(1) JENNIFER WILLIAMS (2) MAGODONGA MAHLANGU (3) CLARA MANJENGWA (4) CELINA MADUKANI
- CO-MINISTERS OF HOME AFFAIRS (2) COMMISSIONER GENERAL OF POLICE (3) ATTORNEY GENERAL OF ZIMBABWE
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA, MAKARAU JA
GOWORA JA & OMERJEE AJA
HARARE, JUNE 14, 2012 & JUNE 5, 2014
L Uriri, for the appellants
R Goba, for the respondents
ZIYAMBI JA: This application is brought in terms of s 24(1) of the Constitution of Zimbabwe which provides as follows:
“24 ENFORCEMENT OF PROTECTIVE PROVISIONS
(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress”.
The applicants, who are members of an organisation called Women of Zimbabwe Arise (WOZA), a non-profit organisation which seeks to advance the rights of women in Zimbabwe, allege that their various rights enshrined in the Declaration of Rights as set out below were violated by the respondents.
The applicants were arrested during the course of a demonstration, on 15 April 2010, against what they alleged to be the appalling service provision from the Zimbabwe Electricity Supply Authority (Zesa), and detained at the Harare Central Police Station. The first applicant is the Director of WOZA.
It was alleged by the first applicant that on arrival at the police station, she was ordered by police officers at the Law and Order Section to remove her shoes, jacket and brassiere causing her to remain with a single top and bottom. She felt violated by being forced to remove such an intimate piece of apparel and deposit it with the police. She was shocked to be handed a filthy bag in which to place such intimate wearing apparel as well as her outer clothing and personal belongings and this made the whole exercise ‘all the more dehumanising’.
She was force marched, barefoot on a dirty floor, to the holding cells where her senses were assaulted by the choking smell of human excreta and flowing urine of varying colours. The holding cells were ‘full to overflowing’ with human excreta and the built-in beds were also covered with the same. The lights did not work and the entire atmosphere was damp and dark without any fresh air. She spent the night in one of the corridors huddled up together with second, third and fourth applicants even though urine flowed there as well.
During the night, she discovered that the toilet was within the cell. When she needed to relieve herself she had to wade through a pool of urine. The toilets had no running water and were full of human excreta. She later discovered that this was because the toilets are flushed from outside and are thus flushed at the pleasure of the police officers who did not do so often judging by the fact that excreta from the toilet was flowing into the cells.
There was no toilet paper and she was refused permission to carry her own. The toilet bowl is not partitioned from the rest of the cell and it was not possible to relieve oneself in privacy. She had to use the toilet in full view of the other occupants of the cell.
No sanitary provisions were made for menstruating women, such as washing and disposal facilities and provision of sanitary towels.
During the night, she requested blankets for warmth and was given three blankets, which reeked of urine, for use by the sixteen detainees in the cell.
There was no shower, no bathing or ablution facilities and no drinking water was available. She had to depend on the kindness of those who visited her for that.
Although certain cleaners came to mop the floor, they confined themselves to cleaning the corridors and the cells were not cleaned. She was given no food by the police and had to rely on the food brought to her by friends and relatives. However, that was unpalatable as she had to eat it in the corridor of the same cell which was over flowing with excreta. She spent five nights in the cell under these conditions and her complaints to the police fell on deaf ears.
The other three applicants associated themselves with these averments. In addition, the second applicant alleged that her mobile phone, which she was made to surrender to the police at the time of her detention by them, had been tampered with.
The applicants claimed that in view of the above, their constitutional right to protection from torture or to inhuman and degrading treatment or punishment as enshrined in s 15(1) of the Constitution of Zimbabwe was violated by the respondents.
They alleged also that the failure to make provision for the peculiar needs of women, for example, sanitary facilities as set out above, amounted to discrimination against women in violation of s 23 of the Constitution.
In essence, the applicants aver that the circumstances in which they were detained, as narrated above, deprived them of protection of the law guaranteed in s 18 of the Constitution, constitute inhuman and degrading treatment prohibited under s 15 of the Constitution, and amounted to a violation of their right enshrined in s 23 of the Constitution to be protected from discrimination on the basis of sex. They sought declaraturs to the effect that their constitutional rights enshrined in those sections of the Constitution had been violated as well as certain consequential relief.
