Mandatory Minimum Sentencing Amounts to Cruel, Inhuman and Degrading Treatment

Daniel and Another v The Attorney General and Others (A 430/2009) [2011] NAHC 66 (10 March 2011) Summary

The Namibian High Court recently considered whether mandatory minimum sentences for stock theft under the Stock Theft Act violated the prohibition of cruel, inhuman or degrading punishment under the Namibian Constitution. The constitutionality of the Act was challenged by two men who were sentenced for a combined 50 years for the theft of one cow and nine goats.

In a unanimous decision, the Court held the minimum sentences were unconstitutional and the relevant sentencing provisions were ordered to be struck from the Act.


In 2004 severe prescribed prison sentences were introduced to Namibia's Stock Theft Act to attempt to counter the prevalence of stock theft in Namibia. The provisions the subject of the application were:

  • a provision that prescribed a minimum sentence of 20 years for a first offender for theft of stock to the value of more than N$500 (First Offender Offence); and
  • a provision that prescribed a minimum sentence of 30 years for a repeat offender (Repeat Offender Offence).

The first applicant, Daniel, was a first-time offender sentenced to the prescribed term of 20 years imprisonment in November 2007, after pleading guilty to stealing nine goats valued at N$4,450.

The second applicant, Peter, was a repeat offender convicted of stealing one cow valued at N$3,200, which had been shot during a poaching excursion at a farm. Peter was given the minimum sentence of 30 years imprisonment prescribed for repeat offenders.

The applicants challenged the constitutionality of the Act on the grounds the prescribed minimum sentences violated art 8 of the Namibian Constitution, which prohibits cruel, inhuman or degrading punishment.

The applicants sued the Attorney General, the Government and the Prosecutor General in their bid to have the sentences declared unconstitutional.

The Attorney General conceded both prescribed sentences violated the Constitution's prohibition of cruel, inhuman or degrading punishment. However, the Prosecutor General maintained the Repeat Offender Offence challenged by Peter was constitutional.


The applicants submitted the sentences were unconstitutional because the gravity of the offences was disproportionate to the length of the sentence and the only reason for the severity of the sentence was to deter. Persons convicted of the relevant offences were therefore “used as instrument of deterrence in violation of their right to human dignity” under art 8. The applicants set out a number of hypothetical cases where the sentences would be grossly disproportionate to the crime.

The Prosecutor General contended sentences prescribed to protect law-abiding citizens were a legitimate government objective and in any event the Act provided that a court could reduce a sentence if there were “substantial and compelling” reasons to do so.

However, the court found that even where “substantial and compelling” reasons existed, this did not make the court free to impose any sentence it considered appropriate; it still had to have regard to the benchmark set by the legislation. The more disproportionate the benchmark, the more difficult it was for the courts to have regard to that benchmark.

The court stated the validity of the provisions was not limited to the cases of Peters and Daniel, but were under attack on the basis of the hypothetical cases which were likely to arise frequently. All those hypotheticals showed the sentences would be “grossly disproportionate to the severity of the crimes for which they would be meted out … and would be irrationally severe if compared to the sentences for other equally and more serious offences” (such as rape and murder, whose prescribed sentences were less than those imposed for stock theft).

The court recognised the concept of proportionality “goes to the heart of whether punishment is cruel, inhuman or degrading” and that “deterrence as a law enforcement objective is constrained by the principle that individuals may not be used … as examples to others if the deterrence is set at levels beyond what is fair and just to those individuals”. To do so would be a breach of fundamental human dignity. The court noted deterrence was the “cardinal feature” of the sentencing regime and stated

human dignity and the de-individuation of any sentence to such a degree that it loses the proportionality between the offence and the period of imprisonment can … not be sacrificed on the altar of deterrence.

The court ruled in favour of the applicants, holding the sentences were “shocking” and “disproportionate” and thus unconstitutional. The court stated “the conclusion is inescapable that the minimum sentencing regime created by section 14 of the Stock Theft Act has simply set the levels of deterrence beyond what is fair and just to those caught up in it”.

The court made a declaratory order that the minimum sentence provisions for both the First Offender Offence and the Repeat Offender Offence be struck from the Act.

Relevance to the Victorian Charter

Daniel turns on its own particular facts and Namibian legislation.  Nevertheless, the decision may have implications for Victoria in the event extreme minimum sentences were introduced in the state, given both Article 8 of the Namibian Constitution and section 10 of the Victorian Charter afford protection from cruel, inhuman or degrading treatment.

Daniel indicates that, under human rights jurisprudence, a person may not be subjected to mandatory minimum sentences if that sentence is grossly disproportionate to the severity of the crime committed, particularly if the sentence imposed is primarily intended to serve as a deterrent to others.  Instead, sentences must be proportionate to the crime committed in all the circumstances.  Daniel suggests that detaining a person under such sentences may constitute a breach of human rights.

Zara Durnan is on secondment to the Human Rights Law Centre from Lander & Rogers