SHERIA YA TAFLISI

1.TAFLISI MAANA YAKE NINI?


Tanzania kama nchi nyingine duniani,uwekezaji/ujasilimali na ukopaji wa benki au taasisi za fedha umekuwa ukiongezeka na biashara zimekuwa zikianzishwa na watu binafsi au kwa Ushirika.Asilimia kubwa ya watanzania wamekuwa wakijiajiri wenyewe hasa baada ya ajira za serikali kuwa ngumu.Vile vile ahadi ya serikali kutoa shilingi bilioni mija imehamasisha ufunguaji wa biashara za aina mbali mbali.Lakini hakuna hakika kama biashara hizo zinaweza kudumu kwa zaidi ya miaka mitano mpaka kumi.
Mara nyingi biashara hizo huanguka kutokana na ukosefu wa elimu ya biashara na kuzifanya ziangukie madeni makubwa na kukaribisha mlolongo wa kesi mbalimbali zikiwamo za kutaka kuwafilisi.
Taflisi ni mashauri ambayo yanafunguliwa pale ambapo mdaiwa hawezi kulipa madenia yake au pale mtu ambaye anamdai hajatimiliziwa deni lake,hivyo basi katika mazingira hayo mali zake huchukuliwa na kugawanywa kwa watu wanaomdai.

Ni tangazo rasmi la kisheria la kutokuwa na uwezo wa kulipa madeni.Hii inatokea
pale madeni yanapokuwa makubwa kuliko mtaji.

Kuna sheria mbili zinazoonyesha utaratibu wa kufanya mambo endapo suala la kutokuluoa madeni linajitokeza.Kuna hili suala la makampuni kushindwa kulipa madeni.Hili mahala pake ni kwenya sheria ya makampuni.Hivyo basi kama unaidai kampuni na unataka ilazimishwe kulipa madeni kwa namna inayofanana na kufilisiwa,njia muafaka ni kufuata sheria ya makampuni.Lakini linapokuja suala la watu binafsi,washirika wa biashara[partnership]na vyombo ambavyo si makampuni,basi sheria muafaka ni sheria ya Taflisi

Lengo hasa la sheria hii ni kuhakikisha kwamba madeni yanalipwa ili uchumi uende mbele.


2. SHERIA IMETAJA MAMBO YAPI AMBAYO YAKITENDWA YANAONYESHA TAFLISI
Sheria imeorodhesha mambo ambayo mdaiwa akiyafanya anahesabiwa kuwa ametenda tendo la kufilisika

i].Endapo mdaiwa akiwa na nia ya kukwepa au kuchelewesha wadai wake atafanya kati ya mambo yafuatayo

a]Atakwenda nje ya nchi au akiwa nje ya nchi anaendelea kubaki huko huko lengo hasa la kufunga safari ni kuchelewesha au kuwakwepa wadeni wake

b]Atahama nyumbani kwake au hataonekana nyumbani kwake au anajificha lengo hasa lengo hasa la kuhama,kujificha au kutoonekana ni kuchelewesha au kuwakwepa wadeni wake.

ii].Endapo atafungua shauri mahakamani kutangaza kwamba hana uwezo wa kulipa madeni au atafungua shauri la Taflisi dhidi yake yeye mwenyewe.Hii ni pale anapoona sasa mambo yamekuwa mabaya na kila siku wadaomdai wanamsumbua.

iii].Akitoa Taarifa kwa watu wanaomdai kwamba amesimamisha au anatarajia kusimamisha ulipaji wa madeni yake.Katika hali hii inadhaniwa kwamba amefilisika.

iv]Vilevile kama mali zake zimekamatwa kwa amri ya mahakama katika kesi ya madai na na baada ya kukamatwa zimeuzwa au zimeshikiliwa na dalali kwa muda wa siku ishirini na moja.Sasa kama mali zako zimekamatwa au zimeuzwa kwa amri ya mahakama na ndizo hizo ulizokuwa ukifanyia biashara,basiumefilisika.

v].Vile vile kama mdai wake ameshinda kesi dhidi yake kwa kiasi chochote na mdaiwa hajazuia utekelezaji wa hukumu hiyo na baada ya kupewa taarifa ya siku saba kuhusu hukumu hiyo,hajachukua hatua zozote kulipa kiwango kilichoonyeshwa.Katika mazingira kama hayo kama basi inahesabiwa kwamba umefilisika.

vi]Endapo atahamishia mali zake kwa wadhamini wake kwa faida ya wadai wake.Wadhamini hawa wanakuwa na jukumu la kuzisimamia na kulipa madeni husika.

vii]Endapo atahamisha,atatoa zawadi,atabadililisha umiliki wa mali zake zote au sehemu kwa nia mbaya ili akwepe kulipa madeni yake.Hii inatokea pale ambapo mtu akijua kwamba sasa ameyumba kibiashara kama alikuwa ana magari nyumba au chochote kile anatoa zawadi,au kuhamisha umiliki ili siku ya kuja kukamata mali zake akutwe hana kitu kumbe amewapa watoto au watu wake wa karibu


3.NI NANI ANA UWEZO WA KUFUNGUA SHAURI LA TAFLISI

Sheria imewapa watu wafuatao mamlaka ya kufungua shauri la Taflisi

A] MDAIWA
Kifungu cha nane cha sheria kinampa uwezo mdaiwa kufungua shauri la Taflisi.Katika shauri hili muhusika ataonyesha kwamba hana uwezo wa kulipa madeni yake.Na kwa kufungua shauri hilo mdaiwa atakuwa ametenda kitendo cha kufilisika hata kama hatafungua shauri la kutangaza kutokuwa na uwezo wa kulipa madeni.
Baada ya kufungua shauri hilo mdaiwa haruhusiwi kuliondoa mahakamani bila ruksa ya mahakama

B] MDAI
Mdai nae ana haki ya kufungua Shauri la Taflisi kwa kiapo na wakati wa kusikiliza shauri husika mahakama itataka
i]uthibitisho wa deni au ushahidi.
ii]ushahidi kwamba mdaiwa ana taarifa juu ya kufunguliwa kwa shauri hilo na v
iii] ushahidi kwamba mdaiwa ametenda tendo la kufilisika kama tulivyoyaongelea hapo juu

Kama mahakama itajiridhisha kwamba, deni halina uthibitisho,au mdaiwa hajatenda tendo la Taflisi au mdaiwa hana Taarifa juu ya kufunguliwa kwa shauri husika au imejiridhisha kwamba mdaiwa bado ana uwezo wa kulipa madeni italitupilia mbali shauri hilo
Shauri lililofunguliwa na mdai halitaondolewa bila ruksa ya mahakama

4.SHERIA IMETOA VIGEZO VIPI KWA MDAI ILI AWEZE KUFUNGUA SHAURI LA TAFLISI

Mdai anatakiwa kabla ya kufungua shauri hilo ajiridhishe na yafuatayo.

i] Deni analomdai mdaiwa au kama ni wadai zaidi ya mmoja na wameamua kufungua shauri hilo,kiasi cha jumla ambacho wanamdai muhusika kinafikia shilingi elfu moja

ii] Kiasi kinachodaiwa kiko katika pesa Taslimu ambacho kinatakiwa kilipwe haraka au muda mfupi ujao unaofahamika.Hapa lengo la sheria ni kuangalia mambo ambayo yako wazi kwa pande zote mbili.Kwa mfano suala la kudhalilishwa kiwango cha pesa cha fidia hakiko wazi.Lakini kama ni suala la mkataba ambao kiwango cha malipo kiko wazi na muda wa kulipa unafahamika kwa wahusika wote,kinafaa kwa Taflisi
iii]Vitendo vilivyotajwa hapo juu vinavyoonyesha kwamba mtu amefilisika vimetokea ndani ya miezi mitatu kabla ya kufungua shauri

iv] Mdaiwa ni mkazi wa Tanzania au ndani ya mwaka mmoja kabla ya kufungua shauri alikuwa mkazi wa Tanzania au ni Mkazi au ana nyumba ya kuishi au sehemu ya kufanyia biashara au amewahi kufanya biashara ndani ya Tanzania yeye mwenyewe au kupitia kwa muwakilishi au msimamizi


5.MAHAKAMA INA MAMLAKA YAPI BAADA YA KUPOKEA KESI YA TAFLISI

i] AMRI YA USIMAMIZI
[section 5] Mahakama mara tu baada ya kupokea shauri la Taflisi ina mamlaka ya kutoa amri ya kuweka mtu ambaye atachukua jukumu la usimamizi wa mali za mtu ambaye anatakiwa au anataka kufilisiwa.Lengo hasa la amri hiyo ni kulinda mali na vitu vya mtu anayetakiwa au anayetaka kufilisiwa.

