REPORTABLE (35)

Judgment No. SC 137/02

Civil Application No. 178/01

KEVIN JOHN WOODS v

(1) THE COMMISSIONER OF PRISONS

(2) THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA  JA, CHEDA JA, ZIYAMBI JA & MALABA  JA

HARARE, JUNE 27, 2002 & NOVEMBER 17, 2003

J Wood, for the applicant

A Dururu, for the respondents

MALABA JA:

INTRODUCTION

This is an application in terms of s 24(1) of the Constitution of Zimbabwe (“the Constitution”) for redress, on the allegation that there have been violations of ss 15(1) and 12(1) of the Declaration of Rights by the respondents in relation to the applicant.

The applicant (“Woods”) is fifty years old. He is a D-class prisoner serving a sentence of imprisonment for life at Chikurubi Prison, which is a maximum security State prison. Mr Woods had originally been sentenced to death for murder by the High Court on 18 November 1988. That sentence was commuted to a life sentence by this Court on 10 December 1993, following a declaration that the death penalty had become an inhuman and degrading punishment because of the delay in its execution. From the date when the death sentence was passed he has been in custody for close to fifteen years.

At the time of commission of the crime of murder Woods was a Zimbabwean citizen, having been born in this country, but was granted South African citizenship by descent in 1994. The first respondent (“the Commissioner”) has the administrative command, superintendence, control and direction of prisons and of the Prison Service in Zimbabwe. The second respondent (“the Minister”) is responsible for the administration of the legislation governing the operation of prisons and the Prison Service. He has the power to give the Commissioner general directions of policy.

THE RELEVANT STATUTORY PROVISIONS

The powers the respondents exercise in the discharge of their duties in connection with the administration of prisons are contained in the provisions of the Prisons Act [Chapter 7:11] (“the Act”) and the Prisons (General) Regulations, Statutory Instrument 1 of 1996 (“the Regulations”). Under the Act the Commissioner exercises his powers through officers in charge of prisons whom he appoints. All matters in connection with a particular prison would therefore fall under the direct supervision and control of its officer-in-charge. The officer-in-charge of Chikurubi Maximum Security Prison would be answerable to the Commissioner for the treatment to which Woods was subjected.

Section 64 of the Act provides that every person confined in a prison shall be in the lawful custody of the officer-in-charge and, subject to the Act, shall remain in such lawful custody and be subject to prison discipline during the whole period of his imprisonment.

The Minister is empowered by s 36(1) of the Act to appoint as a medical officer of a prison any medical practitioner who is registered as such in accordance with the Medical, Dental and Allied Professions Act [Chapter 27:08]. A medical officer has the general care of the health of the prisoners.

Under s 32 of the Regulations a medical officer must examine all prisoners who complain of illness; treat all sick prisoners; notify the officer-in-charge of all cases of serious illness; and make such written recommendations to the officer-in-charge regarding the treatment, isolation or care of sick prisoners as he thinks fit. An officer-in-charge is bound by s 18(1) of the Regulations to comply, whenever it is practicable, with the lawful and reasonable recommendations of a medical officer of the prison.

At the end of every four years’ imprisonment of a prisoner serving a life sentence the Commissioner is required under s 121(1) of the Act to forward a report on the prisoner to the Minister, who may submit it to the President of Zimbabwe (“the President”). The Commissioner must submit a report on a prisoner serving a life sentence at any time if asked to do so by the Minister or when instructed to do so by the President.

If a medical officer is of the opinion that the life of a prisoner is likely to be endangered by his further confinement in prison, or a sick prisoner is unlikely to survive his sentence, or the mental health of a prisoner appears likely to become impaired by his further incarceration in prison, he must, under s 34 of the Regulations, submit a written report to the officer-in-charge of the prison, giving his opinion and the reasons for his opinion. The officer-in-charge is bound to immediately forward the written report to the Commissioner for onward transmission to the Minister, who may submit it to the President.

