The legality of judicial corporal punishment is an issue which has caused considerable disagreement amongst jurists, legislators and criminal justice personnel, for its use has serious moral, constitutional and penological implications. In Zimbabwe, two decisions handed down by the Supreme Court together with a later constitutional amendment Act have highlighted the divergence of views on this matter. It is thus the intention of this article to examine critically the issue from a constitutional and penological perspective.

In 1987 in S v. Ncube a full bench of the Supreme Court of Zimbabwe unanimously held that the sentence of whipping for adults contravened section 15(1) of the Declaration of Rights which is contained in the Constitution of Zimbabwe in that it constituted a punishment which in its very nature was both inhuman and degrading. In his seminal judgment, Gubbay, J. A., had regard to four factors, namely: (i) the current trend of thinking amongst distinguished jurists and leading academics; (ii) the abolition of whipping in many countries of the world as being repugnant to the consciences of civilized men; (iii) the progressive move of the courts in countries in which whipping is not susceptible to constitutional attack to restrict its imposition to instances where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in Zimbabwe, especially over the previous ten years and the declining number of laws on the statute book in which it remained a permissible penalty.