[section 9]Mara tu baada ya kutolewa amri ya kuhamisha utawala wa biashara,mtu aliyepewa mamlaka hayo atakuwa amepewa uhalali wa kuendesha mambo ya mdaiwa.Na hakuna mdai wa deni ambalo liko katika Taflisi atakuwa na haki juu ya mali za mdaiwa au atafungua kesi mahakamani bila ruksa ya mahakama na mahakama inaweza kuweka masharti kadri itakavyoona inafaa

Mahakama vile vile ina uwezo,muda wowote baada ya shauri kufunguliwa,kusimamisha utekelezaji wa hukumu
[Section 16] Mara baada ya amri ya usimamizi kutolewa,mdaiwa anatakiwa kuwasilisha mambo yote kuhusiana na biashara kwa njia ya kiapo ikionyesha mali na madeni yake,dhamana zake.
Mdaiwa atahojiwa chini ya kiapo na kama atakataa kujibu maswali atakuwa amedharau mahakama na anaweza kuadhibiwa.
MKUTANO WA MAHOJIANO NA MDAIWA
Mahakama vile vile inatakiwa iitishe mkutano kati ya mdaiwa na wadeni wake ili wamhoji mdaiwa kuhusu mwenendo wake,shughuli zake na mali zake


6. BAADA YA SHAURI KUFUNGULIWA, MDAIWA ANA NAFASI YA KUJADILIANA NA WADAI WAKE
Sheria inampa nafasi mdaiwa alete mapendekezo ya jinsi ya kushughulikia tatizo lililomkumba la kushindwa kulipa madeni.Hii inakuwa kama maafikiano kati ya wadai na mdaiwa.Ni mkataba maalum kati ya mdaiwa,wadai na mdhamini ambaye mara nyingi huteuliwa na mahakama na lengo lake hasa ni kutatua tatizo la ulipaji wa madeni

Katika makubaliano haya mdaiwa atatakiwa kuambatanisha majina ya wadhamini au dhamana ya mpango husika.

Baada ya mdaiwa kuleta mapendekezo yake ya kulipa madeni.Afisa aliyepewa majukumu ya kusimamia mali za mdaiwa anatakiwa aitishe mkutano wa watu wanaomdai na atawapatia nakala ya mipango anayopendekeza mdai ya jinsi ya kuwalipa.

Na kama katika mkutano huo asilimia kubwa ya watu wanaomdai muhusika watakubaliana na mpango mzima wa jinsi ya kulipwa,basi itahesabiwa kwamba mpango umekubalika na endapo utapelekwa mahakamani na mahakama ikaukubali,basi utakuwa na mkataba halali na utawabana wahusika wote wautimilize.Na mtu yeyote ambaye ni sehemu ya mkataba huo atakuwa na uwezo wa kwenda mahakamani kuomba mahakama itoe amri ya kuutimiliza

Mahakama kama itaona kwamba mpango mzima hauna faida kwa wadai au mambo yaliyomo kwenye mkataba huo hayana mantiki,basi ina uwezo wa kuukataa.



7. JE MAJADILIANO ULIYOYASEMA HAPO JUU YAKISHINDIKANA SHERIA HATUA ZIPI HUFUATA


8. BAADA YA KUTANGAZWA MUFLISI SHERIA INAMBANA KIASI GANI ILI ALIPE MADENI YAKE

i]Sheria inataka mdaiwa ahudhurie mkutano wa kwanza kati yake na watu wanaomdai, na atatakiwa awasilishe katika mkutano huo maelezo yote kadri yatakavyokuwa yanahitajika katika mkutano huo.Mara nyingi maelezo hayo huhusisha jinsi muhusika alivyokuwa akiendesha biashara,mali zake na jinni ambavyo atasaidia katika mchakato mzima wa ulipaji wa madeni
-Vile vile atatakiwa atoe orodha ya watu wanaomdai na anaowadai
-Sheria inamtaka atumie uwezo wake wote kusaidia upatikanaji wa mali zake na mgawanyo wake kwa watu wanaomdai
-Anatakiwa vile vile atoe anuani yake sahihi,anuani ya makazi yake,eneo la biashara zake na anuani.Na kila baada ya miezi mitatu anatakiwa alete taarifa kuhusu ajira yake,mshahara,mapato

ii]KUKAMATWA
-Sheria inaruhusu kukamatwa kwa mdaiwa,karatasi alizonazo,pesa au bidhaa alizonazo
Hii hutokea pale ambapo inadhaniwa kwamba anaweza kutoroka,au kuficha bidhaa hizo au kuharibu bidhaa hizo au karatasi hizo au kuzificha
-Vile vile hii hutokea pale anapoitwa na mahakama kwa ajili ya mahojiano na amekataa kuitikia mwito

iii]MAWASILIANO
Sheria vilevile inaruhusu kwamba barua za mdaiwa ,telegramu na vifurushi vingine vilivyokuwa vikielekezwa kwa mdaiwa vibadilishwe muelekeo na viende kwa kwa Afisa wa Posta Mkuu au maofisa wake


iii]MAHOJIANO
Sheria inawapa mamlaka wadhamini au wasimamizi wa biashara ya muhusika kuomba kufanya mahojioano na mdaiwa au mkewe au mtu yeyote anayefahamika au kudhaniwa kuwa anaweza kuwa na mali za mdaiwa au anadaiwa na mdaiwa/mufilisi
Kama itabainika kwamba mtu yeyote anadaiwa ataamuriwa alipe,kama ana mali za mdaiwa azirudishe
ISIPOKUWA
[s.43] Katika kukusanya mali kwa kwa ajili ya kulipa madeni,kama mdaiwa alikuwa amepewa mali ashike kwa niaba ya mtu mwingine,mali hiyo haitakamtwa
-Vile vile vifaa vyake vya kufanyia kazi ili apate ridhiki na nguo zake za kuvaa na kutandika katika kitanda chake i.e magodoro/shuka/kitanda ambavyo ni kwa ajili yake na watoto wake na mkewe ambavyo thamani yake kwa ujumla haizidi shilingi mia tano.
KUKAMATA MSHAHARA
Sheria vile vile inaruhusu kukata mshahara wa muhusika na kuugawanya kwa watu wanaomdai,lakini lazima wapate kibali cha mkuu wa idara husika

UTEUZI WA MDHAMINI
Katika kumdhibiti zaidi mdaiwa ili alipe madeni yake sheria imeruhusu uteuzi wa wadhamini ambao watachukua umiliki wa mali za muhusika kwa nia ya kuzitumia hizo kufanikisha ulipaji wa madeni
-atauza mali zote au sehemu ya mali hizokwa mnada au mikataba binafsi akiwa na mamlaka ya kuhamisha umiliki au kuiuza kwa vipande vipande
-atakuwa na uwezo wa kutoa risiti za mauzo
-kupangilia mfumo wa madeni
-kushughulikia mali hizo kama ambavyo mmiliki wake angezishughulikia
Kazi ya mdhamini itaisha pale tu atakapohakikisha kuwaamekusanya mali za mdaiwa na kulipa madeni husika,au ameandaa mpango maalumu wa jinsi ya kulipa madenia na mpango huo umekubaliwa na mahakama,au pale atakapokuwa amestaafu

10. NI NINI MADHARA YA KUTANGAZWA MUFILISI
Kutangazwa kuwa umefilisika kuna madhara yake kisheria kwenye hadhi ya muhusika ambaye ametangazwa
i].Mtu aliyetangazwa kufilisika haruhusiwi kuteuliwa kuwa mlinzi wa amani
ii].Hairuhusiwi kuteuliwa au kushika au kufanya kazi kama meya wa eneo lolote,au diwani au kuwa mjumbe wa mamlaka ya mji,kamati ya shule au bodi ya barabara
Na endapo mtu atatangazwa kuwa amefilisika na katika kipindi hicho alikuwa anashikilia nafasi ya ulinzi wa amani,umeya,udiwani au ujumbe wa mamlaka ya ya mji au bodi ya barabara,basi mara baada ya kutangazwa hivyo,ujumbe wake katika sehemu hizo utakoma mara moja
Lakini vigezo hivyo vinaweza kuondolewa au kukoma pale ambapo
i].kutangazwa kwake kufilisika kumefutwa
ii].Miaka mitano imepita tangu awe alipoomba mahakama imwondolee hali ya kutangazwa kufilisika
iii].Amepata kutika mahakamani hali ya kuondolewa kufilisika na amepewa cheti kuonyesha kwamba kufilisika kwake kulitokea kwa bahati mbaya nay eye hakuchangia lolote katika kufilisika kwake.Kwa mfano anaweza kuwa amefilisika kwa sababu baada ya kukopa au kufanya biashara aliugua,au aliibiwa au kulitokea janga la kiasili ambalo lilimsababishia hasara kubwa e.g. matetemeko ya ardhi,Katrina e.t.c.

