrongful acts morally deserve to suffer a proportional punishment, that it is intrinsically
morally good if some legitimate punisher gives them the punishment they deserve and
that it is morally impermissible to intentionally punish the innocent or to inflict large
punishments on undeserving wrongdoers. This theory can be considered as an eye for
an eye and a tooth for a tooth theory. It is also the most ancient theory of justice
focused entirely on revenge.

The theory makes some appeal to moral desirability, that is the intention or mens rea to
commit crime. It stipulates that where the intention is great, the penalty should be
equally great. It also makes to punish only the guilty and not the innocent. 8 This is in line
with section 70 of the constitution which makes a provision that everyone shall be
presumed innocent until proven guilty 9. This highlights that no one should be punished
unless it is proven they have committed the crime. Article 7 of the Human Rights Acts
makes a provision for punishment of any person who at the time of offense was criminal
according to the general principles of law. 10 This shows that under retribution the idea is
that a person who is guilty must be punished.

In Zimbabwe, the provision of the theory of retribution is set in the case of S v Kinnaird
and Anor where it is stated that retribution is the only possible theory in that it looks into
the present serving of justice.11 In S v Tshuma it was decided that the accused would
not be incarcerated at all because he was unaware that sleeping with a child under age
of 16 years was considered as rape and also had no intention of crime. 12 This judgment
was reached by considering the retribution theory that only intention requires
punishment.

7
J Malpas `The Stanford Encyclopedia of Philosophy (2012)

8
A Mohanty `Retributive Theory of Punishment: A Critical Analysis

9
Constitution of Zimbabwe Amendment (No.20) 2013

10
Human Rights Act (1998)

11
S v Kinnard & Anor (2015) ZWBHC 87

12
S v Tshuma (2013) ZWBHC 70
The effectiveness of this theory of punishment is debatable in that, the idea is to punish
even when a criminal does not reform. It even becomes more unjust if the idea of
proportional punishment is ignored and a person is given a stiff punishment for a petty
crime. For example, in the pursuit of punishment one might be given a life sentence for
a crime committed under the influence of drugs. This would not help the offender as no
reform or a chance to rebuild would be awarded.

The preventive theory offers it own view by stating that the main aim of punishment is to
prevent crime. When criminals are kept in jail they are kept out of society and therefore,
cannot commit any crime.13 The theory reasons that by sending criminals to prison a
message is sent to the public that laws have underlying consequences if not followed.
This is the basis of criminal law that whatever law is passed it must come with a penalty
to instil fear and force regulation in humans. The punishment is usually is a stiff
sentence. For example, in September 1958, international attention was aroused when
the criminal court of Old Bailey sentenced nine young boys to four years of
imprisonment for having taken part in a riot. This sentence was considerably heavy so
as to send a warning to others.14

In Zimbabwe, the preventive theory was applied in S v Chirembwe whereby the accused
was sentenced to 290 years of imprisonment for rape. This was meant to shock the
public into accepting rape as a serious offence. The stiffer sentence served its purpose
as most rape cases are sentenced to a maximum of 14 to 20 years. The accused was
used as an example to not only the public but to himself as the heavy penalty would
trigger realisation of the crime he committed which will lead to atonement and
prevention of the same crime in the future.

However, the preventive theory has a down side. In the cases of first-time offenders’
punishment might not be entirely beneficial as that person can become hardened with
prison environment and fail to be restored into the community. This theory promotes

13
A K Das` 8 Kinds and Theories of Punishment

14
J Andenaes `The General Preventive Effects of Punishment` (1966) Vol 114, Issue No. 7 University of
Pennsylvania Law Review pg953
harsh punishments such as hanging which really does not offer the offender a chance to
redeem themselves.

The incapacitation theory argues that, reductions in crime rates are achieved through
higher imprisonment rates since the offender can not commit new crimes whilst
incarcerated. This theory works closely with the preventive theory. It takes a forward-
looking perspective in that it focuses on only attempting to prevent crimes from being
committed in the future.

Incapacitation theory, focuses on mostly individuals who are sent to prison or given a
death penalty. It also includes things like being supervised by departments in the
community such as probation and parole. 15 These two provisions of punishment
ascertain that offender are incapacitated from committing crimes for fear of
imprisonment and they also get to reform as they keep interacting with the positive
community.

In the case of Makoni v Prisons Commissioner and Anor, incapacitation was explained not
to only constitute of imprisonment but provisions of parole and judicial review too. In this
case the accused was convicted of murder and sentenced to life imprisonment but
provisions of parole were overlooked. Upon appeal it was noticed that a life sentence
imposed without the possibility of parole or release on license constitutes as a violation
of human dignity. This case brought out the need of sentences conforming to the theory
to be not entirely focused on imprisonment but to consider aspects of human dignity and
other forms of crime preventions as a whole.