THE FACTS

The facts or circumstances upon which Woods seeks redress from this Court are set out in the founding affidavit and documents annexed thereto. They are to this effect. On a date undisclosed, but in July 1993, Woods woke up in severe pain which lasted for thirty minutes in the chest, left arm and neck. He felt faint and breathless. The following day Woods saw Dr Ahmed, who was the medical officer for Chikurubi Maximum Security Prison. Doctor Ahmed was of the opinion that the symptoms Woods complained of having experienced were suggestive of coronary angina (severe pain caused by a disease in the arteries supplying blood to the tissues of the heart). The doctor gave Woods valium to calm his nerves and angiseed to place under his tongue in the event of another attack.

There were subsequent visits by Woods to Dr Ahmed, the details of which are not disclosed in the papers. It is important to note that there is no suggestion that Woods was feeling pain on the first visit to Dr Ahmed or on any of the subsequent visits to the medical officer.

In April 1994 Woods was allowed to consult medical doctors operating from centres outside prison. He saw Dr Ian Ternouth, a heart specialist and cardiologist based at Parirenyatwa Hospital.

On 11 September 1996 Dr Ternouth put Woods on an electrocardiogram (“ECG”) test to ascertain whether he had a coronary artery disease. The object of the test was to check, amongst other things, abnormal rhythms and ischaemia (a condition resulting from reduction or interruption of the supply of blood and oxygen) which would ordinarily show in a person suffering from a coronary artery disease.

Doctor Ternouth described the procedure conducted and the results thereof in the supporting affidavit deposed to on 26 July 1998 as follows:

“5.1 On the 11^th of September 1996 I conducted an ECG test on Mr Woods. He had a resting and effort test done. He completed forty-five steps in the master’s staircase. He developed some chest pains at twenty-seven steps.

5.2 His resting ECG was normal, but there were minor changes i.e. some minor ST depression on a couple of leads. There were ‘T’ wave changes in one of the leads.

5.3 My conclusions were that these wave changes were not definitely abnormal but they were not definitely normal either.

5.4 Based on the results of my examination and the symptoms that Mr Woods complained of, I concluded that Mr Woods could be having angina.

5.5 Coronary angina is a life threatening heart ailment which in some instances is stressed or environmentally related, but more often than not hereditary, in that it has the same risk factors, some of which are generic, like cholesterol.”

What is clear from Dr Ternouth’s affidavit is the fact that there was no diagnosis of a coronary artery disease.

On 21 February 1997 Dr Ternouth had Woods undergo another diagnostic test called “stress dobutamine tetrafosmine”. The procedure and its results are again explained in Dr Ternouth’s supporting affidavit:

“6.2 Dobutamine is a drug that increases heart and pulse rate. Stress dobutamine is a two-stage procedure that has approximately 93% specificity and 90% sensitivity for detecting coronary artery perfusion. The test was conducted according to a standard dobutamine protocol.

6.3 During the procedure the patient experienced no chest pain. The ECG showed him to develop sinus tarcycardia, i.e. a very fast rate of 150 beats per minute. This was the target level. The resting and effort ECG during the entire procedure was normal.

6.4 The drugs caused a major cardiac load – cardiac work load is a product of the pulse rate and blood pressure and we had increased the patient’s cardiac output by about four times.”

The above-mentioned diagnostic test revealed more information as to whether Woods was having a coronary artery disease. The results were that Woods did not produce the electrocardiographic changes usually seen in patients suffering from coronary angina. He did not experience any chest pains during the entire procedure despite the high stress levels.

Doctor Ternouth had, on 14 February 1997, arranged for Woods to have perfusion scan images of his heart taken. On 18 February 1997 Dr N D Jonker, a diagnostic radiologist based at the Diagnostic Imaging Centre in Harare examined the perfusion scan images. He noted a minor area of dead tissue in the inferior wall of the left ventricle. That was an irreversible defect. He also noted evidence of an occurrence of mild stress induced ischaemia within the septum (layer of tissue dividing the two chambers) of the left ventricle. Doctor Jonker, however, observed that there were no signs of an area of threatened myocardium (i.e. damage or injury to the muscular substance of the heart).

