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Cases
of alleged torture - Court Watch 11/2012
Veritas
July 01, 2012
Two
Cases of Alleged Torture by Police Officers
To mark the
International Day in Support of Victims of Torture, this bulletin
draws attention to two recent court cases in which the State has
prosecuted police officers for conduct that can be defined as “torture”.
Zimbabwe has
been accused for many years of allowing members of the police force,
the Defence Forces and the Central Intelligence Organisation, youth
militias, and members and supporters of ZANU-PF, to enjoy impunity
for violence perpetrated on persons perceived as opposition supporters,
including acts undoubtedly constituting torture or inhuman or degrading
punishment or treatment. These two cases suggest that cracks in
that impunity may be developing, and with them the prospect of a
more even-handed application of the law by the police and prosecuting
authorities.
Two
Criminal Cases against Police Officers
1. Policewomen
convicted of assaults described by press as “torture”
A recent press
story about the criminal trial of three women police detectives
in Bulawayo headlined it as a case of “torture”. The
headline was understandable – the alleged conduct of the police
officers certainly fitted the use of the word “torture”.
The three detectives subjected two women they had picked up on suspicion
of theft to brutal assaults, apparently in an effort to extract
confessions. The assaults included beating them on the soles of
their feet with pieces of wood and batons. There is a word for this
extremely painful process – ‘falanga”, which the
dictionary defines as “a form of torture which consists of
beating the soles of the victim’s feet with a solid object,
which disables the victim and minimises the risk of escape”.
But that was only part of the mistreatment. The two women were also
beaten elsewhere on their bodies, causing numerous bruises. A sjambok
and an empty soft drink bottle were used as well as pieces of wood
and batons. One victim sustained a broken leg, with permanent disability.
The other ended up with a broken arm. After their beating, they
were detained for two days at Bulawayo Central police station and
denied food, water and medical treatment. Only after their release
without charge could they be taken to hospital for necessary attention.
The police officers
were two weeks ago convicted of assault under section 89 of the
Criminal Law Code,
and sentenced to pay fines of $200 each; they were given until 27th
June to pay, failing which they will have to serve four months’
imprisonment.
2. Senior police
officer on trial for murder and assault following acts described
by the press as “torture”
In a case which
came before the High Court on circuit in Mutare this week, a police
chief superintendent is being tried for [1] murder, for causing
the death of a suspected illegal diamond panner and [2] assault
of three other members of the deceased’s family also taken
into police custody accused of illegal panning. The charges are
based on the officer’s alleged brutal assaults on all the
victims after they had been handed over to police in the Chiadzwa
area by diamond mine security guards who claimed to have caught
them red-handed in the act of panning for diamonds. The victims
had apparently claimed that as residents of the area they were digging
a shallow well to obtain water for domestic purposes. The State
case is that the accused officer perpetrated the assaults to extract
confessions or to punish the suspects for attempting to find diamonds.
One of the victims died in a police holding cell shortly afterwards.
The others survived; and one of them has testified to having suffered
lasting disability as a result of the police officer’s assault.
Reports of this case, too, have understandably carried headlines
using the word “torture”. This case is continuing in
the coming week.
The two cases
prompt the question why conduct amounting to torture is not prosecuted
as “torture”, but as assault or some other offence.
Torture
and Zimbabwean Criminal Law and Law of Evidence
Criminal law:
The reason for charging the police chief superintendent with murder
is obvious. But, if conduct amounting to torture is unlawful in
Zimbabwe – as it undoubtedly is – why were the other
charges in these two cases for the crime of assault rather than
for “torture” as such? The answer is that Zimbabwean
law does not have a criminal offence specifically called “torture”.
There is no crime of that name in the Criminal Law Code or in any
other Act of Parliament. [Nor was there a crime of that name in
the non-statutory Roman-Dutch criminal law that was replaced by
the Criminal Law Code when it came into force in July 2006.]
This does not
mean that acts amounting torture are not punishable as crimes. They
are – but as the crime of assault, indecent assault, aggravated
indecent assault, rape, murder, etc – depending on the what
the perpetrator did to his or her victim. [We may, at some future
stage, find ourselves with a new offence, specifically called “torture”,
when Zimbabwe becomes a party to the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, but
for the time being acts of torture will be prosecuted under other
names.]
For police officers
specifically, conduct amounting to torture is a serious disciplinary
offence under the Police Act, which amongst other things condemns
“using unnecessary violence towards, or neglecting or in any
way ill-treating any person in custody or other person with whom
he or she may be brought into contact in the execution of his or
her duty”. Again, however, the word “torture”
is not used.
Law of evidence:
The abhorrence of what can be described as torture in Zimbabwe is
also exemplified by a rule in the law of evidence. In a criminal
trial the court will not accept evidence of a confession or statement
extracted from an accused person by any form of duress [which includes
torture, although the word torture is not normally specified in
formulations of the rule. If duress is alleged, the prosecution
must satisfy the court it did not take place. A celebrated example
of the application of this rule in practice occurred in the early
years after Independence during the High Court trial of senior Air
Force officers accused of complicity in sabotage leading to the
destruction of Air Force planes. The accused officers said the confessions
attributed to them had been extracted by acts of extreme torture.
