Namunjepo and Others v Commanding Officer Windhoek Prison and Another (SA 3 of 1998) [1999] NASC 3 (09 July 1999);
CASE NO.: SA 3/98 IN
THE SUPREME COURT OF NAMIBIA
In the matter
between
APPELLANTS
FIRST RESPONDENT SECOND
RESPONDENT
THOMAS
NAMUNJEPO AND OTHERS
And
THE COMMANDING
OFFICER, WINDHOEK PRISON
THE MINISTER OF
PRISONS AND CORRECTIONAL
SERVICES
CORAM: Strydom,
C.J.; Silungwe, A.J.A, et Levy, A.J.A. HEARD ON: 1999/04/15
DELIVERED ON: 1999/07/09
APPEAL JUDGMENT
STRYDOM. C.J
.: At the time when this application was launched in the High Court
the Appellants were all detained in the Windhoek Prison as awaiting
trial prisoners. Appellant No. 1, together with numbers 2, 3 and 4,
escaped from prison on 11 August 1997. Appellants 1, 2 and 3 were
recaptured on 16 August 1997 and Appellant No. 4 on 12 September
1997. Following their recapture all four Appellants were put in
"chains". The First, Second and Third Appellants were put
in chains on 16 August 1997 and the Fourth Appellant on 12 September
1997. Although the Fifth Appellant did not escape
2
it was alleged that
he attempted to escape and he was put in chains on 11 August 1997.
It was alleged that at the time when the application was launched all
the Appellants were still in chains. That would mean that First,
Second, Third and Fifth Appellants were in "chains" for
periods exceeding six months and Fourth Appellant for a period
exceeding five months.
Although the
application was served on the Respondents there was no opposition
when the matter came before Hannah, J, on the 27th
February 1998. The following Rule nisi was issued by the
learned judge, namely:
" 1. That the
rules of the above Honourable Court in respect of forms, service and
time periods are dispensed with due to the urgency of this
application.
2. That a Rule nisi
is hereby issued, calling upon the Respondents to show cause, if
any, on Friday, 27 March 1998 at lOhOO, why a final order should not
be granted in the following terms:
That First
Respondent be directed to remove forthwith the irons, mechanical
restraints or chains presently placed on Appellants' bodies.
Declaring
Respondents' conduct or practice of placing prisoners in irons,
mechanical restraints or chains to be unconstitutional.
Declaring the
following sections of the Prisons Act, Act No. 8 of 1959 ("the
Prisons Act"), to be unconstitutional and setting aside these
sections:
3
the phrase "and,
in addition in the alternative, if necessary, to be placed in irons
or subjected to some other approved means of mechanical restraint"
in section 80(1);
the phrase "any
such restraint or" in section 80(2);
the phrases "and,
if necessary, subjected to mechanical restraint", "or
restraint" and "or restraint" in section 80(3);
the phrases
"restraint or" in section 80(5)(a);
the phrases
"restraint or" and "restraint or" in section
80(5)(b);
the phrase "Or
subjected to mechanical restraint" in section 80(6).
Declaring
regulation 102 of the Prisons Regulations, made in terms of section
94 of the Prisons Act, to be unconstitutional and setting it aside.
In the alternative
to paragraphs 2.2, 2.3 and 2.4 above, declaring the subjection of
Applicants to irons, mechanical restraints or chains to be unlawful.
That Second
Respondent pays the costs of this application, first Respondent to
be so liable only in the event of his opposing this application."
Subsequent to the
issue of a Rule nisi the Respondents filed a notice of
opposition and the Commanding Officer of the Windhoek Central Prison
deposed to an affidavit in which it was stated that the Respondents
had no objection to the confirmation of subparagraph
4
2.1 of the Rule
nisi, I.e. releasing the Applicants forthwith from irons,
mechanical restraints or chains placed on their bodies. The deponent
also stated in his affidavit that the Applicants were in fact so
released. The Commanding Officer further denied that section 80 of
the Prisons Act was unconstitutional and opposed the relief claimed
in terms of subparagraphs 2.2, 2.3 and 2.4.
The return day of
the Rule nisi was finally heard on the 8th May 1998 before
Teek, J. (as he then was) and O'Linn, A.]. The Court (O'Linn, A.J.)
confirmed paragraph 2.1 of the Rule nisi but dismissed
paragraphs 2.2 as amended and 2.3 as well as 3.4 and 3.5 of the Rule
nisi (paragraphs 3.4 and 3.5 should read 2.4 and 2.5). During
argument before the Court a quo Mr. Light, who appeared on
behalf of the Appellants, applied for the amendment of subparagraphs
2.2 and 2.3.6 of the Rule nisi, by deleting the words
"mechanical restraints" and "or subjected to
mechanical restraint" where they appear in the subparagraphs.
