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Judicial CP - August 2002
Daily News, Harare, 21 August 2002
High Court Describes Minor's Sentence As Judicial Barbarism
JUSTICE Charles Hungwe of the High Court has described as "judicial barbarism" the sentencing of a juvenile first offender who broke into a house to steal $100 and two boxes of matches to three strokes with a rattan cane.
Hungwe, reviewing the criminal case before the Zaka Magistrates' Courts last year, declined to confirm the proceedings as being in accordance with justice.
"As matters stand, a 16-year-old boy who broke into a house has been savaged by the judicial system," he said.
"The harm he has suffered is incomparable to the loss suffered by the complainant or the community at large. In the circumstances, I am unable to certify these proceedings as being in accordance with real and substantial justice."
He noted that the boy had not gone beyond Grade 5 and depended on maternal support.
The trial magistrate had convicted the boy, now aged 17, of housebreaking with intent to steal and theft, on his own plea of guilt.
He broke into the complainant's house at Gutusa village on 24 November 2001.
Passing sentence, the magistrate rated the teenager's moral blameworthiness as very high, stating that housebreaking was both serious and prevalent in Zaka district.
He expressed the view that corporal punishment would meet the justice of the case.
Hungwe, however, said: "There can be no doubt that corporal punishment is a most severe type of punishment.
"That this is so can be deduced from the fact that the legislation has fixed the upper limit of strokes to be imposed on any such convicted person at any one time at six."
The judge said that the sentence was harsh was reaffirmed by the fact that a person on whom such punishment was to be meted out had to be first examined by a medical doctor to certify him fit to withstand the sentence.
A doctor or nurse was also required to be present during the administration of the punishment in case the convict failed to withstand the beating, said Hungwe.
He said the court should be hesitant to resort to caning, which had come under heavy criticism.
Hungwe said the trial magistrate should have considered imposing a non-custodial term such as community service or a fine.
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