PETRUS AND ANOTHER v. THE STATE 1984 BLR 14 (CA)

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Citation: PETRUS AND ANOTHER v. THE STATE 1984 BLR 14 (CA)
Court: 1984 BLR 14 (CA)
Case No:
Judge: Court of Appeal (Full Bench), Lobatse
Judgment Date: February 4, 1984
Counsel:
P.B. Hodes S.C. with him O. Petersen and P. Collins for the appellants. S.A. Afful, Assistant Attorney-General, for the State
Flynote

Statute - Construction - Amended enactment - Deliberate change of expression in amended enactment - Prima facie to be  G  taken to import change of expression - Certain provisions of Penal Code prescribing punishment "with or without" corporal punishment  -  Amendment of Penal Code by Act No. 20 of 1982 prescribing punishment "with" corporal punishment by deleting the words "or without" - Whether change of intention - Simultaneous enactment of Act No. 21 of 1982 amending Cap. 08:02 by prescribing new method for imposition of corporal punishment - Necessity to read both  H  enactments to construe effect of amendment to the Penal Code (Cap. 08:01) (1973 Rev.), s. 305(1) - Penal Code (Amendment) Act, 1982 (Act No. 20 of 1982) - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 301(3) Criminal Procedure and Evidence (Amendment) Act, 1982 (Act No. 21 of 1982).

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Criminal law - Sentence - Imposition of corporal punishment - Whether mandatory or discretionary on accused being  A  sentenced to imprisonment whether portion of sentence suspended or not - Penal Code (Cap. 08:01) (1973 Rev.), s. 305(1).
Constitutional law - Fundamental right - Inhuman treatment - Corporal punishment - Repeated and delayed infliction of corporal punishment - Corporal punishment inflicted in traditional manner with traditional instrument - Whether infringement of provisions of Constitution, s. 7 - Cap. 08:01 - Act No. 20 of 1982 - Cap. 08:02 - Act No. 21 of 1982 - Corporal Punishment  B  (Designation of places for Administering) Order, 1983 (S.I. 146 of 1983).

Headnote

It is provided by section 7(1) of the Constitution as follows:
 "(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."
It is also provided by section 305(1) of the Penal Code (Cap. 08:01) (1973 Rev.) as amended by the Penal Code  C  (Amendment) Act, 1982 (Act No. 20 of 1982) as follows:
"(1) Any person who-
 (a) breaks and enters any building ... with intent to commit therein any offence punishable under this Code ...
  is guilty of an offence termed housebreaking and is liable to  D
 imprisonment for ten years with corporal punishment."
And it is further provided by the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev,) ,s. 301(3) as amended by the Criminal Procedure and Evidence (Amendment) Act 1982 (Act No. 21 of 1982) as follows:
 "(3) Notwithstanding anything to the contrary contained in section 61(2) of the Magistrates' Courts Act and section 30 of  E  the Penal Code and the preceding provisions of this section where a person is sentenced under sections 235, 297, 298 and 305 to 308 of the Penal Code to undergo corporal punishment, such person shall be given four strokes each quarter in the first and last years of his term of imprisonment and such strokes shall be administered in traditional manner with traditional instrument at such places as may be specified by the Minister."  F
The two accused were convicted by a magistrate of housebreaking and theft contrary to section 305(1)(a) of the Penal Code as amended by the Penal Code (Amendment) Act 1982 (Act No. 20 of 1982). Each was sentenced to three years' imprisonment and to corporal punishment as provided by section 301(3) of the Criminal Procedure and Evidence Act as amended by the Criminal Procedure and Evidence (Amendment) Act, 1982 (Act  G  No. 21 of 1982). On review, the High Court reserved for the Court of Appeal the question as to whether section 305(1) of the Penal Code made it compulsory for the court to sentence the two accused to corporal punishment as prescribed by section 301(3) of the Criminal Procedure and Evidence Act if the court were to sentence each to a term of three years' imprisonment of which two were suspended. On the initial hearing of the appeal before  H  the court constituted of three judges, counsel for the accused sought to raise the additional question whether corporal punishment as prescribed in section 301(3) of the Criminal Procedure and Evidence Act was unconstitutional as being in conflict with section 7 of the Constitution. The court postponed the hearing in order to constitute a court of five judges in terms of section 9(2) of the Court of Appeal Act, read with section 106 of the Constitution.

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On the bearing of the case by five judges, the court with the consent of counsel for the accused and for the State reformulated and extended the question as follows: namely (1) whether corporal punishment as prescribed in  A  section 301(3) of the Criminal Procedure and Evidence Act was ultra vires as being in conflict with section 7 of the Constitution, and (2) whether the provisions of section 305(1) of the Penal Code with regard to the imposition of corporal punishment were permissive or mandatory.  B
Held: (1) having regard to the fact that both the amendments, namely Act No. 20 of 1982 to the Penal Code and Act No. 21 of 1982 to the Criminal Procedure and Evidence Act were enacted, assented to and given effect from the same date, the provisions of those two enactments must be read together in order properly to construe the effect of the amendments to the Penal Code. Considering those two enactments together it was difficult to escape the conclusion that Parliament's deliberate change of expression as evidenced in the amendments to  C  the Penal Code, carried with it a change of intention so that in those sections where the words "or without" were deleted as well as those sections where corporal punishment was introduced for the first time, the imposition of corporal punishment was mandatory and not discretionary. Dictum of Lord Normand in Attorney -General v. Prince Ernest Augustus of Hanover [1957] A.C. 436 at p. 465, H.L. applied. R. v. The Inhabitants of Bolton  D  (1828) 8 B. and C. 71; Ricket v. Directors of Metropolitan Railway Co. (1867) L.R. 2 H.L. 175 at p. 207; Barrett N.O. v. Macquet 1947(2) S,A. 1001 at p. 1012 and Port Elizabeth Municipal Council v. Port Elizabeth Electric Tramway Co. Ltd. 1947 (2) S.A. 1269 at p. 1279 cited.
(2) The plain, literal and grammatical sense of the amendments to the Penal Code in question led to the conclusion that the intention of Parliament was plainly and unambiguously conveyed in the amendments, namely  E  upon contravention of the sections of the Penal Code, amended by Act 20 of 1982, the imposition of corporal punishment was mandatory where the offender was sentenced to imprisonment, whether portion of the sentence of imprisonment was suspended or not. Dicta of Lord Watson in Vestry of St. John, Hampstead v. Cotton (1886) 12 App. Cas. 1 at pp. 7-8, H.L.; of Viscount Simonds in Attorney-General v. Prince Ernest  F  Augustus of Hanover [1957] A.C. 436 at p. 461, H.L.; and of Sir Etienne de Villers J.A. in Shenker v. The Master and Another 1936 A.D. 136 considered.
(3) Repeated and delayed infliction of corporal punishment as prescribed in section 301(3) of Cap. 08:02 was ultra vires and consequently null and void as being in conflict with section 7 of the Constitution. Such form of punishment was inhuman and degrading. Consequently the law relating to corporal punishment remained in  G  force as it was before the purported coming into force of Act No. 21 of 1982. R. v. Nortje (1880) 1 E.D.C. 231 and R. v. Hans Windvogel and Another (1881) 2 E.D.C. 98 considered.
Per curiam, Baron and Aguda JJ.A. dissenting: In the absence of full argument on the point as to whether the imposition of corporal punishment "in traditional manner with traditional instrument", was unconstitutional as had  H  been contended by counsel for the accused, it was inadvisable, apart from it being impermissible as not arising out of the question posited to make any finding on this point.
Per Aguda J.A. The corporal punishment as prescribed by Act No. 21 of 1982 was ultra vires the Constitution, section 7, and the Act was therefore null and void. Consequently the

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Order of the Minister of Home Affairs made thereunder (S.I. 146 of 1983) was also null and void.  A
Cases referred to:
 (1) State v. Thebe, High Court (Criminal Trial No. 1 of 1983), unreported.
 (2) State v. Mmutle Simon, High Court (Review Case No. 230 of 1983), unreported.
 (3) Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436; [1957] 2 W.L.R. 1; [1957] 1 All E.R. 49; 101 S.J. 60, H.L.  B
 (4) R v. Inhabitants of Great Bolton (1828) 8 B. and C. 71; 108 E.R. 969.
 (5) Ricket v. Directors of the Metropolitan Railway Co. (1867) 2 H.L. 175; 36 L.J.QB. 205; 16 L.T. 542; 31 LP. 484; 15 W.R. 937.
 (6) Barrett N.O. v. Macquet 1947 (2) S. A. 1001.
 (7) Port Elizabeth Municipal Council v. Port Elizabeth Electric Tramway Co. Ltd. 1947 (2) S.A., 1269.
 (8) Vestry of St. John, Hampstead v. Cotton (1886) 12 App. Cas. 1; 56 L.J.QB. 225; 56 L.T. 1; 51 LP. 340;  C  35 W.R. 505; 3 T.L.R. 161, H.L.
 (9) Shenker v. The Master and Another 1936 A. D. 136.
 (10) Weems v. United States (1910) 217 U.S. 349; 54 L.Ed. 793.
 (11) Robinson v. California (1962) 370 U.S. 660; 8 L.Ed. 758.
 (12) Furman v. Georgia (1972) 408 U.S. 238; 33 L.Ed. 2d. 346.
 (13) Solem v. Helm (1983) 77 L.Ed. 2d. 637.
 (14) Tyrer v. United Kingdom (1978) 2 E.H.R.R. 1.  D
 (15) Riley and Others v. Attorney-General for Jamaica and Another [1982] 1 A. C. 719; [1982] 3 W. L. R. 557; [ 1982] 3 All E. R. 469, P. C.
 (16) R. v. Nortje (1880) 1 E.D.C. 231.
 (17) R. v. Hans Windvogel and Another (1881) 2 E.D.C. 98.
 (18) Minister of Home Affairs and Another v. Fisher and Another [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, P.C.
 (19) Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1979] A.C. 385; [1978] 2 W.L.R. 902;  E  [1978] 2 All E.R. 670, P.C.
 (20) Attorney-General for New South Wales v. Brewery Employees Union of New South Wales (1908) 6 C.L.R. 469.
 (21) Rafiu Rabiu v. The State (1981) 2 N.C.L.R. 293.
 (22) South Dakota v. North Carolina (1904) 192 U.S. 268; 48 L.Ed. 448.
 (23) Corey v. Knight (1957) 150 Cal. App. 2d. 671; 310 P. 2d. 673.
 (24) Faires v. Frohmille (1937) 49 Ariz. 366; 67 P. 2d. 470.  F
 (25) Jackson v. Bishop (1968) 404 F. 2d. 571