The same perfusion scan images were examined by Dr Basson of the Pretoria Academic Hospital/Cardiology Department in South Africa. He confirmed the results of Dr Jonker’s analysis. Dr Basson concluded that there was no short term effect on the proper functioning of Woods’ heart. In other words, his heart was functioning normally. There was no evidence of him having coronary angina. Doctor Basson indicated, however, that in the long term a disability could develop in Woods’ heart which could progressively lead to increased need for medical care.

The results of the diagnostic tests to which Woods had been subjected caused Dr Ternouth to write to his (Woods’) legal practitioner on 15 April 1997 saying:

“… if I had a patient who was not incarcerated and who complained of the same symptoms that Mr Woods complained of, then I would refer that patient for a coronary angiogram. The probability of the patient having a coronary heart disease is low but is not zero. Obviously in Mr Woods’ case the possibility of secondary gain cannot be excluded. His symptoms, however, are very classical of coronary angina. He does not have the electrocardiographic changes that we usually see in angina but the ECG has a 20% false negative rate and it is possible that Mr Woods falls in this group. Certainly if Mr Woods was a free man and came to me complaining of the symptoms then I would recommend that he have a coronary angiogram.”

What Dr Ternouth was in effect saying was that all that remained were the symptoms Woods had complained of because the diagnostic tests conducted on him had not revealed evidence of coronary angina. A coronary angiogram would be an additional diagnostic tool, the use of which was at the discretion of those in whose custody Woods remained. Had there been conclusive evidence that Woods was suffering from a coronary artery disease, the object of putting him on an angiogram would be the discovery of the exact cause thereof, such as blockages in the arteries.

On 28 May 1997 Dr Ternouth wrote another letter, in which he made reference to the results of the interpretation of the perfusion scan images. He again emphasised that the diagnostic test conducted on Woods so far had not detected coronary angina. He said:

“These scans show evidence of probable previous myocardial infarction. They do not show areas of threatened myocardium. Mr Woods, however, has symptoms that strongly suggest that he has coronary artery disease. His electrocardiograms with stress and his perfusion scans with stress do not show supporting evidence for coronary artery disease but these tests are not perfect tests. If Mr Woods was not incarcerated and presented to me as a patient with symptoms of anginal type of chest pains which is what he complains about then I would have no hesitation in referring him for a coronary angiogram to determine whether he had coronary artery disease or not.

As you are well aware Mr Woods is incarcerated and barring political settlement may be incarcerated for some time. The possibility exists that the symptoms he is complaining of may not be totally genuine, there is a possibility that he is complaining of his symptoms in order to get referral outside this country.”

According to Dr Ternouth’s expert opinion, the probability of Woods developing a coronary artery disease was quite low. He put the chance of that happening at 5% to 10%. He affirmed the existence of the possibility that Woods had simulated symptoms of coronary angina for purposes of secondary gain to be transferred to South Africa. Doctor Ternouth could not have had that opinion if the medical evidence indicated that Woods had a coronary artery disease.

Doctor Ternouth then went to New Zealand on sabbatical leave. Mr Woods was seen by Dr Muzamhino on 2 May, 25 July and 21 December 2000. He was treated for a peptic ulcer. On 18 December 2000 he saw Dr A Freemantle at a private surgery in Harare. He complained of having experienced dizziness, a headache, blurred vision and numbness in the left hand some seven months before the day he visited Dr Freemantle.

Doctor Freemantle was of the opinion that what Woods was complaining of were symptoms of a “transient ischaemic attack” (a mini-stroke), that is to say, a temporary reduction or interruption of the supply of blood and oxygen to the brain due to a blocked or narrowed artery. To ascertain whether that condition had actually occurred Dr Freemantle recommended that Woods be subjected to three diagnostic tests. These were –

(a) A Colour Doppler Test – to assess the condition of the neck or carotid arteries for any impediment to the smooth flow of blood to the brain;

(b) An A.C.T. Brain Scan – for the detection of any residual brain damage; and

(c) An Echocardiogram – for the assessment through sound waves of the condition of the heart muscles and blood tests for any small clots.