This was done because the words "mechanical restraints"
also include handcuffs and any declaration of unconstitutionality
would therefore also prohibit the use of handcuffs which was not the
purpose of the application.
On appeal Mr. Light
and Mr. Botes again appeared respectively for the Appellants and the
Respondents.
At this stage it is
necessary to give a short chronology of the fate of the Prisons Act,
Act 8 of 1959. The judgment in this matter was delivered on 5 August
1998. On 22 June 1998 a new Prisons Act was published which repealed
the whole of Act No. 8 of 1959. This new Act became law on 26 August
1998. (See G.N. No. 206 published in Government Gazette 1927 of 15
August 1998.) Therefore, by the time that this Appeal was heard on 15
April 1999, Act.8 of 1959 was replaced by the new Act, Act
5
17 of 1998. The
question then arose whether this Appeal had not become an abstract or
academic exercise and if so whether this Court should hear it? (See
I.T. Publishing (Ptv) Ltd and Another v Minister of Safety and
Security and Others, 1997(3) SA 514 (CC).)
Although Mr. Light
conceded that there was no comfort in declaring something
unconstitutional which no longer existed he argued that the new Act,
Act 17 of 1998, also provided for placing prisoners in mechanical
restraints and that any ruling by this Court would therefore not be
wholly academic but would serve as a guideline for the implementation
of the new Act. Counsel further informed the Court that various
prisoners had instituted civil claims against the Government on the
basis of the unconstitutionality of sec. 80 of the repealed Prisons
Act (hereafter referred to as the Prisons Act) and/or the
unlawfulness of putting prisoners in chains in ways which were not
sanctioned by the section.
It is, in my
opinion, in this latter regard that the rights of the Appellants are
affected and which makes it necessary that this Court should deal
with the Appeal. The Rule nisi was dismissed by a Full Bench
of the High Court which decision would bind any single ]udge sitting
on the civil claims. A decision of this Court in favour of the
Appellants will have an effect on the rights of the Appellants in
their civil claims. A decision by this Court against them will
effectively put paid to claims based on the unconstitutionality of
sec. 80 of the Prisons Act. That would save time and costs as
Appellants would then be limited to their claims, if any, based on
the unlawful actions by employees of the State.
The challenge to the
unconstitutionality of sec. 80 and Regulation 102 was based on
Article 8 of the Constitution. Section 80 of the Prisons Act provides
as follows:
6
"(1) As
often and for as long as It Is urgently and absolutely necessary to
secure or restrain any prisoner -
who has displayed
or is threatening violence; or
who has been
recaptured after escape or who there is good reason to believe is
contemplating escape;
the member of the
Prisons Service in charge of the prison may order that prisoner to be
confined in an isolation cell, and, in addition or in the
alternative, if necessary, to be placed in irons or subjected to some
other approved means of mechanical restraint for such period as may
be considered absolutely necessary, but not exceeding one month.
The powers
conferred upon a member of the Prisons Service by sub section
(1) may likewise be exercised by him upon the written order of the
medical officer recommending any such restraint or confinement in an
isolation cell for medical reasons.
A member of the
Prisons Service in charge of a prison may order any prisoner to be
confined in an isolation cell and, if necessary, subjected to
mechanical restraint if such confinement or restraint is requested
by the police authorities in the interests of the administration of
justice, but the period of any such confinement or restraint shall
not be longer than is necessary for the purpose required.
(4)(a) The member of
the Prisons Service who issues an order under this section shall
immediately make an entry in a book to be kept for the
7
purpose, recording
the particulars thereof and if such member is not a commissioned
officer, he shall without delay send notice of his action to the
commissioned officer under whose command he falls, stating the facts
and making his recommendation.
(b) Such
commissioned officer shall at the earliest opportunity visit the
prison and confirm or set aside such member's order. (5)(a) If it is
considered absolutely necessary to continue such restraint or
confinement in an isolation cell for a period exceeding one month,
the member of the Prison Service in charge of the prison shall report
to the commissioner stating the facts and making
his recommendation, (b) Upon receipt of the said
report and recommendation the commissioner may order the
extension of the period of restraint or confinement in an isolation
cell for two additional months, but no such restraint or confinement
shall exceed a period of three months without an order under the hand
of the Minister. (6) Save as is provided in section seventy-nine
and in this section, no prisoner, other than a person under sentence
of death or in the course of transfer or while temporarily outside
the precincts of the prison, shall, unless sentenced to solitary
confinement by a court of law, be confined in any isolation cell or
subjected to mechanical restraint."
