2023 ACADEMIC YEAR

Student Name Blessed Koromora

Course/Module Name Course/Module

Assignment no
(e.g. 1, 2 or 3, etc.).
1
Table of Contents

1. Introduction…………………………………………………………………………3

2. Case Summary………………………………………………………………………3

3. Discussion in relevant penalty and sentencing theories in criminal law……………3

4. Discussions of the concept of humaneness as understood through the constitutional

5. Conclusion ………………………………………………………………………….5
I INTRODUCTION
The following is a detailed essay comprising of a Supreme Court case in Namibia where the
court outlawed the use of corporal punishment by judicial and quasi-judicial organs of state, a
discussion in relevant penalty and sentencing theories in criminal law and a discussion of the
concept of humaneness as understood through the constitutional and Afrocentric frameworks.
II CASE SUMMARY
The case of Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA
14 of 1990) [1991] NASC 2 (05 April 1991) involved a constitutional challenge to the use of
corporal punishment by state organs, such as the police and prison officials on individuals who
were in their custody. The issue at heart of the case was whether the use of corporal punishment
by state organs was unconstitutional and violated the fundamental rights and freedoms
guaranteed by the constitution of South Africa. The court in its judgment, concluded that the
use of corporal punishment by state organs was unconstitutional and violated the rights to
dignity, freedom from torture or cruel, inhuman, degrading treatment and equality before the
law1. The court argued that the use of corporal punishment violated the inherent dignity and
worth of individuals was therefore inhumane2. The court also relied on international human
rights law, specifically the Universal Declaration of Human Rights, which prohibits torture and
cruel, inhuman, or degrading treatment3. The court noted that the use of corporal punishment
by state organs was a form of torture and violated the rights guaranteed by the declaration4.
III DISCUSSION IN RELEVANT PENALTY AND SENTENCING THEORIES IN
CRIMINAL LAW.
In criminal law the purpose of punishment is to deter crime, rehabilitate offenders, and protect
society. There are various theories which include restorative justice, rehabilitation and
retributive justice such theories are used to advance concepts such as humaneness, international
human rights law and rule of law. Retributive justice is a theory of punishment that emphasizes
the idea of “just desserts”5. Under this theory offenders are punished in proportion to the harm
they caused. The punishment is seen as a way of balancing the scales of justice and ensuring
that offenders receive the punishment they deserve. On the other hand, restorative justice is a
theory of punishment that emphasizes the importance of repairing the harm caused by the

1
The case of Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991]
NASC 2 (05 April 1991)
2
ibid
3
ibid
4
ibid
5
CR Snyman, Criminal Law, Theories of Punishment (6th ed, LexisNexis, 2014) 11.
offender6. Under this theory, the focus is on the victim and the community rather than the
offender. The goal is to bring the victim and the offender together to discuss the harm caused
and find ways to repair it. The Criminal Procedure Act 51 of 1977 (CPA) provides for the use
of restorative justice in certain criminal cases, such as minor offenses and offenses committed
by juveniles7. Restorative justice in Namibia may involve compensation, reconciliation and
community service.8 Rehabilitation is another theory of punishment that emphasizes the
importance of helping the offenders to change their behaviour and become productive members
of society9. Under this theory punishment is seen as a way of helping offenders to learn from
their mistakes and become better people. Namibian law recognizes the importance of
rehabilitating offenders to prevent recidivism. The Namibian Prisons Act 17 of 1998(NPA)
provides for the provision of educational, vocational and therapeutic programs to offenders to
help them reintegrate into society10. The Act also provides or the establishment of halfway
houses and other community-based facilities to assist offenders in their rehabilitation. On the
other hand, deterrence theory is a principle of criminal law that posits that the threat of
punishment can deter people from committing crimes from the beginning, this can involve
imposing a lengthy prison sentence, fines, or other penalties11. Namibia has laws that are
specifically designed to deter certain types of criminal behaviour such as the firearms control
act of 2000 which imposes strict penalties for the possession of illegal firearms and the
Namibian police force also uses deterrence theory as a tool for crime prevention.
IV DISCUSSION OF THE CONCEPT OF HUMANENESS AS UNDERSTOOD
THROUGH THE CONSTITUTIONAL AND AFROCENTRIC FRAMEWORKS.
In the case of Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA
14 of 1990) [1991] NASC 2 (05 April 1991), the concept of humaneness was central to the
court’s decision12. The concept of humaneness is also central to both constitutional and
Afrocentric jurisprudence. Constitutional jurisprudence involves the analysing the provisions
of a constitution, the historical context in which it was written and the principles that underline
it. 13It is mainly concerned with the interpretation and application of the constitution in real-
world situations on the other hand Afrocentric jurisprudence is a legal theory that emphasizes
the importance of African cultural values and traditions in the development of legal systems. It
is in disfavor of inherently biased western legal systems that are against African people and is
in favor of the incorporation of African cultural values into the legal practice. The idea of
humaneness is that the law should be based on a recognition of the inherent dignity and worth
of every human being. In applying constitutional and Afrocentric jurisprudential
conceptualization of humaneness, a judge could agree that the law must be interpreted and

6
CR Snyman, Criminal Law, Theories of Punishment (6th ed, LexisNexis, 2014) 13.
7
The Criminal Procedure Act 51 of 1977 (CPA).
8
The Criminal Procedure Act 51 of 1977 (CPA).
9
CR Snyman Criminal Law 6 ed Theories of Punishment (LexisNexis, south Africa 2014) 11-12.
10
Namibian Prisons Act 17 of1998 (NPA).
11
CR Snyman, Criminal Law (6th ed, LexisNexis, 2014) 14.
12
Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991] NASC 2 (05
April 1991)
13
J.A. Hinz, “The Protection of Human Rights in the Namibian Criminal Justice System: A Critical Analysis”
(2018).
applied in a way that respects the inherent dignity and worth of all individuals regardless of
their race, ethnicity or other characteristics.in use of this approach the judge would take into
account the historical context of the case and the social and cultural factors that may have
contributed to the violation of human rights. In cases involving police brutality an Afrocentric
jurisprudential approach would require the judge to consider the impact if systemic racism and
implicit bias in the actions of law enforcement accountable for their actions.
V CONCLUSION
In conclusion constitutional and Afrocentric jurisprudential conceptualizations of humaneness
emphasize the importance of recognizing the inherent dignity and worth of all individuals in
the law. By applying these concepts in cases involving human rights violations, a judge can
advance arguments and findings that promote justice for all.