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Torture compensation claim trial - Peace Watch 9/2010
Veritas
August 21, 2010

Newsflash: Torture Compensation Claim in High Court on 30th August

On Monday 30th August the High Court in Harare will hear the first of the civil claims against the State brought by the abductees of late 2008. The plaintiff is Mapfumo Garutsa who was abducted at the end of November 2008 and was among those listed as “disappeared”; he was held secretly for a month by State agents before being brought to court for the first time on 29th December as one of the so-called “bomber group”. He is claiming $190 000 for unlawful arrest and detention and malicious prosecution and for his treatment at the hands of State agents during his detention, citing torture, inhuman and degrading treatment, denial of medical treatment and denial of access to his lawyer. There are 14 defendants, comprising 7 Ministers and security force commanders, in their official capacities, and 7 named police, CID and CIO officers, cited in their personal capacities. The trial will be heard by recently appointed Judge-President George Chiweshe [ex-Chairperson of the last Zimbabwe Electoral Commission].

State Case against Human Rights Lawyer reopened after eight months

Mr Garutsa’s lawyer is Alec Muchadehama, whose labours on behalf of Mr Garutsa and other abductees led to his being placed under surveillance by State agents followed by his arrest and a long drawn-out prosecution on charges centred on his efforts to secure the release on bail of three other abductees. He was acquitted in December last year. Now, when Mr Muchadehama must concentrate on representing his client in the forthcoming trial, comes an announcement that the Attorney-General’s Office has lodged an extremely belated application for leave to appeal against his acquittal – not the first time that official action against Mr Muchadehama has seemed calculated to hamper his performance of important professional duties representing clients against the State.

Another Year without Zimbabwe signing the UN Convention on Torture

News of the impending trial, with its issues of torture and inhuman and degrading treatment, is a reminder that once again the International Day in Support of Victims of Torture has come and gone without Zimbabwe having joined the ranks of the 147 nations who have signed up to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. These 147 nations include 47 out of 53 African states. Of the African states that have signed 12 are from the 15 SADC member States – Angola, Tanzania and Zimbabwe are the only 3 that have not signed. So Zimbabwe continues to be shamefully out of step with the rest of the region and the continent.

Question in Parliament on Failure to Sign Torture Convention

In 2001 Parliament passed a motion calling for Zimbabwe to ratify the UN Convention, but the then ZANU-PF Government took no follow-up action. In May last year, in answer to a question from an MDC-T MP on why the Convention had not yet been ratified, co-Minister of Home Affairs Giles Mutsekwa explained that his Ministry was still looking into the matter. On the use of torture to extract confessions, he said the Ministry did not approve of this, and pointed out that such confessions are not admissible in court. This did not answer the question of why the Government was failing to act on a Parliamentary resolution. It also fell short of outright condemnation of torture as totally unacceptable. Since then backbenchers have not pressed the Government on the issue of the Convention, although descriptions of the use of torture and enforced disappearance by State agents surfaced during debates on a motion on 2008 election violence.

Torture Deplored by the International Community

UN Secretary-General Ban Ki Moon in his message for the International Day on Torture:

• urged all States that have not yet done so to ratify and honour their obligations under the Convention against Torture and the provisions of its Optional Protocol;
• appealed to all States to invite the UN Special Rapporteur on Torture to visit their prisons and detention facilities, and to allow full and unhindered access to those detained there;
• urged all States that have not yet done so to ratify the International Convention for the Protection of all Persons from Enforced Disappearance, pointing out that this “heinous practice is clearly and historically linked with the practice of torture”. [Zimbabwe’s recent past illustrates this link – as demonstrated by the story of the abductees, which is replete with allegations of abduction, followed by secret detention and the use by State agents of torture and/or inhuman and degrading treatment.]

UN High Commissioner for Human Rights Navi Pillay [a distinguished South African lawyer and judge, and for eight years from 1995 a judge of the International Criminal Tribunal for Rwanda, including four years as its President, and from 2003 to 2008 a judge of the Appeals Division of the International Criminal Court at The Hague before she became UN High Commissioner] also issued a statement in which she:

• deplored the fact that many states still “practise torture and do not prosecute those who commit it. Chilling reports of torture cross the desks of UN human rights officials every day, even though those states that practise it try to keep it tucked away in small, dark places”
• reminded readers that international law’s “prohibition against torture and other forms of inhumane treatment is absolute and cannot be derogated even under emergency situations”
• sounded a warning to torturers: “there is one aspect of all this that should cause even the most ruthless and self-confident torturers to stop and think: in time, all regimes change, including the most entrenched and despotic. So even those who think their immunity from justice is ironclad can – and I hope increasingly will – eventually find themselves in court”.