Regulation 102 of
the Prisons Regulations provides that -
"Limitation and
object of restraint .
8
Restraint shall
only be applied in the circumstances and for the purpose prescribed
in section 80 of the Act and shall in no circumstances whatsoever be
used as punishment.
All forms of
mechanical restraint and the manner in which they are applied,
shall be prescribed: Provided that chains exceeding five kilogram in
mass shall not be used."
Article 8 of the
Constitution provides that -
" (1) The
dignity of all persons shall be inviolable.
(2)(a) In any
judicial proceedings or in other proceedings before any organ
of the State, and
during the enforcement of a penalty, respect for
human dignity shall
be guaranteed, (b) No persons shall be subject to torture or to
cruel, inhuman or
degrading treatment
or punishment."
Article 8 was on
more than one occasion the subject of interpretation before the High
and Supreme Courts of Namibia. The first occasion was when the
Supreme Court considered the constitutionality of corporal punishment
by organs of State. See Ex parte: Attorney General: in
re Corporal Punishment by Organs of State, 1991 (3) SA
76 (NmSc).
As to what a Court's
approach to Article 8(2)(b) should be Mahomed, A.J.A., (as he then
was) stated that the words "to torture or to cruel, inhuman or
degrading treatment or punishment" should be read disjunctively
and they therefore seek to protect the citizens from seven different
conditions namely:
9
"(a) torture;
cruel treatment;
cruel punishment;
inhuman treatment;
inhuman punishment;
degrading
treatment; and
degrading
punishment."
p. 86 A-C
Furthermore the
learned Judge stated that no derogation from the rights entrenched by
Article 8 are permitted and that the State's obligation was absolute
and unqualified. "All that is therefore required to establish a
violation of art. 8 is a finding that the particular statute or
practice authorised or regulated by a State organ falls within one or
other of the seven permutations of Art. 8(2)(b) set out above; 'no
questions of justification can even arise' (Sieehart The
International Law of Human Rights at 161 para 14.3.3)" p. 86
D-E.
The learned Judge
further pointed out that:
"The question
as to whether a particular form of punishment authorised by the law
can properly be said to be inhuman or degrading involves the exercise
of a value judgment by the court. (S v Ncube and Others
{supra) at 717 I.)
It is however a
value judgment which requires objectively to be articulated and
identified, regard being had to the contemporary norms, aspirations,
expectations and sensitivities of the Namibian people as expressed in
its national institutions and its Constitution, and further having
regard to the emerging consensus of values in the civilised
international community (of which Namibia is part) which Namibians
share. This is not a static exercise. It is a continually evolving
dynamic. What may have been acceptable as a
10
just form of
punishment some decades ago, may appear to be manifestly inhuman or
degrading today." P. 86 H - p. 87 A.
After also
reviewing the situation in various other jurisdictions the Court had
no hesitation to declare corporal punishment by organs of State
unconstitutional, also in regard to juveniles.
The next case in
which Article 8 played a role is S v Tcoeib, 1993(1) SACR 274
(Nm). This is a judgment by C'Linn, ]. and concerned the
constitutionality of life imprisonment. The learned Judge discussed
various cases and more particularly Ex parte: Attorney-General:
In re: Corporal Punishment and summed up the law as follows:
"(a) When the
court must decide whether or not a law providing for a particular
punishment is cruel, inhuman or degrading and thus in conflict with
Article 8 of the Namibian Constitution and whether such law and such
punishment is therefore unconstitutional and forbidden, the Court
must have regard to the contemporary norms, aspirations,
expectations, sensitivities, moral standards, relevant established
beliefs, social conditions, experiences and perceptions of the
Namibian people as expressed in their national institutions and
Constitution, as well as the consensus of values or 'emerging
consensus of values' in the 'civilised international community'.
The resultant
value judgment which the court must make, must be objectively
articulated and identified, regard being had to the aforesaid norms,
etc., of the Namibian people and the aforesaid consensus of values
in the international community.
Whilst it is
extremely instructive and useful to refer to, and analyse, decisions
by other Courts such ss the International Court of Human
Rights, or the Supreme Court of Zimbabwe or the United States of
America, the one major and basic consideration in arriving at a
decision involves an enquiry into the contemporary norms,
aspirations, expectations, sensitivities, moral standards, relevant
established beliefs, social conditions, experiences and perceptions
of the Namibian people.