The first two tests were later done. No abnormalities were detected in the carotid arteries and the brain. The echocardiogram had not been performed at the time the application was heard. An electrocardiogram was instead conducted. It did not reveal any abnormalities in Woods’ cardiac functions. It was not said in the papers whether the echocardiogram would probably have produced different results.

Be that as it may, Woods was seen by Dr Masenda, the medical officer for Chikurubi Maximum Security Prison, on 31 January 2001. As indicated earlier on, it was the duty of Dr Masenda, as the medical officer, to establish by examination of Woods whether he was seriously ill. Doctor Masenda arranged for Woods to have an ECG test. This was done. He had a blood sample taken from Woods. It was tested for haemoglobin concentration and serum cholesterol levels. Mr Woods’ blood pressure was measured. Doctor Masenda had the Colour Doppler and A.C.T. brain scan tests recommended by Dr Freemantle done. All these diagnostic tests and measurements revealed no malfunction in Woods’ heart.

The opinion formed by Dr Masenda in his capacity as the medical officer of Chikurubi Maximum Security Prison was that Woods was not seriously ill at all. He concluded from all the medical evidence, including the interpretation of the perfusion scan images, that Woods was not suffering from a coronary artery disease. There was, therefore, no need to put him on an angiogram. Doctor Masenda associated himself with Dr Ternouth’s statement in the letter of 28 May 1997, that the symptoms Woods had complained of may have been simulated for secondary gain.

As the medical officer on whom the Act and Regulations placed the general health of prisoners, and with whose lawful and reasonable recommendations the respondents were to comply, Dr Masenda’s opinion on Woods’ condition of health was bound to be accorded considerable weight by the respondents in deciding whether or not to accede to his request for a transfer to South Africa on medical grounds.

The written request was submitted to the respondents on 24 October 2000. Mr Woods claimed that he needed to have a coronary angiogram in South Africa. The specialised diagnostic test is not available in Zimbabwe. The respondents turned the request down on the ground that as a prisoner Woods had no right as such to be transferred to another country on medical grounds and that there was no evidence that he suffered from a life-threatening disease.

On two occasions in 1997 and 1998 Woods had unsuccessfully petitioned the President for the exercise of the prerogative of mercy and an order that he be released from prison.

THE APPLICATION

Dissatisfied with the decision of the respondents and the unsuccessful petition for the exercise of the President’s prerogative of mercy, Woods lodged this application. He charged that his constitutional rights were violated. The refusal by the respondents to transfer him to South Africa where he wanted to have a coronary angiogram was said to have violated his right not to be subjected to inhuman or degrading treatment. The decision not to exercise the prerogative of mercy in his favour was said to have destroyed in him all hope for the restitution of freedom in his lifetime. The loss of hope of ever regaining his liberty allegedly turned the life sentence Woods was serving into an inhuman and degrading punishment in contravention of s 15(1) of the Constitution. There was also an allegation to the effect that the refusal by the respondents to transfer Woods to South Africa to have a coronary angiogram violated his right to life entrenched for him under s 12(1) of the Constitution.

THE RELIEF SOUGHT

In the event of a finding that the refusal by the respondents to transfer him to South Africa constituted a violation of s 15(1) of the Constitution, Woods prayed that an order directing the respondents to transfer him to an “appropriate prison authority” in that country be granted. In the event of a finding that the life sentence had become an inhuman and degrading punishment in contravention of s 15(1), or that the refusal to transfer him to South Africa amounted to an infringement of his right to life, Woods prayed that an order that he be released from custody be given.

THE CONSTITUTIONAL PROVISIONS

Section 15(1) provides that:

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

Section 12(1) provides that:

“No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.”

Section 31I, which contained the President’s prerogative of mercy, provides that:

“(1) The President may, subject to such lawful condition as he may think fit to impose –

(a) grant a pardon to any person concerned in or convicted of a criminal offence against any law; or

(b) grant a respite, either indefinite or for a specific period, from the execution of any sentence for such an offence; or

(c) substitute a less severe punishment for that imposed by any sentence for such an offence; or

(d) suspend for a specified period or remit the whole or part of any sentence for such an offence.”

