BILL WATCH 42/2021
[26th June 2021]
Call to Parliamentarians to Pass a Resolution
for Zimbabwe to Adopt the UN Convention against Torture
Today, the 26th June is the International Day in Support of Torture Victims
It is difficult to understand why the Government has not acceded to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT]. The Government has much to gain from accession: it would show itself to be an integral member of the international community and ready to co-operate with other governments in upholding universally-accepted human rights. It would also demonstrate the Government’s willingness to implement the new Constitution and to abide by the commitments it has given to the UN Human Rights Council and its own citizens. This is why we are calling on this Parliament to pass a resolution that the Government should adopt CAT [link] and its Optional Protocol [OPCAT] [link].
Zimbabwe Out of Step with SADC, Africa and the Rest of the World
- Of the sixteen SADC countries:
Fourteen have adopted CAT - Only Zimbabwe and Tanzania have neither acceded nor signed and ratified.
- Of the fifty-five African countries
Fifty-three have adopted CAT - Again it is only Tanzania and Zimbabwe that have not.
- Of the 193 United Nations member states
- 171 states have adopted CAT
Zimbabwe has Said it Would Sign
In May 2001 Parliament passed a motion that Zimbabwe should accede to CAT.
In Zimbabwe’s Universal Periodic Review report, presented to the UN Human Rights Council in October 2011, it was stated that ratification of CAT was under active consideration.
In March 2012, responding to recommendations by the UN Human Rights Council in Geneva, the Minister of Justice told the Council that Zimbabwe would accede to the Convention.
During the visit of the UN High Commissioner for Human Rights to Zimbabwe in May 2012, the Minister of Justice gave her a public assurance that the matter was in hand.
BUT, Zimbabwe still hasn’t adopted CAT. Why the continued delay? With the New Dispensation we thought that this would have been followed through. Doing so would certainly help towards our re-engagement with the international community.
What is the Convention Against Torture [CAT]?
CAT is a United Nations convention which requires States to take effective measures to prevent torture within their territories and prohibits them from transporting or extraditing people to any country where there is reason to believe they will be tortured. The text of CAT was adopted by consensus in the General Assembly of the UN on 10th December 1984. The Zimbabwean delegation was present, so presumably concurred in its adoption. [There seems to be some evidence that papers were prepared for Zimbabwe to adopt CAT in 1995 but this was not followed through.]
CAT came into operation on 26th June 1987, when it was ratified by the 20th member State. Since then, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become accepted as a principle of customary international law [accepted by the international community as an absolute and non-derogable right]. “Absolute” and “non-derogable” signify that:
- No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- An order from a superior officer or a public authority may not be invoked as a justification of torture.
The Optional Protocol to CAT [OPCAT]
OPCAT adds another, more pro-active layer to the international framework against torture by emphasising prevention of torture by inspection of prisons and other places of detention as opposed to just reacting to torture by prosecuting and punishing its perpetrators.
What Do CAT and OPCAT Do?
The purpose of CAT and OPCAT is to help combat torture and other forms of cruel, inhuman or degrading treatment throughout the world. Torture is defined very 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.
CAT obliges States that are parties to the Convention to do far more than merely having a brief general prohibition of torture in their Constitution. It obliges States take all legislative, administrative, judicial and other measures to prevent acts of torture or cruel, inhuman or degrading treatment or punishment within their territories. These measures include:
- Criminalising torture as a standalone offence and providing appropriately serious punishments for it. Obedience to superior orders cannot be allowed as a defence.
- Ensuring 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.
- Arresting 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.
- Making crimes involving torture extraditable, i.e. ensuring that suspected perpetrators can be sent for trial in the countries where the crimes were committed.
- Refusing to extradite persons to any country if there are reasonable grounds to believe they may be tortured there.
- Assisting other States in the prosecution of perpetrators, for example by supplying evidence.
- Ensuring 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.
- Reviewing rules and regulations for the treatment and custody of arrested persons and prisoners, to ensure they prevent all forms of torture and cruel, inhuman or degrading treatments or punishments.
- Ensuring that victims of torture, or of any cruel, inhuman or degrading treatment or punishment, are able to lodge complaints and that their complaints are properly and promptly investigated by the appropriate authorities.
- Ensuring that victims of torture, or their dependants if they have died, obtain redress including compensation and rehabilitation.
- Prohibiting the use in court proceedings of statements extracted by torture.
States that are parties to CAT have to report every four years to the UN Committee Against Torture on the measures they have taken to implement the Convention. The committee is empowered to conduct confidential investigations into allegations that any member State systematically practises torture, and the committee may summarise the results of its investigations in its annual report. Member States may also allow the committee to receive and investigate allegations from individuals and other States that they are violating CAT.
OPCAT strengthens CAT by providing for inspections of all place of detentions where torture could take place.
Why Zimbabwe Should Accede to CAT and OPCAT
- By enacting the current Constitution, which in section 53 prohibits physical and psychological torture and cruel, inhuman or degrading treatment or punishment, Zimbabwe has shown that it accepts the universal norm that torture in all its forms is unacceptable.
- Zimbabwe is already a party to international conventions that 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.
- As an AU member, adopting CAT would also signal to Africa and SADC that Zimbabwe holds itself bound by the African Charter and also the African Commission of Human and People Rights and Robben Island Guidelines [against torture].
- On many occasions our courts have expressed revulsion for torture and have refused to rely on confessions elicited by torture, however true the confessions may be.
The 26th June is the International Day in Support of Torture Victims. There would be no better way to commemorate this day than for Parliament to call on the Government to adopt the UN Convention Against Torture and its Optional Protocol.