TORTURE IN ZIMBABWE, PAST AND PRESENT PREVENTION, PUNISHMENT, REPARATION? A SURVEY OF LAW AND PRACTICE JUNE 2005 THE REDRESS TRUST, 2005 3rd Floor, 87 Vauxhall Walk, London SE11 5HJ Tel: +44 (0)20 7793 1777 Fax: +44 (0)20 7793 1719 Registered Charity Number 1015787, A Limited Company in England Number 2274071 [email protected] (general correspondence) www.redress.org TORTURE IN ZIMBABWE, PAST AND PRESENT ii REDRESS/AMANI FOREWORD The Redress Trust (REDRESS) is an international human rights organisation with a mandate to assist torture survivors to seek justice and other forms of reparation for the harm they have suffered. Its national and international programmes are aimed at ensuring that the rights of torture survivors, whoever they are, and wherever they are located, are realised in practice. Over the past few years, we have produced a number of reports on the prevalence of torture in Zimbabwe and the prospects for Zimbabwean victims to obtain redress nationally and internationally. This Report is written to draw attention to the ongoing difficulties such victims face, given the impunity which perpetrators continue to enjoy. It is an update of a report produced by REDRESS in March 2003 as part of a survey of law and practice in thirty-one selected states and published on our website as the Zimbabwe Country Report along with the other countries surveyed. We believe it is important that all interested parties at the international, regional and national level be kept as fully informed as possible both of the reality of torture in Zimbabwe and the problems with which torture survivors and those working with them, especially human rights lawyers and other human rights defenders, have to deal. It is also a contribution to keeping the conscience of the world alive to the issues at stake in that troubled country. It is in this context that this revised report draws attention to the manifold legal and institutional obstacles and problems which continue to face local, regional and international organisations and individuals, as well as governments, concerned about torture in Zimbabwe and the need for justice and reparations for its victims. Torture has been practiced in Zimbabwe for decades, both before and since independence in 1980, and remains an ever-present reality in Zimbabwe, as does the culture of impunity for perpetrators. The crackdown on civil society continues unabated, manifested in the persecution of human rights defenders by an increasingly partisan police force. For survivors of gross and systematic human rights violations in Zimbabwe, including those who have been tortured, the future remains bleak. We believe, however, that the rights of all such survivors to justice and other forms of reparations must be upheld and championed, as must the fundamental right not to be tortured, and the fight against torture itself. iii TORTURE IN ZIMBABWE, PAST AND PRESENT ACKNOWLEDGEMENTS AND COMMEMORATION June 26th is the United Nations International Day in Support of Victims of Torture. This Survey acknowledges and commemorates victims of torture in Zimbabwe, keeping hope alive for reparation for their suffering, punishment for the perpetrators and the prevention of torture in Zimbabwe. This Survey was researched and written by Kevin Laue and edited by Carla Ferstman and Rob Monro. REDRESS is grateful to Amani Trust of Zimbabwe for its collaboration and support in the production of this Survey. iv REDRESS/AMANI CONTENTS I. INTRODUCTION òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòï I.1. THE LEGAL FRAMEWORKòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòï A. The Constitutionòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòï B. Incorporation and Status of International Law in Domestic Law òòòòòòòòòòòòòòòòî I.2. PRACTICE OF TORTURE: CONTEXT, OCCURRENCE, RESPONSES òòòòòòòòì A. The Practice of Torture òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòì B. Domestic Responses òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòè C. International Responses òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòïï II. PROHIBITION OF TORTURE UNDER DOMESTIC LAWòòòïì III. CRIMINAL ACCOUNTABILITY OF PERPETRATORSòòòòòòòïì III.1. SUBSTANTIVE LAW: CRIMINAL OFFENCES AND PUNISHMENT òòòïì III.2. THE CRIMINAL PROCEDURAL LAW òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòïë A. Immunities òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòïë B. Statutes of Limitations òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòïè C. Criminal Investigationsòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòïè D. Criminal Trialsòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòîð III.3. PRACTICE: INVESTIGATION AND PROSECUTION OF TORTURE îï A. Before Independenceòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòîï B. Post Independence (1980-1998) òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòîî C. The Present (1998-2005)òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòîì IV. CLAIMING REPARATION FOR TORTUREòòòòòòòòòòòòòòòòòòòòòíï IV.1. AVAILABLE REMEDIES òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòíï A. The Constitutionòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòíï B. Civil Law òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòíï C. Criminal Law òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòíì ×Êòîò ÌØÛ ÐÎßÝÌ×ÝÛòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòíê V. GOVERNMENT REPARATION MEASURESòòòòòòòòòòòòòòòòòòòòòòíç VI. REMEDIES FOR TORTURE IN THIRD COUNTRIES òòòòòìð VI.1 . PROSECUTION OF ACTS OF TORTURE COMMITTED IN 3 RD COUNTRIESòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìð A. The Criminal Law òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìð B. Extradition Law òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìï C. Practiceòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìî v TORTURE IN ZIMBABWE, PAST AND PRESENT VI.2. CLAIMING REPARATION FOR TORTURE COMMITTED IN 3RD COUNTRIESòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìî A. Legal Action Against Individual Perpetrators òòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìî B. Legal Action Against a Foreign Stateòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìí C. Practiceòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìí VII. CONCLUSIONòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòòìí vi REDRESS/AMANI I. INTRODUCTION I.1. The Legal Framework A. The Constitution Zimbabwe is an independent republic and has a population of about 12 million people, comprised of two main ethnic groups, the Shona (83%) and the Ndebele (16%). There is a small white population of less than ½ %. The official language is English. Zimbabwe, formerly Rhodesia, was under white-minority rule until achieving independence on 18 April 1980 under a new Constitution.1 This followed a British- supervised general election won by Robert Mugabes Zimbabwe African National Union party (Zanu, later called Zanu-PF), the first democratically held multi-party election in which the black majority could fully participate. Independence ended the rule of Ian Smiths racist Rhodesian Front (RF) government, which had illegally declared the country independent from Britain 15 years earlier on 11 November 1965, an event known as the Unilateral Declaration of Independence (UDI). The 1980 Constitution is commonly referred to as the Lancaster House Constitution.2 The Constitution contains a justiciable bill of rights (called the Declaration of Rights3), which recognises a wide range of civil and political rights, including the protection of the right to life and to personal liberty. There are also provisions to secure every persons entitlement to the protection of the law.4 The courts of general jurisdiction consist of the Magistrates Courts and the High Courts, which hear both civil and criminal cases. The High Court has both original and appeal jurisdiction. The Supreme Court hears appeals and constitutional cases. A person who alleges a contravention of the Declaration of Rights is entitled to approach the Supreme Court directly for redress.5 There are also local courts and small claims courts, which with Magistrates Courts are known as inferior courts, while the High Courts and the Supreme Court are known as superior courts. The local courts have limited jurisdiction over civil disputes involving persons subject to African customary law. Magistrates Courts hear certain civil cases as courts of first instance, depending on the amount of money involved, and appeals from local courts. The High Courts6 hear certain criminal and civil appeals from inferior courts, 1 The Constitution of Zimbabwe was published as a Schedule to the Zimbabwe Constitution Order 1979 (SI 1979/1600) of the