Case Information
QUESTIONS of law relating to corporal punishment reserved by the High Court for the consideration of the full bench of the Court of Appeal. The facts are fully set out in the judgment of Maisels P.
P.B. Hodes S.C. with him O. Petersen and  G
P. Collins for the appellants.
S.A. Afful, Assistant Attorney-General, for the State.
Judgment

Maisels P. Because of the importance of the issues raised in this case and the fact that this court's judgment affects a number of other cases decided and to be decided in the courts of Botswana, as well, of course, as the  H  persons concerned therein, the court, after having had the benefit on 5 December 1983 of comprehensive, able and helpful arguments by counsel and for which the court at the conclusion of argument expressed its indebtedness, was able to give its unanimous decision in a short judgment delivered on 8 December 1983, intimating that fuller reasons therefor would be given later. Before doing so, however, it is only right that the indebtedness of the court should be

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MAISELS P
expressed to counsel for the accused for having made available to it, by means of photocopies, the numerous  A  judgments, Articles and Conventions to which reference was made by them in the course of argument. But for this many would have been inaccessible to the court; and, speaking for myself, the existence of many of them was quite unknown.
It is, I believe, convenient to set out certain extracts from the judgment of 8 December 1983 so as to obviate a certain amount of repetition in this judgment:  B
 "On 10 December 1982 the two accused were convicted by a senior magistrate in Francistown of housebreaking and theft, in contravention of section 305(1)(a) of the Penal Code (Cap. 08:01) (1973 Rev.). They were each sentenced to three years'  C  imprisonment, and to receive corporal punishment in terms of section 301(3) of the Criminal Procedure and Evidence Act (Cap. 08:01) (1973 Rev.) as amended by section 2 of Act No. 21 of 1982, with effect from 15 October 1982. On review, Hannah J. in the High Court, suspended two years of the imprisonment, but reserved for this court the following question of law:
 '1. Does section 305(1) of the Penal Code make it mandatory for the court to sentence the two accused to corporal punishment as prescribed by section 301(3) of the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) if the  D  court were to sentence each to a term of three years' imprisonment of which two years is suspended.'
 Thereafter on 20 July 1983 the attorney for the accused sought to raise the additional question whether corporal punishment as prescribed in section 301(3) of the Criminal Procedure and Evidence Act was unconstitutional, as being in  E  conflict with section 7 of the Constitution of Botswana. Section 7 reads:
  '(1)  No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
  (2) Nothing contained in or done under the authority of any law shall he held to be inconsistent with or in contravention of  F  this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the former Protectorate of Bechuanaland immediately before the coming into operation of this Constitution.'
 Accordingly on that date this court postponed the hearing of the question reserved by Harmah J. in order to constitute a court of five judges, in terms of section 9(2) of the Court of Appeal Act, read with section 106 of the Constitution.  G
 On 5 December 1983, when the case again came before this court, the court with the consent of counsel for the accused and for the State re-formulated and extended the questions of law reserved as follows:
 '(2)  And whether in any event:  H
  (a) Corporal punishment prescribed in section 301(3) of the Criminal Procedure and Evidence Act is ultra vires as being in conflict with section 7 of the Constitution of Botswana.
  (b) The provisions of section 305(1) of the Penal Code with regard to the imposition of corporal punishment are permissive or mandatory.'

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 The questions, as stated above are answered as follows:  A
 Question 1:   Yes.
 Question 2(a):  Yes.
 Question 2(b): The imposition of corporal punishment is mandatory.
 In terms of the answer to Question 2(a) section 301(3) of the Criminal Procedure and Evidence Act (Cap: 08:02) (1973 Rev.) cannot stand and is null and void. It follows that the law relating to corporal punishment remains in force as it was  B  before the purported coming into force of Act No. 21 of 1982.
 Section 301(3) reads as follows:
  '2.  Section 301 of the Criminal Procedure and Evidence Act is hereby amended by adding at the end of subsection (2) thereof, the following new subsections-  C
  "(3)  Nothwithstanding anything to the contrary contained in section 61(2) of the Magistrates' Courts Act and section 30 of the Penal Code and the preceding provisions of this section where a person is sentenced under sections 235, 297, 298 and 305 to 308 of the Penal Code to undergo corporal punishment, such person shall be given four strokes each quarter in the first and last years of his term of imprisonment and such strokes shall be administered in traditional manner with  D  traditional instrument at such places as may be specified by the Minister." '
 We wish to make it clear that our decision is based entirely on a finding that the provision for the repeated and delayed infliction of strokes offends against section 7(1) of the Constitution. We make no finding on the issue, raised in argument, whether the infliction of strokes in traditional manner with traditional instrument would be in conflict with section 7 of the  E  Constitution nor on the issue whether the provision for mandatory corporal punishment in terms of section 305(1) of the Penal Code is in conflict with section 7 of the Constitution.
 Accordingly, the sentence of corporal punishment in this case is set aside and the case is remitted to the High Court for the re-imposition of mandatory corporal punishment. The extent of that punishment is within the discretion of that court and  F  as prescribed in section 30 of the Penal Code and section 301(1) and (2) of the Criminal Procedure and Evidence Act.
 In addition attention is drawn to the provisions of section 61 of the Magistrates' Court Act (Cap: 04:04) (1973 Rev.).  G
 This court is aware that some persons have been sentenced to corporal punishment as provided for in section 301(3) quoted above and which section has been declared null and void. It would follow from what has been said that in the cases referred to in this paragraph corporal punishment or further corporal punishment is not to be administered as provided for in section 301(3)."
On 15 October 1982 by Act 20 of 1982, passed by Parliament on 30 August 1982 and assented to on 28  H  September 1982, certain amendments to the Penal Code came into force. On exactly the same days to which I have just referred a new section 301(3) was added to the Criminal Procedure and Evidence Act by Act 21 of 1982. Act 20 of 1982 to be cited as the Penal Code (Amendment) Act and which will be referred to

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by me as "the 1982 amendments", provided for amendments to sections 142, 143, 235, 297, 298, 305, 306, 307  A  and 308 of the Code.
I shall state as briefly as possible the amendments effected to the particular sections. Section 142 reads that any person who committed the offence of rape was liable to imprisonment for life, with or without corporal punishment. By the amendment the words "or without" were deleted. Section 235 originally read:
 "Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for fourteen  B  years."
This section has been amended and substituted by the following new section:
 "235. Any person who unlawfully causes grevious harm to another by the use of any offensive weapon or any other means whatever is guilty of an offence and is liable to imprisonment for fourteen years, with corporal punishment."  C
Section 297(1) provided that a person who committed the offence of robbery was liable to imprisonment for 14 years. The effect of the amendment was to make the person liable "to imprisonment for 20 years, with corporal punishment". In section 297(2) where in certain circumstances the crime of robbery was committed, the  D  offender was liable to "imprisonment for life, with or without corporal punishment". The effect of the amendment was to delete the words "or without"
Section 298(1), dealing with the crime of attempted robbery, provided for the offender being liable "to imprisonment for seven years". These words were deleted and substituted by "to imprisonment for 14 years, with corporal punishment". In subsection (2) of section 298 under certain circumstances the offender was liable  E  to imprisonment for life "with or without corporal punishment". By the amendment the words "or without" were deleted.
Section 305(1), dealing with the offence of housebreaking and burglary, provided that a person guilty of an offence under that subsection (1) was liable to "imprisonment for ten years". By the amendment those words  F  were deleted and they were substituted by "to imprisonment for ten years, with corporal punishment". In subsection (2) of section 305 where the offence was committed by night, the offender was liable to imprisonment for 14 years, "with or without corporal punishment". By the amendment the words "or without" were deleted.  G
Section 306(1) deals with the crime of entering a dwelling house with intent to commit certain serious offences, for which an offender was liable "to imprisonment for seven years". For these words there was substituted by the amendment "to imprisonment for seven years, with corporal punishment". In subsection (2) of that section if the offences were committed in the night, the offender was liable "to imprisonment for ten years". Again in this case those words were substituted by the following: "to imprisonment for ten years, with corporal punishment".  H
In sections 307 and 308 persons who committed offences against those sections were liable "to imprisonment for seven years". These words have been deleted and the following substituted: "to imprisonment for seven years, with corporal punishment" in both those sections.
There has been a difference of opinion among the learned judges of the High Court as to whether, in the light of the 1982 amendments

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referred to above, the court has a discretion with regard to the imposition of corporal punishment, or whether the  A  imposition of such punishment is mandatory. Corduff J. in State v. Thebe, High Court (Criminal Trial No. 1 of 1983), unreported held that, despite the 1982 amendments, the court retained a discretion whether or not to impose corporal punishment in the cases falling under the amendments. I have, of course, had the benefit of reading that judgment.
Hannah J. who reserved the first question before this court in his judgment in the court a quo, correctly, in my  B  view, set out the reasons which impelled Corduff J. to arrive at his decision. I agree, too, with his, i.e. Hannah J's, own comments thereon. He said:
 "Speaking of the Criminal Procedure and Evidence (Amendment) Act in his judgment, Corduff J. said:
  ' .... the sole purpose of the enactment was to introduce a new and more severe kind of corporal punishment to replace that  C  which had heretofore existed.'
 I fully concur with this description of an Act which provides that where a person is sentenced under section 305 of the Penal Code and certain other sections:
  'such person shall be given four strokes each quarter in the first and last years of his term of imprisonment and such  D  strokes shall be administered in traditional manner with traditional instrument at such places as may be specified by the Minister.'
 Having considered the terms of the Criminal Procedure and Evidence (Amendment) Act, Corduff J. held that a plain reading of the words used those categories of persons who were exempted from corporal punishment prior to the Act continued to  E  be exempt after its commencement. These categories include females, males sentenced to death and males whom the court considers to be more than 40 years of age. The Assistant Attorney-General has no quarrel with this finding and indeed the judges of this court are, I think, unanimous on the matter. See State v. Majoboswa, High Court (Review Case No. 9 of 1983), unreported and State v. Xhamae, High Court (Review Case No. 78 of 1983), unreported.  F
 Corduff J. also held that the provisions of section 301(1)(b), which relate to the medical examination of those sentenced to corporal punishment, remained untouched by the amending legislation. Again I am in total agreement. But where I feel obliged to differ from Corduff J., and I do so with all proper diffidence, is when he says:  G
  'The preservation of these exemptions are completely contrary to the whole concept of corporal punishment being compulsory.'
 For my part, I am unable to see any inconsistency or contradiction in Parliament decreeing that in the case of conviction for certain offences corporal punishment shall be ordered where imprisonment is imposed while at the same time  H  exempting females etc. from such punishment.
 Corduff J. then posed the following question:
  'If a magistrate in attendance when the punishment is being inflicted has power to stop it because he is of opinion that the prisoner is not medically fit to receive any further strokes how much more would he be entitled when faced with an accused

