TORTURE, INHUMAN AND DEGRADING TREATMENT: THE SUPREME COURT OF ZIMBABWE’S JUDGMENT IN MUKOKO V THE ATTORNEY GENERAL
By Dr Alex T Magaisa
Most readers may have a vague recollection of the notorious case in December 2008 when former newsreader and human rights activist Jestina Mukoko was abducted and held in communicado for a number of weeks.
Eventually she was released but not before spending more time in police custody. She applied for a permanent stay of prosecution – in normal English, an application to stop the prosecution forever.
She argued that her constitutional rights had been violated: she had been kidnapped from her home; tortured and subjected to inhuman and degrading treatment at the hands of the State. The Supreme Court agreed and stopped the prosecution in September 2009. The court said it would give its reasons in due course. The long awaited reasons arrived three years later, in September 2012.
At some point we shall do a critique of this important judgment but we think every Zimbabwean, indeed every person should at least have a chance to read the judgment in the Supreme Court’s own words.
A legal judgment is not the easiest document to read. Indeed it can be too technical, there can be detours and the language may not be altogether amiable to the casual reader. We have assisted by giving you the relevant parts – the narratives and explanations that we think make for easier reading without losing the essence of the judgment.
The judgment itself runs into 40 pages and those wishing to get a copy can contact our ever-reliable friends at Veritas (email: email@example.com) So here we go, in the words of the Deputy Chief Justice Malaba, who delivered the judgment with which all other judges concurred.
JESTINA MUKOKO v THE ATTORNEY-GENERAL
SUPREME COURT OF ZIMBABWE
Malaba DCJ …
This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant [Jestina Mukoko] was subjected by State security agents prior to being brought to Court on a criminal charge.
She was charged with the offence of contravening s 24(a) of the Criminal Law (Codification and Reform) Act [Cap. 9:23] (hereinafter referred to as “the Act”).
It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe”.
The applicant alleged in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).
It was argued that the manner in which she was apprehended by State security agents and treated in detention prior to being brought to court on the charge constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under s 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by s 15(1) of the Constitution.
The argument was that the uncontested behaviour by State security agents in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody rendered the institution of the criminal prosecution an abuse of legal process.
The second ground was that the decisions made by the public prosecutor to charge the applicant with the criminal offence and to bring the prosecution proceedings were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.
It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.
On 28 September 2009, after reading documents filed of record and hearing argument by counsel for the applicant and for the respondent, the Court made the following order:
The Court unanimously concludes that the State through its agents violated the applicant’s constitutional rights protected under ss 13(1), 15(1) and 18(1) of the Constitution of Zimbabwe to the extent entitling the applicant to a permanent stay of criminal prosecution associated with the above violations.
Accordingly it is ordered that the criminal prosecution against the applicant arising from the facts set out in proceedings in the Magistrates Court Harare in the case of the State v Manuel Chinanzvavana & Eight ors case number 8801-5/08 is stayed permanently.
She [the applicant] was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table. She did as ordered.
Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.
One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position.
She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position. She remained in that position for one hour.
The interrogators told her to write about the trip she had made to Botswana. She did as told. The next day she was told that there were some things the interrogators wanted deleted from the statement.
She removed from the statement what the interrogators did not want and added what they said was to be added to the statement. She said she wrote the statement in the manner her interrogators wanted before signing it …
Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.
The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate.
Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom  23 EHRR 413 para 79. It is an absolute prohibition.
It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State even in a State of public emergency.
They are also designed to ensure that the prohibition produces a deterrent effect in that it signals in advance to all public officials and private individuals that it is an absolute value from which nobody must derogate. The fact that torture, inhuman and degrading treatment is prohibited by a peremptory provision serves to render null and void any act authorising such conduct.
The prohibition protects the dignity and physical integrity of every person regardless of his or her conduct. No exceptional circumstance such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security can justify infliction of torture, or inhuman or degrading treatment.
There cannot be a value in our society over which there is so clear a consensus as the prohibition of torture inhuman and degrading treatment of a person in the custody of a public official.
That such a treatment should never form part of the techniques of investigation of crimes employed by law enforcement agents, is a restatement of the principle that the law which it is their duty to enforce, requires that only fair and humane treatment ought to be applied to a person under criminal investigation.
Applying the principles of the law on what constitutes a contravention of s 15(1) of the Constitution to the facts, the Court finds a violation by the State, through its agents, of the applicant’s fundamental right not to be subjected to torture, or to inhuman or degrading treatment:
The repeated beatings on the soles of the applicant’s feet with a piece of a hosepipe and a metal object using severe force on each of the two occasions she was under interrogation, constitute torture. Repeated beating of the soles of feet with a blunt instrument is a serious form of torture called “falanga”.
Forcing the applicant to kneel for a long time on mounds of gravel whilst being interrogated, falls within the meaning of torture. The treatment to which she was subjected was premeditated. The severe pain and suffering she was forced to endure was intentionally inflicted.
The prolonged periods of solitary confinement incommunicado on the occasions she was not being interrogated constitutes inhuman and degrading treatment. (It is important to note, however, that solitary confinement is not to be deemed to be contrary to the prohibition under s 15(1) of the Constitution.
It must be in conjunction with other conditions, for example, prolongation and imposition on a person who has not yet been convicted of an offence. The severity of the specific measure, its duration, the objectives pursued by it, the cumulative effect of any further conditions imposed as well as the effects on the individual’s physical and mental well-being, are all factors which have to be taken into account in the assessment of the question whether a specific instance of solitary confinement is in violation of s 15(1) of the Constitution.
It was inhuman treatment to keep the applicant blindfolded each time she was out of solitary confinement and not being interrogated. The treatment was intentionally applied and caused the applicant mental suffering. She was also subjected to inhuman and degrading treatment when she was blindfolded and driven at night to an undisclosed destination under threat of unspecified action.
Any recourse to physical force against a person in the custody of a public official which is not rendered strictly necessary by his or her conduct diminishes his or her dignity and implicates a violation of the prohibition.
The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.
The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.
According to the applicant the use by the public prosecutor of information obtained from her by infliction of the treatment prohibited by s 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman and degrading treatment to which she was subjected.
Section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use in any legal proceedings, information or evidence obtained from an accused person or defendant or any third party by torture, or inhuman or degrading treatment.
A proper interpretation of s 15(1) of the Constitution which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person or any third party by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by s 15(1) of the Constitution.
The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill-treatment.
If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence or any third party by torture, inhuman or degrading treatment when making prosecutorial decisions.
If the duty fails at this stage the law imposes the duty on judicial officers. Eventually it lies with the Court to intervene through the exercise of its original jurisdiction to enforce or secure the enforcement of fundamental rights.
.. the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her and a third party by torture, inhuman and degrading treatment. There was an inextricable link between the ill-treatment and the criminal prosecution. No evidence was placed before the Court by the respondent to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.
… the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with and prosecute her for the criminal offence, is that there was a breach of ss 15(1) and 13(1) of the Constitution.
That Jestina Mukoko came out of all this and continues to champion human rights not anywhere else but in Zimbabwe is an incredible feat and a mark of bravery. Respect.
To help maintain editorial independence Nehanda Radio relies on donations from readers like you. No donation is too small or too big. Help by donating to fund our operations.