|www.corpun.com : Archive : 1999 : ZM Judicial Nov 1999|
The Times of Zambia, Ndola, 30 November 1999
By Astone Kuseka
A LUSAKA High Court judge has ruled that corporal punishment is inhuman and should be removed from the statute books because it contravenes the Republican Constitution.
The court has specifically declared null and void Sections 24 (c) and 27 of the Penal Code Act Cap. 87 of the Laws of Zambia.
Judge Elliot Chulu made the landmark declaration yesterday in a judgment passed in an appeal case involving a 19-year-old man who was challenging a magistrate's order for him to receive 10 strokes of the cane.
Mr Justice Chulu upheld the appeal and quashed the sentence of the appellant John Banda convicted on one count of causing malicious damage to property.
Mr Justice Chulu said Sections 24 (c) and 27 of the Penal Code which provided for corporal punishment were in direct conflict with Article 15 of the Republican Constitution.
The court also ruled that contrary to arguments by the respondents led by the Director of Public Prosecutions (DPP) Mukelabai Mukelabai, there were no derogations to lessen the provisions of the Constitution which was the supreme law of the land.
In the grounds of appeal, advocate for the appellant Henry Chanda of Henry Chanda and Company sought the court to declare the sentence null and void on grounds of its unconstitutionality.
Mr Chanda argued that by its brutal and barbaric nature, the sentence conflicted with the appellant's guaranteed and entrenched constitutional rights against torture, inhuman and degrading punishments under Article 15 of the Constitution.
Mr Chanda noted that the brutality of the sentence was affirmed by Section 27 (5) of the Penal Code which made it a mandatory requirement for a medical doctor to supervise the infliction of the corporal punishment for the purpose of saving the life of the victim.
He also noted that corporal punishment was administered discriminatively against the under-privileged members of society while the affluent people with similar or worse cases were spared the punishment.
"This court should take judicial notice of the fact that the provisions of the Penal Code on corporal punishment were passed before the 1964 independence Constitution which contained the Bill of Rights.
"Before this Bill of Rights, corporal punishment was lawful in that the question of unconstitutionality did not arise at that time," he said.
In an interview, Mr Chanda who is also chairman of the Law Association of Zambia (LAZ) human rights committee welcomed the outcome saying it was the second time in the history of Zambia that the High Court has declared an Act of Parliament null and void.
In 1973, then High Court Judge Dennis Chirwa declared Section 53 (1) of the Corrupt Practices Act null and void and, therefore, unconstitutional saying it was in direct conflict with Article 20 (7) of the Republican Constitution.
Section 53 (1) compelled anyone charged under the Corrupt Practices Act to testify on oath contrary to Article 20 which stipulated that no person who is tried for a criminal offence should be forced to give evidence.
Rainbow Monitors president, Lloyd Salimboshi, said the development was a great stride for Zambia and called for more of what he termed judicial activism in Zambia to fight laws that violated human rights.
Reverend Salimboshi said the alternative to laws like corporal punishments should be community sentences.
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