1984 BLR p22
  person in court who was patently a sick man to refuse to pass sentence of corporal punishment?'  A
  The learned judge concluded:
  'In other words, the only justifiable conclusion is that the courts have and may exercise a discretion is whether to impose such a sentence.'
 Although I agree that the example given highlights one of the undoubted anomalies created by this legislation, I am unable to attach the same degree of significance to it as does Corduff J. By virtue of section 301(1)(b) the safeguards against  B  corporal punishment being inflicted on a man unfit to receive it is left in the hands of a medical officer. It has to be assumed that such officer will be in a better position than and more capable than a magistrate to judge such matters.  C
 And, of course, there may well be cases where at the time of the hearing an accused is obviously unfit to undergo corporal punishment but his condition has changed completely by the time punishment is actually to he inflicted. This is of particular importance when it is borne in mind that the punishment ordered in accordance with section 301(3) of the Criminal Procedure and Evidence Act, or at any rate, part of it, may be inflicted at a point in time well into the future.  D
 While I recognise the aversion a magistrate will probably feel in having to pass sentence of corporal punishment on an accused person who is patently ill, he should bear in mind that the sentence is conditional on a medical certificate being granted; and the magistrate may, of course, underline this by specifying in his order that it is subject to compliance with the terms of section 301(1)(b) even though this is not strictly necessary.  E
 In reaching his conclusion that the imposition of the corporal punishment referred to in the amended sections of the Penal Code is discretionary, Corduff J. also relied on the terms of subsection (1) of section 53 of the Interpretation and General Provisions Act (Cap. 01:02) (1973 Rev.). His reasoning is set out in the following passage:  F
  'The only possible interpretation is that the amendments create a new harsh punishment: imprisonment of which periodic corporal punishment is an integral part. This constitutes only one sentence and only one punishment and not two. That is the natural meaning of the linking word "with" in the expression "imprisonment with corporal punishment".'  G
 What has been done therefore is to provide new maximum penalties which are very severe indeed. The provisions of section 53(1) of the Interpretation and General Provisions Act (Cap. 01:02) (1973 Rev.) must be applied. That subsection reads:
  '53. (1) Where in any written law a penalty is prescribed for an offence, such provision shall mean that the offence shall be  H  punishable by a penalty not exceeding the penalty prescribed.'
 Parliament has thus itself laid down how such provisions as we now have in the affected section  should be interpreted and in my view no other interpretation is possible. In the result I hold that sentence of corporal punishment referred to in these sections and described

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 in subsection 301(3) of the Criminal Procedure and Evidence Act is not mandatory.' "  A
Hannah J. in his full and careful judgment in the court a quo, found himself unable to agree with the view of Corduff J. Hannah J. expressed the view and especially the conclusion stated in the final paragraph above, that the 1982 amendments to the Penal Code had the effect that persons found guilty under sections of the Code amended as set out above, and sentenced to a term of immediate imprisonment, had to be sentenced to  B  corporal punishment, as provided in section 301(3) of Cap. 08:02. He stated that although he held strong views on the question under consideration, he had deliberately refrained from expressing any final opinion on it. He pointed out that sentences for offences contrary to the sections of the Code referred to are found every day in the magistrates' courts of Botswana and that, at the time of writing his judgment, i.e. June 1983, the magistrates  C  were bound by the decision of Corduff J. in Thebe's case (supra). He correctly stated that were he to decide the case in the way in which he was minded to do so, magistrates would not be able to know which decision to follow. Whilst recognising that if he were to decide the point against the accused in the case before him, it would be open to them to appeal, he came to the conclusion that it would be more satisfactory to deal with the matter  D  by reserving for consideration of the Court of Appeal the question of law which arose during the appeal before him.
Under section 15 of the Court of Appeal Act (Cap. 04:01) (1973 Rev.) this court has power to deal with the question of law so reserved and the first question stated (supra) was that reserved by him. Subsequently, in State v. Mmutle Simon, High Court (Review Case No. 230 of 1983, Lobatse Criminal Case No. L.339 of 1982),  E  unreported, O'Brien Quinn C.J., in a considered judgment in which reference is made to a wealth of authority, came to the conclusion that the infliction of corporal punishment as provided in section 301(3) for contraventions of the sections of the Penal Code therein set out, was mandatory.
It is clear, in my opinion, that having regard to the fact that both the amendments to the Penal Code and the  F  Criminal Procedure and Evidence Act to which I have referred, were enacted, assented to and given effect from the same date, that the provisions of these amendments must be read together in order properly to construe the effect of the amendments to the Penal Code. In Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436 at p. 465, H.L.(E), Lord Normand in his speech said:  G
 "In order to discover the intention of Parliament it is proper that the court should read the whole Act, inform itself of the legal context of the Act, including Acts so related to it that they may throw light upon its meaning, and of the factual context, such as the mischief to be remedied ... It is the merest commonplace to say that words abstracted from context may be meaningless or misleading. "  H
These remarks seem to me to be particularly apposite in the present case. It is in my opinion difficult to escape the conclusion that Parliament's deliberate change of expression as evidenced in the amendments to the Penal Code set out above, carries with it a change of intention so that in those sections where the words "or without" are

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deleted as well as those sections where corporal punishment is introduced for the first time, the imposition of corporal punishment is mandatory and not discretionary. As Hannah J. points out, a deliberate change of  A  expression is prima facie taken to import a change of intention. Cf. R. v. The Inhabitants of Great Bolton (1828) 8 B. and C. 71; Ricket v. Directors of the Metropolitan Railway Company (1867) L.R. 2 H.L. 175 at p. 207; Barrett N.O. v. Macquet 1947 (2) S.A. 1001 at p. 1012 and Port Elizabeth Municipal Council v. Port Elizabeth Electric Tramway Co. Ltd. 1947 (2) S.A. 1269 at p. 1279.  B
This prima facie view is in my judgment strengthened by the fact that for certain other offences dealt with in the Penal Code-
 (a) the words "with or without corporal punishment" are retained, and
 (b) in a considerable number of cases where imprisonment is provided for there is not to be found the  C  words "with corporal punishment".
A cursory reading of the Code shows that examples of (a) referred to in the preceding sentence are to be found in sections 146, 147, 148, 230 and 234. As to (b) there are examples to be found in many places in the Penal Code where, for serious crimes carrying with them liability to imprisonment for lengthy periods, no mention of the power of the court to impose corporal punishment is given. I need hardly state that the sections referred to as  D  examples of (a) are all sections which relate to crimes of a serious nature. There are also examples in the Code where a discretion in so many words is given to the court when it has awarded imprisonment in respect of an offence, to impose corporal punishment in addition. (See e.g. sections 149 and 155.)  E
In the minds of some people it may seem anomalous and even perhaps absurd that Parliament intended to make corporal punishment mandatory in the case of the commission of certain crimes but has not done so in the other crimes referred to by me, some of which appear, to me at all events, to be at least as serious as those referred to in section 301(3) of the Criminal Procedure and Evidence Act. There may, of course, also be anomalies (with all respect, more apparent than real, in my judgment), referred to by Corduff J. in the Thebe  F  case (supra). However, it is to be borne in mind that:
 "in order to justify a departure from the primary meaning of the words of the legislature, it must be shewn either that the ordinary and grammatical construction of the words would lead to some absurdity, such as the legislature could never have contemplated, or that it would he plainly contrary to the general scheme disclosed in the context of the statute."  G
per Lord Watson in Vestry of St John, Hampstead v. Cotton (1886) 12 App. Cas. 1 at pp. 7-8 H.L. See, too, the observations on the aspect of absurdity by Viscount Simmonds in the Prince of Hanover case (supra) at p. 461.  H  In Shenker v. The Master and Another 1936 A.D. 136, Sir Etienne de Villiers J.A. at p. 143, said:
 "Moreover, as has often been remarked by eminent judges, 'it is dangerous to speculate as to the intention of the Legislature, and what seems an absurdity to one man does not seem absurd to another.' The absurdity must be utterly glaring and the intention of

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 the Legislature must be clear, and not a mere matter of surmise or probability."  A
Speaking for myself, I cannot see any such manifest absurdity as would entitle the court to depart from the plain literal and grammatical sense of the amendments in question. Cf. Viscount Simmonds in the Prince of Hanover case (supra) 461 in fine and 462.
The plain, literal and grammatical sense of the amendments in question leads one, in my judgment, to the  B  conclusion that the intention of Parliament is plainly and unambiguously conveyed in the amendments, namely, upon a contravention of the sections of the Penal Code, amended by Act 20 of 1982, which, of course, include section 305(1), the imposition of corporal punishment is mandatory where the offender is sentenced to imprisonment, whether portion of the sentence of imprisonment is suspended or not. It is the court's duty to give effect to that expression of the intention of the legislature. The answers to questions 1 and 2(b) were, for these  C  reasons, as stated above, in the affirmative.
I should perhaps add that I am in full agreement with the views of Hannah J. to which reference has been made above with regard to the exemptions in the Criminal Procedure and Evidence Act from corporal punishment of  D  certain classes of persons and with regard to the provisions of section 301(1)(b) of the Act relating to medical examination. These provisions undoubtedly remain in force. I would merely add to what was said by Hannah J. a reference to section 30(3) of the Penal Code.
I turn now to a consideration of the question whether corporal punishment as prescribed in section 301(3) of the Criminal Procedure and Evidence Act is ultra vires as being in conflict with section 7 of the Constitution of  E  Botswana. The provisions of this section form part of Chapter 2 of the Constitution which is headed "PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL". The wording of section 7 as well as that of section 301(3) of the Criminal Procedure and Evidence Act has been set out supra and need not be repeated. In my opinion subsections (1) and (2) of section 7 have to be considered together, i.e. firstly  F  whether the punishment imposed falls within section (1), and secondly whether, if it does, it is
 "inconsistent with or in contravention of this section [i.e. section 7(1)] to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the former Protectorate of Bechuanaland immediately before the coming into operation of this Constitution".  G
The corporal punishment prescribed by section 301(3) of the Criminal Procedure and Evidence Act for any person sentenced under the sections of the Penal Code therein mentioned, is that
 "such person shall be given four strokes each quarter in the first and last years of his term of imprisonment and such strokes shall be administered in traditional manner with traditional instrument at such places as may be specified by the  H  Minister".
There is nowhere defined or specified what is meant by "traditional manner with traditional instrument". Counsel for the State suggested in argument that the traditional manner and traditional instrument are such as may be specified by the minister. I am doubtful as to whether the