The respondents opposed the application and relied on the affidavit of the second respondent. They denied that the conditions in the cells were as deposed to by the applicants. They averred that it is procedural for detainees to be made to remove some of their apparel. This is standard procedure and is provided for by s 41 of the Criminal Procedure and Evidence Act [Cap 9:01] (“the Act”) as read with Police Standing Orders Volume 1. Arrested persons, they averred, are searched by the arresting detail in strict compliance with the terms of the Act and particularly s 41(4) of the Act with reference to women, and all money and articles connected with an offence as well as all things which a prisoner could use to cause harm to himself or others or which could be used to effect his escape are collected from the arrested persons. They denied that the applicants were ordered to remove their ‘undergarments’ because ‘the law does not allow it’ but did not deny that they were made to remove their brassieres. Whatever was meant to be conveyed by the term ‘undergarments’, the respondents’ attitude, as expressed in their heads of argument as well as in oral argument before us, that brassieres are not necessary wearing material within the meaning of s 41 of the Act would appear to support the applicants’ averment that they were made to remove their brassieres. Indeed the respondents in their heads of argument submit:
“The Applicants contend that they were made to remove their undergarments and in their founding affidavit the undergarments are specified as brassiere. They argue that it is necessary wearing apparel. Although the brassieres are mentioned in their founding affidavits, in their heads of argument they simply use the word undergarments, which ordinarily would include panties. However since applicants’ case is founded on their founding affidavits, Respondents submit that what Applicants were made to remove were their brassieres.” (My emphasis)
We therefore resolve this apparent dispute of fact in favour of the applicants.
It was not denied that the applicants were made to remove their shoes as this was ‘standard procedure’.
In response to the allegation that the light in the cell was not functioning, they averred that the lighting system at the police station is fully functional.
While the location of the toilet within the holding cell was admitted, it was denied that the applicants had to wade through urine. The reason given for the denial was that, if that had happened, the applicants would have contracted a disease of some sort. They maintained that there is running water at the police station and denied that there was human excreta flowing into the holding cell from the toilet.
They averred, further, that it is standard procedure that a police detail is placed on guard duty at the cells to deal with detained persons’ requests. Where no member is placed on guard duty all suspects are to be visited at least every half hour. Such visits are recorded in the charge office diary or report book maintained for this purpose. [However neither the diary nor the report book was attached to the opposing affidavit.]
They maintained that although no toilet paper is kept in the cells, it is issued upon request. While it was admitted that no sanitary provisions are made for menstruating women, the women are permitted to bring their sanitary requirements. They added that these concerns are being addressed by a committee set up by Cabinet to look into the conditions of police and prison cells, which committee is expected to make recommendations on how best to improve the detention conditions of suspects and convicted persons.
It was denied that the blankets given to the applicants were dirty although, by virtue of the number of detainees in the cells, they could have been inadequate.
According to police standards, so they averred, prisoners are to be supplied with good drinking water and sufficient wholesome food. The inadequacy of these provisions is also one of the matters being looked into by the committee.
It was denied that the cells were unclean as deposed to by the applicants because, so it was averred, general hands scrub the police cells daily with detergent and disinfectant during the daily prisoners’ exercise period of thirty minutes and the Officer in charge arranges for daily inspection of the cells. The court was urged to inspect the cells in order to ascertain the actual conditions prevailing thereat.
An inspection of three cells was undertaken at the Harare Central Police Station, the applicants being unsure of the actual cell in which they were detained. It is common cause that all the cells are structurally standard.
It was apparent that great effort had been made to clean the floors of the corridors and stairs leading to the cells. There was a heavy smell of floor polish and the court had to step carefully to avoid falling by reason of the slippery floors.
Of the cells inspected, two were located on the second floor and one on the first floor. The structural details differ little from that deposed to in the applicants’ papers. There were six built - in concrete beds in bunk form in each of the cells. In the cell on the first floor there were six folded blankets lying on one of the built - in concrete beds. The one shown to the court was torn and frayed but appeared to be clean. There was a toilet in one corner of each cell in the form of a raised platform in the centre of which was an open hole. There was a wall approximately one metre high separating the toilet from the rest of the cell but there was no door. There was a small window about one metre from the ceiling which let in some measure of light. There was a fluorescent light in the ceiling which, though dim, was functioning. Directly above each toilet was a tap of running water which emptied into the toilet hole. There was no toilet paper, no soap, no wash basin, no bathing facilities and no drinking water. A detainee would have to drink from the tap right above the open toilet hole. The flushing mechanism for the toilet was located outside the cell and the toilets were flushed at the convenience of the police.
In addition to the Court’s observations above, the established facts were that the applicants, women, were made to remove their brassieres and shoes and to place them in a bag with their other belongings. The court was shown a canvas bag of the type used by the applicants and noted that it, as well as the others observed to be hanging nearby, was dirty probably by reason of use by other detainees. Established also was the fact that the applicants were made to walk barefoot to and in the cell. There were sixteen detainees including the applicants in the cell which was meant to accommodate six people. Only three blankets were provided for use by the sixteen occupants of the cell. The applicants were provided with no food or drinking water, no toilet paper or soap. The occupants of the cell were unable to flush the toilet after use, having to depend on the pleasure of the police to flush it from outside.