COURT WATCH 11/2012
[30th June 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  murder, for causing the death of a suspected illegal diamond panner and  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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