International Day against Torture

The United Nations (UN) International Day in Support of Victims of Torture was first observed on 26 June 1998. This date, 26 June was chosen by the United Nations because on the same day in 1987, the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment came into force – and on 26 June 1948 the United Nations Charter was signed. The Zimbabwe Human Rights NGO Forum annually marks this day to recognise the pain and suffering that victims and survivors of torture in the pre and post independence era have gone through and to rekindle the whole of society’s efforts towards the eradication of torture in Zimbabwe.
Torture is defined internationally as: “the act of inflicting severe pain or suffering especially as a means of punishment or coercion.” It is intentionally inflicted on a person and results in the victim experiencing “extreme anguish of body and / or mind”.
Zimbabwe is a nation with a long and reprehensible history of gross human rights violations abetted by a political culture of impunity towards past human rights violations stretching from the colonial era to the present day. Torture, cruel, inhuman or degrading treatment appears to have become a central element of state agents’ treatment of citizens perceived as being in opposition to the State and those attempting to exercise their rights to freedom of association, assembly and expression. Citizens who support opposition political parties or have divergent views to those of the ZANU PF Government have been the primary targets of torture and other forms of human rights violations. The Human Rights Forum notes that, state agencies such as the Zimbabwe Republic Police (ZRP), the Central Intelligence Organisation (CIO) and the Zimbabwe National Army (ZNA) are repeatedly alleged to be using torture as a means of intimidating, investigating and obtaining information or confessions from real or perceived offenders.
It is noteworthy that the potentially repressive Non – Governmental Organisations (NGO) Bill was tabled in Parliament in the second half of 2004, but it was not signed into law by the President and a new Bill is likely to be presented to Parliament. One result of the passage of the original Bill was its negative impact on civil society activities; in particular, the notable decline in reportage, recording and documentation of human rights abuses by human rights NGOs and civil society in general. Some civil society organisations deliberately took a very cautious approach towards activism for fear of falling victim of the proposed law.
The Human Rights Forum recorded that 170 people were tortured in 2004, a significant decline from the high figure of 497 for 2003. In the period January to March 2005, the Human Rights Forum recorded 7 cases of torture. Notwithstanding this declining trend, political discrimination/victimisation and human rights violations have taken a new, subtler and covertly violent form which has enacted a tangible climate of fear in the population. Political discrimination and victimisation mainly perpetrated by Government agents, youth militia and ruling party activists in many instances acting with the acquiescence, support and encouragement of some ruling party and Government leaders, increased from 466 in 2003 to 550 in 2004; politically motivated assaults rose from 388 in 2003 to 401 in 2004, whilst violations of the freedom of association declined marginally from 809 in 2003 to 760 in 2004.
In January 2005, the main contesting political parties, ZANU PF and MDC, stepped up preparations for the March General Elections. Although there were fewer cases of overt human rights violations recorded by the Human Rights Forum, those that occurred pointed to the lack of political tolerance that persists in Zimbabwe especially during election periods. Political victimisation and violence persisted in February as preparations for the elections continued. On 17 February, 8 National Constitutional Assembly members were reportedly assaulted and arrested by members of the Zimbabwe Republic Police for having demonstrated for “a no election without a new constitution”.
In March 2005, reports throughout the country indicated that the opposition MDC was prevented from campaigning freely. Among other cases, MDC Parliamentary candidate for Zvimba North constituency, Prince Chibanda, was allegedly abducted and victimised by ZANU PF activists for trying to campaign in the area. After this experience, the Police subsequently arrested him, and not his assailants.
On 20 April 2005, Ebrahim Moffat of Chinhoyi was arrested on allegations that he had burnt houses in Ward 6 belonging to ZANU PF supporters. He was allegedly detained at Chinhoyi Police Station for three days. A few days after this incident on 27 April 2005, the victim was on his way to Kariba when he was reportedly abducted at Kasimhure Bus Stop by a group of war veterans and ZANU PF youths who took him to one Eliphas Gora’s house. He was allegedly assaulted overnight and died the following morning. A report was made to Karoi Police Station before Eliphas Gora and Newman Zifodya were arrested. Both suspects are reportedly out on bail pending investigation of the matter.