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section is capable of any such interpretation and whether, if the minister does purport to specify what is  A  "traditional manner and traditional instrument", he would not be acting ultra vires the section. My doubt is not diminished by the wording of Statutory Instrument No 146 of 1983, published on 25 November 1983 but deemed to operate retrospectively to 15 October 1982, which designated certain places where corporal punishment may be administered in traditional manner. In this Instrument the Minister did not purport to exercise the powers which counsel for the State contended that he had, namely to specify the traditional manner in which and the traditional  B  instrument with which the corporal punishment is to be administered.
No real evidence of "traditional manner or traditional instrument" was placed before us. We were however referred by counsel for the accused and for the State to A Handbook of Tswana Law and Custom by Prof. I. Schapera (2nd ed.) (1955). Prof. Schapera seems to be accepted by both counsel as an authority on Tswana  C  law and custom. In dealing with a thrashing that was customarily imposed as punishment by tribal authorities, the learned author stated at p. 49:
 "Thrashing is not restricted to any specific class of offence. Fining is generally preferred; but where the wrongdoer cannot pay the fine imposed, thrashing is commonly resorted to as the only alternative form of punishment. Ya modiidi ke e  D  nkgwd, says the proverb: '(The punishment) of a poor man is a white-backed ox' (referring to the discoloration produced by the bruises). Any offender may be so punished, regardless of sex, age, or position. But it is unusual to thrash the very old or the very young; and where the sentence is carried out on a woman she is not required to strip. Immediately after  E  sentence has been pronounced, the offender is ordered to strip (if a male) and to lie face downwards. He is not tied up in any way, but, if he struggles, will be held down. Some man present is then ordered to stand at his head, and lay the strokes across his bare back. The instrument most commonly employed for the purpose is a switch of the moretlwa bush (Grewia cana), something like a cane of pliant wood tapering to a very fine end. In recent years the sjambok has been  F   introduced, and is often used instead. The number of lashes is determined according to the gravity of the offence and the demeanour of the offender while under trial. They generally amount to no more than two to four, and seldom exceed ten; but cases are known where a much larger number was administered. 1"  G

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I am far from regarding these passages as conclusive or satisfactory evidence of Tswana custom, but no other  A  evidence was placed before us. What is significant in Prof. Schapera's account is that when punishment of strokes was imposed, Tswana custom required that the strokes be inflicted immediately after sentence. Counsel for the accused accepted in his argument that Prof. Schapera had correctly described corporal  B  punishment as traditionally administered by tribal authorities. Counsel for the State however elaborated on what Prof. Schapera had stated. Although he conceded the correctness of the statement by Prof. Schapera as to the use of the sjambok, he informed the court that that might have been the handiwork of an over-zealous chief. He submitted that the safeguard against the use of the sjambok was the provision in section 301(3) that the minister may specify the place of administration and the instrument to be used. I have already dealt with the point that the minister has not specified the instrument and it is doubtful whether, under the section, he has power to do so.  C  Mr. Afful told the court that the traditional instrument generally used is called "thupa", which is obtained from branches of three main kinds of trees which grow all over the country, namely:
 (a) Moretlwa;
 (b) Mophane; and  D
 (c) Mokabi.
These he stated are trees specially selected because of the fine, smooth, tapering, slender and supple off-shoots these trees yield. According to Mr. Afful these off-shoots are never used if they have grown thick enough to be described as sticks. They would then, so he stated, be unfit to be used for the whipping. Moreover, the off-shoot is never used when it is dry because it might then snap into splinters and injure the person being  E  whipped. The size of the instrument which is used depends upon the age of the recipient of the punishment. These, he stated, are positive and active precautions to make the whipping safe and efficacious. He told us that the receiver of the punishment strips to the waist and lies face downwards, the whipper stands at the head of the  F  receiver and the strokes are laid across his bare back. He referred us to Statutory Instruments No. 9 of 1972 and No. 122 of 1974 to show that the legislature has ensured that in the customary courts certain safeguards against damage to vital organs, for example the kidneys, are laid down. In Statutory Instrument No. 9 of 1972 it was provided in regulation 2 that no instrument other than a cane or thupa shall be used to inflict corporal punishment. In no circumstances was a sjambok or other type of whip to be used. Regulation 3 provided that  G  corporal punishment had to be administered "on the buttocks only and on no other part of the body. Before such punishment is inflicted protection shall be placed over the kidneys". This Statutory Instrument was amended in 1974 by the deletion of the words "Before such punishment is inflicted protection shall be placed over the  H  kidneys" and the following substituted in lieu thereof: "Where a cane is used, protection shall be placed over the kidneys before such punishment is inflicted".
These statutory instruments would seem to indicate, if they are to he taken into account at all, that the traditional manner and traditional instrument which Prof. Schapera describes, had been departed from by the law-making authority, certainly after Botswana obtained its independence. By the 1982 amendment of the Criminal Procedure and

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Evidence Act (Cap. 08:02) (1973 Rev.) now under discussion, there is to be a reversion to the traditional method  A  of punishment but with at least highly significant difference, i.e. whereas traditionally a punishment of strokes was carried out immediately upon imposition of the sentence, now under section 301(3) of Cap. 08:02 it is to be carried out by instalments. However, counsel for the State gave a demonstration to the court (based on investigations which he had personally carried out), of the vigour, or perhaps I should more correctly say, lack of vigour, with which the strokes are traditionally inflicted. From his demonstration it would appear that what is  B  described by Schapera as a thrashing is really little more than a symbolic act and is effected by means of a gentle tapping of the offender. Whilst there is not the slightest doubt that Mr. Afful was honestly stating what he believed to be the position, this is no substitute for evidence as to what is the traditional manner or traditional instrument which is to be used, or which was used prior to Botswana obtaining its independence in 1966, when  C  corporal punishment was inflicted by tribal authorities. Regrettably, as I have said, we have had no satisfactory evidence of this.
There is a further difficulty in the way of Mr. Afful's description of the corporal punishment envisaged in section 301(3), in that it was common cause that it was plainly the intention of the legislature to impose on the person  D  convicted of the crimes set out in section 301(3), a more and not less severe corporal punishment than the type of corporal punishment authorised in the various earlier statutes to which reference will be made later. It is because there was not before the court any clear evidence of what constitutes the infliction of strokes in traditional manner with traditional instrument, that the court made no finding as to whether, as contended for by counsel for the accused, this form of punishment would in itself be in conflict with section 7 of the Constitution.  E
A further submission made on behalf of the accused was that the mere provision of mandatory corporal punishment in section 305(1) (and for that matter the other sections in the Penal Code covered by the 1982 amendments), was in itself a breach of section 7 of the Constitution, this irrespective of whether the corporal  F  punishment was of the type described by section 301(3), or was corporal punishment of the type prescribed in Cap. 08:02, in the Penal Code and in the Magistrates' Courts Act. The court came to the conclusion that it should make no finding on this submission. Quite apart from the fact that this question is not raised in the questions the court was called upon to deal with, this contention was first raised by counsel for the accused in reply. It was not contained in the comprehensive and forceful argument in chief and the heads of argument  G  submitted in support thereof, with the consequence that counsel for the State was in no position to answer it. The court was of the opinion that in the absence of full argument on the point, it was inadvisable, apart from it being impermissible as not arising out of the questions posited, to make any finding on this point.  H
I turn now to deal with the reasons for the court's finding that corporal punishment as prescribed in section 301(3) of Cap. 08:02 is ultra vires and consequently null and void as being in conflict with section 7 of the Constitution of Botswana. It will at once be seen that section 301(3) provides for corporal punishment which is both repeated and delayed. Is this form of punishment inhuman or degrading? In this connection the court was referred by counsel for the accused to a

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number of authorities in the United States, including, inter alia, Weems v. United States (1910) 217 U.S. 349 at  A  pp. 370 and 372-80; Robinson v. California (1962) 170 U.S. 660 at p. 676; Furman v. Georgia (1972) 408 U.S. 238; Solem v. Helm (1983) 77 L.Ed. 2d 637 at pp. 645-46, 651 and 657.
We were also referred to a decision of the European Court of Human Rights, Tyrer v. United Kingdom (1978) 2 E.H.H.R. 1; to extracts from The International Law of Human Rights by Paul Sieghart, Oxford (Clarendon Press),  B  1982, and to a decision of a German Court on 10 June 1963 referred to in footnote 53 on p. 169 in the lastmentioned work. In addition we were furnished with a copy of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and referred to the dissenting judgments of Lord Scarman and Lord Brightman in the Privy Council in Riley and Others v. Attorney- General for Jamaica and Another [1982] 3 All E.R. 469 at p. 479, P.C. in fine to 480A. In addition reference was made to a work on The Presidential  C  Constitution of Nigeria by Nwabueze at p. 415 as well as to an article by Prof. Ellison Kahn of the University of the Witwatersrand in 1960, "Acta Juridica" 191 at p. 208. In that article reference is made to two decisions in the Eastern Districts Court of South Africa, going back over 100 years. In R. v. Nortje (1880) 1 E.D.C. 231 it was  D  held to be undesirable for magistrates to sentence prisoners to imprisonment and corporal punishment, part of the lashes to be inflicted at once and the remainder at the expiration of the sentence. In R. v. Hans Windvogel and Another (1881) 2 E.D.C. 98 the court stated that it was highly objectionable to sentence persons to lashes to be inflicted at the expiration of a sentence of hard labour. It is noteworthy that postponed whipping or whipping by instalments was deemed as cruel as long ago as 1880 and 1881, and this in the absence of any provision such  E  as to be found in section 7(1) of the Constitution. The court was also referred by counsel for the accused to numerous other learned articles and to decisions of the courts of South Africa and Zimbabwe, all relevant to the question as to whether punishment laid down in section 301(3) is inhuman or degrading. A reading of the dicta in  F  the various judgments always bearing in mind, of course, that in regard to the American judgments the constitutional provision with regard to punishment is similar in wording to section 7(1) and to the writings to which I have referred above, leaves me in no doubt that the repeated and delayed infliction of strokes as enjoined by section 301(3), would be regarded in the countries where the judgments were given and the articles written, as inhuman or degrading.  G
"Inhuman" is defined in the Shorter Oxford Dictionary (3rd ed.) at p. 1007, as "destitute of natural kindness or pity; brutal, unfeeling. Brutal, barbarous, cruel." If, as in this case, one has to use a value judgment, it seems to me that the corporal punishment now under consideration inescapably falls within this definition. I may add that my Brethren and I between us have had experience in the courts in Ghana Nigeria, Zambia, Zimbabwe, Lesotho,  H  Swaziland and South Africa, as well as, of course, of Botswana. To our knowledge, in none of these countries has repeated or delayed corporal punishment been permitted. Nor was counsel for the State able to refer us to any such provision in Botswana, prior to independence, or in any other country. It was contended by counsel for the State that the question has to be considered from the point of view of the citizens of Botswana. He submitted that