The deterrent theory asserts that people chose to obey the law after calculating the
gains and consequences of their actions. The theory is divided into two parts that is the
general and the specific deterrent theory. In the general deterrent theory focus is on
preventing crimes in the general population, that is the people in the community who
have not yet committed any crime. It incites fear in them of the punishment they have
seen an offender go through. For example, in 2001, Nigeria allowed the Islamic law
which permitted corporal punishment in public. 16 This was a way of putting fear in the
15
M Norwood `Incapacitation in Criminal Justice: Definition, Theory & Effect (2021)

16
https// marislute. com Deterrence (accessed 7 March 2021)
friends and relatives of the offender and prevent attempt to imitate the criminal act of the
offender.

The specific deterrence is designed to deter only the individual offender from committing
the crime in the future. This is the same principle as applied in the preventive theory in
that a severe punishment will make the offender reluctant to repeat their offence. For
example, a person who drives whilst drunk and then gets into an accident which leads
to his license being taken away would not drive under alcohol influence again if he
happens to get his licence back for fear of punishment.

In this country, judicial officers have been influenced in passing out sentences under
this theory. In S v Shariwa, a 20 year old first time offender was convicted of chicken theft
and the magistrate sentenced him a stiff penalty as a means to show general
deterrence to the public. This case also showed that whilst general deterrence evokes
for stiff penalties, it does not always benefit the offender. A chance at rehabilitation is
denied.

In S v Sibanda it was shown that the theory of deterrence affects sentences concerning
juveniles. In this case the accused was an 18 year old who was accused of kidnapping
a 16 year old girl. He was sentenced to 9 months imprisonment. Upon review it was
noted that the theory of deterrence does not apply to young offenders and thus they
must be given a more rehabilitative punishment. The accused was made to pay a fine
instead.

In addition to these theories, there is the compensatory theory which asserts that the
object of punishment is self-realisation. If the offender after committing an offence
realises his guilt he must be forgiven. 17 It relies on compensation to the victim for the
loss caused by the accused. In this way the accused is made to realise the same
suffering they have caused to the victim. The victims can be compensated on mainly
two grounds namely when a criminal who had inflicted an injury to a person compensate
for pain and when the state has failed to provide safety towards its citizens. For
example, if a person who has injured someone else goes to prison, he would have to
work and sell his outcomes and the money would be provided to the injured as
17
compensation for his treatment. This theory in cooperates deterrence, rehabilitation and
retribution in one as it seeks to prevent crime by making one acknowledge their wrong
doing through compensating the offended. It aims to benefit both the offender and
offended.

Section 350 A of the Criminal Procedure and Evidence Act makes a provision of the
compensatory theory by stating that a court which convicts a person of any offence may
instead of sentencing him to imprisonment make a community service order requiring
him to render service to the community. 18 The act of working for the benefit of the
community is a way of compensating or giving back for a wrong doing. Other types of
sentences that could be passed under the theory are probation, jail time served on
weekends to allow the offender a chance to work and redeem themselves in the
community and house arrests in some countries.

In Zimbabwe the compensatory theory’s influence on sentencing was seen in S v Silume

where it was shown that even with an imprisonment sentence, compensation must be
awarded in cases of theft and this compensation can be in form of fine or community
service.

Lastly, the Utilitarian theory depicts that the results of a punishment determines its
justification.19 It is a moral theory that holds that the right or wrongness of an action is
determined by the balance of good over evil that is produced by action. In other words,
its main concern is how a certain punishment serves the community. When using this
theory, the idea of restoring, prevention of crime and incapacitation are taken as the
ideal punishments. In considering punishment for a crime, the theory looks at three
questions which consider, how great the probability that life will be lost through an
action, how socially important is the purpose served by the action and lastly how
feasible is the use of less risky measures to achieve the purpose.

In S v Moyo the court reached a sentence of culpable homicide and therefore

imprisonment through the use of the utilitarian theory. The court considered the
consequences of convicting the accused of murder and that would have committed an

18

19
unjust result so instead they reverted to the 3 principles of the utilitarian theory and
managed to reach the appropriate sentence which would benefit everyone.

In conclusion, the 8 theories all serve a purpose of providing the reason behind
punishment and laying a foundation for sentencing. In Zimbabwe some of the theories
such as the compensatory theory have led to sentences such as community service as
opposed to imprisonment being considered by presiding officers. However, each of
these theories leaves room for improvement and thus calls for the use of all of them to
achieve a productive punishment system there by dismissing the notion that criminal
punishment revolves on the idea of rehabilitation