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 -
they take no account of the
level of culpability of any particular offender;
they take no account of the
personal circumstances of each offender;
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;
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 courts 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-Generals
Office, respondent's
legal practitioners