DISTRIBUTABLE (120)

Judgment No. SC 98/04

Civil Application No. 300/00

RUDO CHICHERA v THE ATTORNEY-GENERAL OF ZIMBABWE

SUPREME COURT OF ZIMBABWE

SANDURA JA, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA

HARARE, MARCH 15, 2004 & MAY 5, 2005

J Wood, for the applicant

N Mutsonziwa, for the respondent

ZIYAMBI JA: This application is brought in terms of s 24(1) of the Constitution of Zimbabwe (“the Constitution”), which provides that:

“If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.”

The applicant, who is thirty-two years old and currently serving a mandatory sentence of a term of twenty years’ imprisonment at Chikurubi Female Prison, alleged that her constitutional rights were infringed by the mandatory provisions of the Drugs and Allied Substances Control Act [Chapter 320], under which she was sentenced. By virtue of various amendments, the citation of this Act was changed and it came to be known as the Medicines and Allied Substances Control Act [Chapter 15:03] (“the Act”), while the impugned section became s 44.

The applicant further alleged that the provisions of the Act, insofar as they impose mandatory minimum sentences for contraventions of the Act, are unconstitutional because they infringe upon the provisions of s 15(1) of the Constitution, constituting cruel and unusual punishment in that -

1. they take no account of the level of culpability of any particular offender;

2. they take no account of the personal circumstances of each offender;

3. they give rise to hugely disproportionate sentences in relation to the level of the crime and the ultimate intent of the accused to such an extent that the punishment meted out does not fit the crime;

4. the provision for a finding of special circumstances so as to avoid the imposition of a mandatory minimum term does not constitute a sufficient safeguard to avoid the evils set out in (a), (b) and (c) above.

In addition, she alleged that the imposition of an additional minimum fine, or in default of payment, the minimum period of imprisonment, imposed under s 44(2)(b) of the Act places an accused person in the position whereby it is impossible to pay the fine prescribed in the former section whilst serving the minimum period of fifteen years under s 44(2)(a). The accused is therefore obliged, in the vast majority of cases, to serve a mandatory minimum period of twenty years in all. This, she averred, also constitutes cruel and unusual punishment in terms of s 15(1) of the Constitution. She therefore seeks an order that the provisions of the Act so prescribing be declared invalid.

Section 44 of the Act reads as follows:

“44 Prohibition of dealing in prohibited drugs

(1) No person shall deal in any prohibited drug.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to -

(a) imprisonment for a period of not less than fifteen years or more than twenty years; and

(b) a fine of not less than fifteen thousand dollars or, in default of payment, imprisonment for an additional period of not less than five years or more than ten years;

and, notwithstanding anything to the contrary contained in any other enactment, the court shall not order that the operation of the whole or any part of the sentence be suspended:

Provided that where upon conviction the convicted person satisfies the court that there are special circumstances in the particular case, which circumstances shall be recorded by the court, why such a sentence should not be imposed, the convicted person shall be liable to imprisonment for a period not exceeding fifteen years or to a fine not exceeding fifteen thousand dollars or to both such imprisonment and such fine.”

By virtue of s 4 of Act 22/2001, s 44(2) was repealed and a new section substituted, the effect of which was to abolish the mandatory provisions set out above.

The facts forming the background of this application are that on 20 July 1993 the applicant was apprehended at Chirundu Border Post whilst in possession of over 1 000 mandrax tablets. The street value of the mandrax was approximately $26 150.00. The applicant was convicted by the magistrate on 30 June 1995 and sentenced for contravening what is now s 44(2) of the Act. Because of the quantity of mandrax found in her possession she was presumed by the court to be dealing, or to have intended to deal, in the mandrax. The court found there were no special circumstances justifying a lesser sentence and accordingly imposed, as it was obliged to, the mandatory sentence prescribed by the Act.

