A victory for Prisoners’ Rights in Zimbabwe!

Once again Veritas, a nongovernmental organisation based in Zimbabwe, which provides information on the work of the Parliament of Zimbabwe and the Laws of Zimbabwe and makes public domain information widely available has succeeded in advancing human rights through the Constitutional Court.  This time the rights are those of prisoners who have been sentenced to life imprisonment.  Yesterday 19th July, 2016 in a landmark judgment in the case of Makoni v Commissioner of Prisons and Another, brought by Veritas, the Court ruled that life prisoners will now be eligible for release on parole like all other prisoners.

The parole system allows the Minister of Justice, on the advice of a Board, to grant prisoners early release from prison before they have fully served their sentences.  Prisoners can be released on parole on various grounds – for example humanitarian reasons – that they have become too old or ill to be kept in prison, or, that their good behaviour in prison shows that they have reformed and will not return to a life of crime.

Only one class of prisoner was completely debarred from release on parole:  prisoners sentenced to life imprisonment.  Under section 115 of the Prisons Act the Minister was permitted to release any prisoner on licence – i.e. on parole – “other than a prisoner who has been sentenced to death or to imprisonment for life”.  What this meant was that however young a person might have been when sentenced to life imprisonment, he [and they were almost all male] would remain in prison for the rest of his life.

It was this that Veritas challenged in the Constitutional Court, arguing that sentencing someone to prison with no hope of release violated the person’s dignity and amounted to cruel or inhuman punishment in contravention of section 53 of the Constitution.

The key question for the CC was what standard to apply in determining prisoners’ rights. A high standard would mean that more prisoners’ rights will be recognized in practice. A lax standard, would mean placing a burden on prisoners that is difficult to meet, which might mean that prisoners’ rights are more theoretical than real. In this case it seems the CC has marked out a distinct approach to the question of prisoners’ rights. The CC has abandoned a cautious approach and deference to prison administration. This is a hallmark of a CC that is really trying to take a progressive approach.

The Constitutional Court agreed with Veritas’ arguments.  In a unanimous judgment delivered by Judge Patel J the Court decided that:

  • The Constitution ushered in a departure from the old approach to punishment, which emphasised retribution, towards one of social re-integration and rehabilitation of prisoners.
  • “Whole life imprisonment”, i.e. imprisonment for life without the possibility of release, constitutes a violation of human dignity and amounts to inhuman and degrading treatment or punishment in breach of sections 51 and 53 of the Constitution.
  • The power of the President to order the release of life prisoners under his power of mercy in terms of section 112 of the Constitution is entirely discretionary and cannot be enforced or questioned by courts of law.  As such it does not afford adequate redress for the purpose of enforcing such prisoners’ fundamental human rights under the Constitution.
  • There was no justifiable reason, based on the public interest, to distinguish between life prisoners and other prisoners in the matter of parole; hence the exclusion of life prisoners from the parole process contravened their right to equal protection and benefit of the law under section 56(1) of the Constitution.

The court accordingly ordered that, until the Prisons Act was amended to bring it into line with the Constitution, its provisions should be applied so as to extend the right of parole to every prisoner, including those sentenced to imprisonment for life.

This case highlights the limitations of the archaic Prisons Act in its failure to respond to and redress human rights abuses and the need for redress to protect and advance the status of prisoners’ rights.

The judgment is a landmark in the advancement of human rights in Zimbabwe.  It serves as a reminder that prisoners, however heinous their crimes may have been, are human beings entitled to humane treatment. This decision of the Zimbabwe Constitutional Court is a contribution to the progressive constitutional jurisprudence which the court is building up for Zimbabwe.


(Image Credit: Veritas)

About Regis Mtutu

Regis Mtutu lives and works in Harare, is a human rights activist, has extensively worked in program development around engaging men and boys in gender equality and violence prevention and is a leading voice in national efforts to establish a democratic Zimbabwe.