Judgment No CCZ 8/16 6
Const. Application No CCZ 48/15
rights and freedoms of others as envisaged by s 86(1).
Furthermore, they are not
derogable by dint of any law of general application contemplated under s 86(2).
A further guide to the interpretation of the Declaration of Rights as a whole is
afforded by paras (c) and (e) of s 46(1) in the specific context of international law and
foreign law. In addition to considering all other relevant factors that are to be taken into
account in the interpretation of a Constitution, courts and tribunals must take into account
international law and all treaties and conventions to which Zimbabwe is a party and may,
where appropriate, consider relevant foreign law.
Furthermore, insofar as concerns
statutory interpretation generally, the courts are enjoined by s 326(2) of the Constitution
to interpret legislation in a manner that is consistent with international customary law. In
similar vein, s 327(6) requires the adoption of an interpretation that is consistent with any
treaty or convention that is binding on Zimbabwe.
Turning to case authorities from other jurisdictions, the decision of the Namibian
Supreme Court in State v Tcoeib (1996) 7 BCLR 996 (NmS) is particularly germane to
the applicant’s position. At 1004-1005, MAHOMED CJ observed as follows:
“…….. there is no escape from the conclusion that an order deliberately
incarcerating a citizen for the rest of his or her natural life severely impacts upon
much of what is central to the enjoyment of life itself in any civilised community
and can therefore only be upheld if it is demonstrably justified. In my view, it
cannot be justified if it effectively amounts to a sentence which locks the gates of
the prison irreversibly for the offender without any prospect whatever of any
lawful escape from that condition for the rest of his or her natural life and
regardless of any circumstances which might subsequently arise. Such
circumstances might include sociological and psychological re-evaluation of the
character of the offender which might destroy the previous fear that his or her
release after a few years might endanger the safety of others or evidence which
might otherwise show that the offender has reached such an advanced age or