Many contemporary legal societies have dealt away with corporal punishment for reasons which

include among others, its violation of the right to dignity and freedom from torture, inhuman
degrading treatment. Progressive and liberal societies provide that corporal punishment should
not be inflicted on anyone in an egalitarian society. Zimbabwe has outlawed judicial corporal
punishment on the basis that it violates the right to dignity and freedom from torture, inhuman
degrading treatment. An argument that corporal punishment should be abolished at home has
been raised for various reasons. This essay seeks to analyze the Chokuramba decision. The
writer will present arguments for the abolition of corporal punishment at home. This will be done
through reference to various legal sources.

FACTUAL BACKGROUND

This was a case under review after conviction and sentence in the Magistrates Court. In the lower
court, a 15 year old juvenile had been charged with and correctly convicted of rape as defined in
section 65(1) of the Criminal Law (Codification and Reform) Act. He was sentenced in terms of
section 353(1) of the Criminal Procedure and Evidence Act to receive moderate corporal
punishment of 3 strokes with a rattan cane, which sentence had already been carried out by the
time of the review. Section 353 of the Criminal Procedure and Evidence Act provides that where
a male person under the age of eighteen years is convicted of any offence the court which
imposes sentence upon him may (a) in lieu of any other punishment; or (b) in addition to a
wholly suspended sentence of a fine or imprisonment; or (c) in addition to making an order in
terms of subsection (1) of section three hundred and fifty-one; sentence him to receive moderate
corporal punishment, not exceeding six strokes 1. The High Court held that section 353 of the
Criminal Procedure and Evidence Act violated the right to dignity. The court ruled that this
punishment was unconstitutional and it referred the case to the Constitutional Court for
confirmation in terms of sections 167(3) and 175(1) of the Constitution.

In determining whether or not corporal punishment constitutes inhuman and degrading treatment,
the court defined these terms as follows: Inhuman refers to ‘destitute of natural kindness or pity;
brutal, unfeeling, cruel; savage, barbarous.’ And to ‘degrade’ as: ‘to lower in estimation, to bring
into dishonour or contempt; to lower in character or quality; to debase 2.’ The Constitutional

1
Section 353 (1) Criminal Procedure and Evidence Act [Chapter 9:07)
2
S v Ncube and Ors
Court held that judicial corporal was unconstitutional as it violated section 51 of the Constitution
of Zimbabwe which provides that every person has inherent dignity in their private and public
life, and the right to have that dignity respected and protected. The Constitutional Court further
held that judicial corporal punishment violated section 53 of the Constitution which provides that
no person may be subjected to physical or psychological torture or to cruel, inhuman or
degrading treatment or punishment.

EVALUATION

In determining the validity of section 353 of the Criminal Procedure and Evidence Act, the
Constitution was used in its trumping sense. Trumping sense constitutional Supremacy, that is
constitutional supremacy as a rule is, mainly protected in section 2(1) of the Constitution which
provides that3 ‘this constitution is the supreme law of Zimbabwe and any law, practice, custom
or conduct inconsistent with it is invalid to the extent of its inconsistency 4. When deciding a
constitution al matter within its jurisdiction a court may declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsistency 5. This entails that
the constitution trumps any other source of law in the event of a direct conflict between the law
in question and a constitutional provision 6. This approach subscribes to Kelsen’s hierarchy of
norms formulation. He provides that the validity of each norm is dependent on a higher norm in
the system whose validity is in turn dependent on a higher norm in the system and so on. A point
is eventually reached beyond which this climbing cannot go. This is the basic norm or
Grundnorm7. A law that is ultra vires with the Grundnorm is deemed to be invalid. In the
Chokuramba case, s353 of the Criminal Procedure and Evidence Act was inconsistent with
section 51 and 53 of the Constitution hence it was held invalid for inconsistency with the
supreme law. Therefore, the trumping sense of the Constitution was used in reaching the decision
by both the High and Constitutional Courts.

4
Section 2 (1) of the Constitution of Zimbabwe Amendment no 20 Act of 2013 (hereafter “the Constitution of
Zimbabwe”)
5
Section 175(6)(a) of the Constitution of Zimbabwe
6
Moyo, A (2019) Selected Aspects of the 2013 Constitution and the Declaration of Rights. Raoul Wallenberg
Institute. Sweden page 11
7
Wacks, R (2012) Understanding Jurisprudence 3rd Edition. Oxford University Press. New York