In order to make an
objective value judgment, an enquiry of some sort is required, which
must at least comply with the mandatory provisions of the Supreme
Court Act and the High Court Act as well
11
as with the
elementary requirements for a judicial tribunal In deciding Issues of
fact and law in any proceeding." (p. 286 J-287 d.)
The case of Tcoeib
went on appeal to the Supreme Court of Namibia. The Court, Mahomed,
C.J., tested the various legislative provisions which provide for a
sentence of life imprisonment against inter alia, Article 8(1)
and 8(2)(b) of the Constitution. The learned judge came to the
conclusion that if, in the Namibian context, life imprisonment should
mean incarceration of the prisoner for the rest of his or her natural
life then that would reduce the prisoner to a thing without any
continuing duty to respect his or her dignity. Such sentence would be
unconstitutional (p. 399 a - b). However, after a review of the
relevant legislation, the learned Chief justice came to the
conclusion that sufficient provision is made for the release of a
prisoner after some time and that life imprisonment was therefore not
perse unconstitutional.
Thereafter the
learned judge considered whether, on the facts of the particular
case, it could be said that the sentence of life imprisonment was
unconstitutional. The court came to the conclusion that the
imposition of such a sentence would be unconstitutional "if the
circumstances of that case justify the conclusion that it is so
grossly disproportionate to the severity of the crime committed that
it constitutes cruel, inhuman or degrading punishment in the
circumstances or impermissibly invades the dignity of the accused"
(p. 402 f-g).
In the case of S.
v Sipula, unreported, judgment by O'Linn, J, in which I
concurred, the Court accepted for purposes of the judgment that the
case of Ex parte: Attorney-General: In re: Corporal Punishment,
supra, also outlawed corporal punishment imposed and executed
by the Khuta (a customary court), in terms of customary law. It
was
12
however pointed out
that the Khuta was an institution of the Namibian people and as it
did not have an opportunity to put Its views before the Court in the
Ex parte: Attorney-General-case, supra, it
was doubtful whether the accused, who was only executing the order of
the Khuta, was aware of the unlawfulness of his act.
In S. v Vries,
1996(3) SACR 638 (Nm) a Full Bench of the High Court of Namibia
considered the constitutionality of the minimum sentence imposed by
sec. 14(1 )(b) of the Stock Theft Act, Act No. 12 of 1990.
Frank, J., in whose judgment Gibson, ]., concurred, came to the
conclusion that Article 8(2)(b) was absolute. To determine whether a
particular legislative Act infringes the Article "is a value
judgment that could vary from time to time but which is one not
arbitrarily arrived at but which must be judicially arrived at by way
of an attempt to give content to the value judgment by referral to
the prevailing norms which may or may not coincide with the norms of
any particular judge" (p. 641 b - c). The learned judge came to
the conclusion that minimum or mandatory sentences are not perse
unconstitutional (p 646 e).
In order to
determine whether a particular minimum sentence was unconstitutional
the Court reviewed American and Canadian cases where the Courts
declared unconstitutional a sentence which was grossly or excessively
disproportionate to the wrongdoing or severity of the offence (p 642
c - j). The learned judge then stated that the disproportionality
test was the same test that was originally used to determine whether
a sentence was shocking in the sense that it was one which no
reasonable man would have imposed (p. 643 h-i).
O'Linn, j., came to
the same conclusion as the majority of the Court but for different
reasons. The learned judge stated that Ant. 8(2)(b) was not
absolute and he reasoned
13
that first of all
the content or meaning of the fundamental right must be ascertained
(p. 651 b). The Court considered the onus and concluded that in the
case of fundamental rights the onus was on the person alleging an
infringement of his right to prove on a balance of probability that
that right was constitutionally violated (p. 665 - 667 g). To
decide the meaning and content of the right contained in Article
8(2)(b) in the context of the Constitution it is necessary to make a
value judgment as expressed in the Ex parte: Attorney-General: In
re: Corporal Punishment-casersupra, (p 667 h).
Although no evidence was placed before the Court concerning the
general norms and aspirations held by the Namibian people the Court
was entitled to take judicial notice of notorious facts (p. 671 h).
The learned Judge in conclusion applied the proportionality test
which he saw as part and parcel of the current values test, the
former providing a more precise and practical yardstick for the Court
to apply (P. 673 c - 674 d). Strong emphasis was placed by the
learned Judge on determination by the Court of the present values and
aspirations of the Namibian people and examples are given of how this
determination can be achieved, (p. 671 h - 672 c).
