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The Evolution of the Meaning(s) of Penal Servitude for Life (Life Imprisonment) in Mauritius: The Human Rights and Jurisprudential Challenges Confronted So Far and Those Ahead

Published online by Cambridge University Press:  18 September 2009

Jamil Ddamulira Mujuzi
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Abstract

This article analyses the history of the various meanings and interpretations of the sentence of penal servitude for life in Mauritius, the human rights implications, and the likely challenges that courts will confront in interpreting new legislation. The Privy Council held in 2008 that a mandatory sentence of penal servitude for life was arbitrary and disproportionate because it violated the right to a fair trial under the constitution. However, the article argues that the Privy Council should also have found that penal servitude for life, where the offender is to be detained for the rest of his life, violates the prisoner's right not to be subjected to inhuman punishment under the constitution, as well as violating Mauritius's international human rights obligations. It recommends that Mauritian courts consult South African jurisprudence when interpreting what amount to substantial and compelling circumstances under the 2007 Criminal Procedure (Amendment) Act.

Type
Research Article
Information
Journal of African Law , Volume 53 , Issue 2 , October 2009 , pp. 222 - 248
Copyright
Copyright © School of Oriental and African Studies 2009

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References

1 R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (HL) at 549H–50B, as quoted in Smit, D van ZylTaking Life Imprisonment Seriously in National and International Law (2002, Kluwer Law International) at 2–3Google Scholar.

2 Sec 86(3) of the Prisons Act 2006 (Uganda); sec 43(2) of the Prisons Act, 1964 (Swaziland). In Namibia it is provided that “prisoners sentenced for life (for which the minimum period of detention is regarded as twenty (20) years for administrative purposes) may be considered for parole … after having served at least half of the minimum period of detention of twenty (20) years, irrespective of whether it was his [sic] first offence or not”; see Release of Prisoners on Parole (Department of Justice, Directorate of Prisons, file no 10/8/B, 4 August 1986) at para 4.3.1(h)(i), on file with the author.

3 Sec 73(6)(b)(iv) of the Correctional Services Act, act 111 of 1998. See generally Terblanche, SSGuide to Sentencing in South Africa (2nd ed, 2007, LexisNexis) at 234–35Google Scholar.

4 Sec 85(c) of the Prisons Act 1980.

5 Sec 46(1)(ii) of the Prison Act 1963.

6 Sec 34 of the Prison Service Act, NRCD 46, 1972.

7 Sec 49 of the Prisons Act 1967, read together with sec 4(a) of the Parole Boards Act 1994.

8 Sec 344A of the Criminal Procedure and Evidence Act 1927 (as amended in 2006) and secs 109(1) and 115(1) of the Prisons Act 1956.

9 On 9 July 2008 the Privy Council held in De Boucherville v The State of Mauritius [2008] UKPC 37 that a mandatory sentence of life imprisonment without the possibility of release was arbitrary, disproportionate and unconstitutional for violating the right to a fair trial under sec 10 of the Mauritian Constitution.

10 Sec 222(1) of the Criminal Code 1982.

11 Id, sec 61.

12 Id, sec 64.

13 Id, sec 223(1).

14 Sec 150A of the Criminal Procedure (Amendment) Act 2007.

15 Id, sec 5. See also De Boucherville v The State of Mauritius, above at note 9 at para 6.

16 State of Mauritius v Jeetun [2006] Mauritius Reports 140.

17 De Boucherville v The State of Mauritius, above at note 9.

18 Mauritius ratified the charter on 19 June 1992.

19 Mauritius acceded to the covenant on 12 December 1973.

20 Secs 61, 64, 222, and 223 of the Criminal Procedure Act as amended by sec 3 of the Criminal Procedure (Amendment) Act 2007.

21 Reform Institutions Act 1988.

22 Regulations made by the minister under sec 66 of the Reform Institutions Act 1988, government notice no 19 of 1989.

23 See De Boucherville v The State of Mauritius, above at note 9 at para 23.

24 Statistics acquired from the Prisons Headquarters, June 2008 (original on file with the author). The author was unable to ascertain whether any prisoners were sentenced to penal servitude for life between 2006 and early 2008 when the statistics were acquired.

25 There were 13 Indians, two Ugandans, one Taiwanese, one Congolese, one Malagasy, one Kenyan, and the rest were Mauritian nationals. Three prisoners had been transferred to serve their sentences in their countries of nationality (two to Tanzania and one to the Netherlands).