Section 15(1) of the Constitution provides as follows:

“15 Protection from inhuman treatment

(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

In S v Ncube; S v Tshuma; S v Ndhlovu 1988 (2) SA 702 (ZSC) at p 715 G-H GUBBAY JA (as he then was) said:

“On its face s 15(1) is aimed primarily at the quality or nature of punishment. Certain types of punishment are acknowledged to be inherently inhuman and degrading. Those involving the rack, the thumb screw, the pillory, burning alive or at the stake, prolonged periods of solitary confinement and starvation, fall unquestionably into this category. But s 15(1) is not confined to punishments which are in their nature inhuman or degrading. It also extends to punishments which are ‘grossly disproportionate’; those which are inhuman or degrading in their disproportionality to the seriousness of the offence, in that no one could possibly have thought that the particular offence would have attracted such a penalty - the punishment being so excessive as to shock or outrage contemporary standards of decency”.

Can it be said then that the mandatory sentence prescribed in s 44(2) of the Act is grossly disproportionate in the sense set out above?

The applicant brings this challenge “in the knowledge of the decision of this Court in S v Arab 1990 (1) ZLR 253 (SC). In that case it was held that the Court can interfere if Parliament imposes a mandatory sentence that is considered to be cruel and unusual punishment, and thus in conflict with s 15(1) of the Constitution. However, the mandatory minimum sentence imposed in terms of the Precious Stones Trade Act [Chapter 21:06] did not meet that test, because the mandatory sentence of three years could only be imposed if no special reasons existed.

It was submitted that in this case the situation was different, in that although there is a provision for special circumstances to be found, the consequence of an absence of special circumstances is not only imprisonment for fifteen years, but in addition a fine which will inevitably be beyond the means of the offender, thereby leading to a further sentence of five years’ imprisonment. The submission is that the current mandatory sentence, in the absence of special circumstances, is so outrageous that it constitutes cruel and unusual punishment because of the very nature of its minimum requirements. It was submitted, in addition, that this Court should reconsider its previous finding that a provision of a finding of special circumstances affords proper constitutional protection to an offender against capricious minimum sentences.

In S v Arab supra this Court endorsed the following approach by McINTYRE J in his dissent in Smith v R [1988] LRC (Const) 361, at p 262 of its judgment:

“The test of proportionality must be applied generally and not on an individual basis. The question is not whether the sentence is too severe, having regard to the particular circumstances of offender ‘A’, but whether it is cruel and unusual, an outrage to standards of decency, having regard to the nature and quality of the offence committed, and therefore too severe for any person committing the same offence. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in s 12 of the Charter. Constitutional effect to the prohibition in s 12 cannot be given if its application is to vary from case to case and person to person. What is unconstitutional for one must be unconstitutional for all when charged with the same offence. The constitutional question posed in this case, in the absence of a uniform application of the prohibition, could only be answered: ‘sometimes yes, and sometimes no’. This would not provide an acceptable basis for constitutional determination. Section 12 establishes an outer limit to the range of permissible sentences in our society; it was not intended – and should not be used – as a device by which every sentence will be screened and reviewed on appeal and fitted to the peculiar circumstances of individual offenders. This desirable purpose may be served in the actual sentencing process by the exercise of judicial discretion within the wide range of sentencing options not coming within the s 12 prohibition. As I have tried to show, s 12 was not designed or intended to fit the individual sentencing requirement for each individual; it was intended as an absolute right to all to be protected from the degree of excessive punishment and treatment which would outrage standards of decency.”

It was held that it would be wrong to decide the constitutionality of s 3(2) of the Precious Stones Trade Act 1978 on an individual basis, that is, as it applied to each case and each offender. The same approach is to be applied in the present case.

The question whether a sentence can be regarded as so “inhuman or degrading in (its) disproportionality to the seriousness of the offence, in that no one could possibly have thought that the particular offence would have attracted such a penalty - the punishment being so excessive as to shock or outrage contemporary standards of decency” is to be determined having regard to the current norms and expectations of the society in which the sentence is imposed and at the time it was imposed.

In casu, would the Zimbabwean society in 1995 have considered the mandatory sentence so excessive as to shock or outrage contemporary standards of decency? I think not.

The legislature, in prescribing the minimum sentence which can be imposed in the cases set out above, has taken a strong view of the dangers caused to society by the use of certain drugs. When one has regard to the possible deleterious effect of these drugs, the mandatory sentence cannot be described as grossly disproportionate. In this connection, regard must be had to the fact that Parliament is in a better position to determine the class of crimes which endanger the economic and moral fabric of the nation and the extent of the damage caused by that particular offence. (See S v Arab supra). Because the legislature, being representative of the people, has its ear to the ground, it is also fair to say that it is in a better position to determine both the attitude of society to specific crimes and the type of sentence which would be acceptable by society for certain types of criminal conduct. The minimum sentence prescribed in this case was then regarded by the legislature as the appropriate sentence for this kind of offence.

