International human rights advocacy and the abolition of irreducible life imprisonment in Zimbabwe

Author: Andrew Novak
Adjunct Professor of Criminology, Law, and Society at George Mason University

On July 13, 2016, the Constitutional Court of Zimbabwe (ConCourt) found that life imprisonment without the possibility of parole was unconstitutional as it violated the rights to equal protection and human dignity and the prohibition on cruel and degrading punishment.  The decision, Makoni v. Commissioner of Prisons, is undoubtedly a victory for human rights, due to the dismal state of prison conditions in Zimbabwe and the emotional and psychological harm caused by indeterminate sentences. In its decision, the ConCourt cited a wide range of jurisprudence from foreign and international courts, including the European Court of Human Rights, South African Constitutional Court, Supreme Court of Namibia, and the Judicial Committee of the Privy Council in London to discern a global trend toward rehabilitative criminal sentences.  Many of these foreign and international legal sources were brought to the ConCourt’s attention by transnational human rights lawyers themselves in their Heads of Argument, underscoring the important role that advocates play in the diffusion of international human rights norms.

The ConCourt was established by Zimbabwe’s new 2013 constitution.  Article 46 requires that courts take into consideration Zimbabwe’s obligations under international law and permits judges to consider foreign law where appropriate. Under the Prisons Act, all life-term prisoners (and only life-term prisoners) were ineligible for parole, without regard for the seriousness of the underlying criminal offense or the prisoner’s potential for rehabilitation.  The ConCourt found this distinction to be arbitrary, and therefore a violation of human dignity and equal protection, as the exclusion of all life-term prisoners was overbroad.  Ultimately the ConCourt struck the portion of the Prisons Act that rendered life-term prisoners ineligible to seek parole.  Citing to the “sheer hopelessness” of indeterminate imprisonment on emotional and psychological well-being, Justice Bharat Patel, writing for a unanimous ConCourt, rejected the State’s argument that the ability to seek parole was unnecessary for life-term prisoners because the president could always exercise clemency.  As a consequence, prisoners serving life sentences will now be able to apply for parole in the same manner as any other prisoner.

The Applicant was represented by former Member of Parliament and minister of finance Tendai Biti, who has opened a law practice in Harare.  Veritas Zimbabwe, an NGO specializing in law reform, made court filings and other documentation available.  Additional support came from the London-based Death Penalty Project, which specializes in international death penalty litigation and assisted in a successful constitutional challenge to mandatory life without parole in Mauritius. The Applicant was therefore able to access a transnational network of human rights lawyers who were instrumental in building a global body of jurisprudence on cruel and degrading punishment from other jurisdictions.  However, the ConCourt did not uncritically adopt jurisprudence from elsewhere, but also analyzed domestic precedent, including a 2003 case in which the Supreme Court did not find a violation of the prohibition on cruel and degrading treatment when the president failed to grant clemency to a prisoner so he could seek medical care in South Africa.

The ConCourt’s decision will undoubtedly be a major contribution to an expanding global jurisprudence on life without parole, and will likely be cited in similar challenges in other jurisdictions, helping to expand the influence of the new court.  The decision is particularly notable for the role that human rights advocates themselves played in selecting, citing, and reinforcing specific cases in their pleadings, contributing to a transnational judicial “sharing” process that is helping to harmonise constitutional regimes across borders and instill international human rights norms in domestic law.  The case is an example of how transnational human rights advocates can use international and foreign jurisprudence as a powerful tool of law reform.

About the Author
Andrew Novak is Adjunct Professor of Criminology, Law, and Society at George Mason University and the author of The African Challenge to Global Death Penalty Abolition (Intersentia: 2016).