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Published by André Le Roux
Constitutional La and criminal Law

Criminal and Constitutional Law required reading
Constitutional La and criminal Law

Criminal and Constitutional Law required reading

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Published by: André Le Roux on Jun 16, 2009
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1996 (7) BCLR 996( N mS)
Supreme Court, Namibia Judgment date:06/02/1996
BB ef or e: I Mahomed, Chief Justice; E Dumbutshena and RN Leon,-
Dignity \u2014fundamental right to dignity guaranteed by article 8(1) of the \ue000amjb..
Cian constitution\u2014 whether life imprisonment as a sentencing option consistent with the
guarantee contained in article 8(1).
Person, freedom and security of
\u2014right not to be subjected to cruel, inhuman and
degrading punishment
article 8(2) of the \ue000amibian constitution

whether life imprisonment as a sentencing option consistent with the guarantee conD tamed in article 8(2).

Criminal procedure
life imprisonment
constitutionality of life
imprisonment under the \ue000amibian constitution
\u2014 l?fe imprisonment as a sentencing
option for extreme cases is not inconsistent with the guarantee of the fundamental right
to dignity contained in article 8(1) and the fundamental right
Enot to be subjected to cruel, inhuman and degrading punishment contained in article

8(2) of the \ue000amibian constitution, provided that statutory mechanisms exist for the intermittent reconsideration of the release of the prisoner in the light of changed circumstances including the prisoner \u2018s own response to rehabilitatory efforts by the prison authorities\u2014 such mechanisms found to exist in

Fthe form of sections 2(b), 5 bis, 61, 64 and 67 of the Prisons Act 8 of 1959 (\ue000amibia)\u2014
an irreversible sentence of life imprisonment would, however, be inconsistent with the
values underlying the \ue000amibian constitution.
Editor\u2019s Summary

Appellant had been sentenced to life imprisonment on each of two counts of murder. Leave was granted on petition to appeal to the Supreme Court against sentence only, and in particular on the basis of the question \u201cwhether a sentence to life imprisonmentt S competent in terms of the Constitution of Namibia\u201d.

H Whether a sentence of life imprisonment was per se unconstitutional in Namibia had to be determined in the light of the constitutional provisions guaranteeing the right to life, personal liberty, dignity and the right not to be subject to cruel, inhuman or degrading punishment. The sentence of life imprisonment was a discretionary sentence which could be imposed where a court believed that the particular circumstances of a case warranted it. A sentence of life imprisonment did not, however, mean that the prisonerI n

question was never able to regain his or her freedom. Life imprisonment would normallY mean imprisonment for the rest of the prisoner\u2019s natural life but this was not always the position. The Prisons Act 8 of1 95 9 provided for a system of release on parole. Section 2(b) obliged the Prisons Service to \u201capply such treatment to convicted prisoners as may lead to their reformation and rehabilitation\u201d. Section 61 provided for a committee to submit reports at intervals of not less than six months to the commissioner regarding the

J conduct, adaptation, training, aptitude, industry, physical and mental state of health and
1996(7) BCLR 996 (NmS)
cts of relapse into crime of various categories of prisoner including those upon A a life sentence
had been imposed. Section 61b is required the release board to
mmendations in the light of such reports as to the future handling of prisoners their release
either on probation or on parole. Section 64 required that upon
of a report recommending the release of a prisoner upon whom a life sentence imposed, the
commissioner was to submit such report to the President of

a who may then order the release of such prisoner either unconditionally or B These statutory
provisions and the machinery they created also bore upon the of the constitutionality of life
imprisonment. A sentence of life imprisonment constitute a sentence of death. The Namibian
constitution itself distinguished the protection of life guaranteed by article 6 and the protection

of liberty by article 7. Life imprisonment did not terminate the life of the prisoner. It
his or her liberty. Such a sentence did not conflict with article 6 of the Namibjan C rnon. It was
nevertheless necessary to determine whether it was inconsistent with tee of dignity and the
guarantee of the right not to be subject to cruel, inhuman mg punishment. A sentence of life
imprisonment was a punishment of extreme to be resorted to only in extreme cases. An order
incarcerating a citizen for the his or her natural life severely curtailed much of what was central to
the enjoy-I life itself in any civilised community and could therefore only be upheld if it D

nstrably justified. An irreversible sentence of life imprisomnent which left the no prospect of release for the rest of his or her natural life regardless of any nt change in circumstances could not be justified. To insist that an offender