African Union Guidelines

In 2002 the African Commission for Human and Peoples Rights adopted the Robben Island Guidelines for the Prohibition and Prevention of Torture and Cruel, Inhuman or Degrading Treatment or Punishment in Africa. Zimbabwe Lawyers for Human Rights in their International Day statement called on the Government to adhere to its responsibilities under the Guidelines and to ratify the Convention. [Electronic version of Robben Island Guidelines available.]

New Constitution Must Prohibit Torture Specifically

In the present Constitution torture is specifically prohibited, and no exceptions are allowed. It is vital that the new Constitution contains a similar unqualified prohibition against the use of torture.

Looking back

Regrettably, the past year or so has seen no significant evidence of steps taken by the Zimbabwean government to stamp out the use of torture by its agents or to terminate the impunity enjoyed by those guilty of it. On the contrary:

• In June 2009 the Supreme Court was presented with detailed evidence, undisputed by the State, of the use of torture against Jestina Mukoko, director of the Zimbabwe Peace Project, by State agents who abducted her from her home in December 2008 and kept her in secret, unlawful detention for the best part of three weeks. Three months later the Supreme Court issued an order halting the prosecution of Ms Mukoko, on the ground that her constitutional rights had been so seriously violated by her treatment at the hands of her captors that the prosecution could not continue. [The court’s full reasons for judgement is still awaited nearly a year later.]
• Other persons seized and secretly held by State agents in late 2008 have presented similar testimony of torture and mistreatment to courts and have also approached the Supreme Court for orders stopping the State from continuing to prosecute them
• Like Mr Garutsa, Ms Mukoko and other abductees have launched civil cases against their captors and the State, claiming substantial compensation.
• Impunity is exemplified by the failure to prosecute or discipline the State agents accused of torture and other unlawful acts by Ms Mukoko and the other abductees. Indeed, an affidavit by the State Security Minister placed before the Supreme Court in the Mukoko case stated that the agents were carrying out their mandate and would not be identified.
• In October, the Government incurred major international embarrassment by its treatment of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak. Mr Nowak had earlier been invited by the Government to conduct an official fact-finding mission, from 28 October to 4 November. When he was already in transit to Harare, the invitation was withdrawn, ostensibly because of the previously unanticipated consultative process currently taking place in Harare between the Government of National Unity and the Southern African Development Community [SADC]. Although the Prime Minister intervened to repeat the invitation, Mr Nowak was denied entry and detained overnight at Harare Airport before being sent back to Johannesburg.
• Also in October, just a day before Mr Nowak’s arrival in Harare, MDC-T official Pasco Gwezere was abducted from his home by State agents and held incommunicado for six days before being taken to court accused of involvement in the theft of arms from an Army barracks in Harare. Later Mr Gwezere detailed acts of torture to which he had been subjected – beatings under the feet [falanga] and about the head, body and buttocks, tying his genitals in a strong cotton thread and pulling them in all directions, and burying him alive. There were also reports that there had been extensive torture of Army personnel suspected of involvement in the same arms theft.
• In the trial of Senator Roy Bennett the State attempted, unsuccessfully, to use statements made in 2006 by the main State witness Peter Hitschmann although the statements had not been used in evidence in Hitschmann’s own trial because they had been extracted by torture.
• In March a report “Cries from Goromonzi - Inside Zimbabwe's Torture Chambers”, commissioned by Crisis in Zimbabwe Coalition, gave a timely reminder that the use of torture in Zimbabwe over the last decade was so systematic that the only possible conclusion is that it was organized.
• Reports persist of torture and/or inhuman and degrading treatment meted out to civilians by security forces personnel stationed in the area of the Chiadzwa diamond field.

With this background, and in accordance with the spirit of the GPA, it is surely time for the Inclusive Government to take steps to ratify the UN Convention and its Optional Protocol – and the Convention against Enforced Disappearance.

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