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their views are reflected by the body elected to express the will of the people, i.e. Parliament. But Botswana is a  A  member of a comity of civilised nations and the rights and freedoms of its citizens are entrenched in its Constitution, a constitution which is binding on the legislature. Cf. e.g., Minister of Home Affairs and Another v. Fisher and Another [1980] A.C. 319 at p. 329, P.C., per Lord Wilberforce.
Speaking for myself, whether the corporal punishment under discussion is declared to be discretionary or mandatory, the result would be the same. Because of the factors of repetition and delay it is inhuman and  B  degrading. The question then remains whether, in terms of section 7(2) of the Constitution, the law in question authorises the infliction of any description of punishment that was lawful in the former Protectorate of Bechuanaland immediately before the coming into operation of the Constitution. I should here mention that the date of commencement of the Constitution was 30 September 1966. It was submitted by counsel for the  C  accused, correctly in my opinion, that not being a term of legal art, the phrase "a description of punishment" must be understood as bearing its ordinary meaning. Cf. Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1979] A.C. 385 at p. 398, P.C. per Lord Diplock.
In the Shorter Oxford Dictionary, supra, at p. 527, description is defined as "The combination of qualities or  D  features that marks out or describes a particular class; hence a sort, species, kind, or variety". It was submitted by counsel for the accused, relying on the test adopted by Lord Bridge of Harwich in Riley's case, supra, at p. 473A-C, that in the context, the words "to the extent that" in subsection (2) of section 7, posed the question "to what extent did the law in (Botswana) before independence authorise the description of punishment which is under challenge?" This question can only be answered by asking, in turn, the further question: "If the like  E  description of punishment had been inflicted in the like circumstances before independence, would this have been authorised by law?"
That corporal punishment was permitted in Bechuanaland is clear. But the question is whether, if the description of punishment to be inflicted under section 301(3) had been inflicted in the like circumstances before  F  independence, would this have been authorised by law? We were told by counsel for the accused, and this was not contested by counsel for the State and could not be contested by him, that the Criminal Procedure and Evidence Act in force prior to Independence had the same provisions as section 301(1)(d) of the existing Cap. 08:02, namely that "no sentence of caning shall be carried out by instalments". So, too, section 30(2) of the  G  Penal Code which was promulgated in 1964, which remained in force immediately before the coming into operation of the Constitution, specifically provides that a sentence of corporal punishment shall be to he caned once only. It has already been pointed out that, in the case of the customary courts or tribal authorities imposing corporal punishment, this, as far as we are informed, was always done immediately. Under those  H  circumstances it seems to me, referring to what was said by Lord Bridge of Harwich in Riley's case, quoted supra, the kind or description of punishment enacted by section 301(3) of the Cap. 08:02, would not have been authorised by law. It was for these reasons that I came to the conclusion that Question 2(a) had to be answered in the affirmative, with the consequence that section 301(3) of the Cap. 08:02 is null and void. It followed from that finding

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that the law relating to corporal punishment remains in force as it was before the purported coming into force of  A  Act 21 of 1982. The court consequently made an order in the present case setting aside the sentence of corporal punishment and remitting the matter to the High Court for the re-imposition of mandatory corporal punishment. The extent of that punishment is, of course, within the discretion of that court and is as prescribed in section 30 of the Penal Code and sections 301(1) and 301(2) of Cap. 08:02. In addition attention is again drawn to the provisions of section 61 of the Magistrates' Courts Act (Cap. 04:04) and to the fact that some  B  persons have been sentenced to corporal punishment, as provided for in section 301(3) and which section has been declared null and void. I restate what was said in the judgment delivered on 8 December 1983 that, in the cases referred to in this paragraph, corporal punishment or further corporal punishment is not to be administered as provided for in section 301(3).  C
AMISSAH J.A. I agree.
KENTRIDGE J.A. I agree.
BARON J.A. I agree that, for the reasons given by the learned President, section 301(3) of the Criminal Procedure and Evidence Act cannot stand, and I agree with the order proposed. It was however with  D  considerable hesitation, and only because of the importance of conveying our decision without delay, that I concurred in making no finding on the question of corporal punishment "in traditional manner with traditional instrument". This is an issue of great moment in the field of human rights and a question on which I think the legislature would have appreciated comment by this court. It was fully argued, and was, I venture to think, the  E  more important issue; certainly it is the more controversial. It is not the type of issue which falls to be decided only if another question is decided in a particular way, and there was in my view ample material before the court to enable a decision to be made. On further and more leisurely reflection, therefore, I have come to the conclusion that the issue should not have been left open.  F
The attack on section 301(3) was directed in the first instance at two aspects: the provision that the corporal punishment shall be administered "by instalments", and the provision that it shall be administered "in traditional manner with traditional instrument"; and the consequential submission was made that, should either of these provisions be held to offend against section 7(1) of the Constitution, that provision introduced a new description of punishment within the meaning of section 7(2) and was not therefore saved. The court unhesitatingly upheld  G  these submissions in respect of the "instalment" provision, and there is nothing I wish to add to the reasons for that decision given by the learned President.
But the case could equally have been decided on the other issue. I agree with the learned President that there was no clear evidence of what constitutes the infliction of strokes "in traditional manner with traditional  H  instrument"; and there was indeed a degree of conflict between counsel as to precisely what this entailed. However, Mr. Afful for the State made an important concession which makes it unnecessary to pursue the other areas of conflict. Mr. Hodes had referred us to a passage from A Handbook of Tswana Law and Custom by Schapera (2nd ed.) (1955), at p. 49:

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 "The instrument most commonly employed for the purpose is a switch of the moretlwa bush (Grewia cana), something like  A  a cane of pliant wood tapering to a very fine end. In recent years the sjambok has been introduced, and is often used instead." (My emphasis.)
Although Schapera was accepted as an authority by counsel on both sides, Mr. Afful suggested, but without any evidence to support the suggestion, that the use of the sjambok "may have been the handiwork of an  B  over-zealous chief". This submission seems to me to be inconsistent with the statement that the sjambok "is often used instead"; and with respect I value of Professor Schapera's work as evidence. But even if we were to accept Mr. Afful's submission that the sjambok may have been the handiwork of one chief, this would not assist him. Mr. Afful submitted that the minister was empowered to prescribe the instrument to he used, and could  C  therefore outlaw the sjambok; but this is clearly an erroneous construction of section 301(3), which empowers the minister to specify only the places at which the strokes shall be administered. Hence, argues Mr. Hodes, the decision as to what constitutes "in traditional manner with traditional instrument" lies entirely with the authority  D  charged with the duty to administer the strokes, and if in terms of the section they could validly be administered with a sjambok-even in only one area-the section must be struck down. Needless to say, Mr. Afful did not submit that the use of a sjambok would not amount to inhuman punishment. Mr. Hodes' argument seems to me to be unanswerable.  E
Mr. Afful did not contend that the use of the sjambok was saved by section 7(2); indeed, the nature of his submissions would preclude any such submission. I am consequently of the view that the "traditional manner with traditional instrument" provision in section 301(3) contravenes section 7 of the Constitution.
I should perhaps add that in coming to this conclusion on the basis of the possible use of the sjambok I am not to be taken to approve of corporal punishment with a thupa - or indeed with anything else.  F
AGUDA J.A.
1. Introduction
When this appeal came before this court sitting in a panel of three on 20 July 1983, for argument, counsel appearing for the appellants sought to raise certain constitutional issues. For that reason it became necessary to  G  postpone the hearing in order to constitute a full court of five judges in terms of section 9(2) of the Court of Appeal Act (Cap. 04:01) (1973 Rev.) read with section 106 of the Constitution. As has been adequately shown in the judgment of Maisels P., certain questions were ultimately agreed to be set down for the determination of this  H  court when it sat as a full bench on 5 December 1983. Because of the importance and nature of the issues concerned which necessitated that an urgent decision be given by this court we gave a unanimous decision on the main issues which were properly before us. We indicated on that day that we would file the reasons for our decision in due course.
Now I have had sufficient time to consider all the issues raised in all their ramifications, and I feel obliged to consider most of the points

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canvassed before us. I have decided to take this course because of the great importance which appears to me  A  should properly be attached to the various points made by all parties concerned, especially the State.
Before going to discuss the issues that were either directly in issue or raised in argument I think it would be necessary for me to deal with certain preliminary issues in order to clear what I consider to be some conceptual errors in respect of certain issues raised in the arguments of counsel proferred before us.  B
2. Alleged Supremacy of the National Assembly
In his oral argument in court, Mr. Afful for the State stated, albeit without conviction, that in Botswana the Naitonal Assembly is supreme, thereby implying that there is not much the courts can do once the National Assembly has passed a piece of legislation. Indeed his heads of argument filed on 1 December 1983, head H(ii), he:  C
 "submits that the appellate court should not outrightly declare any of such orders (made under the purported subsection (3) of section 301 of the Criminal Procedure and Evidence Act) a nullity but rather make the necessary orders to regularise those orders".
This is of course, erroneous, it is a misconception of the powers of this court in regard to legislation which is  D  being challenged as being ultra vires the Constitution. Under a written Constitution such as we have in the Republic of Botswana, the National Assembly is supreme only in the exercise of legislative powers. It is not supreme in the sense that it can pass any legislation even if it is ultra vires any provision of the Constitution. I believe it is clear, and this point must be strongly made, that every piece of legislation is subject to the scrutiny of  E  the courts at the instance of any citizen, or indeed in an appropriate case at the instance of a non-citizen living in the country, who has the necessary locus to challenge the constitutionality of the legislation. This is more compelling in cases where there is a challenge to a piece of legislation on the grounds of its repugnancy to any of the provisions of Chapter 2 of the Constitution. The theory of the supremacy of Parliament which is a  F  necessary adjunct or rather the basis for the positivist theory of law which attained its apotheosis in Great Britain in the time of John Austin has limited application under modern Constitutions with entrenched fundamental rights which are made subject to the scrutiny of the courts.
I believe that it is in further development of his theory of the supremacy of Parliament, if I understand him correctly, that Mr. Afful, says "alternatively, the appellate court to make recommendations to the legislature which  G  will make the implementation (of the challenged legislation) feasible". Again, it is my view that this is also conceptually erroneous, and untenable. The sole duty of the courts in this regard is to decide disputes between citizens and the State and not to enter into the arena of fierce battle, nor to offer advice to the legislature as to how its wishes can be carried into effect. The law officers of the State are the most readily available persons to  H  give much advice basing themselves upon the interpretation which this court, as the final court in the land, has given to a piece of legislation or provisions of the Constitution.
In concluding this part of this judgment I would like to add that it is for the very reasons of cases like this that the Constitution entrenches fundamental rights. When the entrenchment of fundamental rights in the