26 Dwarkamathsing Jeetun v The Commissioner of Police and Others in the Presence of the Attorney General SCR/263/02, cited in State of Mauritius v Jeetun, above at note 16 at 140 and 142.

27 State of Mauritius v Jeetun, id at 140.

28 De Boucherville v Commissioner of Prisons and Others [2006] Mauritius Reports 20. This case is discussed in detail in the section on “Substituting penal servitude for life for death sentences” below.

29 State of Mauritius v Jeetun, above at note 16 at 141.

30 Manslaughter was punishable by penal servitude for life, whereas murder was punishable by death.

31 State of Mauritius v Jeetun, above at note 16 at 153.

32 Ibid.

33 As cited in De Boucherville v Commissioner of Prisons and Others, above at note 28 at 21–22.

34 Criminal Code (Amendment) Act no 1 of 1985, sec 3.

35 Dwarkamathsing Jeetun v The Commissioner of Police and Others in the Presence of the Attorney General, above at note 26, cited in State of Mauritius v Jeetun, above at note 16 at 142. It is reported that “Jeetun's application [to the Supreme Court] was preceded by a letter dated 4 April 2002 from [the Commissioner of Prisons], addressed to the Secretary, Mauritius Bar Association, apparently in response to a letter dated 1 April 2002. The letter from the [Commissioner of Prisons] stated that Jeetun had been sentenced on 14 February 1986 to ‘life imprisonment’ and was due for release on or about 13 February 2016. In the same way, two letters dated 5 March 2004 and 23 April 2004 from [the Commissioner of Prisons] and addressed to Rex Stephen, barrister-at-law, stated that [the] applicant will be due for release on 20 February 2016”: see De Boucherville v Commissioner of Prisons and Others, above at note 28 at 23. (Emphasis original)

36 Ramdin v Commissioner of Police and Others record no 89034 1985, lodged on 11 April 2005, cited in De Boucherville v Commissioner of Prisons and Others, above at note 28 at 22.

37 In Ramdin v Commissioner of Police and Others (above at note 36), “the applicant … had moved for ‘an order declaring and decreeing that the penal servitude for life imprisonment [sic] pronounced against him on 14 February 1986 for an offence committed in June 1983 should be 20 years’”, as cited in De Boucherville v Commissioner of Prisons and Others, above at note 28 at 22.

38 De Boucherville v Commissioner of Prisons and Others, above at note 28 at 24.

39 Ibid.

40 See Chenwi, LTowards the Abolition of the Death Penalty in Africa: A Human Rights Perspective (2007, Pretoria University Press)Google Scholar.

41 Sec 7(1) of the Mauritian Constitution prohibits inhuman or degrading punishment. One also has to note that executions were rare in Mauritius. For example, between 1980 and 1995 only two death row inmates, who had both been convicted of murder, were executed: Louis Leopold Myrtille, executed on 23 November 1984; and Essan Nanyeck alias Alexandre, executed on 10 October 1987. Statistics from the Office of the Mauritius Commissioner of Prisons, June 2008 (on file with the author).

42 Act 31 of 1995.

43 De Boucherville v Commissioner of Prisons and Others, above at note 28 at 20.

44 State of Mauritius v Jeetun, above at note 16 at 140.

45 De Boucherville v The State of Mauritius, above at note 9 at para 5.

46 S v Makwanyane 1995 (6) BCLR 665 (CC).

47 Act 105 of 1997.

48 See JD Mujuzi “The changing face of life imprisonment in South Africa” (CSPRI research paper no 15, 2008) at 18–19.

49 See De Boucherville v The State of Mauritius, above at note 9 at para 18.

50 State of Mauritius v Jeetun, above at note 16 at 153.

51 De Boucherville v Commissioner of Prisons and Others, above at note 28 at 26. (Emphasis original)

52 State of Mauritius v Jeetun, above at note 16 at 153.

53 Ibid.

54 De Boucherville v The State of Mauritius, above at note 9.

55 Ibid.

56 Bill no XXVI of 1995.

57 De Boucherville v Commissioner of Prisons and Others, above at note 28 at 25.

58 Id at 25–26.

59 The revised bill was the Abolition of Death Penalty (no 2) (bill no XXXIV of 1995); see id at 26.

60 Id at 26.

61 Sec 222(1)(a) reads: “Penalty for murder and infanticide: Any person who is convicted of [m]urder or murder of a newly born child, shall be sentenced to penal servitude for 45 years”.