Lastly there is the
case of S v Muronea lonas Likuwaf a Full Bench
Judgment of the High Court of Namibia, unreported, delivered on 23
March 1999. It also concerned a minimum sentence namely that imposed
by sec. 38(2)(a) of the Arms and Ammunition Act, 1996. The Judgment
by Hannah, J., was concurred in by Mtambanengwe, J., and Mainga, A.J.
The court accepted that there can be no derogation from the rights
entrenched by Article 8 and confirmed the approach of Mahomed, A.J.A,
(as he then was) in the Ex parte: Attorney-General: In re:
Corporal Punishment-case, supra, at p. 188 D that the
determination of Constitutionality or otherwise involves a value
judgment based on the contemporary norms, aspirations and
expectations of the Namibian people.
14
The Court again
applied the proportionality test as set out by Frank, J. in the
Yrjej-case, supra.
Bearing in mind the
above judgments it seems that there is general consensus that to
determine whether there is an infringement of Article 8(2)(b)
involves a value judgment based on the current values of the Namibian
people. In instances where the infringement is based on the
constitutionality or not of a mandatory minimum sentence the
proportionality test was applied as a yardstick by the Courts. In
instances where it concerns the type of sentence, such as corporal
punishment and whether life imprisonment is per se
unconstitutional, the proportionality test can not always be
applied to determine the current values of the Namibian people. In
such cases the Court will have to determine such values as expressed
in the Constitution and other institutions of the people and, if
necessary, resort to some or other form of enquiry as was suggested
by O'Linn, ]., in the Tcoejb-case, supra, and the present
case.
Although, at first
blush, it seems that the Judges are not argreed as to the issue of
whether Article 8(2)(b) is absolute or not, a reading of the cases
shows that all the Judges applied the current values test. That, in
my opinion, presupposes that such exercise is undertaken to give
content and meaning to the words used in the Article. Once this is
done there is no basis on which legislation which is in conflict
therewith can be found to be constitutional and in that sense all
agreed that the Article is absolute. Lastly it was accepted in all
these cases that the people of Namibia share basic values with all
civilized Countries and for that reason it is useful and important to
look at interpretations of other jurisdictions although the
determining factor remains the values expressed by the Namibian
people as reflected, inter alia, in its various institutions.
15
In the matter before
Court Mr. Light submitted that the placing of Appellants in irons per
se violates their right to dignity and constitutes cruel, inhuman
and degrading treatment or punishment of the Appellants. Counsel's
argument was based on the law as set out in the case of Ex parte:
Attorney General: In re: Corporal Punishment, supra. Counsel
therefore accepted that before it can be said that a particular
treatment or punishment was inhuman or degrading, a value judgment
based on the contemporary norms, aspirations, expectations and
sensitivities of the Namibian people as expressed in their national
institutions and Constitution and the emerging consensus of values in
the civilised international community, is required. (Ex parte:
Attorney-General: in re: Corporal Punishment-case, supra, p.
86H - 87A.) See also S v Tcoeib, supra, at 398e and
398c.
Dealing with the
position in International Law Mr. Light submitted that Namibia has
acceded to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment ("CAT") and the
International Covenant on Civil and Political Rights ("ICCPR")
which both contain provisions similar to our Article 8 of the
Constitution. Namibia also acceded to the First Optional Protocol to
the "ICCPR" which allows for complaints by individuals to
go before the Human Rights Committee. Counsel further referred to the
Standard Minimum Rules for the Treatment of Prisoners and more
particularly Rules 33 and 34 thereof which deal with mechanical
restraints and prohibit the use of chains and irons. Counsel were
agreed that such Rules do not create legal obligations but serve as
guidance in interpreting the general rule against cruel, inhuman or
degrading treatment or punishment. (See Van Zvl Smit. South
African Prison Law and Procedure, p. 81.)
Mr. Light also
referred the Court to cases in various other jurisdictions such as
India, European Court of Human Rights, United States of America and
Legislative provisions in
16
South Africa and the
United Kingdom concerning the use of mechanical restraints. There is
no doubt that the majority of these authorities show a movement away
from and an abhorrence of the arbitrary and unnecessary use of
mechanical restraints in regard to prisoners. Most of the Countries
opted for the use of mechanical restraints only in instances where it
was absolutely necessary and then under strict control and for
shorter duration. Counsel did not maintain that such chaining
constitutes cruel treatment or punishment.