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American Constitution was under debate in 1787, Thomas Jefferson wrote as follows to James Madison:  A
 "Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference. . . "
He later wrote again as follows:
 "In the arguments in favour of a declaration of rights, you omit one which has great weight with me, the legal check which it  B  puts into the hands of the judiciary. This is a body, which if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity ... The declaration of rights is like all other human blessings allowed with some inconveniences and not accomplishing fully its object. But the good in this instance vastly overweighs the evil . . ."  C
(Mason and Beaney, American Constitutional Law (6th ed.) (1978) pp. 549 and 555). These immortal words of Thomas Jefferson should continue to be remembered by the rulers and the governed all the time, especially in countries where fundamental rights are entrenched.  D
3. Approach of the Courts to Constitutional Construction
Another preliminary matter which I think it is necessary to touch upon, as it affects and must affect, the final determination of constitutional issues when raised, as have been raised in this case, is the approach which the courts do take or ought to take, in the construction of provisions of the written Constitution. It was once thought that there should be no difference in approach to constitutional construction from other statutory interpretation.  E  Given the British system of Government and the British judicial set-up, that was understandable, it being remembered that whatever statutes that might have the look of constitutional enactment in Britain, such statutes are nevertheless mere statutes like any others and can be amended or repealed at the will of Parliament. But the position where there is a written Constitution is different. As long ago as 1908, Higgins J., speaking of the  F  position in Australia said in Attorney-General for New South Wales v. Brewery Employees Union of New South Wales (1908) 6 C.L.R. 469 at pp. 611-12:
 "... although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we  G  are interpreting-to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be."
And more recently Sir Udo Udoma of the Supreme Court of Nigeria said in the case of Rafiu Rabiu v. The State (1981) 2 N.C.L.R. 293 at p. 326, in reference to the written Constitution of Nigeria that the Constitution is:  H
 ".....the Supreme Law of the Land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn ... that the function of the Constitution is to establish a framework and principles of

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 government, broad and general in terms, intended to apply to the varying conditions which the development of our several  A  communities must involve, ours being a plural, dynamic society, and therefore, more technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution."
These principles, in my opinion provide some guide to statutory interpretation vis--vis the construction of  B  Constitutional provisions. As the learned Justice of the Supreme Court said in the same case:
 "I do not conceive it to be the duty of this court so as to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends."  C
In 1904 Justice White of the Supreme Court of the United States said:
 "I take it to be an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from all others, and to be considered alone, but that all the provisions bearing upon a particular subject are to  D  be brought into view and to be so interpreted as to effectuate the great purpose of the instrument."
South Dakota v. North Carolina (1904) 192 U.S. 268; 48 L.Ed. 448 at p. 465. And it is another well known principle of construction that exceptions contained in constitutions are ordinarily to be given strict and narrow,  E  rather than broad, constructions. See Corey v. Knight (1957) 150 Cal. App. 2d. 671; 310 P. 2d. 673 at p. 679. I am guided by these principles and by the other principles of Constitutional construction which will unfold later in this judgment in the view which I hold concerning the questions raised before this court in this case.
4. The relevant statutory provisions  F
In the view of the judgment of the President of this court, Maisels P., it may be thought repetitive for me to set down the relevant provisions of the statutes and of the Constitution concerned in this judgment but I take the view that for a fair assessment of my stand in respect of the issues raised it will be necessary for me to re-state those provisions here.  G
First then the Penal Code. That Code came into effect as a Proclamation of the Bechuanaland Protectorate in 1964. Since then it has suffered some amendments on about 15 occasions. Then on 30 August 1982, the National Assembly passed certain amendments to the Code. The Act which incorporated the amendments is Act No. 20 of 1982 (hereinafter referred to as "Act No. 20"), and it was assented to by the President on 28  H  September 1982. The date of commencement was 15 October 1982. It is clear from the amendments that the National Assembly intended to prescribe stiffer and very harsh punishments in respect of certain offences. That much is very clear from the provisions of Act No. 20. Later I shall consider the two issues raised in this regard, namely, the actual scope of the amendments, and whether or not the

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major aspects of the amendments were not ultra vires the Constitution, section 7 of the Constitution.  A
The second Act which was amended is the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.). That Act also originated as a Proclamation of the Bechuanaland Protectorate in 1938. Since then it, like the Code, has suffered some amendments, about 25 in all between 1944 and 1973. On the same day as Act No. 20 was passed by the National Assembly, that is 30 August 1982, the Assembly passed another Act amending the  B  Criminal Procedure and Evidence Act by Act No. 21 of 1982 (hereinafter referred to as "Act No. 21"). That Act, like its twin brother Act No. 20, was assented to by the President on 28 September 1982 and it took effect from 15 October 1982, Act No. 21 only added a new subsection (3) to section 301 of the principal Act. In general terms the subsection prescribes the method of executing corporal punishment on persons sentenced to that form of punishment under certain sections of the Penal Code. In addition it gave power to the minister  C  (admittedly Minister of Home Affairs) to prescribe places where the corporal punishment may be administered. In this case it was agrued that these provisions are ulta vires the Constitution, section 7 of the Constitution. I shall deal with the issues raised on these provisions, but before doing so I think it is necessary to quote the sections of the Constitution which it is alleged these provisions contravene.  D
5. The Relevant Constitutional Provision
With effect from 30 September 1966, the Bechuanaland Protectorate became a sovereign state under a written Constitution. The Constitution like most of the Constitutions of the countries which became independent of Great  E  Britain contains a whole Chapter entrenching certain fundamental rights provisions which cannot be amended by a mere Act of the National Assembly. Fortunately for the peoples of this country that Constitution has not been abrogated as has been done in many other African countries, and the peoples have continued to enjoy their freedom under the rule of law as was envisaged by those who fought for freedom and and won it in 1966.  F
Section 7 comes under Chapter 2, the heading "Fundamental Rights" and it is as follows:
 "(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
 (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful  G  in the former Protectorate of Bechuanaland immediately before the coming into operation of this Constitution."
The Constitution came into operation on 30 September 1966; therefore the relevant date is 29 September 1966.  H
6. Construing "Derogation Clause" under the Constitution
It is clear and beyond any shadow that the Constitution, section 7(1), forbids the Government either through an Act of the National Assembly or by a ministerial order or through any other actions of any of its agencies or functionaries absolutely from subjecting any person within

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the country "to torture or to inhuman or degrading punishment or other treatment." First it should be noted that  A  this provision is applicable to citizens and non-citizens alike provided they are within the jurisdiction of the State and its courts. Subject to subsection (2) which I shall consider presently, the prohibition against torture or inhuman or degrading punishment or other treatment is absolute. In consequence any Act of the National Assembly which breaches this prohibition must be invalid unless it can be brought under subsection (2). This is as it should be. And as I have said earlier, this being an exception clause must be narrowly construed. See  B  Corey v. Knight (supra). The peoples of this country form an integral part of the modern civilised world community now used to the enjoyment of the usual democratic freedoms under humane Governments. Furthermore, as was forcefully pointed out by Mr. Hodes, counsel for the appellants, Botswana is a proud member of the Organisation of African Unity (OAU) and of the United Nations (UN); and must be presumed to be  C  willing to abide by all the protocols of those bodies which it has agreed to.
The African Charter of Human Rights and Peoples' Rights executed in Nairobi by the Heads of States of the OAU provide in Article 5 that "All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited", whilst the Universal  D  Declaration of Human Rights of the United Nations made on 10 December 1948 says also in Article 5 that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Many other regional international organisations also have similar declaration which the High Contracting Parties agree to uphold. On 4 November 1950, the European Convention on Human Rights was signed in Rome. In 1969, the  E  American Convention on Human Rights was signed. I have adverted to all these to show that the concept of the recognition of fundamental human rights has started to take on the garb of international customary law among civilised democratic states of the world.
Having said all these it is necessary to consider the effect of subsection (2) of section 7 of the Constitution which may be regarded as a "derogation clause" since it derogates from the freedom so clearly enshrined under  F  subsection (1). Subsection (2) permits the legislature to enact a law which "authorizes the infliction of any description of punishment that was lawful" by 29 September 1966. In my view, this being a "derogation" provision, it must be construed narrowly. May I repeat the passage from the judgment of Sir Udo Udoma in the Rafia Rabiu case (supra), that  G
 "I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve".
In my view subsection (1) was designed very clearly to prohibit absolutely torture, inhuman, degrading and other treatment. Subsection (2) was only added to prevent a complete break from the position of punishment as it  H  existed by 29 September 1966, based upon the common knowledge of the people at the time. It was not meant, for example, to resuscitate torture even if it had existed somewhere or the other within the areas of the land which at the present constitute the State of Botswana.
Two principles of interpretation flow from what I have said under this heading. First, it is a well known principle of statutory interpretation

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that an Act of the National Assembly must be presumed to be intra vires the Constitution. However, once a  A  plaintiff or an accused person shows that a piece of legislation is ex facie ultra vires, the Constitution, in this case, the absolute prohibition of subsection (1) of section 7, then the onus shifts on the State to show that that piece of legislation is saved by subsection (2). However, and this is the second principle, when subsection (2) is relied upon by the legislature to sustain legislation which is ex facie ultra vires the subsection, then it has the burden of satisfying the court that the legislation is justifiable under the subsection. What all these really amount  B  to is this: in a criminal case once an accused person shows that a piece of legislation is ex facie ultra vires subsection (1) of section 7 of the Constitution, he has discharged the burden on him, and the court will find in his favour unless the State can show conclusively that it is permitted under subsection (2). As Professor James Antieau says in his book, Constitutional Construction (Oceana Publications, N.Y. 1982) at p. 33:  C
 "When a proviso makes a qualification upon a general rule stated in a constitution, one who claims the benefit of that proviso must bring himself within its terms."
See the United States case of Faires v. Frohmiller (1937) 49 Ariz. 366; 67 P. 2d. 470, at p. 473.  D
7. The Effect of Act No. 20 on Punishments prescribed by certain Sections of the Penal Code
As I said earlier, Act No. 20 amended certain sections of the Penal Code. In some cases it added to the terms of imprisonment previously prescribed, the imposition of corporal punishment. In others it introduced the imposition  E  of corporal punishment for offences in respect of which it was not previously possible for the courts to order corporal punishment. Since this particular case before this court falls within the first type I shall confine myself to that situation.
The relevant section of the Penal Code under which the appellants were charged, convicted and sentenced was section 305. The section provides that-  F
 "(1) Any person who -
  (a) breaks and enters any building.... with intent to commit therein any offence punishable under this Code ...
  is guilty of an offence termed housebreaking and is liable to imprisonment for ten years."  G
Act No. 20 amended it to read "liable to imprisonment for ten years, with corporal punishment".
The first question which was raised in this case and to which this court gave the answer "Yes" was whether section 305(1) as amended makes it mandatory for the court to impose a sentence of corporal punishment in addition to the term of imprisonment that might have been imposed.  H
Although counsel for the appellants had appeared to be ready to argue the opposite, but during oral argument he abandoned that position and conceded that the amendment to section 305(1) was designed to make it mandatory for a court which has imposed a term of imprisonment to order corporal punishment. It would appear to me that not much reasonable argument can he proffered to sustain an opposite position.

