COURT WATCH 12/2012

[12th July 2012]

Case Against Torture

[continued from Court Watch 11/2012 of 30th June]

Court Watch 11/2012 outlined two recent criminal prosecutions of police officers for conduct amounting to torture – welcome evidence of action by the relevant authorities to end an established culture of impunity for State agents:

• the case in Bulawayo in which the prosecution of three policewomen had resulted in convictions for assault
• the trial of police Chief Superintendent Joseph Chani in Mutare – this case has now been concluded.

Senior Police Officer Gaoled for Murder and Assault

Chief Superintendent Chani’s trial ended on 5th July when the High Court convicted him of one count of murder with constructive intent and three counts of assault.  Referring to Chani as a “menace and a law unto himself” who had tarnished the image of the police force, and expressed no remorse for the “uncontrollable assaults” he had committed on his victims, the judge sentenced him to 18 years imprisonment on the murder charge, and 3 years on the assault counts, which were taken together for purposes of sentence.  The two sentences will run concurrently, resulting in an effective sentence of 18 years imprisonment.  [Note: Murder with “constructive intent” is when someone causes the death of another person “realising that there is a real risk or possibility that his or her conduct may cause death and continues to engage in that conduct despite the risk or possibility” – Criminal Law Code, section 47.] 

In discussing these two cases it was pointed out that although the Declaration of Rights in the Constitution enshrines the right not to be subjected to torture, the Criminal Law Code does not incorporate torture as a criminal offence, and prosecutions [including the two cited above] have to be for other offences.  This situation is not satisfactory, and there is a strong case for Zimbabwe to accede to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[CAT] which lays a duty on States parties to strengthen the content and implementation of their law and legal and administrative machinery to act against torture.  [Note: it is too late for Zimbabwe to sign and ratify the Convention so the process would be for Parliament to pass a motion approving accession to the Convention, an instrument of accession to be drawn up and signed by the President and then be lodged with the UN.]

Arguments Why  Zimbabwe Should Accede to CAT

1. Zimbabwe has already affirmed in principle its acceptance of the universal norm that torture and cruel, inhuman or degrading treatment or punishment are unacceptable

• Zimbabwe was in the UN General Assembly when CAT was adopted by consensus on 10th December 1984. [The final text was arrived at after extensive previous discussions within the UN system over a period of more than ten years.]  
• Zimbabwe is already party to the following human rights instruments which include prohibitions of torture:

• the Universal Declaration of Human Rights [UDHR] [article 5]
• the International Covenant on Civil and Political Rights [ICCPR] [article 7]
• the African Charter on Human and Peoples’ Rights [article 5] .

• Zimbabwe has affirmed in its own Constitution’s Declaration of Rights that its citizens are protected from torture and inhuman or degrading punishment.

2. Having agreed to the principle of outlawing torture, now it is time to move on to specifics.  CAT ensures the principle is translated into specific laws and other measures to prevent and punish torture. 
3. Zimbabwe is now out of step with the rest of Africa and the world.  Since CAT came into force in June 1987 after 20 countries had ratified it or acceded to it, the number of States Parties to CAT has risen to 150 out of 193 UN members.  In Africa, 44 of the 54 AU members, 12 of the 15 SADC members and all Zimbabwe’s neighbours are States Parties.

 Advantages of Signing CAT

1. To the legal/judicial system

• States Parties must take effective legislative, administrative, judicial and other measures to prevent acts of torture
• All acts of torture, as defined in the Convention, must be made criminal offences under the name “torture” and be punishable as grave offences, with acknowledgment of the fact that torture can never be justified.  [Note: South Africa as a States Party to CAT is preparing a Prevention and Combating of Torture Bill which provides for an criminal offence of torture]
• Statements extracted by torture must not be admissible in court proceedings

2. Prosecution of offenders ends culture of impunity

• States Parties must assume comprehensive jurisdiction, including extra-territorial jurisdiction, to prosecute offenders.  Where a state does not prosecute a perpetrator, it must co-operate with other states asserting jurisdiction, e.g., assist in investigation and extradite the perpetrator
• Inter-State co-operation and assistance is mandatory in prosecuting perpetrators

3. For victims of torture

• Police, prisons and other security agents involved in questioning and detaining suspects more accountable
• Victims of torture entitled to redress, compensation and rehabilitation
• States Parties prohibited from extraditing persons to states where they may face torture

4. Obligation for educating and training of all stage agencies

• States Parties must ensure that education and information regarding the prohibition of torture are included in training law enforcement personnel, civil or military, medical personnel and public officials among others
• Interrogation rules and methods and custody arrangements for prisoners and detainees kept under systematic review

5. Part of the international system

• Support from the CAT Committee to States Parties
• Regular reporting to the CAT Committee against Torture, promoting accountability
• A system of regular visits by CAT sub-committee to places of detention [Note: this is in the Optional Protocol to CAT]
• Support of national institutions performing similar functions at the national level
• Opportunity to serve on and gain experience from UN committees and sub-committees.

Minister of Justice’s Commitment on CAT

In 2011 Zimbabwe was the subject of Universal Periodic Review proceedings by the UN Human Rights Council in Geneva.  The Minister of Justice and Legal Affairs, Patrick Chinamasa, was responsible for presenting and defending Zimbabwe’s report on compliance with international human rights instruments.  In March this year, responding to the Council’s recommendations for action by Zimbabwe, the Minister told the Council that Zimbabwe will be acceding to CAT.

Optional Protocol and Opt-in Articles

If we now join the majority of UN, African and SADC countries by acceding to CAT, as promised by the Minster of Justice, we should at the same time accede to the Optional Protocol to CAT, which enables the UN Committee Against Torture to set up regular visits to places of detention; and also adopt the two Opt-in CAT articles: – Article 21, which would allows the Committee to receive communications from other states claiming that another State Party is not fulfilling its CAT obligations, and Article 22, which allows the Committee to receive communications from or on behalf of individuals who claim to be victims of a violation by a State Party of its CAT obligations. [CAT and Optional Protocol available on UN Office of the High Commissioner for Human Rights website at www2.ohchr.org/English/law/cat.htm and www2.ohchr.org/English/law/cat-one.htm – or from veritas@mango.zw]

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