Mr. Botes argued
that an investigation of the case-law and legislative provisions of
other Countries show that mechanical restraints are still accepted
throughout the civilised world although some Countries have moved
away from the practice of chaining or placing a prisoner in irons.
Section 80 of the Prisons Act provides for specific instances where
the placing in irons is permissible and then only when absolutely
necessary. Furthermore sec. 102(1) of the Prison Regulations
specifically forbids the placing in irons as a means of punishment.
Counsel consequently submitted that sec. 80 of the Prisons Act and
Regulation 102, and more particularly the parts objected to, were not
unconstitutional.
At this stage it is
perhaps necessary to point out that imprisonment does not deprive a
prisoner of all or every basic right which the ordinary citizen
enjoys. In the case of Goldberg and Others v Minister of Prisons
and Others. 1979(1) SA 14(A) the following was stated by Corbett,
J.A., at 39 C - E:
"It seems to me
that fundamentally a convicted and sentenced prisoner retains all the
basic rights and liberties (using the word in its Hohfeldian sense)
of an ordinary citizen except those taken away from him by law,
expressly or by implication, or those necessarily inconsistent with
the circumstances in which he, as a prisoner, is placed. Of course,
the inroads which incarceration necessarily make upon a prisoner's
personal rights and liberties are very considerable. He no longer
has freedom of movement and
17
has no choice In the
place of his imprisonment. His contact with the outside world Is
limited and regulated. He must submit to the discipline of prison
life and to the rules and regulations which prescribed how he must
conduct himself and how he is to be treated while in prison.
Nevertheless, there Is a substantial residuum of basic rights which
he cannot be denied; and if he is denied them, then he is entitled,
in my view, to legal redress."
Although the
learned Judge was in the minority when he made these observations
this general approach was accepted by the South African Appeal Court
in the case of Minister of Justice v Hofmevr, 1993(3) SA 131
(AD). See also Mandela v Minister of Prisons, 1983( 1) SA 938
(AD) at 957 E - F.
I respectfully
agree with what was stated in these cases. To imprison a person would
in many respects invade his or her rights and also the right to
dignity but these inroads are the necessary result of the
incarceration and are sanctioned by the Constitution, Article 7. That
does not mean that a prisoner can be regarded as a person without
dignity. Putting a prisoner in irons where that is not absolutely
necessary would, at least, constitute degrading treatment as that
word was understood in the case of Ex parte: Attorney-General: In
re: Corporal Punishment-case, supra, p. 86 G. In this
regard the Court looked at the dictionary meaning of the words
"inhuman" and "degrading". According to The
Oxford English Dictionary "inhuman" means "destitute
of natural kindness or pity; brutal; unfeeling; cruel; savage;
barbarous." To "degrade" means "to lower in
estimation, to bring into dishonour or contempt; to lower in
character or quality; to debase". These meanings are also
accepted for purposes of this case.
Concerning the
question whether sec. 80 of the Prisons Act and Regulation 102 are
unconstitutional no evidence as to the contemporary aspirations,
norms, expectations and sensitivities of the Namibian People was
placed before the Court a quo or this Court. In
18
all the
circumstances there is no reason why this Court shall not approach
this issue as was laid down by Mahomed, C.J., in S. v Tcoeib,
supra, p. 398 I, footnote 11, namely:
"No evidential
enquiry is necessary to identify the content and impact of such
constitutional values. The value judgment involved is made by an
examination of the aspirations, norms, expectations and sensitivities
of the Namibian people as they are expressed in the Constitution
itself and in their national institutions."
In determining what
the contemporary norms, sensitivities, ideals and aspirations of the
people at a given time are, the Court is not free from certain
constraints. Firstly the words used by the Constitution have their
usual and grammatical meanings, which cannot be totally ignored. A
Court interpreting a Constitution will give such words, especially
those expressing fundamental rights and freedoms, the widest possible
meaning so as to protect the greatest number of rights. It must
further also be understood that present day values cannot possibly
change what is utterly cruel or inhuman or degrading into something
which is not cruel or inhuman or degrading. Secondly the very
aspirations expressed by the Constitution may set the tone and
explain present day norms and sensitivities held by the people.
in dealing with the
current day values of the Namibian people as expressed in their
Constitution, Mahomed, C.J., after analysing the provisions of the
Constitution, stated the following in S. v. Tcoeib, supra,
p. 398 d - f, namely:
"Such a culture
of mutually sustaining despair appears to me to be inconsistent with
the deeply humane values articulated in the preamble and the text of
the Namibian Constitution which so eloquently portrays the vision of
a caring and compassionate democracy determined to liberate itself
from the cruelty, the repression, the pain and shame of its racist
and colonial past. Those values require the organs of the society
continuously and consistently to care for the conditions of its
prisoners, to seek to manifest concern for, to reform and
rehabilitate those prisoners during
19
incarceration and
concomitantly to induce in them a consciousness of their dignity, a
belief in their worthiness and hope in their future."
