The Sunday Mail
Tichawana Nyahuma
One of the most favourite tunes that is sung by lawyers when presenting mitigation to the court on behalf of their convicted clients is that our prisons are over-crowded and that consequently a non-custodial sentence should be imposed.
In addition, so the lawyers’ argument continues, the Zimbabwe Prisons and Correctional Services is financially and materially malnourished with the result that it is constrained to properly maintain inmates.
Although this song is old, it remains true.
There is a school of thinking to the effect that the overcrowding in our prisons may partly be a result of magistrates who may have stayed in their jobs for long and thus find it as easy to send someone to jail as it is to send them to a grocery store.
In this respect, I will quote the words of then High Court Judge, Justice Nicholas McNally, in the State versus Matanhire 1982(1) ZLR 139, who sounded this caution: “Whether or not to send first offenders to prison is perhaps the most difficult of all decisions for a magistrate to make. It is undoubtedly a fact that each time one sends a man to prison, it becomes that much easier to send the next man to prison.
“The fine edge of the agony of the decision becomes blunted with use. It is perhaps one of the roles of the reviewing judge to sharpen that edge from time to time…”
It is against this background that I will attempt to measure if present correctional arrangements are still adequate given that Zimbabwe’s population has increased significantly in these last 20 or so years.
That increase in population necessarily entails an increase in the crime rate and the persons who are eventually convicted and imprisoned.
However, I shall first shed light on the concept that underpins the whole idea of imprisonment as a form of punishment.
In my view, the foremost purpose and rationale of the whole criminal law regime in any country is to prevent criminal conduct.
It is much like the role of a security guard who is assigned to guard premises or any other property. The very presence of a security guard scares way would-be offenders. If anyone happens upon the guarded property and steals or commits some other criminal act, he is likely to be arrested.
So the arrest comes after prevention fails. The same applies to the reasoning behind all criminal law systems.
The fact that the criminal justice system exists is a preventive measure against those who may be criminally inclined so that they keep their behaviour in check.
An arrested person is only called “a criminal” when he/she is convicted after a court trial. Before then, he/she remains innocent and is only an accused person.
After conviction, the final act of the magistrate or judge is to impose the appropriate punishment.
In Zimbabwe, the penalties range from warnings, community service, fines, imprisonment and capital punishment.
Imprisonment has the dual purpose of punishing and rehabilitating the criminal. Whether or not the rehabilitative aspect is achieved is another matter to which I shall return.
There are several views on the principles underpinning the ideal behind the concept of punishing criminals.
The first is that every person convicted of an offence ought to be punished to teach them a lesson so they realise the folly of their ways.
No wonder, the prison at Bindura is aptly called “Chawagonahapana”, a reminder – particularly to new inmates – that by being placed in the prison “you have done no good” or “you have not achieved anything”.
Second, punishing the offender acts as a warning to other people that crime does not pay.
When it comes to the actual lengths of prison terms, there is regrettably no mathematical formula employed to determine suitable sentences.
Courts come up with “appropriate penalties” by using what is known as the doctrine of stare decisis, by which is meant that similar offences must necessarily attract the same punishments meted out before.
The weakness with this approach is that cases are seldom the same because the circumstances surrounding both the criminal and the commission of the offence are hardly ever alike.
Although our courts are to be applauded for trying to be fair, more can be done to ensure there is some uniformity in the penalties imposed similar cases and that the “punishment fits both the crime and the criminal”.
Regardless, the present approach is unscientific.
The other objective of punishment is what is referred to as retribution.
It is much like what the Bible calls “an eye for an eye and a tooth for a tooth” and it boils down to doing to the criminal what the criminal did to his or her victim.
The best example is found in the death penalty when a criminal is convicted of “murder with actual intent”. In Zimbabwe, the death penalty applies although there are whispers in certain corridors for its abolition.
I might add here that although the rules of procedure relating to a murder trial in Zimbabwe insist that the court provide a lawyer free of charge to the accused if he/she does not have his own chosen legal counsel, it is quite disheartening that too often inexperienced lawyers are assigned to handle such cases.
It is accordingly suggested that experienced lawyers be allocated such duties because a person’s life will be on the line.
I do not mean to demean these fresh-from-the-oven legal practitioners but should we be experimenting with people’s lives?
Opting for inexperienced lawyers in such serious cases amounts to condemning the accused persons before and during trial.
The responsible authorities within the top hierarchy of our judicial system are implored to examine this matter with a view to coming up with minimum qualifications in terms for lawyers who represent persons charged with murder.
Now for rehabilitation as a way of reforming the criminal.
It is essential to mention that in the old days, our prison system was an angry animal. It over-emphasised punishment over rehabilitation.
In fact, courts habitually sentenced criminals to imprisonment “with labour”, sometimes “with hard labour”.
Back then, the ZPCS was the Zimbabwe Prison Service. The “correctional” aspect was brought in to indicate that prisoners are not only punished but also rehabilitated with certain skills that may become useful to both the criminal and society upon release from jail.
Granted, reforming criminals is not without its challenges.
In the first place, is the criminal willing to be reformed, and if so, to what extent is he/she capable of being reformed?
What amount of time is required to effectively reform a prisoner? If the time required is lengthy, does it mean a longer prison term for the goal is to be achieved?
If a longer term is required, does it mean that the court that sentenced him ought to have disregarded the offence that was committed and imposed a sentence that suits the reformation schedule?
If the answer is yes, will that not defeat the principle of “the sentence must fit both the criminal and the crime” mantra?
What of the financial and material
resources required?
Judging by the somewhat deplorable quality of clothing alone that prisoners put on, it is doubtful that the ZPCS has enough resources to properly execute this mandate.
As such, it may be time that other options of handling the situation be considered.
It would seem that in response to pleas by lawyers and other constituencies for non-custodial sentences, especially for first offenders, Government responded by introducing community service as a competent alternative punishment in place of sending first offenders to jail. In addition, some prisoners are being put in the open prison system which somewhat spares them time in jail.
These methods have gone a long way in limiting numbers of inmates.
And although it has its own costs and challenges, it is suggested that as a country we might now want to consider adopting the parole system that is employed in South Africa and Western countries.
Under this, a criminal who has been sentenced to a lengthy prison term serves only a portion of his/her sentence after which he/she is eligible for release on certain conditions, a breach of which will result in him/her being readmitted to jail to complete the sentence.
Such an approach may be cheaper and more effective as prisoners will not be overly exposed to hardened criminals who may turn them into worse criminals themselves.
Just thinking.
Tichawana Nyahuma is a researcher and a lawyer who writes in his personal capacity. Feedback: [email protected].