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However, it is well understood, I hope, that if the trial judge does not feel that an accused person deserves to be  A  sent to prison because of circumstances of the offence or of the accused, the judge is not obliged to send him to prison and order corporal punishment. On the other hand it is open to doubt - and I am not prepared to decide on that issue in this case - whether in the circumstances which the judge does not consider it just to sentence an accused person to a term of imprisonment even after conviction for an offence under section 305(1), the judge may nevertheless merely sentence him to corporal punishment only. However, if the submission of the  B  State in this case is correct that corporal punishment is inexonerably tied to a term of imprisonment then when one falls, the other must also fall. To a certain extent I am attracted by this argument and I accept it. The extent is this: that if, for example, the trial judge imposes a sentence of a fine, he is not obliged to order corporal punishment in addition to the payment of the fine.  C
8. Is Corporal Punishment per se inhuman or degrading?
Towards the tail end of his argument, Mr. Hodes for the appellants, argued that any law which makes it compulsory for both a term of imprisonment and corporal punishment to be imposed in respect of a single  D  offence must ipso facto be inhuman and therefore ultra vires section 7(1) of the Constitution; and that it is not saved by subsection (2) of the section. He submitted that mandatory corporal punishment tacked on to a term of imprisonment is inhuman since it does not take account of the circumstances of the accused or the circumstances of the offence. Furthermore he submitted that corporal punishment of an adult per se is inhuman, even though he was prepared to concede that that was saved by subsection (2). I shall deal with this latter point  E  first and deal with the next under the next heading.
In regard to the submission that judicial corporal punishment of an adult per se is inhuman, he cited some notable authors. Professor Nwabueze in his well-researched book, The Presidential Constitution of Nigeria says at p. 412 that "Corporal punishment by flogging or caning is degrading because of the acute physical pain it  F  inflicts . . ." For that reason, says the author, it has been held to be unconstitutional in the United States. Nwabueze cites the case of Jackson v. Bishop 404 F. 2d. 571 (CA 8 1968) in support. In further reference to the opinion of other Nigerian Constitutional jurists he cites T. Akinola Aguda, The Criminal Law and Procedure of the Southern States of Nigeria (3rd ed.) (1982), pp. 226 and 950, and J.O. Akande, The Introduction to the Constitution of the Federal Republic of Nigeria 1979 (1982), para. 31. Both of these authors would appear to  G  suggest that, in the absence from the Nigerian Constitution of a saving clause in the nature of section 7(2) of the Botswana Constitution, corporal punishment would appear to be unconstitutional. The opinion of these jurists do not advance the case canvassed by counsel, as they are opinions not based on any pronouncements or  H  decisions of the Nigerian courts. However, in addition, Mr. Hodes cites the examples of some countries where judicial flogging has been abolished, including Argentina, Mexico, India, Jamaica and so on.
I have no doubt in my mind that judicial flogging of an adult is a degrading form of punishment, but so long as the world community has not reached that stage when it can be abolished throughout the world,

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just as slavery has been abolished, it must continue to exist in some countries. Mr. Hodes cited to us the case of Tyrer v. United Kingdom (1978) 2 E.H.R.R. 1. (European Court of Human Rights) to support his contention that  A  judicial corporal punishment was institutionalised violence, and that it was irrelevant that the penalty was imposed in respect of a crime of violence. In that case the court even went on to hold that the indignity of having the punishment administered over the bare posterior aggravated the degrading character but that that was not  B  the only or the determining factor. Counsel also referred us to the learned article of Ellison Khan, Crime and Punishment 1910-1960 in (1960) "Acta Juridica" p. 191 at p. 207, where the learned author wrote, over two decades ago as follows:
 "The degrading and brutal punishment of flogging with a whip or cane has been abandoned or greatly restricted in operation in almost the whole civilised world."  C
I have made reference to all these as I consider it will not be fair to counsel if his major arguments are brushed aside by this court simply because they do not directly arise from the questions referred to this court. What I do not think I should do is make a final pronouncement on the issue. Suffice it to say that whatever views one may have of corporal punishment of an adult as a form of punishment for an offence, it is, in so far as Botswana is  D  concerned, saved by subsection (2) of section 7 of the Constitution.
9. Torture, inhuman punishment, degrading punishment, other treatment
I think it is necessary at this stage to say a few words on the general compass of subsection (1) of section 7  E  which says that "no person shall be subjected to torture or to inhuman or degrading punishment or other treatment". I take it that whilst "torture" stands by itself, the word "punishment" is the noun which is qualified by the words "inhuman" and "degrading". "Other treatment" must be held also to be qualified by both adjectives "inhuman" and "degrading" in the alternative. In other words the subsection prohibits the infliction of torture,  F  inhuman punishment, degrading punishment, inhuman treatment, and degrading treatment on any person. It must be remembered that treatment has a different connotation from punishment. But I do not feel called upon to go further into this here.
In his submission to this court, Mr. Hodes for the appellants sought to convince us that the words "cruel and unusual punishment" as used in the Eighth Amendment to the American Constitution imports the same idea as  G  "inhuman and degrading punishment" in the Botswana Constitution. Speaking for myself I must say that I am persuaded by the argument of counsel. Mr. Hodes referred to the obiter from the case of Weems v. United States (1910) 217 U.S. 349 at p. 370 where the Supreme Court of the United States said that "Cruel ... implies inhuman and barbarous" and the obiter in Furman v. Georgia (1972) 408 US 238 at pp. 272-75 and 282 where it  H  was also said that "cruel" means "degrading to the dignity of human beings" and that cruel refers to "inhuman and uncivilized punishment". Professor Nwabueze is in my opinion quite right when considering a similar provision of the Constitution of Nigeria says that "a cruel punishment would appear to have a narrower reference than inhuman or degrading treatment". According to the learned jurist

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here we are not talking "of inhumane punishment but of inhuman treatment, by which must be meant treatment  A  (punishment) which, even if not necessarily cruel, does not accord with human dignity".
It appears to me that basically two different situations must be mentioned. First, it must be recognised that certain types of punishment or treatment are by their very nature cruel, inhuman or degrading. Here once more I must cite with approval what Professor Nwabueze says in his book (ibid.):  B
 "Any punishment involving torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs, burning alive or at the stake, crucifixion, breaking on the wheel, embowelling alive, beheading, public dissection and the like, or involving mutilation or a lingering death, or the infliction of acute pain and suffering, either physical or mental, is inherently inhuman and degrading."  C
Under the Botswana Constitution such punishment which is inherently inhuman and degrading is prohibited by subsection (1) of section 7, and cannot be saved by subsection (2) of the section, notwithstanding the fact that public sentiments favour it.
Secondly a punishment which is not inherently inhuman or degrading may become so by the very nature or mode of execution, and also notwithstanding the fact that popular demand may favour it. For example, suppose  D  it is admitted that flogging is not inherently inhuman or degrading, an order to administer 36 strokes of the cane on the bare body of a person who has been found guilty of ordinary stealing of one pula without violence must, by the mere reason of excessiveness, be held to be inhuman. In like circumstances, the imposition of a very long term of imprisonment with hard labour must beheld to be inhuman. See Weems v. United States (1910) 217  E  U.S. 349.
10. Is the Provision for the Imposition of a Term of Imprisonment along with Corporal Punishment inhuman or degrading
As I have said earlier, the argument of Mr. Hodes was to the effect that any punishment which makes it mandatory for an order of corporal punishment to be tacked upon a term of imprisonment whenever the latter is  F  imposed must be held to be inhuman or degrading or both. There is no doubt that the courts should frown on legislation which tends to take away from them (or from other independent body specially created for that purpose) the power to modulate punishment to fit the circumstances of the offender as well as the circumstances in which the offence was committed. But in this case if the National Assembly decides to lay  G  down what in some sense amounts to minimum punishment, then I am not prepared to hold that such punishment ipso facto amounts to inhuman or degrading punishment. In the result therefore it is quite clear to me that at the moment the provision of the Penal Code which makes it mandatory for a court to make an order for corporal punishment along with a term of imprisonment cannot be held to be inhuman or degrading especially  H  when one considers the gravity of the offences in respect of which this term of punishment is prescribed.
11. The Provision of Act No. 21 of 1982
Apart from the short title, Act No. 21 consists of only one section. That section adds three subsections to section 301 of the Criminal Procedure and Evidence Act. They are as follows:

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 "(3) Notwithstanding anything to the contrary contained in section 61(2) of the Magistrates' Courts Act and section 30 of  A  the Penal Code and the preceeding provisions of this section where a person is sentenced under sections 235, 297, 298 and 305 to 308 of the Penal Code to undergo corporal punishment, such person shall be given four strokes each quarter in the first and last years of his term of imprisonment and such strokes shall be administered in traditional manner with traditional instrument at such places as may be specified by the Minister.  B
 (4) Where a person convicted of an offence under the provisions of any section of the Penal Code referred to in subsection (3) commits any other offence while in prison or attempts to escape from lawful custody, such person shall, in addition to any other punishment which may be lawfully imposed on him, be liable to corporal punishment to be administered in  C  accordance with the provisions of subsection (3).
 (5) The Minister may by statutory instrument make an order specifying such places as he may consider proper for administering corporal punishment in traditional manner with traditional instrument."  D
In exercise of the powers conferred on him by subsection (5) quoted above the minister made an order on 16 November 1983 (Statutory Instrument No. 146 of 1983), published in the Gazette of 25 November purporting it to have come into effect on 15 October 1982. The order says that -
 "2. The following places are hereby designated as places where corporal punishment may be administered in traditional manner -  E
 (a) any place declared as a prison under section 3 or 4 of the Prisons Act;
 (b) any court recognized or established under section 6(2) of the Customary Courts Act as a customary court."
12. Retro-activity of the Ministerial Order  F
Counsel for the appellants, Mr. Hodes attacks the quoted order of the minister on grounds of its retro-activity. Section 19 of the Interpretation and General Provisions Act (Cap. 01:02) (1973 Rev.) says that "No subsidiary legislation shall come into operation unless it has been published in the Gazette . . ." Where no date of commencement is expressly stated in the Gazette or in any other law, then such "subsidiary legislation may be  G  made to operate retrospectively" provided the date of its operation does not precede the date the enabling statute comes into effect and provided also that "no person shall be made or become liable to any penalty whatsoever in respect of any act committed or failure to do anything before the date on which such subsidiary legislation is published in the Gazette" (section 21 of the Act). It is hoped therefore that nothing was done under the ministerial order before 25 November 1983, the date of its publication which the order was meant to cover.  H
13. Is Act No. 21 of 1982 ultra vires the Constitution?
I have already set down the material provision of Act No. 21 of 1982. The court had no difficulties whatsoever in coming to the conclusion that the Act was ultra vires the constitution, section 7, and