Without such hope
and a belief in his or her own worthiness and dignity any attempt at
rehabilitation of a prisoner stands little or no chance of success.
As stated in the
Namibian cases quoted herein before the Court should also look at the
situation in the international community. In this regard both Counsel
have referred us to various cases in other jurisdictions as well as
conventions and protocols drafted and accepted by various
institutions and countries. As to the general situation the following
is stated by the learned writers Strydom, Pretorius and Klinck in
their book International Human Rights Standards, Vol 1, p.
280, namely -
"The use of
such apparatus in coercive circumstances rightly bears implications
that are morally repugnant to civilized conduct. The use must
therefore, be strictly controlled and avoided where possible. There
are, however, inevitably occasions in which physical restraint need
to be applied with the additional help of specifically designed
equipment or instruments in order to prevent physical injury to the
prisoners concerned or to the staff, escape or unacceptable damage.
These rules are designed to set acceptable limits within which such
restraint may be employed."
The rules to which
the learned authors were referring to are the Revised European
Standard Minimum Rules for the Treatment of Prisoners. As sec. 39
of the Rules completely prohibits the use of chains and irons the
above excerpt cannot be seen as authority for the application of
irons and chains as mechanical restraints. As was conceded by Mr.
Botes many countries did away with mechanical restraints in the form
of irons and chains.
20
Another instrument
which is very much to the same effect as the Europeon Standard
Minimum Rules is the United Nations Standard Minimum Rules for
the Treatment of Prisoners. Rules 33 and 34 thereof indicate what
restraints are permitted and under what circumstances they could be
applied. The Rule further expressly prohibits the use of chains or
irons as a form of restraint. Bearing all the aforegoing in mind it
seems to me that the better opinion is that countries should move
away from the coercive application of any restraints. Furthermore
that the application of restraints, where permissible, are only to be
used when necessary and even then under strict control. The
application of irons and chains is not accepted by some countries.
Although instruments such as the Minimum Standard Rules have
no legal standing its provisions are often relied upon as an
interpretative help in the application of domestic legislation
concerning penal institutions. (See S. v. Staeeie. 1990(1)
SACR 669 (C); S. v. Daniels, 1991(2) SACR 403 (C);
International Human Rights Standards, supra, p. 153.)
The Court was also
referred to the role played by irons, chains and fetters during the
period when slavery was rife and when these instruments were used to
shackle people together before abducting them by force. The stigma
which attaches to the chaining of human beings who were taken away in
bondage still echoes after all these years and is associated with
such implements.
As was pointed out
by O'Linn, J., in the Court a quo, Parliament, being the
chosen representatives of the people of Namibia, is one of the most
important institutions to express the current day values of the
people. Therefore the accession of Parliament to both the Convention
against Torture and other Cruel Inhuman or Degrading Treatment or
Punishment ("CAT") and the International
Convenant on Civil and Political Rights ("1CCPR")
on 28 November 1994 is .significant. Both these instruments
contain
21
provisions similar
to our Article 8 and Article 10.1 of the ICCPR provides specifically
that-
"All persons
deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person."
Acceptance of the
above instruments by Parliament at least makes it clear that there
can be no misunderstanding that it was also accepted that issues such
as humanity and respect for dignity of the human person continue to
exist also in regard to those who are put behind bars, in S. v.
Tcoeib, supra, p. 300 a, Mahomed, C.J., had this in mind
when be said that if life imprisonment in the Namibian context would
mean detention for the rest of the prisoner's natural life it would
be unconstitutional because without hope of release the prisoner is
reduced to a thing and stripped of all dignity. The acceptance by
Parliament of these Conventions as well as the First Optional
Protocol to the ICCPR is a continued expression of and confirmation
of the high norms and values of the Namibian people as contained in
the Constitution and expressed by other Institutions. When the Court
must now make its value judgment it can also not ignore previous
expressions in those judgments which were based on those very norms,
sensitivities and aspirations and as a result of which certain
constitutional principles were articulated.
Against the above
background it is now necessary to look at the allegations set out in
the affidavits of the Appellants. First Appellant stated that the
chains consist of two metal rings with a fastener that is usually
welded close or sealed in such a way that he cannot remove the ring.