Vile vile sheria inamkataza mtu yoyote aliyetangazwa kwamba amefilisika kuendesha au kusaidia au kushiriki katika kuendesha au kukubali kuajiriwa katika biashara yoyote inayomilikiwa aidha nay eye mwenyewe au yeye mwenyewe pamoja na mtu mwingine au ndugu yake wa damu au wa kuasili mpaka pale atakapotoa maombi mahakamani kwa ajili ya ruksa ya kufanya hivyo na awe amepata ruksa hiyo.
Wakati wa kusikiliza maombi hayo mahakama itasikiliza ripoti ya mtu aliyepewa kazi ya kusimamia biashara za muhusika ambaye atatoa ripoti kuhusu tabia na mwenendo wa muhusika na inaweza kumwekea masharti kadha wa kadha ili asije akaiingiza biashara hiyo nyingine katika mkondo wa kufilisika kama ile ya mwanzo.Na kama atashindwa kuyatii masharti hayo msimamizi wa biashara yake anatakiwa atoe taarifa mahakamani.
Ni kosa la jinai kwa mtu yeyote aliyefilisika kuendesha,au kusaidia katika kuendesha au kukubali kuajiliwa katika shughuli au biashara bila kupata kibali cha mahakama
Kuna sheria nyingine mbali mbali ambazo vinawazuia watu kufanya mambo mbalimbali kufanya shughuli Fulani kama wametangazwa kufilisika na amri hiyo haijaondolewa

-Sheria ya Mawakili kifungu cha 37 kinasema pale tu wakili anapotagazwa kufilisika,pale pale hadhi yake ya uwakili inasimamishwa na hataweza kufanya kazi ya uwakili mpaka hali hiyo ya kufilisika iondolewe

-Sheria ya Mikataba vile vile inasema kwamba kutegemea na aina ya mkataba wa Ushirikiano wa kibishara,kufilisika kwa mmoja wa washirika wa kibiashara ni moja kati sababu zinazoweza kuvunja ushirika hou

-Sheria ya Makampuni kufungu cha 143 vilevile kinasema kwamba mtu yeyote ambaye ametangazwa kufilisika na amri hiyo bado iko hivyo haruhusiwi kuwa katika bodi ya wakurugenzi wa kampuni husika na ikibainika hivyo,atatuhumiwa kwa kosa la jinai na akipatikana na ataadhibiwa kwa kupewa kifungo cha miaka miwili jela au faini ya ashilingi elfu hamsini.


11. MDAIWA ANAWEZA KUOMBA MAHAKAMA IMTANGAZE HURU KUTOKA KATIKA HALI YA KUFILISIKA?
Mtu aliyefilisika,muda wowote baada ya kutangazwa amefilisika na mahakama,anaweza kuomba mahakama imuweke huru kutoka katika tatizo la kufilisika.Amri hii humuweka huru dhidi ya madeni yake yote ya zamani isispokuwa madeni dhidi ya serikali,madeni yaliyopatikana kwa njia za biashara ambazo si za uaminifu au jukumu la utunzaji wa familia

Wakati wa kusikiliza ombi hilo mahakama itaangalia taarifa ya msimamizi wa mali zake kuona kama alikuwa anafanya biashara kiuaminifu au alikuwa anacheza rafu.Katika mazingira hayok mahakama inaweza kukubali au kukataa ombi lake au kuliahirisha kwa muda.Vilevile mahakama inao uwezo wa kutaka hukumu ya makubaliano itolewwe kwa kiasi cha deni ambacho hakijalipwa ambayo itakuja kukaziwa baadae na ambayo haitatimilizwa bila ruhusa ya mahakama.

Lakini kama mtu aliyefilisika atairidhisha mahakama kwamba masharti aliyopewa ni magumu anaweza kuomba yalegezwe[s.29]

Lakini hata kama mahakama itampa uhuru dhidi ya amri ya kuitwa mufilisi,ana wajibu wa kushirikiana na msimamizi wa mali zake katika kumsaidia kuzikusanya ili kulipa madeni yake.na akishindwa kutoa ushirikiano huo mahakama inaweza kufuta amri ya kumuachia huru kutoka katika hali ya kuwa mufilisi

-Amri hiyo ya kumuachia huru itamfanya asiwajibike kwa madeni yote ambayo alishitakiwa katika kesi ya kumfilisi,hivyo basi hata kama aliwalipa nusu nusu wadai wake,hawatakuwa na uwezo wa kumdai tena

MAAMUZI YA MAHAKAMA
Mahakama wakati wa kusikiliza shauri,kama ikiona kwamba hakuna haja au hakukuwa na haja ya kumfilisi muhusika au ikiona kwamba madeni husika yanalipika,itaondoa amri ya kumtangaza mufilisi muhusika.

NONDO KUHUSU CORPORAL PUNISMENT

Before The Inter-American Case 12.147
Court Of Human Rights


WINSTON CAESAR
v.
REPUBLIC OF TRINIDAD AND TOBAGO


________________________________________________________
Amicus curiae brief concerning the issue whether judicial corporal punishment constitutes “cruel, inhuman or degrading punishment”
within the meaning of Article 5 of the American Convention on Human Rights
________________________________________________________

Submitted by

INTERIGHTS

(THE INTERNATIONAL CENTRE FOR THE LEGAL PROTECTION OF HUMAN RIGHTS)

Introduction
Amicus curiae is the International Centre for the Legal Protection of Human Rights (INTERIGHTS), an international human rights organisation based in the United Kingdom specialising in the application of international law in domestic and international fora. INTERIGHTS is a registered charity, independent of all ideologies and governments, which works to promote the effective use of international human rights standards and procedures. In pursuit of its goals, INTERIGHTS provides advice on the use of international and comparative law, assists individuals and organisations in bringing cases before appropriate bodies, disseminates information on international and comparative human rights law - through its Bulletin, the Commonwealth Human Rights Law Digest, and databases on international and comparative human rights law (www.interights.org) - and undertakes training and educational programmes for lawyers and judges. A critical aspect of INTERIGHTS’ activities involves the filing of amicus curiae briefs before national and international courts and tribunals. For twenty years Interights has been assisting judges, lawyers, NGOs and victims in cases before national, regional and global tribunals raising issues of general importance concerning the interpretation of fundamental rights. This brief is submitted in the belief that this is one such case.
This amicus curiae brief is limited to the question whether judicial corporal punishment constitutes cruel, inhuman or degrading punishment or treatment (CIDPT), in accordance with Article 5 of the American Convention on Human Rights (hereinafter “the American Convention” or the “Convention”). It does not, of course, address the particular facts of the case before the Court.[1] Nor does it address the relevant doctrine and jurisprudence from the Inter-American system, addressed in the Application of the Commission. Rather, the purpose of this brief is to draw to the Court’s attention the approach of other international human rights bodies, and national courts, in giving effect to virtually identical provisions of international instruments and national laws in relation to cruel, inhuman or degrading treatment or punishment. It provides information, which it is hoped might assist the Court, in relation to the approach reflected across a growing body of international and national jurisprudence on judicially sanctioned corporal punishment as cruel inhuman and degrading punishment.[2]
Structure/Overview of the Brief
The present brief is structured in the following manner. Section A introduces the prohibition of cruel, inhuman and degrading treatment and punishment in international law, noting that the prohibition on such treatment or punishment is universal in nature. It is also absolute, and cannot be justified by any exceptional circumstances – including the nature of the crime committed or the aim that punishment pursues - nor by reference to the provisions of internal law. Section B notes the need to adopt an evolutive and dynamic approach to the prohibition, in line with changing conceptions of humane treatment within society and the international community more broadly. Section C sets out the basic elements of what constitutes cruel, inhuman and degrading punishment and distinguishes it from the suffering and humiliation inherent in and incidental to lawful punishment. Section D, which is the heart of the brief, focuses on the jurisprudence of international and national bodies in relation specifically to judicial corporal punishment as cruel, inhuman and degrading punishment.
The conclusion of this brief is that under current international law judicial corporal punishment, by its very nature, constitutes inhuman and degrading punishment. It should be noted that this does not, however, preclude the possibility that, in the circumstances of any particular case, judicial corporal punishment may also amount to torture. As, for example, the United Nations Declaration against Torture notes, torture is “an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”[3] The characterisation of corporal punishment as torture would depend, essentially, on the Court’s assessment of the severity of the treatment or punishment in light of prevalent circumstances, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. While there is international support for the view that corporal punishment may amount to torture,[4] the focus of this brief is, however, on judicial corporal punishment as cruel, inhuman and degrading punishment.