THE ANALYSIS

All the circumstances stated above have to be considered in determining the constitutional questions raised by this application. The contention that the refusal by the respondents to transfer Woods to South Africa to have a coronary angiogram constitutes inhuman and degrading treatment takes account of the fundamental principle of the law to the effect that prisoners as human beings are entitled to all basic human rights enshrined in the Constitution except those withdrawn from them by law expressly or by implication – Woods v Minister of Justice and Anor 1994 (2) ZLR 195 (S) at 198C; Blanchard & Ors v Minister of Justice 1999 (2) ZLR 24 at 29F.

In punishing a person by incarcerating him or her, the State renders him or her unable to care for himself or herself, at the same time preventing others from assisting him. In Estelle v Gamble 429 US 97, the Supreme Court of the United States of America held that “an inmate must rely on prison authorities to treat his medical needs”. It was, however, held in Gamble’s case supra that it was “deliberate indifference” on the part of prison administration to “serious medical needs” or “serious illness” of a prisoner constituting “unnecessary and wanton infliction of pain” which amounted to “cruel and unusual punishment” under the Eighth Amendment of the American Constitution. The court made it clear that not every claim by a prisoner that he had not received adequate medical treatment or medical diagnosis stated a violation of the Eight Amendment.

In Conjwayo v Minister of Justice & Anor 1991 (1) ZLR 105 (S) GUBBAY  CJ at pp 112H-113A said:

“Section 15(1) is a provision that embodies broad and idealistic notions of dignity, humanity and decency. It guarantees that punishment or institutionalised treatment of offenders be exercised within the ambit of civilised standards. Punishment or treatment incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the infliction of unnecessary suffering, is repulsive.”

Section 15(1) clearly prohibits certain forms of ill-treatment. Conjwayo’s case supra makes it clear that it is not all forms of maltreatment which are prohibited by s 15(1).

Article 3 of the European Convention provides that “no-one shall be subjected to torture or to inhuman or degrading treatment or punishment”. It contains notions similar to those used in s 15(1) of our Constitution. In Ireland v UK 2 EHRR 25, the European Court of Human Rights considered the meaning of Article 3. The majority held that Article 3 prohibited ill-treatment which had to attain a minimum level of severity, that is to say, it had to cause intense physical and mental suffering. JUDGE FITZMAURICE in a dissenting judgment said the ill-treatment had to be recognisably “barbarous”, “savage”, “brutal” or “cruel”, “which is the least that is necessary if the notion of the inhuman is to be attained”. The learned judge said at p 134:

“For my part, I consider that the concept of ‘inhuman’ treatment should be confined to the kind of treatment that (taking some account of the circumstances) no member of the human species ought to inflict on another, or could so inflict without doing grave violence to the human, as opposed to the animal, element in his or her make up. This I believe is the sense in which the notion of ‘inhuman’ treatment was intended to be understood in Article 3 – as something amounting to an atrocity, or at least a barbarity. Hence it should not be employed as a mere figure of speech to denote what is bad treatment, ill-treatment, maltreatment, rather than properly speaking inhuman treatment.”

On the meaning of “degrading treatment” the court in the Ireland case supra accepted that the relevant notions were those of “humiliation” and “debasement”. The majority held that that “humiliation” and “debasement” had to be other than the general or usual element of humiliation associated with imprisonment after a criminal conviction. In other words, Woods should not have been “humiliated” simply by the decision which went against his wishes. That would be a typical consequence of any negative decision. Section 15(1) of our Constitution clearly implies that there should be a distinction between the “degrading treatment” it prohibits and general or usual treatment. JUDGE FITZMAURICE at pp 134-135 of the Ireland case supra said “degrading treatment” was:

“… intended to denote something seriously humiliating, lowering as to human dignity, or disparaging, like having one’s head shaved, being tarred and feathered, smeared with filth, pelted with muck, paraded naked in front of strangers.”

Accepting that the refusal to transfer Woods to South Africa where he wanted to undergo an angiogram test is “treatment”, can it be said it constitutes “inhuman” treatment or “degrading” treatment? A refusal by prison authorities of a request by a prisoner does not in itself constitute a form of inhuman or degrading treatment. Taking into consideration all the circumstances of this case, it cannot even be said that the decision of the respondents was an ill-treatment of Woods. Even if it was an ill-treatment, I am satisfied that he failed to show facts on which a finding that the decision constituted “inhuman” treatment or “degrading” treatment could be made.