Spend the rest of his or her natural life in prison was to express despair about his e and to induce a
feeling of such despair and helplessness in the mind of the E A culture of mutually sustaining
despair was inconsistent with the deeply
values articulated in the preamble and the text of the Namibian constitution

wn the contrary, portrayed a vision of a caring and compassionate democracy to liberate itself

from the cruelty, repression, pain and shame of its past. The
underlying that constitution required that society should continuously and tly care for the
condition of its prisoners and should seek to reform and rehabili- F prisoners during their
incarceration and induce in them a consciousness of ty, a belief in their worth and hope in their
future. Accordingly, life imprisond not be constitutionally sustainable if it effectively amounted
to locking away for the rest of his or her natural life as though the prisoner were a \u201cthing\u201d
of a person without any continuing duty to respect the prisoner\u2019s dignity which Jnclude a

recognition of his or her right not to live in despair and helplessness G

any hope of release, regardless of the circumstances. The crucial issue was that was indeed the effect of a sentence of life imprisonment in Namibia. The machinery outlined above providing for the intermittent reconsideration of the ity of release and the power of the President of Namibia to authorise the release prisoners on the recommendation of the release board ensured that such

~t denied any hope of release and were not effectively abandoned as \u201cthings\u201d. The H ~tiQn of that
hope lay partly with the sentenced offender himself. By the prisoner\u2019s ~-responses to the
rehabilitatory efforts of the prison authorities and by the recon
*jon and realisation of his or her own potential and personality, a prisoner\u2019s dignity ~ be retained and
enhanced and the prospects of liberation increased. This of course Fred that the provisions creating
that statutory machinery be interpreted in a way so ~ensure that the release of the prisoner was not
entirely a matter within the discretion i ~authorities. The machinery created had itself to be subject to
the discipline of the titution. The authorities entrusted with the functions and powers involved in
considand authorising release would necessarily have to apply their minds properly to individual case
and the relevant circumstances impacting on the exercise of a proper etion. In the light of the
existence of that machinery, however, it could not be said life imprisonment as a sentencing option
was unconstitutional in Namibia.j

1996(7) BCLR99 6( NmS)

A The fact that life imprisonment as a sentencing option wasn ot per seu nco n stitu tio n t i
did not imply that its imposition in a particular case might not be unconstitutionalift h ~
circumstances of that case justified the conclusion that such a sentence was so grossly
disproportionate to the severity of the crime committed that it constituted cruel, inhum~
or degrading punishment or impermissibly invaded the dignity of the accused. Other
jurisdictions adopted the approach that a sentence which was so grossly disproportionate
Bto the offence committed transgressed the guarantee of the right not to be subject to cruel

and unusual punishment. In the instant case, however, it was not necessary to consider the merits of such an approach. The offences in casu were vicious in the extreme executed with singular ruthlessness and premeditation, and were brutal and merciless. There was no disproportionality between the gravity of the offences and the sentence imposed. Nor was the sentence one with which the Court could interfere in the course of


exercising its ordinary appeal jurisdiction. The trial court had in no way misdirected itself, and there was no striking disparity between the sentence imposed and the sentence which the Court would have imposed had it sat as a court of first instance.

The Court dismissed the appeal and confirmed the convictions and sentences.
Mahomed CJ: The appellant was indicted in theCour t a quo on two counts of murdera nd
one count of theft. He was convicted on all three counts. On each of
E the counts of murder he was sentenced to life imprisonmenta nd on the count of theft he
was sentenced to two years\u2019 imprisonment. The Court a quo directed that the latter two

sentences were tor un concurrently with the life sentence imposed on thefi r s t count of murder. The Court a quofur t he r recommended that the appellant ought not to be \u201creleased on parole or probation before the lapse of at least 18 years\u2019 imprisonment calculated from the date of sentence.\u201d

An application for leave to appealwa s made to,an d refused by, the trial judge who was O\u2019Linn J.2 The \u201cmain thrust\u201d of the application was that a sentence of life imprisonment was unconstitutional in Namibia. That contention had not previously been advanced during the trial.

