Page:S v Williams and Others.djvu/16

Rh dissection and the like, or involving mutilation or a lingering death, or the infliction of acute pain and suffering, either physical or mental, is inherently inhuman and degrading.' Under the Botswana Constitution such punishment which is inherently inhuman and degrading is prohibited … notwithstanding the fact that public sentiments favour it. Secondly, a punishment which is not inherently inhuman or degrading may become so by the very nature or mode of execution, and also notwithstanding the fact that popular demand may favour it."

Great play was made by the State of differences between adult and juvenile whipping. The point of the argument was that while it may be difficult to justify the whipping of adults in constitutional terms, juvenile whipping was no more reprehensible than other forms of punishment, since an element of humiliation and degradation is to be found in most. I did not understand the State to be seriously contending that any punishment which involves an element of humiliation or degradation constituted a breach of section 11(2) of the Constitution. The argument was rather that judicial whipping was not an infringement of any of the rights of the juvenile.

In Tyrer v United Kingdom the European Court put its finger on the basis for the distinction between punishment per se and punishment which was prohibited in terms of article 3 of the European Convention: the humiliation or debasement involved must attain a particular level and must be other than the usual, and perhaps inevitable, element of humiliation associated with punishment in general. In Furman v Georgia Brennan J made it quite clear what he found to be particularly objectionable in this species of punishment:

"… since the discontinuance of flogging as a constitutionally permissible punishment, Jackson v Bishop 404 F2d 571 (CA8) 1968, death remains as the only punishment that may involve the conscious infliction of physical pain."

The fact that there may be other punishments which violate fundamental rights cannot, in