Section A The Universal and Absolute Nature of the Prohibition of Cruel, Inhuman or Degrading Punishment or Treatment in International Law
Article 5 of the American Convention on Human Rights provides, in relevant part:
“1. Every person has the right to have his physical, mental, and moral integrity respected. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”
“2. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.”
Every international human rights instrument of general scope, whether regional or universal, enshrines provisions similar in content to Article 5 of the American Convention. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the Arab Charter of Human Rights.[5]
These provisions are supplemented by the prohibition on cruel, inhuman or degrading treatment or punishment in specific international instruments, including Article 16 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides:
“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture […], when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”[6]
Cruel, inhuman and degrading treatment or punishment is universally prohibited and condemned. There is extremely widespread subscription to the forementioned treaties and instruments. The prohibition is prevalent throughout national legal systems, reflected in constitutional and legislative provisions and the decisions of national courts (referred to further on in this brief).
Together national and international laws evidence “the almost universal condemnation of the practice of inhuman treatment.”[7] It is today indisputable that the prohibition of cruel, inhuman and degrading treatment found in the above-mentioned international instruments and declarations is paralleled by a customary international law norm of the same content and to the same effect. The prohibition on cruel inhuman and degrading punishment almost certainly falls within the group of principles described by the International Court of Justice in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons as being “so fundamental to the respect of the human person and ‘elementary considerations of humanity’ [...]” that they are “to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of customary international law.”[8]
This prohibition on treatment or punishment that is cruel, inhuman or degrading is absolute. There are no exceptions to the prohibition. As recalled below, there can be no justification or excuse for a violation and no prevailing circumstances, whether in the particular case or in the context of the state more generally, and no provisions of national law, can justify deviation from this norm.
As a matter of treaty law, this is reflected first in the fact that the provisions prohibiting cruel, inhuman or degrading treatment or punishment are not subject to the “clawback” clauses which apply to some other rights, permitting limitations on account of considerations such as public order, national security, public morals and health.[9] The absolute nature of the prohibition is further confirmed by the fact that none of the above-mentioned instruments provides for derogation in relation to the prohibition on the basis of national emergency.[10] Indeed human rights treaties explicitly exclude from the scope of permissible derogation, inter alia, the provisions on torture, inhuman or degrading treatment. The United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, for its part, makes explicit that:
“Exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”[11]
The absolute nature of the prohibition of cruel, inhuman and degrading punishment, and the implications thereof, has been repeatedly emphasized by human rights monitoring bodies. The Human Rights Committee has expressly noted that the prohibition of torture and cruel, inhuman and degrading treatment under Article 7 of the International Covenant on Civil and Political Rights:
“[…] allows of no limitation. [E]ven in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. [N]o justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.”[12]
Under the European Convention on Human Rights, the European Court of Human Rights has observed that:
“Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15(2), even in the event of a public emergency threatening the life of the nation.”[13]
The absolute nature of the prohibition on inhuman treatment and its applicability in all circumstances, is apparent also from international humanitarian law (IHL) which make clear that torture, corporal punishment and other measures causing physical suffering are prohibited even in times of armed conflict.[14] The specific reference to the prohibition of corporal punishment in conflict is noteworthy.[15]
The position is the same as a matter of customary international law, both as a matter of human rights law and as a matter of international humanitarian law. In the words of the European Court of Human Rights,
“[The] absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of […] democratic societies […] and is generally recognised as an internationally accepted standard.”[16]
Several consequences flow from the absolute nature of the prohibition which may be worth emphasising in the context of the present case.
First, the absolute nature of the prohibition means that cruel, inhuman or degrading treatment or punishment is impermissible no matter what the circumstances of the particular case, including specifically the victim’s behaviour.[17] Even the most aberrant behaviour on the part of individuals cannot justify, or affect the understanding of what constitutes, such treatment or punishment.[18] As the European Court notes:
“[...] Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and […] its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question […].”
Second, there can be no justification for inhuman or degrading punishment on the basis of the protection of other human rights, or for reasons of public order or prevention or repression of crime. Specifically, as held by the European Court in Tyrer in relation to the judicial corporal punishment of a juvenile by birching, the fact that a particular punishment may be believed to a have a deterrent effect is irrelevant. The Court observed
“[…] a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3, whatever their deterrent effect may be.”[19]
Third, in accordance with general principles of international law, the provisions of domestic law do not affect the characterisation of measures as inhuman or degrading, and cannot justify the imposition of such measures. As discussed in more detail in Section D.3 below, the fact that a certain kind of treatment or punishment is expressly permitted or provided for by domestic legislation is irrelevant so far as that treatment or punishment violates the prohibition under international law of cruel, inhuman or degrading punishment.

Section B Need for Evolutive Interpretation of the Prohibition on CIDPT in Light of International Standards
International and national jurisprudence indicates that an evolutive and dynamic interpretation of the prohibition of cruel, inhuman or degrading punishment is essential to ensure that it continues to serve its essential protective purpose. The need for a dynamic interpretation applies to all rights within human rights law, but its relevance is particularly apparent as regards concepts such as ‘cruel’, ‘inhuman’ or ‘degrading’ which by their nature attempt to reflect contemporary sensibilities of the relevant community. Developments in circumstances and in attitudes, as reflected inter alia in shifting practices and penal policy, should be taken into consideration in assessing what constitutes prohibited punishment. As the prohibition is universal in nature (see Section A above), it is particularly important to have regard to evolving circumstances and attitudes not only domestically or regionally but also internationally. Interpreting the American Convention in light of international and comparative standards will, moreover, ensure that it keeps pace with developments within the international community of which the region forms part.
The need for a dynamic interpretative approach has consistently been recognized by this Court.[20] A similar approach is taken by the European Court in relation to the European Convention.[21] In Tyrer v. United Kingdom for example, the European Court of Human Rights stated that, in order to assess the compatibility of corporal punishment with the standards of human rights protection set forth by the European Convention of Human Rights, the Court “cannot but be influenced by the developments and commonly accepted standards in the penal policy” of other states.[22] The International Court of Justice for its part has observed that "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation."[23]
Domestic courts, called upon to make similar assessments in the light of constitutionally protected fundamental rights, have stressed the importance of adopting a dynamic approach when interpreting constitutional provisions prohibiting cruel, inhuman and degrading treatment or punishment. The Supreme Court of the United States, for example, called upon to determine the content of the prohibition of cruel and unusual punishment contained in the Eighth Amendment of the Constitution of the United States, noted that:
“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. [T]he words of the Amendment are not precise, and [...] their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[24]
The Supreme Court of Namibia noted that the question whether a particular form of punishment authorised by the State should be regarded as cruel, inhuman and degrading punishment inevitably involves a value judgement, but that:
"[…] [this] is however a value judgement which requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensibilities of the Namibian people […], and further having regard to the emerging consensus of values in the civilised international community […]. This is not a static exercise. It is a continually evolving dynamic. What may have been accepted as a just form of punishment some decades ago may appear to be manifestly inhuman and degrading today. Yesterday’s orthodoxy might appear to be today’s heresy."[25]