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must be and indeed was struck down by the order of this court made on 8 December 1983, as stated at the  A  beginning of this judgment.
There can be no doubt whatsoever that many features of the Act make the provisions relating to corporal punishment under it inhuman. They are inhuman in the sense that "inhuman" in common parlance means "destitute of natural kindness or pity; brutal; barbarous or cruel". It does not matter which of these adjectives is appropriate provided one is appropriate. I am entirely in agreement with the submission of Mr. Hodes for the  B  appellants that corporal punishment administered "by instalments" when tacked onto a term of imprisonment cannot but bring about aggravated torture upon the human being made subject to that sort of punishment. To describe such a type of punishment as degrading is perhaps the very least that can be said of it. And as Blackmun J. said in Jackson and Others v. Bishop (1968) 404 F. 2d. 571 at pp. 579-80:
 "There can be no argument that excessive whipping or an inappropriate manner of whipping or too great frequency of  C  whipping or the use of studded or over long straps all constitute cruel and unusual punishment . . . corporal punishment generates hate toward the keepers who punish and toward the system which permits it. It is degrading to the punisher and to the punished alike. This record cries out with testimony to this effect from the expert penologists, from the inmates and  D  from their keepers."
Therefore, I was surprised, nay, indeed shocked, when counsel for the State Mr. Afful took it upon himself, in supporting the provision as to instalmental whipping to compare that sort of punishment with the situation whereby a woman or a man voluntarily decides to "bare the body up to the waist with scanty wear and appear in public parks, beaches, stages, shopping centres and in the streets". (See his head of argument, paragraph  E  B(viii). With greatest respect to counsel, I could never have imagined any counsel would compare that situation with that of a man who is to be given four strokes of the whip in a public place, on his bare buttocks, four times a year, and to expect a repetition of that sort of treatment in two or three or four or more years thereafter. I was  F  completely flabbergasted by the assertion without evidence of Mr. Afful to the effect that "every African is aware and knows of whipping as an effective deterrent (paragraph B(ix)), an assertion which, on available evidence on the records of the courts of Botswana, to put it mildly, is totally unfounded in regard to this country, not to talk of other African countries who are members of the OAU. When I asked counsel to mention any single African country where instalmental whipping of the nature with which we were concerned here is practised he was  G  unable to mention one.
In his desire to justify the re-imposition of traditional form of punishment Mr. Afful at paragraph A(xvi) of his heads of argument draws attention to the existence of certain forms of punishments which appear inhuman and degrading in certain Islamic States (although he wrongly says that those punishments exist "in the Arab World").  H  Needless to say that the analogy sought to be drawn is most inapposite, and it is based upon a total misconception of Islamic jurisprudence. In the purely Moslem States, the paramountcy of the injunctions of Allah as revealed to the holy prophet Mohammed (upon whom be God's abiding peace) over all earthly constitutions and laws is basic and immutable. In other words all earthly constitutions and laws must

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conform to such divine revelations, and no punishment which is prescribed by Allah can be unjust even if in human eyes it is torture, inhuman or degrading. For who are we human beings to question the injunctions of  A  Allah? But in our own system of jurisprudence, the written Constitution is supreme, and all our laws must be adjudged to he right or wrong only by a consideration of the Constitution, not by any reference to any higher and immutable divine law. And in any event it is no defence to a charge of an attempt to institutionalise inhuman or  B  degrading punishment to say that some other countries have embarked upon even a worse form of punishment.
The assertions in this and in other submissions of Mr. Afful which tend to portray the Africans as a different species of humanity different from all others, are not only unwarranted as being degrading, but to put it very mildly most unfortunate. But then counsel went to contradict himself at paragraph C(viii) of his heads of  C  argument by saying that a Motswana "would rather opt for whipping which carries no stigma and be quickly and almost instantly be integrated into the society" than go to prison. By this I understand counsel as saying that whipping has no deterrent effect or at least less deterrent effect than the prison. Indeed if that were so, then whipping is only to punish for punishment sake without regard to other desirable ends for which "punishment" should be directed.  D
So far I have touched upon the instalmental nature of the corporal punishment. Even upon that ground alone I would hold that it was inhuman and degrading and that it offended against section 7(1) of the Constitution. Since counsel for the State admitted in his oral submission and by reference to the writing of an alleged expert on Tswana customary law, one I. Schapera, that there is no evidence of instalmental whipping under customary  E  law, subsection (2) of the section would not avail the State.
The Act, that is No. 21 of 1982, says that whipping strokes "shall be administered in traditional manner with traditional instrument at such places as may be specified by the Minister". Speaking for myself I would strike down that particular provision as being nebulous in the extreme. Mr. Afful for the State relied on Schapera, A  F  Handbook of Tswana Law and Custom written in 1934. This, in my view. does not help the State in any way. In the first place the book was never put in evidence, and secondly the man Schapera was never called to give evidence to test him whether he can be regarded as an expert. The book has no mark of authority of the Government of the day. The contents constitute hearsay evidence and therefore inadmissible by virtue of section 224 of the Criminal Procedure and Evidence Act. Even if they were admissible the man Schapera himself  G  acknowledges that some of what he has written in this regard was not based upon his own empirical research. He says at the footnote at p. 49:
 "A detailed description of Tswana methods of thrashing is given in Major E. S. B. Tagart's Report on the Conditions existing among the Masarwa in the Bamangwato Reserve (Pretoria, 1932: Government Printer), pp. 18-19, from which  H  some of the statements in this paragraph have been drawn."
I myself am not prepared to base my findings of the traditional methods of thrashing on hearsay which has its foundation in another hearsay. In any event he admittedly wrote in 1934, but we were

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concerned with 29 September 1966. It is trite to say that customary law is not static: what the position was in  A  1934 could have and indeed must certainly have, drastically changed long before September 1966. What is even more destructive of the case being put by the State in so far as they are relying on Schapera is that the author wrote at p. 49:
 "Thrashing is not restricted to any specific class of offence. Fining is generally preferred; but where the wrongdoer cannot pay the fine imposed, thrashing is commonly resorted to as the only alternative form of punishment."  B
In other words thrashing was a punishment reserved only to the poor. Surely this cannot be right in this time and age. Schapera then goes on to say at the same page that:
 "The instrument most commonly employed for the purpose is a switch of the moredwa bush (Grewia cana), something like  C  a cane of pliant wood tapering to a very fine end. In recent years the sjambok has been introduced, and is often used instead."
It is clear from all these that to tie any statutorily laid down form of punishment to a nebulous concept as that described above is to leave a wide gap for disparity in punishment and an unwarranted form of cruelty and barbarity in some of those who may be called upon to administer it.  C
Even if one accepts Schapera as an authority, the method of administration of the thrashing as he calls it together with the instrument mentioned as stated above, the sjambok, makes that form of punishment inhuman and degrading. In describing how the sjambok is to be administered, Schapera says at p. 49:  D
 "Immediately after sentence has been pronounced, the offender is ordered to strip (if a male) and to lie face downwards. He is not tied up in any way, but, if he struggles, will be held down. Some man present is then ordered to stand at his head, and lay the strokes across his bare back."
If the position is accepted, and the State wants us to accept it, then it means that any one whatsoever, may be a  F  long-standing enemy of the accused, may be called upon to administer the strokes. Surely that cannot be right or fair or just. When you add to it the fact that the Minister has prescribed that such punishment can be administered at any court recognised or established under the Customary Courts Act (Cap. 04:05) which includes public spaces known as kgotla that form of punishment administered to an adult becomes inhuman  G  and degrading in the extreme.
14. The Scope of what is Preserved under Section 7(2) of the Constitution
The only remaining question which I hope to turn attention to-and this arises forcefully from what I have said above-is the scope of what is preserved under subsection (2) of section 7 of the Constitution. It will be recalled  H  that after subsection (1) has prohibited in clear and unambiguous terms torture, inhuman, degrading punishment and other treatment, subsection (2) says that -
 "Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any

1984 BLR p46
 description of punishment that was lawful in the former Protectorate of Bechuanaland immediately before the coming into operation of this Constitution."  A
In my view the phrase "any description of punishment" must bear its ordinary meaning. I hold that it will be referable to a species or kind of punishment, not to the details of such punishment. This approach appears to me the only reasonable approach possible if the court was not to open a flood gate to variations of punishments which the makers of the Constitution never had in mind nor could have contemplated. To drive home the point I  B  am trying to make, I shall give only two examples. "Capital punishment" was lawful in the country as at 29 September 1966. Even if one holds that capital punishment is saved by the subsection, but by no stretch of the imagination can any one hold that the killing by instalment of a person convicted of an offence for which that  C  description of punishment was available is saved by the subsection. "Capital punishment" can be carried out by starvation, by slow poisoning, by guillotine, by progressive cutting off of the parts of the body, by decapitation and so on. But no one, I am sure, can reasonably argue that these methods of effecting capital punishment are saved by the subsection (2). Again "corporal punishment" was lawful in the country as at 29 September 1966. It cannot be argued I hope, that flowing from this, any form of whipping whatsoever and wherever, and at any  D  intensity whatsoever, and for any length of period whatsoever is permitted by the subsection. In my view all that is permitted is the generic term "corporal punishment". Any Act which is passed in purported exercise of the permissive provision of that subsection must in the final analysis be subjected to the overriding provision of subsection (I).  E
15. Conclusion
It is clear from what I have said:
 (1) The provision of section 305(1) of the Penal Code as amended makes it compulsory for the court to make an order of corporal punishment once a term of imprisonment is imposed. The provision does not  F  however make it compulsory to impose a term of imprisonment in all cases of conviction. If for example a fine is imposed then corporal punishment is not mandatory.
 (2) The corporal punishment as prescribed by Act No. 21 of 1982 is ultra vires the Constitution, section 7, and the Act is therefore declared null and void in its entirety. It follows that the order of the Minister of  G  Home Affairs made thereunder, S.I. No. 146 of 1983, is also declared null and void.
 (3) The amendments to the Penal Code made by Act No. 20 of 1982 are not ultra vires the Constitution and are hereby declared valid.
Sentence of corporal punishment set aside.  H
Case remitted to the High Court for the
 re-imposition of mandatory corporal
 punishment.
Repeated and delayed infliction of corporal
punishment declared unconstitutional.
E.K.T.

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