[Bill-Watch] Constitution Watch 6/2014 of 11th July [Convention against Torture]

[Veritas Bill Watch]

CONSTITUTION WATCH 6/2014
[11th July 2014]
Why Zimbabwe Should Accede to the Convention Against Torture
Introduction
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
1.   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.
2.   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].
3.   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.
Conclusion
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.
 
Veritas makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
To subscribe or unsubscribe from this mailing list please email
<mailto:veritas at mango.zw> billwatch at mango.zw
If you wish to contact Veritas please email  <mailto:veritas at mango.zw>
veritas at mango.zw 
If you are requesting legislation please email  <mailto:veritas at mango.zw>
veritas at mango.zw or look for it on  <http://www.veritaszim.net>
www.veritaszim.net 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20140714/1250f9cd/attachment-0001.html 
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/gif
Size: 31941 bytes
Desc: not available
Url : http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20140714/1250f9cd/attachment-0001.gif