62 Sec 223(1) reads: “Penalty for manslaughter: Any person guilty of manslaughter preceding, accompanying or following another crime shall be liable to penal servitude for life”.

63 De Boucherville v Commissioner of Prisons and Others, above at note 28 at 25.

64 State of Mauritius v Jeetun, above at note 16 at 148.

65 Id at 151.

66 Philibert and 6 Others v The State (Supreme Court of Mauritius) record no 163, judgment of 19 October 2007 (unreported).

67 Sec 41(3) of the Dangerous Drugs Act provided that: “… any person convicted of an offence under section 30 [drug dealing offences] shall be sentenced to penal servitude for 45 years where it is averred and proved that, having regard to all the circumstances of the case the person was a drug trafficker”, as quoted in Philibert and 6 Others v The State, id at 4.

68 Philibert and 6 Others v The State, id at 4. The applicants argued that “… the mandatory sentence offend[ed] section 1 of the Constitution as it infring[ed] the doctrine of separation of powers, viz the separation of legislative, executive and judicial powers implicit in the declaration that ‘Mauritius shall be a sovereign democratic state’. It was submitted that in fixing the penalty, Parliament had unjustifiably assumed judicial powers, that this was an interference with judicial power which was outside the competence of the legislature and was inconsistent with the principle of separation of powers ordained in section 1 of the Constitution.” (Emphasis original)

69 Id at 8. (Emphasis original)

70 Id at 12.

71 Id at 15–16. (Emphasis original)

72 Mauritius National Human Rights Commission Annual Report for the Year 2007 (2008, Mauritius National Human Rights Commission) at paras 133–34.

73 De Boucherville v The State of Mauritius, above at note 9.

74 Ibid.

75 Ibid.

76 S v Tcoeib 1996 (1) SACR 390 and 399. However, one has to recall that prisoners sentenced to lengthy prison terms qualify for early release under secs 50–51A of the Reform Institutions Act 1988. The problem, as will be discussed below, is that some of these prisoners, in particular those sentenced under the Dangerous Drugs Act, do not qualify for remission or parole under the Reform Institutions Act. This means that they will have to serve the imposed prison term in full unless pardoned by the state president.

77 See secs 50–51A of the Reform Institutions Act 1988. The Privy Council rightly held that “[t]he provisions of the Reform Institutions Act 1988 relating to parole and remission both depend for their operation on the serving of a specified fraction of a determinate sentence, and so have no application where a prisoner is subject to a lifelong incarceration”; see De Boucherville v The State of Mauritius, above at note 9 at para 23.

78 Bull & Another v The State case 221/2000 [2001] ZASCA 105 (26 September 2001) at para 23.

79 See generally Kafkaris v Cyprus [2008] ECHR 21906/04 (12 February 2008).

80 Statutes of the International Criminal Tribunals for Rwanda and the Former Yugoslavia and the Rome Statute of the International Criminal Court make provision for the release of offenders sentenced to life imprisonment. See Mujuzi, JD “Why the supreme court of Uganda should reject the Constitutional Court's understanding of imprisonment for life?” (2008) 8 African Human Rights Law Journal 163 at 180–85Google Scholar. See also van Zyl Smit Taking Life Imprisonment Seriously, above at note 1 at 183–85.

81 Sec 7(1) of the constitution provides that: “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other such treatment”.

82 Art 5 of the African Charter on Human and Peoples' Rights and art 7 of the International Covenant on Civil and Political Rights prohibit cruel and inhuman punishment.

83 De Boucherville v The State of Mauritius, above at note 9 at para 23.

84 van Zyl Smit Taking Life Imprisonment Seriously, above at note 1 at 54–58.

85 See generally Mujuzi “Why the Supreme Court of Uganda”, above at note 80 at 163–86.

86 The African Commission on Human and Peoples' Rights observed that “[w]hen countries ratify or sign international instruments, they do so willingly and in total cognisance of their obligation to apply the provisions of these instruments”; see African Institute for Human Rights and Development (on behalf of Sierra Leonean Refugees in Guinea) v Republic of Guinea, comm no 249/2002 at para 68, Twentieth Annual Activity Report of the African Commission on Human and Peoples' Rights (2006, African Commission on Human and Peoples' Rights), annex IV.