G Following the dismissal of the application for leave to appeal by the Court a quo, the
appellant petitioned the Chief Justice for leave to appeal to the Supreme Court of Namibia
in terms of section 3 16(6) of Act 51 of 1977, as amended. Substantially because of certain

conflictingd icta on the constitutionality of a sentence of life imprisonment emanating from the High Court, leave to appeal was granted on this petition in the following terms\u2014 H \u201cLeave is granted to Lukas Tcoeib to appeal to the Supreme Court against sentence

only and in particular whether a sentence to life imprisonment is competent in terfllS
of the Constitution of Namibia.\u201d
Although it was not analysed in that way by counsel for the appellant, the attack on the
sentence imposed on the appellant involves a consideration of three
i issues:
1. Is the imposition of a sentence of life imprisonment per se unconstitutional in
1 Sv Tcoeib 1991 (2)SACR 627 (Nm).2 Reported in 1993 (1) SACR 274 (Nm).
1996(7) BCLR9 9 6( NmS)
lit is not per se unconstitutional, is such a sentence nevertheless unconsti- A ~Aonal in the
circumstances of the present case?
part from the issue of the constitutionality of the sentence, is it a sentence~s uch harshness in
the present case as to justify an interference therewith ~the Supreme Court pursuant toi ts
ordinary appeal jurisdiction?
sic facts
liant perpetrated two vicious murders. He had planned to kill five
of the Other family, who were his employers. He went to the farm of
to execute that plan. He killed the adopted son and the wife of his

or in cold blood with a .308 rifle which he found at the residence of the C He thereafter
took some monies from the residence the keys of a motora nd some wme He then
waited for his employer, Mr Max Other and er members of the Other family mcludmg a

child tore t ur n to the
His intention was to shoot and kill them as well. When they did notft e r some time
the appellant decided to flee m the motor vehicle but D ~that he cut the telephone
wires and placed near the body of one of the he had killed another 308 rifle which he
had found in the Otner

pellant s only excuse for these acts of viciousness was that his em
Mr Max Other, had wrongly accused him of stealing four bottles of wine E
psi the previous day or a few days prior to the murders The trial judge
the correctness of that explanation but rightly pointed out that none of
s whom the accused had killed had anything to do with that incident,

~ murders were committed \u201con unsuspecting and helpless people\u201d and
y were carefully planned. The trial judge was alive to all the relevant F
m favour of the accused mcluding the fact that he was a first offender
-was between 23 and 25 years old and still relatively young, that he was

sticated, that he was angry when he committed the crimes, that he co
-with the police and the prosecution upon his arrest and that he was a
- worker\u201d. The Court concluded nevertheless that\u2014 accusedh as shown himself as a
dangerous person who murdered for the flimsi- G
reasons and can do so again because this type of reason can recur in his life at stage3
result, the Court decided that \u201cthe aggravating factors greatly overshadow gatmg factors
and that m this kmd of case the factors of deterrence on and retribution deserved \u201cmore
emphasis and weight\u201d.4 This caused H ed Judge to impose the sentences of life
imprisonment which counsel
ks to attack on the appellant\u2019s behalf.
~entence of life imprisonmentp er s eun co ns tit utio n a l\u2019?

~er to determine whether a sentence of life imprisonment is per se uncon- I ~onal in Namibia, it is necessary to analyse the relevant provisions of the ~itution, to consider the applicable statutory mechanisms pertaining to such

\u2018Sv Tcoejb (supra) n 1, at 635i\u2014j.
Sv Tcoeib(supra)n1,a t 63 6a \u2014b .
1996(7) BCLR9 96( NmS)
A punishmenta nd then to enquire whether suchst a tu tor y provisions are consistent with the
The relevant constitutional provisions

B The Constitution of Namibia, in its preamble, expresses that \u201crecognition of the inherent dignitya n d the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace\u201d, that \u201cthe right of the individual to life, liberty and the pursuit of happiness\u201d is afforded to all \u201cregardless of race, colour, ethnic origin, sex, religion, creed or social or ecoC nomic status\u201d, and that the Namibian people, by their adoption of a constitution

founded on these values and principles, have articulated their \u201cdesire to promote amongst all of us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world\u201d.

