BILL WATCH 41/2021
[20th June 2021]
Model Bill Against Torture
The 26th June is the International Day in Support of Torture Victims
This would be a good time for Parliament to fulfil its constitutional duty to ensure that the Constitution is fully implemented by resolving that the Government should introduce a Bill against torture. All of us who share a common humanity must be concerned that torture should be eradicated, in Zimbabwe and throughout the world.
Attached is a Model Bill for consideration by the Government, Parliament and citizens. If anyone has comments to make that would improve the Bill, please send them to email@example.com
Existing Legislation Inadequate
In Chapter 4, the Constitution of Zimbabwe provides that no person may be subjected to physical or psychological torture [section 53], that the right not to be tortured may not be limited by any law and that no person may violate the right [section 86(3)]. This makes the right an “absolute” or “non-derogable” right, the violation of which is never justifiable under any circumstances.
It is sometimes suggested that these constitutional provisions and our criminal law render it unnecessary to take further steps to punish and combat torture. Past experience and our history give the lie to that suggestion – Zimbabweans cannot claim that torture does not occur here, and indeed it occurs to some extent throughout the world.
The Constitution itself recognises that general statements are not enough – which is why section 11 lays down that “the State must take all practical measures to protect the fundamental rights and freedoms enshrined in Chapter 4 and to promote their full realisation and fulfilment”.
Under the Criminal Law Code physical torture can be prosecuted as assault or, in serious cases, attempted murder. Other forms of torture, such as starving prisoners or detaining them under intolerable conditions, can be prosecuted as criminal abuse of duty on the part of the perpetrator [a crime for which the maximum sentence is 15 years’ imprisonment].
But to create a single clear crime of torture will indicate that the government is determined to eradicate it in all its manifestations.
The Need for a Comprehensive Act
A comprehensive Act penalising torture is needed to do the following:
- To flesh out and give “teeth” to our Constitution, which in section 53 prohibits physical and psychological torture and cruel, inhuman or degrading treatment or punishment.
- To show that Zimbabwe accepts and takes seriously the universal norm that torture in all its forms is unacceptable.
- To give weight to the international conventions that Zimbabwe is a party to, which prohibit torture and cruel, inhuman or degrading treatment or punishment, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.
- To make all acts of torture a single criminal offence under the name “torture”, punishable as a grave offence, with acknowledgment of the fact that torture can never be justified.
- To provide legal mechanisms for detecting it and providing redress for victims. This will not only help to eradicate torture but will also assist the Zimbabwe Human Rights Commission carry out its function of protecting the public against abuse of power by public officers [section 243(1)(e) of the Constitution].
- To lay down clear rules and instructions for the interrogation, treatment and custody of arrested persons and prisoners. This will give law enforcement officers authoritative guidelines to show them what is acceptable and what is not.
- To support victims and ensure respect for their right to rehabilitation and redress.
What Should a Law Against Torture Contain?
An Act prohibiting torture should do the following:
- Define torture broadly to cover severe physical or mental pain or suffering inflicted by a public official, or inflicted with the consent or acquiescence of a public official, in order to obtain information from the person on whom it is inflicted or to punish, intimidate or coerce the person, or for a similar purpose. This is how it is defined in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT].
- Criminalise torture as a standalone offence, providing appropriately serious punishments for it. Obedience to superior orders cannot be allowed as a defence.
- Ensure that the State’s courts have jurisdiction to try crimes involving torture which are committed outside the country, if:
- the perpetrator or the victim is a national of the State, or
- the perpetrator is found in the State and is not being extradited to the country where the crime took place.
- Provide for the arrest of suspected torturers and ensuring that they are brought to justice, either in the State where they have been arrested or in another State which has jurisdiction over them.
- Make crimes involving torture extraditable, i.e. ensuring that suspected perpetrators can be sent for trial in the countries where the crimes were committed.
- Prohibit the extradition of persons to any country if there are reasonable grounds to believe they may be tortured there.
- Provide for assistance to other States in the prosecution of perpetrators, for example by supplying evidence.
- Ensure that military personnel, police officers and all other law enforcement agents are trained to be aware that all forms of torture, or cruel, inhuman or degrading treatment or punishment, are prohibited.
- Require rules and regulations for the treatment and custody of arrested persons and prisoners to prevent all forms of torture and cruel, inhuman or degrading treatments or punishments.
- Enable victims of torture, or of any cruel, inhuman or degrading treatment or punishment, to lodge complaints and ensure that their complaints are properly and promptly investigated by the appropriate authorities.
- Enable victims of torture, or their dependants if they have died, to obtain redress including compensation and rehabilitation.
- Prohibit the use in court proceedings of statements extracted by torture.
This is what the UN Secretary General had to say about torture. Although he said it two years ago it is just as pertinent today:
“The prohibition of torture is absolute — under all circumstances. Yet this core principle is undermined every day in detention centres, prisons, police stations, psychiatric institutions and elsewhere …
Torture is a vicious attempt at breaking a person’s will. On this International Day in Support of Victims of Torture, I urge all States to end impunity for perpetrators and eradicate these reprehensible acts that defy our common humanity.”