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Letter to Minister of Home Affairs on World Day Against Torture
Zimbabwe Lawyers for Human Rights (ZLHR)
June 26, 2003

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Minister of Home Affairs
11th Floor Mukwati Building
P Bag 505D
HARARE

Dear Sir,

Re: Commemoration of the World Day Against Torture: 26 June 2003

Torture is defined in the United Nations Convention Against Torture as;

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

Unfortunately, Zimbabwe has a pre and post-independence history that is tainted by unacceptably high levels of torture, cruelty, inhuman and degrading treatment. The practice has been more pronounced in politically related cases, or in situations where there is popular expression by Zimbabweans on matters affecting them, which is perceived as anti-state sentiments. In the pre-independence era, Zimbabweans went through harrowing experiences of torture, cruelty, inhuman and degrading treatment. Testimony to this is the extensive torture that most of the nationalist leaders (including a number of the present leaders in Government such as President R.G.Mugabe) were subjected to by the Smith Regime. It is not necessary to repeat the incidences of pre-independence torture here since they are well documented.

In the post independence period, incidences of torture appear to have increased. For examples of incidences of torture in the 1980s, we can do no better than refer to the events of September 1985 where as part of state torture five (5) members of Parliament, the late Sydney Malunga (then MP Mpopoma), the late Stephen Nkomo (National Hero), Welshman Mabhena (then MP for KEZI), Edward Ndhlovu (then MP for Gwanda) and Kembo Mohadi (yourself, then MP for Beitbridge and currently the Minister of Home Affairs), were arbitrarily arrested, detained and tortured. In particularly 3 Central Intelligence Organisation (CIO) agents, whose names you are reported to have supplied, reportedly arrested you, Honourable Minister, at your home at 4a.m on 17 September 1985. You were reportedly detained at Beitbridge Central Police Station and later at Stomps Camp, where you were allegedly subjected to torture including the so-called water-bag treatment on 3 occasions for a number of hours. You, Honourable Minister, were only released from this harrowing environment on 20 December 1985 and are therefore in a good position to understand how evil and unworthy torture, cruelty, inhuman and degrading treatment is. Many other citizens including current leaders can also testify to the evils of this practice.

Honourable Minister your Ministry is primarily responsible for taking steps to eradicate the practice of torture. As minister responsible for the police, you have a duty to ensure that the police deal decisively with torture. Sadly the incidence of reported torture has increased in the last few years. Credible reports of police involvement in torture have been received. Lately the police have relied at an unprecedented scale on the army and the CIO, for policing activities, which has seen a corresponding increase in reports of torture. One of the most disturbing features about policing recently, has been the significant increase in the use of and reliance on militias and other non-legislated forces and organised groups by the Police force. The youth brigades and some self-proclaimed war veterans immediately come to mind. These organs of torture, which act with impunity, are meant to obscure the Government’s responsibility for human rights violations.

Recent high profile cases of torture include that of Gabriel Shumba (a human rights lawyer now living in exile) and the Honourable MP Job Sikhala whose torture was acknowledged by the state in Court proceedings. A number of other opposition MPs have been subjected to torture, inhuman and degrading treatment. Some, such as the MP for the rural constituency of Chimanimani, have had notorious state agents and an extremely partisan police force deployed in their constituencies, resulting in credible reports of widespread torture being received by human rights organisation from those areas. Lawyers and ordinary citizens have reported cases where police refuse to take reports of alleged torture or even record them in Reports Received Books in violation of their responsibilities under the police Charter, the Constitution of Zimbabwe and several international and regional human rights treaties and conventions. This has inevitably fuelled impunity, which has in turn, increased the levels of lawlessness and other human rights violations.