Chapter 3 of the Constitution defines a number of \u201cfundamental rights and D
freedoms\u201d to be respected and upheld. Included in these rights and freedoms are
those enshrined in articles 6, 7, 8 and 18.
Article 6 of the Constitution states that:

\u201cThe right to life shall be respected and protected. No law may prescribe death as a competent sentence. No court or tribunal shall have the power to impose a sentence of

E death upon any person. No executions shall take place in Nainibia.\u201d
Article 7 provides that:
\u201cNo person shall be deprived of personal liberty except according to procedures es-
tablished by law.\u201d
F Article 8 stipulates that:
\u201c(1) The dignity of all persons shall be inviolable.
(2) (a) In any judicial proceedings or in other proceedings before any organ of
State, and during the enforcement of a penalty, respect for human dignity
shall be guaranteed.
(b) No person shall be subject to torture or to cruel, inhuman or degrading treatment or
Article 18 prescribes that:
\u201cAdministrative bodies and administrative officials shall act fairly and reasonably
and H comply with the requirements imposed upon such bodies and officials by common
law and any relevant legislation, and persons aggrieved by the exercise of such acts and
decisions shall have the right to seek redress before a competent court or tribunal.\u201d
Article 25 of the Namibian Constitution provides that the legislature shall make no laws and the
executive shallt a ke no action which abolishes or abridges the

fundamental rights and freedoms conferred in Chapter 3 and any law or action in contravention thereof shall be invalid to the extent of such contravention, provided that a competent court may direct the appropriate authority to correct the defect in the law or action within a specified period during which time the impugned law or action shall remain valid. These provisions applym u ta tis

Jmu ta nd is to laws enacted prior to independence.
1996 (7) BCLR 996 (NmS)
~ie relevant statutory mechanisms

ection 276(1) of the Criminal Procedure Act 51 of 1977 (\u201cthe Criminal Proce~e Act\u201d), which provides that it is competent for aco ur t of law to impose a tence of imprisonment upon a person convicted of an offence, does not place

limit on the period of imprisonment which can be imposed. This section
-- - t be read together with section 283(1) of the Criminal Procedure Act which B ides that:
Aperson liable to a sentence of imprisonment for life or for any period, may be
sentenced to imprisonment for any shorter period..

e is no provision in the Criminal Procedure Act ora n y other law in Na-\u2018a which obliges a court to impose amand at ory sentence of life C sonment in respect ofan y particular offence. The sentence of life impris

ent is thus ad is cr etion a r y sentence in Namibia, available for a court to
-- - - se should such court believe that the particular circumstances of a
-- \u00e1se warrant the imposition of such a sentence.
wever, the fact that an accused may be sentenced to imprisonment for life D
-~ ainibia does not mean that such an accused is thereby never able to regain

-or her freedom. Life imprisonmentm ay mean imprisonment for the rest of
natural life of the accused, but this is not always the position.5 The sections e Criminal
Procedure Act relating to the discretionary imposition of the

nce of life imprisonment must be read together with those provisions of the

ns Act 8 of 1959 (\u201cthe Prisons Act\u201d), as amended by Act 13 of 1981 E A), relating to
the treatment of prisoners, the system of release on parole the granting of executive

ection 2(b) of the Prisons Act, as amended by section 2 of Act 13 of 1981
-A), states that:
-(2) The functions of the Prisons Service shall be:
F~-( a)

(b) as far as practicable, to apply such treatment to convicted prisoners as may lead
to their reformation and rehabilitation and to train themin habits of industry and


~tion 61 of the Prisons Act, as amended by section 34 of Act 13 of 1981 ~\u2018A), provides
~An institutional committee shall, with due regard to any remarks made by the court~
question at the time of the imposition of the sentence and at such times and inter~\u2018als
(which intervals shall not be longer than six months) as may be determined by the
commissioner or when otherwise required by the Commissioner or release board\u2014 H ~a)
make recommendations as to the training and treatment to be applied to any~.p r is on er
referred to in paragraph (b);
~(b) submit reports... to the Commissioner and the release board on,inter alia, the conduct,

adaptation, training, aptitude, industry, physical and mental state of
health and the possibility of relapse into crime of every prisoner who is detained in
the prison in respect of whichi t has been established and\u2014
. .
~3 See Dii Toit et al, Commentary on the Criminal Procedure Act (Juta & Co Ltd) at 28\u201420A;R v
Mzwakala 1957 (4) SA 273 (A); S v Tuhadeleni & Others 1969 (1) SA 153 (A); S v White-head 1970(4 )
SA 424 (A); S v Sibiya 1973 (2)SA 51(A).

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