A significant number of perpetrators of acts of torture have not been arrested or accounted for, thus raising the fear that they may not be prosecuted or held accountable for the offences. Notable suspects such as Detective Constable Henry Dowa of the Zimbabwe Republic Police Law and Order Maintenance Unit, Joseph Mwale, a CIO operative and numerous others continue to commit torture and other serious human rights violations with impunity. Since the 1998 food riots, the Human Rights Forum has documented many cases of arbitrary arrests, displacements, extra judicial killings, torture and other serious human rights violations. Many perpetrators of these violations continue to enjoy de facto and de jure impunity through Police inaction, non-prosecutions, delayed judgements, amnesties and or pardons, which have effectively frustrated victims’ efforts to seek justice.
Some of the most common torture methods that have been used in Zimbabwe include beatings with instruments such as sjamboks, whips, clubs, and baton sticks, and imposition of electric shocks, beatings on the soles of one’s feet, suspension by the arms or legs and sexual torture including the threat of the act of rape or sexual assault.
In 2002, the African Commission on Human and People’s Rights (ACHPR) undertook a Fact – finding Mission to Zimbabwe. In its Report it recorded that “at the very least during the period under review, human rights violations occurred in Zimbabwe”, that the Mission had been “presented with testimony from witnesses who were victims of torture while in police custody” and that “there was evidence that the system of arbitrary arrests took place.” In the light of this, the Report concluded “that the Government cannot wash its hands from responsibility for all these happenings.” The Inter – American Court for Human Rights in 1988 in the Velasquez Rodriguez case went a step further when it ruled that a State may become responsible for cases not intentionally or directly attributable to it if it fails to “carry out serious investigations of the violations committed within its jurisdiction, identify those responsible and ensure appropriate punishment for the perpetrators.” The Human Rights Forum therefore contends that the Zimbabwe Government must also be held accountable for acts of torture by private individuals because it has failed in many instances to take reasonable steps to prevent the violations or to ensure that adequate criminal and civil remedies are available for the victims of such acts.
Section 15 (1) of the Zimbabwe Constitution provides that: “No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.” Nonetheless, there is no specific crime of torture in Zimbabwean law. Furthermore, Zimbabwean law does not define torture. However, the crime of torture, inhuman or degrading treatment has been interpreted in Zimbabwean case law (Blanchard & Ors v Minister of Justice) to mean actions that result in severe mental and physical suffering. Those who have committed torture may be sentenced only for common law offences such as assault, assault with intent to do grievous bodily harm, rape, administering poison or other noxious substances, murder and attempted murder. However, the applicable sentences are largely at the discretion of the sentencing judge or magistrate. Depending on the nature of the offence, a first offender convicted of assault will usually receive a fine and/or a suspended prison sentence, while assault with intent to commit grievous bodily harm will often lead to imprisonment.
The Human Rights Forum calls for the investigation and prosecution of all those who have carried out human rights violations such as torture in Zimbabwe. A thorough investigation of perpetrations of torture and other serious human rights crimes is essential to clearly establish the individual suspects’ role and whether there has been Government acquiescence and involvement in such perpetrations. Criminal prosecutions would therefore assist in analysing the evidence, exposing involvement of both private and Government actors, and ensuring accountability and respect for the rule of law, thus reducing the danger of revenge, reprisals and polarisation of society.
The Human Rights Forum further notes with deep concern the current massive exercise by the State to destroy allegedly illegal structures and arrest alleged black marketers. The Human Rights Forum condemns in the strongest possible terms the inhumanity and cruelty of this exercise code named “Operation Restore Order”, which has resulted in untold suffering of an estimated 323, 385 people in the 45 sites visited to date. This is based on a total of 64, 677 families who have been displaced multiplied by five persons per family.