We have monitored reports of state torture through the press, as well as reports from victims and/or their legal representatives and attach hereto a schedule for your information. We urge you to cause a thorough investigation into the reports with a view to bringing the culprits to justice. You will agree with us, Honourable Minister, that the information on this schedule is a serious indictment of your office and of the Commissioner of Police and that you have a responsibility to dissociate yourself and your Ministry from the allegations raised. This is especially so given the fact that a number of policemen have been, and continue to be, given international duties when they do not show any serious commitment to dealing with the rising incidents of torture at home, let alone dissociate themselves from such practice. This is especially so, in view of the serious consequences that are attendant to being associated with torture, which is a crime against humanity and therefore an international crime. Allegations have been made, of certain police officers being promoted for their part in wide scale torture and heavy handedness, while others have been demoted or discharged for being fair and impartial. We would urge you to seriously investigate these allegations. The common methods of torture reported include stripping victims naked, beating and kicking victims, hand cuffing and leg ironing victims, water treatment, electric shocks, beating under the feet, in communicado detention, deprivation of food, medication and/or blankets, blind folding and use of bright lights. Often these methods of torture are used in combination to achieve maximum results.

One issue of grave concern to us, is the report done and submitted by the UN Special Rapporteur on the question of torture, Theo van Boven to the UN Human Rights Commission on 27 February 2003, where several cases of torture are highlighted which were allegedly brought to the attention of the Government but, in respect of which sadly, the representative observes "with concern that no response has been provided to a number of cases brought to the attention of the Government since 1998."

We now draw your attention to the legal and human rights jurisprudence relevant to the question of torture, inhuman and degrading treatment.

The Constitution of Zimbabwe in Section 15 (1) provides that;

"No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment’"

The African Charter on Human and Peoples Rights which Zimbabwe has signed and ratified provides in Article 5 that;

The Universal Declaration of Human Rights provides in Article 5 that;

"No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment"

The International Covenant on Civil and Political Rights to which the Government of Zimbabwe is a signatory and which was ratified provides in Article 7 that;

"No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. In particular no one shall be subjected without his free consent to medical or scientific experimentation."

The United Nations Code of Conduct for Law Enforcement Officials adopted by General Assembly resolution 34/169 of 17 December 1979 provides in Article 5 that;

The Courts of Zimbabwe have recently expressed concern at the rising incidences of torture in Zimbabwe. For example, Justice Moses Chinhengo had this to say at the official opening of the High Court in Masvingo in February 2003: "The police must act with fairness to the accused and in particular must not brutalise an accused person. The force must in general investigate in order to arrest, and not arrest in order to investigate". High Court judge, Justice Yunus Omerjee, opening the 2003 legal year in Mutare on 26 February echoed these sentiments when he urged police to treat accused persons fairly and in accordance with the law presuming a person’s innocence until s/he is proven guilty. He also called on police to be fair and thorough in their investigations prior to arresting and detaining individuals. Expressing strong sentiments he said, "We are living in a society where law enforcement agents no longer provide civilians with a sense of security but have become zones of torture and other forms of inhuman treatment". At a workshop jointly arranged by The African Commission and the Association of The Prevention of Torture held at Robben Island, South Africa in February 2002, Mr Andrew Chigovera, the then Attorney General and a commissioner in the African Commission had this to say about torture: " It should be stated here that despite the prohibition of ‘torture, cruel and inhuman or degrading treatment’ under Article 5, and the States Parties’ undertaking to prevent it, the Commission continues to receive numerous complaints of torture, cruel and inhuman or degrading treatment from many African countries."

We also draw your attention to the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, which are commonly referred to as the Robben Island Guidelines. The African Commission on Human and People’s Rights adopted these in October 2002 at its 32 session in Banjul, The Gambia. Among other things, these guidelines provide that States should:

• ensure they are party to international regional human rights instruments against torture. (In this vein, we note with concern, that the Government of Zimbabwe has not yet ratified the Convention Against Torture.)
• criminalise torture.
• ensure that circumstances such as internal political instability shall not be evoked in justification of torture, cruel, inhuman or degrading treatment or punishment.
• ensure that notions such as "necessity", "national emergency", and "public order", shall not be invoked as a justification of torture, cruel, inhuman or degrading treatment of punishment.
• ensure that no one shall be punished for disobeying an order that they commit acts amounting to torture, cruel, inhuman or degrading treatment or punishment.
• combat torture by ensuring that those responsible for act of torture or ill treatment are subject to legal process and that there is no immunity from prosecution for nationals suspected of torture, and that the scope of immunities for foreign nationals who are entitled to such immunities be as restrictive as is possible under international law.
• ensure that investigations into all allegations of torture or ill-treatment shall be conducted promptly, impartially and effectively, guided by the UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol).
• prohibit and prevent the use, production and trade of equipment or substances designed to inflict torture or ill treatment.
• ensure that superior orders shall never provide justification or lawful excuse for acts of torture, cruel, inhuman or degrading treatment or punishment.
• ensure that detained persons are allowed access to a relative, a lawyer, and a right to an independent medical examination. Detailed persons should not be held in communicado and must be promptly informed of any charges against them and the reasons for their detention.
• ensure that criminal investigations are conducted by those subject to the relevant codes of criminal procedure. In Zimbabwe this would be the Zimbabwe Republic Police.

We also take this opportunity to remind you Honourable Mister, that torture, cruelty, inhuman and degrading treatment is seen as a serious offence and human rights violation in international law and might open up violators to international prosecution. The use of torture by state officials or sanctioned by the state is an international crime with civil and criminal liability anywhere and any time, not just for the perpetrators but also for all those who will have covered up, or facilitated the torture. In such circumstances failure to take active steps to end torture by those with the duty to do so, might result in individuals facing a lifetime international liability.

We therefore recommend that;

1. The Government of Zimbabwe immediately takes steps to sign and ratify the Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment, and the Protocol for the Establishment of the African Court of Justice.
2. The Government of Zimbabwe take immediate steps and measures to adopt into to domestic law the Robben Island Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa.
3. Torture should be designated and defined as a specific crime of utmost gravity in our local legislation and meanwhile urgent steps should be taken to allow all state agents involved to be personally identified and dealt with.
4. The highest authorities in Zimbabwe publicly condemn torture in all its forms and in particular should publicise the fact that those in command of arresting officers or in charge of places of detention at the time torture is committed will be held personally responsible for the abuses.
5. The Government abolish and criminalise any actions by unidentifiable policemen and use of secret places of detention or interrogation, as well as in communicado detention.
6. The Government promptly, efficiently, impartially and thoroughly investigate all reported cases of torture with a view of bringing the perpetrators to justice, adequately compensating the victims and further making any findings on torture public.
7. The Government immediately disband the youth brigades and militias and make sure that they do not get anywhere near or interfere with the police, in their policing responsibilities.
8. The Government take all necessary measures to ensure protection of lawyers, public prosecutors, magistrates and judges and to respect the independence of the Judiciary so as to effectively fight against impunity;
9. The Government give full effect to the right and responsibility of individuals, groups and organs of Society to promote and protect universally recognised human rights and fundamental freedoms and to take all necessary measures to ensure the protection of human rights defenders;

As the practice of torture in Zimbabwe inevitably involves or is an issue of interest to many organs of the state such as the police, the CIO, the Judiciary and the Parliament, we have therefore copied this letter to them so that they can also take it upon themselves to take immediate steps to stop torture and eradicate it from our country. This letter has been written to highlight to you and other state organs, concerns that have generally been raised with us and other human rights organisations, as well as at the same time to try and build a collective spirit by all concerned to fight the evil practice of torture, cruelty, inhuman and degrading treatment and or punishment that has traumatised this nation.

We would be grateful to hear from you in this regard at your earliest convenience.

Yours faithfully

Nokuthula Moyo
Chairperson
Zimbabwe Lawyers for Human Rights

Cc- Minister of State Security
Cc- Commissioner of Police
Cc- Minister of Justice Legal and Parliamentary Affairs
Cc- The Speaker of Parliament
Cc- Law Society of Zimbabwe
Cc- The Attorney General

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