In the first place, he had to show that he had a serious medical need for the diagnosis he wanted to be subjected to in South Africa or that he was seriously ill. He had to show by objective evidence that, with full knowledge that he was afflicted with a disease, the respondents refused him access to a diagnosis which would have led to the treatment of the disease. An inference would then have been made from such facts that the object of the decision was unnecessary and wanton infliction of pain on him.

In this case, the medical evidence placed before the respondents was to the effect that Woods was not suffering from a life-threatening disease. Medical examinations had established that he did not suffer from a coronary artery disease. The medical opinion of Dr Masenda who, as the medical officer of Chikurubi Maximum Security Prison, had the care of the health of prisoners and monitored the state of health of Woods, was that he did not need to undergo a coronary angiogram test. The respondents had the medical opinions of Dr Ternouth and Dr Masenda to the effect that Woods could have simulated the symptoms of a coronary artery disease to gain transfer to South Africa. They were entitled as laymen to place considerable weight on the opinions of medical experts. Their decision was in accordance with medical evidence and there is no indication at all that they refused Woods’ request for a transfer to South Africa because they derived pleasure in seeing him in pain. The nature of the medical evidence considered by the respondents did not provide them with knowledge of Woods having a serious medical need to be treated.

At the end of the day, all the respondents did was to refuse to allow Woods to undergo an additional diagnostic test on the ground that it was not necessary. That, in my view, cannot found a case for a contravention of s 15(1) of the Constitution.

In Gamble’s case supra a prisoner had been injured when a bale of cotton fell on him while he was unloading a truck. He thereafter had complained of a back injury. He was seen by a number of prison medical doctors and treated with pain relievers and muscle relaxants. The prisoner (Gamble) later instituted an action in which he complained that the Prison Service had failed or refused to have him undertake adequate diagnosis of his back injury. The prisoner alleged that the failure by the Prison Service amounted to “cruel and unusual punishment” in contravention of the Eighth Amendment. MR JUSTICE MARSHALL, delivering the opinion of the majority, said at p 107:

“The doctors diagnosed his injury as a lower back strain and treated it with bed rest, muscle relaxants, and pain relievers. Respondent contends that more should have been done by way of diagnosis, and treatment, and suggests a number of options that were not pursued.

The Court of Appeals agreed, stating:

‘Certainly an X-ray of (Gamble’s) lower back might have been in order and other tests conducted that would have led to appropriate diagnosis and treatment for the daily pain and suffering he was experiencing.’

But the question whether an X-ray – or additional diagnostic techniques or forms of treatment – is indicated is a classical example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.”

In this case, the decision of the respondents not to transfer Woods to South Africa to have a coronary angiogram was based upon the medical judgment of Dr Masenda to the effect that the additional diagnostic test was not necessary. In my view, that decision cannot be said to constitute “inhuman” treatment or “degrading” treatment.

IMPRISONMENT FOR LIFE

Mr Woods contended that the failure to exercise the President’s prerogative of mercy in his favour on the two occasions when he petitioned for its exercise turned the life sentence he is serving into an “inhuman punishment”. The submission was that the rejection of his petitions destroyed all hope in him of ever regaining freedom before the end of his natural life.

The argument in support of the submission was based on an obiter dictum by MAHOMED CJ in S v Tcoeib 1996 (7) BCLR 996. In that case the Supreme Court of Namibia had to decide whether a sentence of imprisonment for life for murder was a ”cruel, inhuman or degrading treatment or punishment” in contravention of Article 8(2)(b) of the Constitution of Namibia. Speaking for all the members of the court, MAHOMED CJ held that a sentence of imprisonment for life, which was a discretionary sentence in Namibia, did not per se violate the relevant constitutional prohibition against cruel, inhuman or degrading punishment. Having decided what on the facts was necessary to determine, MAHOMED CJ went on at 1004H-1005B to say:

“… there is no escape from the conclusion that an order deliberately incarcerating a citizen for the rest of his or her natural life severely impacts upon much of what is central to the enjoyment of life itself in any civilised community and can therefore only be upheld if it is demonstrably justified. In my view, it cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly for the offender without any prospect whatever of any lawful escape from that condition for the rest of his or her natural life and regardless of any circumstances which might subsequently arise. Such circumstances might include sociological and psychological re-evaluation of the character of the offender which might destroy the previous fear that his or her release after a few years might endanger the safety of others or evidence which might otherwise show that the offender has reached such an advanced age or become so infirm and sick or so repentant about his or her past, that continuous incarceration of the offender at State expense constitutes a cruelty which can no longer be defended in the public interest. To insist, therefore, that regardless of the circumstances an offender should always spend the rest of his natural life in incarceration is to express despair about his future and to legitimately induce within the mind and the soul of the offender also a feeling of such despair and helplessness.”

It appears to me that the hope of release from prison is inherent in the statutory mechanisms which incorporate the President’s prerogative of mercy. The prerogative of mercy is exercisable at any time depending upon the circumstances which may include the prisoner’s age and state of his health.

A prerogative of mercy is an exercise of the President’s personal discretion. It can be exercised without the involvement of the prisoner. In this case, the prerogative of mercy has not been exercised in favour of Woods and there is no telling whether and when it might be exercised. It was unreasonable for Woods to entertain the belief that the President’s prerogative of mercy would never be exercised in his favour during his life in prison when its exercise has no time limit. Mr Woods clearly laboured under a misconception of the essence of a prerogative of mercy.

In Reckley v Minister of Public Safety & Immigration and Ors (No. 2) [1996] 1 LRC 401, a decision of the Privy Council, LORD GOFF OF CHEVELEY cited with approval another decision of the same court in de Freitas v Benny [1996] AC 239. After stating that at common law the prerogative of mercy has always been a matter which lies solely in the discretion of the sovereign, LORD DIPLOCK said in the de Freitas case supra:

“Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy.”

By its very nature the President’s prerogative of mercy can still be exercised in favour of Woods at any time in future. It cannot be said that he has been effectively abandoned in prison as a “thing” without any residual dignity and without any hope of restitution of freedom in his lifetime.

The contention advanced on the sentence of imprisonment for life having become an inhuman and degrading punishment because the President’s prerogative of mercy has not been exercised must fail.

I do not consider it necessary to decide, as called upon to do by Mr Dururu, for the respondents, whether s 15(6) of the Constitution is applicable to the facts of this case since I have taken the view that there has been no contravention of s 15(1) of the Constitution.

THE RIGHT TO LIFE

The submission was that the refusal by the respondents to transfer Woods to South Africa to have a coronary angiogram was tantamount to condemning him to a “lingering death”. The argument was premised upon the presumption of the fact that Woods had been shown to be suffering from a life-threatening disease such as coronary angina and that the respondents had knowledge that he suffered from such a disease. The presumption has no basis on the facts.

Even if it had a factual basis, the argument would not establish a violation of s 12(1) of the Constitution, which is clearly not applicable to the facts of this case. Section 12(1) of the Constitution prohibits deliberate acts of violence directed at the person of another with the intention of killing him or her. The right protected (in a person) by s 12(1) of the Constitution is the right not to be intentionally killed except in the instances specified therein. It cannot, by any stretch of the imagination, be said that when the respondents refused to transfer Woods to South Africa where he wanted to have a coronary angiogram they intended to bring about his death. The evidence clearly shows that at the time the respondents made the decision they did not know that Woods was suffering from a life-threatening disease. The medical evidence placed before them was that he was not suffering from a life-threatening disease.

CONCLUSION

The application is accordingly dismissed with no order as to costs.

CHIDYAUSIKU CJ: I agree.

SANDURA  JA: I agree.

CHEDA JA: I agree.

ZIYAMBI JA: I agree.

Coghlan, Welsh & Guest, applicant's legal practitioners

Civil Division of the Attorney-General’s Office, respondents' legal practitioners