One of the key goals of international law seeks to bring relief to victims of serious human rights violations including torture. To achieve this, international law has developed and put in place a number of international instruments and standards, proscribing torture, for adoption at the regional and international levels. Amongst other treaties that proscribe torture, Zimbabwe has ratified the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights (ICCPR), which specifically prohibit torture in Articles 5 and 7 respectively. Accordingly, the Government of Zimbabwe has an obligation to actively prevent torture within its borders. Even though Zimbabwe has not yet ratified the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which gives a comprehensive description and proscription of torture, Article 1 of the African Charter obliges Zimbabwe to recognise the rights, duties and freedoms enshrined in the Charter and to adopt legislative or other measures to give effect to rights such as freedom from torture. In its response to the damning 2002 Fact Finding Mission Report of the African Commission on Human and People’s Rights, the Zimbabwe Government committed itself to the implementation of its obligations under the African Charter. The Human Rights Forum continues to monitor and evaluate this pledge by the Government of Zimbabwe in the hope that torture and other forms of cruel and inhuman treatment will be eradicated.
The Human Rights Forum has in the past called upon the Government and now renews its calls for the newly – elected Parliament of Zimbabwe to ratify the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as a matter of urgency. Although the Parliament passed a motion to ratify the CAT on 23 May 2001, no further action has been taken since then and the Convention remains unratified. Zimbabwe’s ratification and subsequent local implementation of the CAT would be a significant move towards elimination of torture in this country.
It is important to note that torture is now considered a peremptory norm of international law, which means that its prohibition is absolute. International law states clearly that there are no circumstances under which torture and other cruel, inhuman, degrading treatment or punishment can be justified. Article 2 of CAT unequivocally states that:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as justification of torture. An order from a superior officer or a public authority may not be invoked as a justification for torture”
Since the post – independence disturbances and the Gukurahundi massacres in Matabeleland and Midlands in the 1980s, Zimbabwe has tragically evolved into a society where human rights violations, including torture and impunity for these violations whenever they are perpetrated upon perceived Government critics, have become a political culture. It is therefore important that the Zimbabwe Government acknowledges and acts on its constitutional and international obligations to victims of torture and other human rights violations. In this regard, the Human Rights Forum calls upon the State:

• Firstly, to thoroughly investigate, prosecute and punish perpetrators of abuses when those abuses can be proven.

• Secondly, to revisit and thoroughly investigate all past human rights violations which have to date been ignored, neglected or forgotten, identify and locate the alleged perpetrators and bring them to justice and ensure clear, unlimited exposure, and publicity of these violations.
• Thirdly, to grant an “effective remedy” to victims in a manner that recognises their worth and dignity as human beings as provided in Article 2(3) of the International Covenant on Civil and Political Rights. Whilst, monetary compensation in appropriate amounts is certainly a part of this duty, the obligation also includes non – monetary gestures that publicly acknowledge and condemn the harm done to victims, together with an official state apology where there were shortcomings and failures on the part of the State in its obligation to protect victims. Compensation available to victims must be adequate, prompt and proportional to the gravity of the violation. Rehabilitation, which includes medical, psychological and other care, should also be part of the remedies.
• Fourthly, to see to it that those who have committed human rights violations in breach of the Zimbabwe Constitution and international human rights standards and norms while serving in any capacity in the police, army, CIO or any other uniformed forces or state agencies should not be allowed to continue serving as members of those agencies.
• Fifthly, to immediately cease and stop all and any activities currently being undertaken or intended under the so called “Operation Restore Order”, and embark on extensive and widespread consultations with the victims, civil society and other interested parties to ensure that the crisis is urgently arrested and people’s rights, dignity and welfare are safe guarded and protected without causing further suffering.

Members of the Zimbabwe Human Rights NGO Forum