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November 5, 2008

South African court declares juve mandatory sentences unconstitutional

A notable ruling yesterday from an intermediate appellate court in South Africa ought to interest not only comparative sentencing scholars, but also anyone interested in debates over whether international law ought to influence Eight Amendment interpretations in the United States.  This news article, headlined "Minimum sentences for child offenders unconstitutional," provides the details:

The Pretoria High Court today handed down a judgment declaring certain aspects of the minimum sentences legislation to be unconstitutional. The law currently provides that young offenders who are 16 or 17 years of age must be sentenced according to the minimum sentences law when they are convicted of very serious crimes. These sentences include life imprisonment or very long sentences such as 20 years in prison. The sentences are a required starting point, and the courts may only depart from them if the offender shows that there are substantial and compelling reasons to do so.

The application to have minimum sentences declared unconstitutional - insofar as they affect children - was brought by the Centre for Child Law at the University of Pretoria. In her judgment, Acting Judge Potterill declared the offending sections to be unconstitutional because they go against an important constitutional rule. The rule is that when it comes to child offenders, imprisonment must be a measure of last resort and for the shortest period of time....

The Minister of Justice had argued in this case that the effect of the minimum sentencing law was not unconstitutional for 16 and 17 year olds, and that whether a court starts with a clean slate or - at the other end of the spectrum - with a minimum sentence was merely academic. The court roundly rejected this view, and said that the law must adhere to the principles in the Constitution.

Ronaldah Ngidi, an attorney at the Centre for Child Law, said the Centre was very pleased with the outcome, but that it was just a first step. "The declarations of constitutional invalidity have been referred to the Constitutional Court, and until such time as that court confirms the orders, the orders are of no effect. In the meanwhile, 16 and 17 year old are being sentenced in terms of the existing legislation. We therefore aim to ensure that the matter proceeds with haste."

November 5, 2008 at 12:00 PM | Permalink


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