Section C Defining “Cruel, Inhuman or Degrading Punishment or Treatment” (CIDPT)
C.1 The Basic Elements of CIDPT
The work of international bodies provides considerable and growing jurisprudence on the definition of the concept of cruel, inhuman or degrading treatment or punishment. Human rights treaties, as well as ample jurisprudence of human rights bodies (and increasingly domestic and international criminal tribunals), illustrate what may constitute torture and/or cruel, inhuman and degrading treatment or punishment.[26] The essential characteristics of CIDPT is that it is treatment or punishment causing suffering of a certain severity, which may be physical or mental in nature.[27] A distinguishing feature is conduct that “violate[s] the basic principle of humane treatment, particularly the respect for human dignity.”[28] There is no requirement that the conduct is carried out pursuant to any particular purpose.[29]
The European Commission of Human Rights for example noted that a given treatment or punishment is inhuman when it “causes severe suffering, mental or physical, which in the particular situation is unjustifiable.”[30] As for degrading treatment, this has been defined by the European Court as conduct “such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance."[31] The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia for its part conducted a thorough analysis of international humanitarian law and human rights law standards on the basis of which it defined inhuman or cruel treatment, in the Celebici case, as:
“[…] an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.”[32]
C. 2 Beyond the Suffering and Humiliation Inherent in Lawful Punishment
A certain element of humiliation and suffering is almost inevitably present in the mere fact that an individual is convicted of a criminal offence and subject to punishment. Thus not every form of judicial punishment can automatically be regarded as “cruel, inhuman or degrading.” As noted by the European Court of Human Rights:
“In fact, in most if not all cases this [element of humiliation and suffering] may be one of the effects of judicial punishment, involving as it does unwilling subjection to the demand of the legal system.”[33]
In Tyrer v. United Kingdom, in its discussion of the notion of "degrading punishment" under Article 3 of the European Convention, the European Court held that, in order for a punishment to be properly characterised as ‘degrading’, “the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation” inherent in the fact that the individual is being subjected to punishment by the State.[34] The same line of reasoning applies, mutatis mutandis, to the characterization of a given form of punishment as inhuman or cruel.
Moreover, with regard specifically to corporal punishment, it must be recognized that some international instruments dealing specifically with torture and cruel, inhuman or degrading treatment exclude from the ambit of torture proscribed acts resulting in "pain or suffering arising only from, inherent in or incidental to lawful sanctions."[35] However, it is well established that references to ‘lawfulness’ in human rights instruments – including the Torture Convention and general human rights treaties - must be understood by reference not only to the strict provisions of national law but also to principles of international law, including relevant human rights instruments.
As noted by the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment of the UN Commission on Human Rights,
"[…] the ‘lawful sanctions’ exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. […] By contrast, the Special Rapporteur cannot accept the notion that the administration of such punishments as stoning to death, flogging and amputation […] can be deemed lawful simply because the punishment has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order. To accept this view would be to accept that any physical punishment, no matter how torturous and cruel, can be considered lawful, as long as the punishment had been duly promulgated under the domestic law of a State. Punishment is, after all, one of the prohibited purposes of torture. Moreover, regardless of which ‘lawful sanctions’ might be excluded from the definition of torture, the prohibition of cruel, inhuman or degrading punishment remains. The Special Rapporteur would be unable to identify what that prohibition refers to if not the forms of corporal punishment referred to here. Indeed, cruel, inhuman or degrading punishments are, then, by definition unlawful; so they can hardly qualify as ‘lawful sanctions’ within the meaning of article 1 of the Convention against Torture."[36]
The Special Rapporteur thus makes clear that the mere fact that a particular action is taken in accordance with internal law does not make it ‘lawful’ for these purposes. In accordance with general principles of international law (see D.3 below) internal law cannot insulate action covered by it from any challenge as to its compliance with the human rights obligations of the State. Indeed, in particular cases human rights bodies have repeatedly found that the imposition of certain penalties under domestic law has given rise to a violation.[37] The key question is whether is the punishment is ‘lawful,’ as opposed to cruel, inhuman and degrading, which must be assessed not only by reference to the prescriptions of national law but according to the relevant international standards, as set out below.
C.3 The ‘Circumstances’ - the Punishment or the Case
As consistently noted by human rights monitoring bodies, in general the assessment of whether treatment or punishment is cruel, inhuman or degrading punishment depends on all the circumstances of the case.[38] These include, for instance, the sex, age and state of health of the victim.[39] The circumstances such as “the nature and context of the […] punishment, the manner and method of its execution, its duration, its physical or mental effects” will also be relevant factors.[40] In particular, the “nature, purpose and severity” of the punishment have to be considered in order to establish if it is cruel, inhuman or degrading.[41]
However, consistent with the foregoing, certain forms of punishment have, due to their inherent characteristics, come to be viewed as per se satisfying the threshold of cruel, inhuman or degrading, irrespective of the particular circumstances of the case. As set out below, international and national jurisprudence suggests that judicially sanctioned corporal punishment is one such punishment.