The presiding judge, Justice Dumbutshena – later to be the
Chief Justice of Zimbabwe – held a “trial within a trial”
to determine the admissibility of the confessions. Having heard
evidence on the point, the judge refused to admit the confessions
into evidence because he found they had been extracted by torture.
He went on to acquit the accused officers as there was no other
evidence connecting them with the sabotage.
Torture
in the Zimbabwe Constitution
The present
Constitution’s
Declaration of Rights outlaws torture: “No person shall be
subjected to torture or to inhuman or degrading punishment or other
such treatment.” [Constitution, section 15(1).] No definition
of torture is provided, which means that it is for the courts, and
particularly the Supreme Court, to say authoritatively what does
and does not constitute torture. No derogation from this constitutional
protection against torture is permitted, even in time of emergency
or war – which means, for example, that no Act or regulation,
and no order by the President or any other Government official,
can authorise the commission of conduct amounting to torture.
This constitutional
provision does not make torture a criminal offence. Nor, for that
matter, does the Constitution create any other criminal offences.
This is not the function of a constitution. Criminal offences are
left to be created and penalties prescribed by or under Acts of
Parliament. But the Declaration of Rights does provide, in section
24, for the enforcement of all its provisions, including section
15’s prohibition of torture, by order of the Supreme Court.
Thus, section 24 allows any person who alleges that the Declaration
of Rights has been contravened, or is likely to be contravened in
relation, to him or her, to apply to the Supreme Court for “redress”;
and it gives the Supreme Court extremely wide powers to make such
orders and give such directions ”as it may consider appropriate
for the purpose of enforcing or securing the enforcement of the
Declaration of Rights”.
Section 24 was
successfully invoked in another celebrated case by human rights
activist and torture victim Jestina Mukoko, one
of the 2008 abductees. In September 2009 the Supreme Court granted
her a permanent stay of prosecution, ruling that her constitutional
rights – including her right not to be subjected to torture
– had been violated to such an extent by State security officials
that she could not be prosecuted on the charges of which her tormentors
had accused her. Unfortunately, the Supreme Court’s written
reasons for judgment have never been provided, meaning that nearly
three years later other courts, the legal profession, the police
and prosecuting authorities, and the country are still awaiting
the court’s guidance on such cases. Similar applications to
the Supreme Court by other 2008 abductees indicted for trial are
awaiting hearing.
Civil
lawsuits for damages in cases of conduct amounting to torture
Independently
of section 15 of the Constitution, ordinary Zimbabwean law recognizes
conduct amounting to torture as a civil wrong for which victims
of torture are entitled to sue for monetary damages from the perpetrators
– and from those authorities vicariously liable for the actions
of the perpetrators. Thus, the two complainants in the Bulawayo
case discussed in this bulletin have already commenced legal action,
against all three police officers for damages in their personal
capacities and against the Government, for their medical expenses
and the pain and suffering they endured at the hands of the policewomen.
And Jestina Mukoko and seventeen other 2008 abductees have launched
civil lawsuits claiming substantial damages for the wrongs they
suffered; these cases are currently stalled, pending Judge-President
Chiweshe’s decision on a Government application for the cases
to be dealt with in groups rather than in separate trials.
The
Draft New Constitution
In section 4.5
of its Declaration of Rights, the latest available draft
constitution provides for the protection of persons from torture
and inhuman and degrading punishment under “fundamental rights”:
“No one may be subjected to physical or psychological torture
or to cruel, inhuman or degrading treatment or punishment.”
The addition of the words physical and psychological is significant
and an advance on the present constitution; there are instances
where torture is not only physical but is manifested psychologically
and the consequences of psychological torture can be as dire if
not worse than physical torture. Also important is section 4.41,
which makes spells out that the protection against torture and inhuman
or degrading treatment is absolute and may not be derogated from:
“No law may limit the following rights enshrined in this Chapter,
and no one may violate them ... (c) the right not to be tortured
or subjected to inhuman or degrading punishment or treatment”.
[Note: The final draft of the new constitution is not yet ready,
but these provisions are unlikely to be changed, as they have not
been identified as controversial by those objecting to aspects of
the various drafts that have emerged from the constitution-making
process.] But again criminal offences are left to be created, and
penalties prescribed, by or under Acts of Parliament.
A Case
for Zimbabwe’s Acceding to UN Convention against Torture
Zimbabwe has
also been criticized for its failure to become a party to the UN
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the later Optional Protocol to the
Convention. But that may change relatively soon – during Zimbabwe’s
recent Universal Periodic Review proceedings before the UN Human
Rights Committee in Geneva, Minister of Justice and Legal Affairs
Patrick Chinamasa told the Committee that Zimbabwe will be acceding
to this Convention.
Part
2 – The Convention and the Implications of Accession
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