[16] Counsel for the applicant submitted further that the imprisonment sentence in terms of section 38(2)(a) is unconstitutional because it requires the courts to impose sentences which: are in themselves grossly disproportionate to the severity of the crimes for ‘(a) which they are meted out, and (b) are irrationally severe compared to the sentences for other equally and more serious offences, including offences created in terms of the same statute and that the imprisonment sentences have this effect in the roles they fulfil: section 38(2)(a) obliges the courts to impose grossly disproportionate sentences of imprisonment even when there are circumstances present which may justify a sentence other than imprisonment. The impact of this was render the prescribed sentence in breach of the prohibition of cruel, inhuman or degrading punishment in Article 8(2)(b) and the guarantee of equality in Article 10(1) of the Namibian Constitution.’ Cruel, inhuman or degrading punishment [17] The court was then referred to Article 8(2)(b) of the Namibian Constitution hich provides that: persons shall be subject to torture or to cruel, inhuman or degrading “No treatment or punishment.” and it was argued that this prohibition forms part of the provisions of Article 8 which are designed to protect the innate dignity of every human being. Article 8(1) provides that the dignity of all persons be and that Article 8(2)(a) “shall inviolable” goes on to say that, in any judicial proceedings or in other proceedings before any organ of the State and during the enforcement of a for human penalty, “respect dignity shall be in respect of which the Supreme Court had held in the guaranteed”, Corporal Punishment case, that derogation from the rights entrenched by art 8 is “no that the obligation under it absolute and and that permitted”, state’s “is unqualified” questions of justification can “no ever arise”.
[16] Counsel for the applicant submitted further that the imprisonment sentence in terms of section 38(2)(a) is unconstitutional because it requires the courts to impose sentences which: ‘(a) are in themselves grossly disproportionate to the severity of the crimes for which they are meted out, and (b) are irrationally severe compared to the sentences for other equally and more serious offences, including offences created in terms of the same statute and that the imprisonment sentences have this effect in the roles they fulfil: section 38(2)(a) obliges the courts to impose grossly disproportionate sentences of imprisonment even when there are circumstances present which may justify a sentence other than imprisonment. The impact of this was render the prescribed sentence in breach of the prohibition of cruel, inhuman or degrading punishment in Article 8(2)(b) and the guarantee of equality in Article 10(1) of the Namibian Constitution.’ Cruel, inhuman or degrading punishment [17] The court was then referred to Article 8(2)(b) of the Namibian Constitution hich provides that: “No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.” and it was argued that this prohibition forms part of the provisions of Article 8 which are designed to protect the innate dignity of every human being. Article 8(1) provides that the dignity of all persons “shall be inviolable” and that Article 8(2)(a) goes on to say that, in any judicial proceedings or in other proceedings before any organ of the State and during the enforcement of a penalty, “respect for human dignity shall be guaranteed”, in respect of which the Supreme Court had held in the Corporal Punishment case, that “no derogation from the rights entrenched by art 8 is permitted”, that the state’s obligation under it “is absolute and unqualified” and that “no questions of justification can ever arise”.
Henock%20v%20The%20Attorney%20General%20(A%20172-2011)%20[2014]%20NAHCMD%20366%20(27%20November%202014).docx