In prescribing the minimum sentence, the legislature ensured that the seriousness with which it viewed offences of this nature would be reflected in the sentences passed by the courts. A mandatory sentence would ensure that uniform sentences were passed by the courts for this offence. The intention was that in such cases the personal circumstances of the offender would have no bearing on the sentence imposed.

In order to cater for the cases where offenders did not merit a sentence as severe as the minimum sentence prescribed, the element of special circumstances was introduced in s 44(2). The introduction of the element of special circumstances was intended to mitigate the harshness of the minimum sentence. It was meant to provide an avenue for the exercise of the trial court’s discretion where special circumstances were found to exist. Thus where special circumstances were found to exist a court had the discretion to impose a sentence less severe than the mandatory minimum sentence if the justice of the case so required. The fact that the legislature did not ascribe a meaning to the term “special circumstances” is significant.

In S v Malgas 2001 (2) SA 1222 (SCA) MARAIS JA, in dealing with s 51 of the Criminal Law Amendment Act 105 of 1997, which prescribes a mandatory sentence of life imprisonment for certain offences, remarked upon the significance of the fact that the legislature, in that enactment, gave no guidance as to the meaning to be attributed to the term “substantial and compelling circumstances”, a finding of which entitles a court to impose a sentence less than that prescribed, as follows at 1233H-1234A:

“It signals that it [the legislature] has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence. In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so. A departure must be justified by reference to circumstances which can be seen to be substantial and compelling as contrasted with circumstances of little significance or of debatable validity or which reflect a purely personal preference unlikely to be shared by many.”

The decision as to whether special circumstances exist justifying a departure from the prescribed sentence is left within the province of the courts. That, in my view, is a sufficient safeguard against the imposition of a sentence which is “so unfit having regard to the offence and the offender as to be grossly disproportionate”.

I do not agree with the submission that the interpretation placed by the courts on the term “special circumstances” is a matter that can be taken into account in deciding whether the provision infringes s 15(1) of the Constitution. It is for a court to interpret the term in such a way that it accords with the intention of the legislature and, where special circumstances are found to exist, to impose what it considers to be an appropriate sentence.

With regard to the additional punishment imposed by s 44(2)b), the situation envisaged by the applicant could only occur where no special circumstances are found to exist. The severity of the minimum sentence in this case is an indication of the serious view which the legislature then took of offences of this nature and of the intention of the legislature to stamp out this offence. It bears repeating that the legislature is well placed to know the aspirations of the society which it represents as well as its attitude to certain types of crime and the appropriate punishment for those crimes.

For the above reasons I am of the view that the application must fail.

As I have already indicated, the provisions of the Act, in terms of which the applicant was sentenced to a mandatory term of imprisonment, have now been repealed. The new s 44(2) provides:

“(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level fourteen or to imprisonment for a period not exceeding twenty years or to both such fine and such imprisonment.”

This is an indication that the reasons justifying the requirement of the mandatory minimum sentence for contraventions of certain provisions of the Act no longer exist. Had the applicant been sentenced after the repeal of the mandatory provisions, it may be that a sentence less than twenty years could have been considered by a court to be appropriate. But this is not to say that the fact of the repeal would render the provisions unconstitutional. The applicant was sentenced at a time when a very serious view was taken of the offence of which she was convicted. The mandatory sentence was imposed for such offences by the legislature in the exercise of its duty to protect the citizens of Zimbabwe from the dangers attendant on the use of the prohibited drugs specified in the Act at a time when the illegal use of the said drugs was rampant.

Now that the mandatory provisions have been repealed, it may be that an application by the applicant for the exercise of the presidential prerogative of mercy in terms of s 31I(1) of the Constitution might be regarded with favour, but this is not the province of this Court.

For the above reasons the application is dismissed.

SANDURA  JA: I agree.

CHEDA JA: I agree.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Byron Venturas & Partners, applicant's legal practitioners

Attorney-General’s Office, respondent's legal practitioners