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Case
against torture - Court Watch 12/2012
Veritas
July 14, 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:
- 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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