CONSTITUTION WATCH 6/2014
[11th July 2014]
Why Zimbabwe Should Accede to the Convention Against Torture
The 26th June was the International Day in Support of Torture Victims. It is an appropriate time therefore to ask why Zimbabwe has not yet acceded to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT].
Zimbabwe is out of step with the rest of Africa and the world. Since the Convention came into force in June 1987, the number of States parties has risen to 155 out of 193 UN members. In Africa, 45 of the 55 AU members, 12 of the 15 SADC members and all Zimbabwe’s neighbours are parties to the Convention.
Now that we have a new Constitution, there are more pressing reasons than ever for acceding to the Convention.
Why Zimbabwe Should Accede to the Convention
In our Court Watch 12/2012 of the 12th July 2012, we summarised the arguments for Zimbabwe acceding to the Convention. They are worth repeating:
- Zimbabwe has shown that it accepts the universal norm that torture and cruel, inhuman or degrading treatment or punishment are unacceptable:
- Zimbabwe is already a party to international conventions that prohibit torture and cruel, inhuman or degrading treatment or punishment, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.
- Our courts have on many occasions expressed revulsion for torture and have always refused to rely on confessions elicited by torture, however true the confessions may be.
- Zimbabwe’s own Constitution in section 53 affirms that all its people are protected from physical or psychological torture and from cruel, inhuman or degrading treatment or punishment.
- In March 2012, responding to recommendations by the UN Human Rights Council in Geneva, the Minister of Justice told the Council that Zimbabwe would accede to the Convention.
To Comply with the New Constitution
- The Constitution, as already noted, prohibits the infliction of torture and cruel, inhuman or degrading treatment or punishment. Accession, and accepting our responsibilities as a party to the Convention, will be a considerable step towards implementing the Constitution.
- Creation of a single crime of torture and providing legal mechanisms for detecting it and providing redress for victims will not only help to eradicate it but will assist the Zimbabwe Human Rights Commission to carry out its function of protecting the public against abuse of power by public officers [section 243(1)(e) of the Constitution].
- If clear rules and instructions are laid down for the interrogation, treatment and custody of arrested persons and prisoners, as required by article 11 of the Convention, law enforcement officers will have authoritative guidelines to show them what is acceptable and what is not.
Accession will not involve drastic changes to our existing law. Physical torture can be prosecuted as assault or, in serious cases, attempted murder. Other forms of torture, such as starving prisoners or detaining them under intolerable conditions, can be prosecuted as criminal abuse of duty on the part of the perpetrator [a crime for which the maximum sentence is 15 years’ imprisonment]. Accession will, however, oblige the government to create a single clear crime of torture and will indicate that the government is determined to eradicate it in all its manifestations.
Even though Zimbabwe has not acceded to the Convention, it may still be bound by some of its provisions through the operation of customary international law. This was stated by the High Court in 2008 [the case was Mann v Equatorial Guinea] in relation to extradition, but the court indicated that Zimbabwe might be obliged to comply with other aspects of the Convention even though it was not a party to it. If we are already bound by some of the provisions of the Convention without being a party, there is no good reason to refrain from acceding to the whole Convention.
Perhaps one of the greatest advantages to being a State party is that the Conventions provisions ensure regular internal monitoring by the state that none of its officials nor institutions are violating the universal norm reflected in our Constitution that every human being is entitled to be treated with respect and dignity – and this includes arrested, detained, accused and imprisoned persons.
What does the Convention Against Torture Do?
The purpose of the Convention is to help combat torture and other forms of cruel, inhuman or degrading treatment throughout the world. Torture is defined very broadly in the Convention to cover severe physical or mental pain or suffering inflicted by a public official, or inflicted with the consent or acquiescence of a public official, in order to obtain information from the person on whom it is inflicted or to punish, intimidate or coerce the person, or for a similar purpose.
The Convention obliges States that are parties to it to take all legislative, administrative, judicial and other measures to prevent acts of torture or cruel, inhuman or degrading treatment or punishment within their territories. These measures include:
- Criminalising acts of torture and providing appropriately serious punishments for them. Obedience to superior orders cannot be allowed as a defence.
- Ensuring that the State’s courts have jurisdiction to try crimes involving torture which are committed outside the country, if:
- the perpetrator or the victim is a national of the State; or
- the perpetrator is found in the State and is not being extradited to the country where the crime took place.
- Arresting suspected torturers and ensuring that they are brought to justice, either in the State where they have been arrested or in another State which has jurisdiction over them.
- Making crimes involving torture extraditable, i.e. ensuring that suspected perpetrators can be sent for trial in the countries where the crimes were committed.
- Refusing to extradite persons to any country if there are reasonable grounds to believe they may be tortured there.
- Assisting other States in the prosecution of perpetrators, for example by supplying evidence.
- Ensuring that military personnel, police officers and all other law enforcement agents are trained to be aware that all forms of torture, or cruel, inhuman or degrading treatment or punishment, are prohibited.
- Reviewing rules and regulations for the treatment and custody of arrested persons and prisoners, to ensure they prevent all forms of torture and cruel, inhuman or degrading treatments or punishments.
- Ensuring that victims of torture, or of any cruel, inhuman or degrading treatment or punishment, are able to lodge complaints and that their complaints are properly and promptly investigated by the appropriate authorities.
- Ensuring that victims of torture, or their dependants if they have died, obtain redress including compensation and rehabilitation.
- Prohibiting the use in court proceedings of statements extracted by torture.
States that are parties to the Convention have to report every four years to the UN Committee Against Torture on the measures they have taken to implement the Convention. The committee is empowered to conduct confidential investigations into allegations that any member State systematically practises torture, and the committee may summarise the results of its investigations in its annual report. Member states may also allow the committee to receive and investigate allegations from individuals and other States that they are violating the Convention.
It is difficult to understand why the government has not acceded to the Convention. The government has much to gain from accession: it would show itself to be a responsible member of the international community, ready to co-operate with other governments in upholding universally-accepted human rights. It would also demonstrate its willingness to implement the new Constitution.
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