Section D Judicial Corporal Punishment as Cruel, Inhuman or Degrading Punishment
It is submitted that judicial corporal punishment constitutes per se a violation of an individual’s right not to be subjected to cruel, inhuman and degrading treatment or punishment, as contained in Article 5 of the Convention and other international instruments. In brief, this reflects the essential nature and purpose of judicial corporal punishment, namely the imposition of severe physical pain and/or mental anguish by the state which, in the words of some of the national judgments considered below, necessarily ‘strip the recipient of all dignity and self-respect’ and invade the ‘inviolable dignity’ of the human person. Concerns as to the inherent arbitrariness and susceptibility to abuse of corporal punishment also characterise the assessment of such punishment as cruel, inhuman and degrading.
As set out below, the analysis that corporal punishment should at this point in time be considered cruel, inhuman and degrading is supported both by international jurisprudence on corporal punishment, and a discernible trend in national jurisprudence holding that corporal punishment amounts to cruel, inhuman and degrading punishment under national constitutional provisions.
D.1 International Standards and Jurisprudence on Corporal Punishment
International human rights bodies have consistently found judicial corporal punishment inconsistent with the obligation of States not to subject individuals under their jurisdiction to cruel inhuman or degrading punishment.
The Human Rights Committee, in its General Comment on the scope of the prohibition of cruel, inhuman and degrading treatment or punishment embodied in Article 7 of the ICCPR, has noted that
“the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime […].”[42]
In its country reports, the Committee has ‘reaffirm[ed] its position that corporal punishment is incompatible with article 7 of the Covenant.’[43] An analysis of the jurisprudence of the Human Rights Committee in individual cases concerning corporal punishment develops this position and lends strong support to the view that judicially sanctioned corporal punishment by its very nature has to be considered inherently cruel inhuman and degrading in all circumstances, regardless of the circumstances of the case or the particular characteristics of the person subjected to such punishment. In Osbourne v. Jamaica, for example, the Committee found that, by imposing a sentence of whipping with a tamarind switch, the State party had breached its obligations under Article 7 ICCPR. The Committee stated that:
"Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant."[44]
In Sooklal v. Trinidad and Tobago, the Committee found similarly that the punishment of birching provided for by the law of Trinidad and Tobago was contrary to the prohibition of cruel, inhuman and degrading punishment.[45]
The position of the Human Rights Committee in this respect is shared by, inter alia, the Special Rapporteur on torture and cruel, inhuman and degrading treatment or punishment of the UN Commission on Human Rights, who has consistently expressed the view that:
"[…] corporal punishment is inconsistent with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined, inter alia, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment."[46]
Similarly, the European Court of Human Rights in the Tyrer case, confronted with instances of judicially sanctioned corporal punishment of a comparatively less serious nature than those at issue in the present case, held that:
“The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State […]. Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person's dignity and physical integrity. […] The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.”[47]
The mental suffering that any form of judicial corporal punishment causes to the individual subjected to such punishment, both during the execution of the punishment and in the period which almost necessarily elapses between the sentencing of an individual to corporal punishment and the actual execution of the sentence, is an additional element that leads to the characterisation of corporal punishment as cruel, inhuman and degrading treatment.
In this respect the European Court of Human Rights noted, in Soering v. United Kingdom, that in order to assess whether a given punishment is inhuman or degrading:
“[…] account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced person's mental anguish of anticipating the violence he is to have inflicted on him.”[48]
In the Tyrer case, the relevant domestic legislation provided, in a fashion similar to that in the present case, that the punishment could not be carried out more than six months after the passing of the sentence. The Court held that:
"Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicant's conviction by the juvenile court and a considerable delay in the police station where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him."[49]
Accordingly, during the period of time between the passing of sentence and the imposition of the punishment the individual inevitably experiences mental anguish and feelings of fear in anticipation of the punishment which may per se render the punishment at issue cruel, inhuman or degrading.
D.2 The Growing Trend towards Recognition of the Impermissible Character of Judicial Corporal Punishment in Domestic Legal Systems
This section illustrates that the approach of international human rights bodies highlighted above - condemning all forms of judicial corporal punishment as cruel, inhuman or degrading punishment - is increasingly reflected on the national plane. Although a number of countries in the world do still adopt more or less serious forms of judicial corporal punishment within their criminal law systems, there are signs of a clear trend towards the recognition of the inherently inhuman and degrading nature of judicial corporal punishment.
The shifting attitude of the international community towards corporal punishment can be discerned from an analysis of both relevant domestic legislation and the jurisprudence of domestic courts. Although the focus of this brief is on comparative standards as reflected in comparative jurisprudence, it is noteworthy that in the last decade a number of states that until that point still retained corporal punishment have abolished it through legislation. Examples of recent legislative change in other Carribbean and Commonwealth countries include: the Abolition of Corporal Punishment Ordinance 1998, Anguilla, the Corporal Punishment (Abolition) Act 2000, British Virgin Islands, the Prisons (Amendment) Law 1998, Cayman Islands, the Criminal Law (Amendment) Act (Act No 5 of 2003), Kenya, the Punishment of Whipping Act 1996, Pakistan (but still permitted for Hadood crimes) and the Abolition of Corporal Punishment Act 1997, South Africa. In some cases, where legislation has been enacted only relatively recently, this is the culmination of a process involving earlier judicial declarations that such punishment was prohibited under domestic laws and constitutions.
A large number of domestic courts have been called upon to assess the compatibility of laws permitting corporal punishment of convicted criminals with domestic and international standards of protection of fundamental rights. As set out below, many have held that the imposition of corporal punishment, regardless of the circumstances of the case and of the modalities through which it is carried out, constitutes cruel, inhuman and degrading punishment treatment, and represents a form of punishment no longer acceptable in a democratic society.
For example, in Ex parte Attorney General of Namibia, In re Corporal Punishment by Organs of the State, the Supreme Court of Namibia called upon to determine whether the infliction of a particular form of corporal punishment (in casu, caning in State schools) was contrary to the prohibition of torture and cruel, inhuman and degrading treatment or punishment contained in the Namibian Constitution, went further than the narrow question presented to it and found that all forms of corporal punishment, including judicially imposed corporal punishment, were unconstitutional.[50]
The Court held that the prohibition of cruel, inhuman or degrading treatment and punishment contained in international instruments and national legislation “[…] articulate a temper throughout the civilized world which has manifested itself consciously since the second world war”[51] and that:
“[…] there is a strong support for the view that the imposition of corporal punishment on adults by organs of the state is indeed degrading or inhuman and inconsistent with the civilized values pertaining to the administration of justice and the punishment of offenders.”[52]
Accordingly, the Court held that:
“[…] the imposition of any sentence by any judicial or quasi-judicial authority, authorising or directing any corporal punishment upon any person is unlawful and in conflict with [the prohibition of cruel, inhuman and degrading treatment contained in] the Namibian Constitution.”[53]
The Court based its finding on, inter alia, the following considerations:
"1. Every human being has an inviolable dignity. A physical assault on him sanctified by the power and authority of the state violates that dignity. His status as a human being is invaded. […]”
“3. The fact that those assaults on decency are systematically planned, prescribed and executed by an organized society makes it inherently objectionable. It reduces organized society to the level of the offender. It demeans the society which permits it as much as the citizen who receives it. […]”
“5. It is inherently arbitrary and capable of abuse leaving as it does the intensity and the quality of the punishment substantially subject to the temperament, the personality and idiosyncrasies of the particular executioner of the punishment.”
“6. It is alien and humiliating when it is inflicted as it usually is by a person who is a relative stranger to the person punished and who has no emotional bonds with him.”[54]
Similarly, the Supreme Court of Zimbabwe, in the case of State v. Ncube concerning the constitutionality of a sentence of whipping, observed that “[o]n the few occasions when the constitutionality of whipping had been considered by judges in other countries, there appeared to have emerged judicial unanimity that the whipping of adults or juveniles was both cruel and degrading” and found that judicial corporal punishment constituted “a punishment which in its very nature is both inhuman and degrading.” The Court expressed its reasoning in the following terms:
“1. […] It is a punishment, not only inherently brutal and cruel, for its infliction is attended by acute pain and much physical suffering, but one which strips the recipient of all dignity and self-respect. It is relentless in its severity and is contrary to the traditional humanity practised by almost the whole of the civilized world, being incompatible with the evolving standards of decency.
