Mandatory sentences unconstitutional

Chris Mahove

The prescription of mandatory sentences by the legislature is unconstitutional as it denies the judiciary one of its core functions of imposing sentences on convicted persons, Veritas Zimbabwe has said.

Veritas said this in their BILL WATCH 42/2022 of September 16 where they were critiquing the Electricity Amendment Bill which was published in the Gazette of July 29, 2022 and is yet to be presented to parliament.

The Bill proposes to amend the Electricity Act to introduce tougher penalties for criminal offences involving the abstraction of electric current and the theft, damage or destruction of electrical apparatus, which include mandatory minimum sentences for some offences.

“The mandatory minimum sentences to be introduced are objectionable as in all cases, courts will have to impose 10-year prison sentences without the option of a fine if there are no special – i.e. unusual – circumstances peculiar to the case.  We explained in our Bill Watch 48/2021 of the 6th July 2021 that mandatory minimum sentences are undesirable because they deny courts the power to exercise one of their most important functions, which is to impose sentences on convicted persons that are fair to the State and to the accused and, where appropriate, are blended with a measure of mercy,” Veritas said.

It said in cases where the mandatory minimum sentences were grossly disproportionate to the crimes for which they were imposed, they would be unconstitutional and would amount to cruel punishment, which was ultra-vires the provisions of section 53 of the Constitution. 

“The new mandatory sentence for contravening section 60C of the Act certainly is grossly disproportionate.  It will mean that a person must be sentenced to 10 years’ imprisonment for failing to produce on demand a police clearance certificate for transporting electrical equipment, even if the person has been given verbal clearance by the police or has been issued with a certificate but has mislaid it,” Veritas said.

Section 60C(2) creates several offences for drivers or persons in charge of a vehicle carrying material used for generating, transmitting or supplying electricity, to fail to produce on demand a special police clearance certificate or customs clearance documentation relating to the material.  Anyone guilty of these offences is liable to a fine of up to level 14 or to imprisonment for up to five years or both, while Section 60C(3) is a complex provision which appears to permit persons to be convicted of two different offences arising out of the same conduct.

Veritas said the Electricity Act already provided for stiff penalties for contraventions of the Act, adding the Bill went overboard in trying to make them even stiffer. 

“Mandatory minimum penalties are not the best way to deter crime because they are only imposed on criminals who are caught.  If the Police are unable to catch criminals then crime will increase no matter what penalties the law may lay down,” it said. 

Veritas noted that while theft and vandalism were serious crimes that resulted in serious problems for the nation, the best way to deal with the vices was to improve the capacity of the law enforcement agents rather than to legislate for draconian and possibly unconstitutional penalties for the crimes.

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