87 De Boucherville v The State of Mauritius, above at note 9 at para 23.

88 Under sec 75(1) the president may: (a) Grant to any person convicted of any offence a pardon, either free or subject to lawful conditions; (b) grant any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence; (c) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or (d) remit the whole or part of any punishment imposed on any person for an offence or any penalty or forfeiture otherwise due to the state on account of any offence.

89 De Boucherville v The State of Mauritius, above at note 9 at para 23.

90 State of Mauritius v Jeetun, above at note 16 at 154.

91 Sec 51(1) establishes the Parole Board and empowers it to recommend to the minister responsible for reform institutions, amongst other things: the “release [under sec 51(2)] on parole [of] a convicted detainee who has served not less than one half of his sentence or at least 16 months thereof, whichever expires the later”. Under sec 50(1) “… a person sentenced to imprisonment for a period exceeding 31 days shall be eligible for discharge after having served two thirds of the period of sentence”.

92 De Boucherville v The State of Mauritius, above at note 9 at para 23.

93 Id.

94 BVerfGE 45 187 246, as cited in van Zyl Smit Taking Life Imprisonment Seriously, above at note 1 at 409.

95 Kafkaris v Cyprus, above at note 79 at para 6, joint dissenting judgment of judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens.

96 De Boucherville v The State of Mauritius, above at note 9 at para 23.

97 State of Mauritius v Jeetun, above at note 16 at 153–54.

98 See file no 07/85: Mauritius National Human Rights Commission Annual Report for the Year 2007, above at note 72, annex X, table E (“Complaints against prisons”), in which a prisoner, who was sentenced to death and had his sentenced commuted to penal servitude for life, petitioned the National Human Rights Commission to petition the president to pardon him; the National Human Rights Commission referred his case to the director of public prosecutions. In file no 07/195, the prisoner, who was serving a term of eight years' imprisonment and had been paralysed while in prison, contacted the National Human Rights Commission to take his case for his release to the president; the National Human Rights Commission advised the prisoner to write to the Commission on the Prerogative of Mercy. See also complaints on file nos: 07/18 (a prisoner sentenced to seven years' imprisonment for sexual offences asked the National Human Rights Commission to intervene and have his sentence reduced; he was referred to the Commission on the Prerogative of Mercy); 07/36 (a prisoner serving five years in prison for drug dealing argued that his counsel misled him when he advised him to plead guilty and that, therefore, the sentence should be set aside; the National Human Rights Commission advised him to address his complaint to the Commission on the Prerogative of Mercy); and 07/86 (prisoners argued that the sentence of penal servitude for life was wrong in law because they had been erroneously convicted and, therefore, asked the National Human Rights Commission to intervene and have the sentence set aside; the National Human Rights Commission advised them to refer the complaint to the Commission on the Prerogative of Mercy). See annex X table H: “Complaints against the judiciary”.

99 Id, file no 07/85.

100 See Criminal Law Amendment Act, act 105 of 1997.

101 De Boucherville v The State of Mauritius, above at note 9 at para 6.

102 S v Malgas 2001 (2) SA 122 (SCA) at para 25. (Emphasis original)

103 Direkteur van Openbare Vervolgings, Transvaal v Makwetsja 2004 (2) SACR 1(T) at 3. See also Brandt v S [2005] 2 All SA 1 (SCA).

104 S v Ferreira and Others 2004 (2) SACR 454 (SCA).

105 S v G 2004 (2) SACR 296 (W). See also S v M 2007 (2) SACR 60 (W); S v Ncheche 2005 (2) SACR 386 (W).

106 S v Malan en ‘n Ander 2004 (1) SACR 264 (T) at 267. See also S v Obisi 2005 (2) SACR 350 (W); S v Nkomo 2007 (2) SACR 198 (SCA); Rommoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA).

107 S v Riekert 2002 (1) SACR 566 (T).

108 S v Sikhipha 2006 (2) SACR 439 (SCA). See also S v Boer en Andere 2000 (2) SACR (NC).

109 S v Thebus and Another 2002 (2) SACR 566 (SCA).

110 However, in S v Vuma 2003 (1) SACR 597 (W), the appellant was sentenced to life imprisonment for murder even though it was proved to the court that the following favourable circumstances existed: he was employed; had a family to assist financially; attended church regularly; was not a violent person; and had no previous convictions.