2. By its very nature it treats members of the human race as non-humans. Irrespective of the offence he has committed, the vilest criminal remains a human being possessed of common human dignity. Whipping does not accord to him human status.
3. No matter the extent of regulatory safeguards, it is a procedure easily subject to abuse in the hands of a sadistic and unscrupulous prison officer who is called upon to administer it.
4. It is degrading to both the punished and the punisher alike. It causes the executioner, and through him society, to stoop to the level of the criminal. It is likely to generate hatred against the prison regime in particular and the system of justice in general.”[55]
Although it is recognised that the Zimbabwean government responded to this decision by enacting a constitutional amendment (criticised by the Human Rights Committee as a violation of the prohibition), the potency of the judgement as a statement on the inherently inhuman and degrading nature of the punishment, and international standards in respect of the same, remains unaffected.[56]
In State v. Williams, a judgment concerning the constitutionality of juvenile whipping, the Constitutional Court of South Africa noted that:
“[…] over the last thirty years at least, South African jurisprudence has been experiencing a growing unanimity in judicial condemnation of corporal punishment for adults. Criticism of the practice has been consistent and unanimous, it being characterized as ‘punishment of a particularly severe kind … brutal in its nature … a severe assault upon not only the person of the recipient but upon its dignity as a human being.’ […] If adult whipping were to be abolished, it would simply be an endorsement by our criminal justice system of a world-wide trend to move away from whipping as a punishment.”[57]
In Kyamanywa v. Uganda, the Ugandan Constitutional Court held that the provision of the Penal Code Acts which permitted the imposition of a sentence of corporal punishment on convicted individuals was inconsistent with the prohibition of torture, cruel, inhuman or degrading treatment or punishment contained in Article 24 of the Ugandan Constitution. In particular, the Court held that:
“[Article 24] does not make any distinction between the manner of application of any form of treatment or punishment which falls within the prohibited category. Corporal punishment by its very definition, which is inflicting pain by beating a part of the body, falls squarely within the category prohibited by article 24. It is by its nature a cruel inhuman and degrading punishment which amounts to a torture.”[58]
The High Court of Fiji, in Naushad Ali v. State, similarly ruled that the provision providing for corporal punishment in the Fiji Criminal Procedure Code was incompatible with the constitutional prohibition of “cruel, inhuman, degrading or disproportionately severe treatment of punishment”, and therefore unlawful.[59]
In John Banda v. The People, corporal punishment was also ruled unconstitutional by the High Court of Zambia.[60] Justice E.E. Chulu stated:
“Article 15 of the Constitution is couched in very clear and unambiguous language, that no person shall be subjected to torture or to inhuman or degrading punishment or other like treatment. On the contrary, it cannot be doubted that the provisions of […] the Penal Code which permit the infliction or imposition of corporal punishment on offenders are in total contravention, and conflict with the above provisions of article 15 of the Constitution.”
It is noted that in a limited number of cases national courts have indicated that, as a matter of internal law, judicial corporal punishment had to be considered lawful and that the decision as to whether to abolish judicial corporal punishment was a matter for the national legislator. It is however noteworthy that so far as courts have had regard to international law, they have generally acknowledged that judicial corporal punishment is contrary to the prohibition of cruel, inhuman and degrading punishment contained therein.
In Pinder v. Regina, by a majority of 3 to 2,[61] the Court of Appeal of Bahamas was called on to declare unconstitutional corporal punishment. It held that it could not do so due to the ‘saving clauses’ in the Constitution of Bahamas by virtue of which laws that were enacted before the entry into force of the constitution (including those under which the sentence of flogging had been imposed upon the appellant) could not be declared unconstitutional. However, the substance of the Court’s view was clear, with all five members of the Court recognizing that
“There is … virtual unanimity of opinion in Commonwealth jurisdictions and beyond that the infliction of corporal punishment … is violative of the fundamental right of a person … to be protected from such punishment which is regarded as inhuman and degrading or even torture”[62]
and that a sentence of flogging constituted inhuman and degrading treatment within the meaning of Article 17(1) of the Constitution.
The majority of the Judicial Committee of the Privy Council (Lords Millett, Hope and Hobhouse), in considering an appeal from the decision of the Court of Appeal in the above case, while upholding the constitutionality of the provision providing for corporal punishment on the same basis as the Court of Appeal, observed that:
“[…] it is accepted that flogging is an inhuman and degrading punishment and, unless protected from constitutional challenge under some other provision of the Constitution, is rendered unconstitutional by [the provision of the Constitution prohibiting torture and inhuman or degrading treatment or punishment].”[63]
Incidentally, Lords Nicholls and Hoffman entered a strong dissent to the reasoning of the majority on the interpretation of domestic constitutional law, observing that “flogging is a barbaric form of punishment,”[64] and that
“The use or, more accurately, the misuse of this type of argument in the interpretation of constitutions led Lord Wilberforce famously to decry the ‘austerity of tabulated legalism’: see Minister of Home Affairs v Fisher [1980] AC 319, 328. Never was there a more telling instance of this austerity than in the present case, where the constitutionality of inhuman punishment is said to depend, at least in part, on the inference to be drawn from the niceties of an argument based on redundancy of language. This approach, if adopted, would tragically impoverish the spirit of the Constitution of The Bahamas.”[65]
What is clear from the foregoing is that, as a matter of international law, reflected in international practice of human rights courts and bodies as well as judgments of national courts, judicially sanctioned corporal punishment is condemned as constituting CIDPT.
D.3 Relevance of Internal Law - Distinguishing Suffering ‘Inherent in Lawful Punishment’
Given that the punishment complained of in the present case is, amicus understands, contemplated in the legislation of the Republic of Trinidad and Tobago, this brief emphasise a final point (canvassed above), notably the relationship between domestic law and international human rights obligations in respect of corporal punishment.
The Court is aware of the general principle of customary international law that a State may not rely upon a provision of its internal law as a justification for a breach of its international obligations. This incontrovertible principle, affirmed repeatedly by the Permanent Court of International Justice and the International Court of Justice,[66] embodied in Article 27 of the Vienna Convention on the Law of Treaties and recently restated by the International Law Commission in the Articles on Responsibility of States for Internationally Wrongful Acts,[67] has been expressly recognized by this Court in its Advisory Opinion on International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention.[68] Plainly, the state cannot invoke the provisions of domestic law to justify a punishment that violates its international obligations to protect persons from inhuman or degrading punishment.
It was noted above (see Section C.2), that suffering that is ‘inherent in lawful sanctions’ is not considered to fall within, and in the Torture Convention is explicitly excluded from, the prohibition on cruel inhuman or degrading treatment. Even when a similar "exclusion clause" is not expressly contained in the relevant provisions of international instruments, the European Court’s jurisprudence highlighted above indicates that the imposition of suffering or humiliation that is no more than that inherent in - or incidental to - the imposition of any lawful punishment is insufficient to constitute CIDPT. However, consistent with the principles set out above, the key question is not simply ‘lawfulness’ according to the provisions of domestic law. As the Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment or Punishment of the UN Commission on Human Rights has clarified,
"[…] the ‘lawful sanctions’ exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. […]’
Regard must therefore be had to international law in determining lawfulness. To interpret the ‘lawfulness’ provisions otherwise, and permit a state by way of internal legislation to avoid international obligations, would be to gut the prohibition on torture and cruel, inhuman and degrading treatment of meaning and effect. The jurisprudence highlighted in this Brief makes clear that judicial corporal punishment is not a ‘lawful’ sanction under international law and is increasingly rejected as an abhorrent violation of human rights by the international community. Its lawfulness, or not, under domestic law is immaterial.
To the extent that this issue is germane to the present case the Court may be minded to adopt an approach similar to that of the Special Rapporteur, highlighted above, or the Human Rights Committee which, in a case concerning the lawfulness of corporal punishment, stated that:
"The State party has contested the claim by stating that the domestic legislation governing such corporal punishment is protected from unconstitutionality by [the Constitution of the State Party]. The Committee points out, however, that the constitutionality of the sentence is not sufficient to secure compliance also with the Covenant. The permissibility of the sentence under domestic law cannot be invoked as justification under the Covenant."[69]
Conclusion
This brief has demonstrated that judicially sanctioned corporal punishment, of the sort at issue in the case presently before the Court, amounts to an inhuman and degrading form of punishment, prohibited by treaty and customary law. There can be no justification or excuse for such punishment, whatever the circumstances of the particular case, the situation in the particular state, or the provisions of internal law. Judicially sanctioned corporal punishment is the subject of harsh and unequivocal condemnation at the international - and increasingly at the national constitutional - level. The Court is urged in its important judgment to adopt an approach in line with the international law and practice outlined in this brief, which amicus curiae hereby humbly submits.