A metal chain connects the two rings. This chain is approximately 30
cm long. A ring is placed on each leg, just above the ankle. First,
Second and Third Appellants were placed in chains on their recapture
on 16 August 1997. Fourth
22
Appellant was placed
In chains on his recapture on 12 September 1997 and Fifth Appellant
was placed in chains on 11 August 1997. In regard to the Fifth
Appellant he did not escape but it was alleged by the prison
authorities that he had attempted to escape. At the time when this
application was launched, i.e. 26th February 1998, all the
Appellants were still chained. In this regard it was alleged that the
Appellants wore these chains uninterruptedly since they were first
placed in them. Because of the shortness of the chains it is
difficult to walk and it is also not possible to exercise properly.
It is furthermore
alleged that the metal rings bump against the ankles, causing pain
and discomfort and also causing abrasions around the ankles. First
Appellant found it difficult to sleep whilst the chains were on and
he said that he could not shower because it was difficult to remove
ones trousers with the chains on. First Appellant further stated that
they were all closely guarded and were kept in single cells which
made it impossible for any of them to escape. First Appellant
therefore says that they were chained not to prevent them from again
escaping but just to punish them.
The Respondents, in
their answering affidavit, did not reply to any of these allegations
and the fact that the chains were removed from all the Appellants,
without more ado, after they had instituted this application, seems
to suggest that they were kept in chains longer than what was even
prescribed by sec. 80 of the Prisons Act.
Bearing all this in
mind the question is whether our Constitution, which outlawed the
death penalty, which, through application of the present values of
its people, put a stop to corporal punishment in respect of both
adults and juveniles by Organs of State and which will not accept
life imprisonment unless there is hope of release for the prisoner,
will sanction the use of irons and chains in regard to prisoners
under any circumstances? In
23
my opinion it would
not. Whatever the circumstances the practice to use chains and
leg-irons on human beings is a humiliating experience which reduces
the person placed In irons to the level of a hobbled animal whose
mobility is limited so that it cannot stray. It is furthermore still
a strong reminder of days gone by when people of this continent were
carted away in bondage to be sold like chattels. To be continuously
in chains or leg-irons and not to be able to properly clean oneself
and the clothes one is wearing sets one apart from other fellow
beings and is in itself a humiliating and undignified experience. To
sanction the chaining of a prisoner just because he had escaped
constitutes in my opinion punishment (Sec. 80(1 )(b)).
There is, as was
found by the Court a quo, a general outcry against the
escalating incidence of crime. This is quite understandable and also
natural but it would in my opinion be wrong to equate this with a
hardening of the public opinion against prisoners and read into it a
sanction for those who may have escaped to be put in chains or irons
on recapture. That seems to be very much a case of closing the stable
door after the horse has bolted. In the present instance it must also
not be forgotten that all the Appellants were still trial awaiting
prisoners who were presumed innocent until proven guilty.
Furthermore
reference was made to Regulation 103 of the Prison's Regulations
which provides for a system of complaints by prisoners. However this
possibility cannot rescue the situation once it is found that the
practice to chain or to put prisoners in irons is in conflict with
Article 8( I) and/or 8(2)(b) of the
Constitution.
I am therefore of
the opinion that the placing of a prisoner in leg-irons or chains is
an impermissible invasion of Article 8( I) and contrary to Article
8(2)(b) of the Constitution as it at least constitutes degrading
treatment. The Court should therefore declare such
24
practice
unconstitutional. In view of the fact that Act No. 8 of 1959 was
repealed It Is not necessary to make any declaration in that regard.
Likewise Regulation 102, if it had survived the repeal of Act No. 8
of 1959, does not contain any empowering provision and no declaration
need therefore be made in that regard. Appellants are entitled to
their costs of appeal and costs in the Court a quo.
The following order
is made:
The appeal
succeeds and it is, in addition to the order made in the Court a
quo, further declared that the Respondents' conduct or
practice of placing prisoners in leg-irons or chains is
unconstitutional.
The Respondents are
ordered to pay Appellants costs of appeal and costs in the Court a
quo.
STRYDOM, CJ.
I agree.
SILUNGWE, A.J.A.
I agree.
LEVY, A.J.A.
25
26
COUNSEL ON BEHALF OF
THE APPELLANTS: MR. C. LIGHT
Instructed by: LEGAL
ASSISTANCE CENTRE
COUNSEL ON BEHALF
OF THE RESPONDENTS: ADV. L.C BOTES
Instructed by: THE
GOVERNMENT ATTORNEYS