In Chapter 4, the Constitution of Zimbabwe provides that no person may be subjected to physical or psychological torture [section 53], that the right not to be tortured may not be limited by any law and that no person may violate the right [section 86(3)]. This makes the right an “absolute” or “non-derogable” right, the violation of which is never justifiable under any circumstances. The Constitution also lays down that “the State must take all practical measures to protect the fundamental rights and freedoms in Chapter 4 and promote their full realisation and fulfilment” [section 11].
Once again, as in years past, Veritas uses this day to ask why Zimbabwe has not yet become a party to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT] in order to fully realise our constitutional right to freedom from torture.
On several occasions it has seemed that Zimbabwe was on the point of acceding to CAT—
- May 2001 Parliament passed a resolution that Zimbabwe should accede to CAT.
- October 2011 In Zimbabwe’s Universal Periodic Review [UPR] report presented to the UN Human Rights Council, the Government stated that ratification of CAT was under active consideration.
- March 2012 In responding to recommendations by the UN Human Rights Council in Geneva, the then Minister of Justice told the Council that Zimbabwe would accede to the Convention.
- May 2012 During the visit of the UN High Commissioner for Human Rights to Zimbabwe the then Minister of Justice gave her the assurance that the matter was in hand.
- 2016 UPR During the interactive dialogue at Zimbabwe’s latest Universal Periodic Review, over 30 countries including Ghana, Zambia, Rwanda, Namibia, Senegal and Kenya recommended that Zimbabwe should ratify the Convention Against Torture. According to the draft 2016 UPR Working Group Report, the Government of Zimbabwe supported the recommendations.
Regrettably, nothing seems to have come of this because Zimbabwe has still neither signed nor ratified CAT.
Perhaps Parliament can take the initiative and replace its lapsed resolution of 2001 with a fresh resolution to this effect
and follow this up by demanding action.
What is the Convention Against Torture?
CAT is a United Nations convention which requires States to take effective measures to prevent torture within their territories and prohibits them from transporting or extraditing people to any country where there is reason to believe they will be tortured. The text of CAT was adopted by consensus in the General Assembly of the UN on 10th December 1984. The Zimbabwean delegation was present, so presumably concurred in its adoption.
CAT came into operation on 26th June, 1987, when it was ratified by the 20th member State. Since then, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become accepted as a principle of customary international law [accepted by the international community as non-derogable right]. “Absolute” and “non-derogable” signify that—
- No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture
- An order from a superior officer or a public authority may not be invoked as a justification of torture.
Is Zimbabwe out of Step with the Rest of the World and the Rest of Africa?
Yes. And we are more out of step than we were on this day two years ago. As of 24 June 2017—
- 162 out of the 193 members of the UN have become State parties to CAT.
- Of the 55 African countries only 4 [Angola, Sahrawi Arab Democratic Republic, Tanzania and Zimbabwe] have neither signed nor ratified CAT –
- Of the 15 SADC countries,—
- 12 are State parties
- 1 [Angola] has signed but not ratified
- 2 [Zimbabwe and Tanzania] have neither signed nor ratified CAT.
What Does the Convention Do?
The purpose of CAT is to help combat torture and other forms of cruel, inhuman or degrading treatment throughout the world. Torture is defined very broadly 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.
CAT obliges States that are parties to the Convention to do far more than merely having a brief general prohibition of torture in their Constitution. It obliges States 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 torture as a standalone offence and providing appropriately serious punishments for it. 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 CAT 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 CAT.
Why Zimbabwe Should Accede to CAT?
- To flesh out our Constitution, which in section 53 prohibits physical and psychological torture and cruel, inhuman or degrading treatment or punishment,
- To show Zimbabwe accepts and takes seriously the universal norm that torture in all its forms is unacceptable.
- Although Zimbabwe is already a party to other 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, the overwhelming majority of other States have considered it necessary to supplement their brief general prohibitions of torture with a specific and detailed treaty designed to ensure the elimination of torture in practice [i.e., CAT].
It is difficult to understand why the Government has not acceded to CAT. The Government has much to gain from accession: it would show itself to be an integral member of the international community and ready to co-operate with other governments in upholding universally-accepted human rights. It would also demonstrate the Government’s willingness to implement the new Constitution and to abide by commitments previously given to the UN Human Rights Council and its own citizens.
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