On behalf of INTERIGHTS:




Helen Duffy, Legal Director
Silvia Borelli, Research Assistant

Date
[1] So far as relevant, this brief proceeds on the basis of the “Statement of facts” presented by the Inter-American Commission on Human Rights (hereinafter “the Commission”) in its Application to the Court in the present case dated 26 February 2003. Application of the Inter-American Commission on Human Rights Before the Inter-American Court of Human Rights in the Case of Winston Caesar v. The Republic of Trinidad and Tobago (12.147), 26 February 2003, Part V (pp. 10-12).
[2] Recent Amicus briefs include Holubová and Others v. the Czech Republic (2004), M.C. v. Bulgaria (2003) and Nikula v Finland (2001) before the European Court of Human Rights, Al Odah v. United States (2002) and Tachiona et al v. Mugabe et al (2003) before the United States Court of Appeals and Lawrence et al v Texas (2003) before the US Supreme Court. INTERIGHTS has a broad docket of cases before international bodies, typically including the ECHR, Human Rights Committee of the UN and African Commission on Human and Peoples’ Rights. Other briefs are available at http://www.interights.org/pubs/legalbriefsdefault.asp.
[3] Article 1(2).
[4] See e.g. UN Human Rights Commission, Resolution 1997/38, 11 April 1997, UN Doc. E/CN.4/1997/38, para. 9; Resolution 2001/62, 25 April 2001, UN Doc. E/CN.4/2001/62, para. 5. A number of resolutions of the United Nations Commission on Human Rights for example confirm that “corporal punishment can amount to cruel, inhuman and degrading punishment or even to torture.”
[5] Article 5 of the Universal Declaration of Human Rights provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 7 of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”) provides in part: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the European Convention”) provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5 of the African Charter of Human and Peoples’ Rights provides: “Every individual shall have the right to the respect of the dignity inherent in a human being […]. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
Article 13 of the Arab Charter of Human Rights provides: “The State parties shall protect every person in their territory from physical or psychological torture, or from cruel, inhuman, degrading treatment. (The State parties) shall take effective measures to prevent such acts; performing or participating in them shall be considered a crime punished by law” (unofficial translation from Arabic).
[6] See also the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975, Article 2 of which provides in part: “Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. […]”
See also Article 3: “No State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment.”
[7] Prosecutor v. Mucic et al., Case No. IT-96-21-T, Judgment of 16 November 1998, para. 517.
[8] Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996(I), at p. 257, para. 79. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, para. 157 (unreported, available at: http://www.icj-cij.org), given the parallel prohibition in international humanitarian law of inhuman treatment.
[9] Under the American Convention, for instance, rights and freedoms such as the freedom to manifest one’s religion or belief, freedom of expression, right of assembly or freedom of association, freedom of residence and movement may be subjected to those limitations prescribed by law which are necessary in a democratic society to “protect public safety, order, health, or morals, or the rights or freedoms of others” (see Articles 12(3); 13(2); 15; 16(2); 22(3)). Under the ICCPR similar clauses relate to freedom of movement (Article 12), freedom of conscience and religion (Article 18) and freedom of expression (Article 19).
[10] See, e.g., Article 27(2), American Convention on Human Rights; Article 4(2), International Covenant on Civil and Political Rights; Article 15(2), European Convention of Human Rights.
[11] Article 3, United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX) of 9 December 1975.
[12] General Comment No. 20, para. 3. See also Article 3 of the UN Declaration: “[…] Exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.” See also Committee against Torture, Summary account of the results of the proceedings concerning the inquiry on Egypt, UN Doc. A/51/44, paras. 180 ff., in particular para. 222.
[13] Labita v. Italy (App. No. 26772/95), Reports 2000‑IV, para. 119 [GC]. See also Chahal v. United Kingdom (App. No. 22414/93), Judgment of 15 November 1996, Reports 1996-V.
[14] See Common Article 3 to the Geneva Conventions of 1949, laying down minimum standards of treatment in relation to non-combatants in non-international armed conflicts and prohibiting “violence to life and person, in particular […] cruel treatment and torture” (para. 1(a)) and “outrages upon personal dignity, in particular humiliating and degrading treatment” (Article 3(1)(c)). See also the grave breaches provisions (Articles 50, First Geneva Convention; Article 51, Second Geneva Convention; Article 130, Third Geneva Convention and Article 147, Fourth Geneva Convention) all of which criminalize “torture or inhuman treatment” and “wilfully causing great suffering or serious injury to body or health.”
[15] In particular, corporal punishment is expressly prohibited by Article 32 of the Fourth Geneva Convention in relation to civilians: “The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.” An express prohibition of corporal punishment is also contained in the fundamental guarantees provisions of both 1977 Additional Protocols to the Geneva Conventions (AP I, Article 75(2)(iii); AP II, Article 4(2)(a)).
[16] Soering v. United Kingdom (Appl. No. 14038/88), Judgment of 7 July 1989, Series A, No. 161, para. 88. The absolute nature of the prohibition has been recognized by the ECtHR, inter alia, in Ireland v. the United Kingdom (Appl. No. 5310/71), Judgment of 18 January 1978, Series A, No. 25, para. 163.
[17] Ibid. See also Human Rights Committee, Osbourne v. Jamaica (Communication No. 759/1997), Views of 13 April 2000, CCPR/C/68/D/759/1997 (2000), para. 9.1.
[18] ECtHR in Chahal v. United Kingdom (App. No. 22414/93), Judgment of 15 November 1996, Reports 1996-V paras. 73-4.
[19] Tyrer v. United Kingdom (Appl. No. 5856/72), Judgment of 25 February 1978, Series A, No. 26, para. 31. See also the Human Rights Committee, in its Concluding observations on Israel, UN Doc. CCPR/C/79/Add 93 (1998), para. 19, condemning guidelines authorising ‘moderate physical pressure’ to obtain information considered crucial to the protection of life.
[20] See, e.g., Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, 14 July 1989, Series A, No. 10, paras 37-38. See also the Concurring Opinion of Judge Cançado Trindade in The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, 1 October 1999, Series A, No. 16.
[21] Inter alia, Marckx v. Belgium (Appl. No. 6833/74), Judgment of 13 June 1979, Series A, No. 31; Airey v. Ireland (Appl. No. 6289/73), Judgment of 9 October 1979, Series A, No. 32; Dudgeon v. United Kingdom (Appl. No. 7525/76), Judgment 22 October 1981, Series A, No. 45.
[22] Tyrer v. UK, para. 31, See also Soering v. United Kingdom (supra, note 16), para. 102; Loizidou v. Turkey, 23 March 1995, Series A, No. 310, para. 71.
[23] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16, at p. 31.
[24] Trop v. Dulles, 356 US 86, 100-01 (1958), citing Weems v. United States, 217 US 349.
[25] Ex parte Attorney General, Namibia: in Re Corporal Punishment by Organs of State, 1991(3) SA 76 (Namibia Supreme Court), at 86I-87A.
[26] On jurisprudence, see, e.g., the decisions of the ECtHR in Aydin v. Turkey (App. No. 23178/94), Judgment of 25 September 1997, 25 (1998) EHRR 251, paras 73, 80-7; Aksoy v. Turkey, paras 39-40, 61-4; Selmouni v. France (App. No. 25803/94), Judgment of 28 July 1990, 29 (2000) EHRR 403 and those of the IACtHR in Castillo Petruzzi and others v. Peru, Merits, Judgment of 30 May 1999, IACtHR, Series C, No. 52, paras. 192-9. See also Prosecutor v. Kunarac and IT-96-23/1 ‘Foca’, Trial Judgment, 22 February 2001 and Appeal Judgment, 12 June 2002; and Prosecutor v. Furundzija, Case No. IT-95-17/1-T (Trial Judgment), 10 December 1998 and Appeal Judgment, 21 July 2000, in front of the International Criminal Tribunal for the Former Yugoslavia.
[27] Loayza Tamayo Case, IACtHR, Judgment of 17 September 1997. On death penalty absent rigorous standards of justice as cruel or inhuman treatment, see Öcalan v. Turkey, ECtHR, Merits (Appl. No. 46221/99), Judgment of 12 March 2003.
[28] Celibici Judgment, para. 544; Prosecutor v. Blaskic, Case No. IT 95-14-T, Judgment, 3 March 2000, paras. 154-5.
[29] In this respect it is noted that contained for example in the United Nations Convention against Torture is the requirement that torture be carried out pursuant to one of a number of listed purposes: Cf. Article 1(1). No such requirement appears in respect of cruel inhuman or degrading treatment or punishment.
[30] European Commission of Human Rights, Denmark v. Greece, Report of 5 November 1969, Yearbook of the European Convention on Human Rights XII (1969), p. 186. (See also D.3 below).
[31] Ireland v. the United Kingdom (supra, note 16), para. 167.
[32] See Prosecutor v. Delalic et al. (Celebici case), Case No. IT-96-21-T, Judgment of 16 November 1998, para. 543 (in relation to inhuman treatment) and para. 552 (in relation to cruel treatment). This definition has been followed and endorsed in, inter alia, Prosecutor v. Jelesic, Case No. IT-95-10-T, Judgment of 14 December 1999, para. 41; Prosecutor v. Blaskic; Case No. IT-45-14-T, Judgment of 3 March 2000, para. 186; and by the Appeals Chamber in the Celebici Appeal Judgment, Case IT-96-21-A, Judgment of 20 February 2001, para. 424. In the Kunarac case the crime of outrages upon personal dignity was defined by the Tribunal as: “[…] an intentional act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, committed with the knowledge of the fact the act or the omission could have that effect.” (Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23-T and IT-96-23/1-T, Judgment of 22 February 2001, para 514).
[33] Tyrer v. United Kingdom (supra, note 19), para. 30.
[34] Ibid. See also Campbell and Cosans v. United Kingdom, para. 28.
[35] See Article 1, UN Convention Against Torture.
[36] Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights Resolution 1995/37, 10 January 1997, UN Doc. E/CN.4/1997/7, para. 8. See also e.g. Kemmache v. France (no. 3) (Appl. No. 17621/91), Judgment of 24 November 1994, Series A, No. 296-C, para. 37, illustrating the concept of lawfulness in the context of other rights.
[37] See e.g. Soering v. United Kingdom (supra, note 16); and Öcalan v. Turkey (supra, note 27). On life imprisonment without any possibility of early release raising an issue under Article 3 of the ECHR, see the Court’s final decision as to admissibility in Einhorn v. France (App. No. 71555/01), Admissibility decision, 16 October 2001.
[38] See Human Rights Committee, Vuolanne v. Finland, 96 ILR 649, at 657. See also European Court of Human Rights, Soering v. United Kingdom (supra, note 16), para. 100; Ireland v. the United Kingdom (supra, note 16), para. 162; Tyrer v. United Kingdom (supra, note 19), para. 30.
[39] Soering v. United Kingdom (supra, note 16), para. 100; Ireland v. the United Kingdom (supra, note 16), para. 162; Tyrer v. United Kingdom (supra, note 19), paras. 29 and 30.
[40] Ibid.
[41] In its General Comment on Article 7 of the ICCPR, the Human Rights Committee similarly noted that the characterization of a given form of treatment or punishment as cruel, inhuman or degrading depends on the “nature, purpose and severity of the treatment applied” (para. 4).
[42] Human Rights Committee, General Comment No. 20 (Article 7), 10 April 1992, para. 5. See also e.g. UN Human Rights Commission, Resolution 1997/38, 11 April 1997, UN Doc. E/CN.4/1997/38, para. 9; Resolution 2001/62, 25 April 2001, UN Doc. E/CN.4/2001/62, para. 5.
[43] Concluding Observations of the Human Rights Committee, Zimbabwe: 06/04/98, para. 21
[44] Human Rights Committee, Osbourne v. Jamaica (Communication No. 759/1997), Views of 13 April 2000, CCPR/C/68/D/759/1997 (2000), para. 9.1. The Committee has reiterated its condemnation of judicial corporal punishment in a number of other cases: see, e.g., Higginson v. Jamaica (Communication No. 729/1998), Views of 28 March 2002, CCPR/C/74/D/792/1998, para. 4.6; Pryce v. Jamaica (Communication No. 793/1998), Views of 13 May 2004, CCPR/C/80/D/793/1998, para. 6.2.
[45] Sooklal v. Trinidad and Tobago (Communication No. 928/2000), 2 February 2000, CCPR/C/73/D/928/2000, para. 4.6.
[46] Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1995/37, 10 January 1997, UN Doc. E/CN.4/1997/7, para. 11.
[47] Tyrer v. United Kingdom (supra, note 19), para. 33.
[48] Soering v. United Kingdom (supra, note 16), para. 167.
[49] Tyrer v. United Kingdom (supra, note 19), para. 33
[50] Ex parte Attorney General of Namibia, In re Corporal Punishment by Organs of the State, 1991 (3) SA 76 (Namibia Supreme Court), at 95F.
[51] Ibid., at 87B.
[52] Ibid., at 87C.
[53] Ibid, at 95F.
[54] Ibid., at Ex parte Attorney General, Namibia: in Re Corporal Punishment by Organs of State (supra, note 25), at p. 87D-H.
[55] State v. Ncube, 1988 (2) SA 702 (Zimbabwe Supreme Court), at 721H-722D. Gubbay JA, delivering the judgment of the Court.
[56] Concluding Observations of the Human Rights Committee, Zimbabwe: 06/04/98, para. 21 : ‘The Committee is concerned about recent amendments of section 15 of the Constitution which inter alia authorize corporal punishment. The Committee reaffirms its position that corporal punishment is incompatible with article 7 of the Covenant.’
[57] State v. Williams and Others, 1995 (3) SA 632 (South Africa Constitutional Court), para. 11, citing State v. Kumalo 1965 (4) SA 565 at 574F.
[58] Simon Kyamanywa v. Uganda, Constitutional Reference No. 10/2000, 1 December 2001 (Constitutional Court of Uganda), p. 7.
[59] Naushad Ali v. State, Criminal Appeal No. HAA 0083/2001L, 21 March 2002 (Fiji High Court) (unreported).
[60] John Banda v. The People, HPA/6/1998 (High Court of Zambia).
[61] Pinder v. Regina, Criminal Appeal No. 60/1997, 29 January 1999 (Bahamas Court of Appeal) (unreported), (Gonsalves-Sabola P, George and Zacca JJA; Carey and Hall JJA dissenting).
[62] Ibid., p. 1.
[63] Prince Pinder v. The Queen, Privy Council Appeal No. 40/2001 (Bahamas), 23 September 2002, [2003] 1 AC 620, para. 5.
[64] Ibid., para. 66.
[65] Ibid., para 60.
[66] See eg The S.S. Wimbledon, Greco-Bulgarian “Communities,” Free Zones of Savoy and the District of Gex and Elettronica Sicula cases.
[67] Article 3, Articles on Responsibility of States for Internationally Wrongful Acts. See also the ILC’s Commentaries to Article 3.
[68] International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights), Advisory Opinion OC-14/94, 9 December 1994, Series A, No. 14, para. 35.
[69] Human Rights Committee, Osbourne v. Jamaica, para. 9.1 (emphasis added).