Judgment No CCZ 8/16 3
Const. Application No CCZ 48/15
requisite needs of prisoner correction and rehabilitation.
At any rate, poor prison
conditions cannot be relied upon to escape criminal liability.
The second respondent is the Vice-President who is also responsible for the
administration of justice, legal and parliamentary affairs. He refers to s 112 of the
Constitution which empowers the President to grant pardons or vary life sentences. He
avers that this provision affords the applicant the hope of release from prison and that,
therefore, there is no violation of his constitutional rights. The alternative of parole for
life prisoners would serve to trivialise the heinous crimes which they have committed and
which society abhors. He further contends that the judiciary cannot arrogate to itself the
power to review life sentences without legislative authority to do so.
In response, the applicant invokes s 227(1) of the Constitution which calls for the
rehabilitation of offenders and their reintegration into society.
This overrides the
concurrent objectives of retribution and deterrence which have now become secondary in
penological theory. As regards the available options of executive reprieve, he accepts
that the process of parole under the Prisons Act is reviewable. However, the refusal of
executive pardon under the Constitution is not justiciable. This remedy is subject to
executive whim and is therefore inadequate. Moreover, it is not effectively utilised in
practice.
Lastly, the applicant avers that this Court is the legitimate constitutional
watchdog and does not require executive or legislative authority in order to adjudicate in
the interests of justice.