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Supreme Court produces Mukoko judgment - Court Watch 17/2012
Veritas
October 04, 2012

Supreme Court Produces Judgment in 2009 Jestina Mukoko Case

It is hoped that a reminder of this case and the universal abhorrence it aroused [both inside and outside Zimbabwe] will now prompt the Minister of Justice to fulfil his promise, made to the UN Human Rights Council earlier this year, that Zimbabwe would sign the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Jestina Mukoko v Attorney-General

On 20th September the Supreme Court at last handed down its judgment explaining the reasons for its order of 28th September 2009 stopping the prosecution of Jestina Mukoko [copy of full judgment available from veritas@mango.zw]. It is regrettable that Mrs Mukoko, her co-accused and the country have had to wait so long, a few days short of three years. Reasons for judgement should have been expedited in such a landmark case, as:

• Mrs Mukoko’s civil case claiming compensation has not been heard and the judgment would be relevant.
• There are other applications for permanent stays of prosecution awaiting the clarification provided by the judgment. [Mrs Mukoko’s fellow abductees and former co-accused – who were indicted for trial in the High Court on similar charges – have all had similar requests for stays of prosecution referred to the Supreme Court. Progress in hearing those cases will now be expected.]
• The judgment will provide guidance to courts, the Attorney-General’s Office and the legal profession, the police and the State’s intelligence operatives, and the public generally, on:
  
• what the constitutional prohibition of torture and inhuman or degrading treatment entails – what constitutes torture, what differentiates it from inhuman or degrading treatment, and the absolute nature of the prohibition
• when a prosecution is ruled out by torture or inhuman or degrading treatment and when it is not ruled out.

Justice Malaba, writing with the concurrence of the Chief Justice and Justices Sandura, Ziyambi and Garwe, said the case gave the Supreme Court the opportunity “to clarify the law on the fundamental right of a person accused of a crime not to have information or evidence obtained from him or her by torture, or inhuman or degrading treatment, admitted or used against him or her in any legal proceedings”.

The court made no order as to costs – which means that although it was found that State agents had illegally abducted, detained and tortured Mrs Mukoko and then wrongly prosecuted her, the State will not have to pay Mrs Mukoko’s legal costs in these proceedings.

Summary of Judgment

That the evidence established that Mrs Mukoko had been forcibly taken from her home on 3rd December 2008 and transported to an unknown place where, when not under interrogation by her captors, she was kept totally incommunicado in solitary confinement for nearly three weeks. During interrogation she was severely beaten on the soles of her feet and made to kneel on gravel for a prolonged period. She was questioned about a man she was said to have helped to leave the country for training in future insurgent and terrorist activities in Zimbabwe. Eventually, after threats of further violence she wrote out a statement saying what her interrogators told her to say and leaving out what they told her not to say. Later she was video-recorded making another statement, again saying what her interrogators wanted her to say. On 22nd December, after nearly three weeks as a “disappeared” person, she was handed over to police and the next day she was charged with contravening section 24(a) of the Criminal Law Code [recruiting for insurgency/terrorism training] and was taken to the magistrates court to be remanded on that charge.

That the prosecutor instituted the criminal proceedings against her solely on the strength of the facts extracted from her by the above means at different times during her unlawful detention.

The court reaffirmed that section 15(1) of the Constitution prohibits torture and inhuman or degrading treatment in absolute terms. It explained that the provision “protects the dignity and physical integrity of every person regardless of his or her conduct. No exceptional circumstance such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security, can justify infliction of torture, or inhuman or degrading treatment.”

Torture and inhuman or degrading treatment “should never form part of the techniques of investigation of crimes employed by law enforcement agents ... the law which it is their duty to enforce requires that only fair and humane treatment ought to be applied to a person under criminal investigation”.

Definition of torture

The court did not come up with its own definition of torture, but it did refer with approval to the definition in the UN Convention against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment, which refers to “severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession ...”. It also described the distinction between torture and inhuman or degrading treatment as lying in the intensity of physical or mental pain and suffering inflicted. “Torture is an aggravated and deliberate form of inhuman or degrading treatment. What constitutes torture or inhuman or degrading treatment depends on the circumstances of each case”.

Mrs Mukoko’s treatment by State agents constituted torture [beating on the soles of the feet, being made to kneel on gravel] and inhuman and degrading treatment [solitary confinement, being held incommunicado, and being blindfolded whenever not in solitary confinement or under interrogation].

Information obtained by torture must not be used by State

The State may not in any circumstances “admit or use in any legal proceedings, information or evidence obtained from an accused person or defendant or any third party by torture or inhuman or degrading treatment”. This rule applies at all stages in legal proceedings – not only to the police but also to prosecutors, magistrates and judges. It follows that if the police or other State agents do in a particular case resort to torture or inhuman or degrading treatment to extract information for the purposes of criminal proceedings, the duty not to use the information falls in turn on the prosecutor, and, if the prosecutor fails in his or her duty, on the judiciary, from the magistrates court all the way up to the Supreme Court.

When the court will not stop a prosecution, even after infliction of torture The judgment concluded that proof of torture, or inhuman or degrading treatment, by police or State security authorities before a decision to prosecute is made, is not in itself enough to justify the stopping of a prosecution by a court. To justify stopping a prosecution there must also be proof that the evidence necessary for the decision to prosecute was obtained by the torture or inhuman or degrading treatment. But if a prosecutor reaches a proper decision to prosecute, on the strength of independent evidence, untainted by the torture or inhuman or degrading treatment – even if it is proved that torture inhuman or degrading treatment has also taken place, the prosecution can nevertheless go ahead.

Comment: It is on this aspect of the case that the judgment does not go as far as some human rights defenders had hoped. It was hoped that the Supreme Court would decide that in principle any whiff of torture or inhuman or degrading punishment would get a case thrown out as an abuse of court process and an affront to the integrity of the administration of justice. The court refused to go that far, saying that to grant immunity from prosecution even to persons properly suspected of having committed offences would be disproportionate and contrary to the interests of the public and victims of crime. Denying a stay of prosecution in such cases would not deprive victims of torture or inhuman or degrading treatment other constitutional remedies, such as compensation.

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