Abstract

Keywords

Human rights; torture; protection; enforcement agencies; violations.

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1 Introduction

Torture could include an act or practice by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.1 Several challenges involving torture-related human rights violations have been reported in Zimbabwe from the late 1970s to date.2 Notably, these torture-related human rights violations were problematic during the liberation war era in Zimbabwe.3 Regrettably, such violations are still prevalent, especially prior to and/or during general political elections in Zimbabwe in the post-independence era.4 Accordingly, this article investigates torture as a human rights violation in Zimbabwe, inter alia by focusing on the role of selected law enforcement agencies in the protection

of human rights in Zimbabwe.5 The article also discusses the legal position on torture and the perpetration of torture against ordinary people prior to as well as after independence in Zimbabwe.6 This is done to investigate the adequacy of the legal framework in Zimbabwe with regard to the combatting of torture. In relation to this, selected regional and international legal frameworks against torture are briefly discussed in order to determine possible measures that could be utilised in Zimbabwe.7 The authors submit that although the Zimbabwe Constitution, 20138 prohibits torture, more may still need to be done to enhance the combatting of torture in Zimbabwe. For instance, apart from the prohibition contained in the Zimbabwe Constitution, 2013, there is no legislation that expressly outlaws torture in Zimbabwe. Moreover, Zimbabwe has not ratified the UN Convention against Torture9 to date.10 Lastly, concluding remarks and possible recommendations that could be employed to discourage torture-related human rights abuses in Zimbabwe are provided. It is hoped that such recommendations will be effectively and consistently utilised by the relevant authorities to ensure that the law enforcement agencies and other persons who commit torture-related offences in Zimbabwe are timeously prosecuted for all their offences without fear or favour.11

2 Overview of the regulation of torture prior to 2013

The use of torture to violate and/or infringe upon certain people's civil and political rights in Zimbabwe dates back to the early 1960s and 1970s, especially, during the liberation war era.12 For instance, it is reported that the Zimbabwe African National Liberation Army (ZANLA), the Zimbabwe People's Revolutionary Army (ZIPRA), guerilla soldiers and other persons who were suspected to be enemies of the then ruling white-minority Rhodesian government (the Ian Smith regime) were often captured and brutally tortured, especially in the rural areas, from 1965 to the 1970s.13 Such torture was perpetrated mainly by Rhodesian soldiers against ordinary native black people who were deliberately beaten, intimidated, detained and cruelly treated in prisons in a bid to extract confessions and information from them about the guerrilla soldiers.14 Torture also occurred as a form of institutionalised racism by the Rhodesian soldiers against the ZANLA and ZIPRA guerrilla soldiers and their supporters who consisted largely of native black people.15 Accordingly, about 60 000 people were allegedly tortured and killed during the liberation war.16 Moreover, several people were physically injured or maimed while others were psychologically intimidated and tortured by the Rhodesian soldiers.17 Torture was one of the forms employed by the Ian Smith regime to grossly violate people's human rights during the liberation war struggle.18 The Ian Smith regime had illegally declared the country independent from Britain on 11 November 1965 (the Unilateral Declaration of Independence (UDI)). There was no legislation that expressly outlawed torture. On the contrary, the Ian Smith regime enacted the Emergency Powers Act,19 Indemnity and Compensation Act20 which provided immunities, indemnities, amnesties, clemencies and pardons to

the perpetrators of torture21 from criminal and civil liability.22 Moreover, the Ian Smith regime relied on the Law and Order (Maintenance) Act23 to repress and torture native black people for supporting the guerrilla solders. These draconian laws enabled the Rhodesian soldiers and other state agencies of the Ian Smith regime to violate people's human rights with impunity.24

Thereafter, Zimbabwe obtained its independence from the colonial Ian Smith regime in 1980. Nonetheless, some instances and practices of torture continued to be employed by the new independent black government's law enforcement agencies such as the Zimbabwe Republic Police (ZRP), soldiers25 and the Central Intelligence Organisation (CIO) against human rights activists, members of the opposition parties, non-government organisations (NGOs) and other human rights defenders.26 In other words, despite the fact that the Lancaster House Constitution of Zimbabwe27 was enacted with a justiciable Declaration of Rights28 and the fact that the Indemnity and Compensation Act was repealed and replaced by the War Victims Compensation Act,29 the law enforcement agencies continued to use torture to extract information and confessions from any accused

persons in Zimbabwe.30 For instance, between 1982 and 1987, an ethnic civil war31 between Robert Mugabe's Zimbabwe African National Union Patriotic Front (ZANU PF) and Joshua Nkomo's Patriotic Front Zimbabwe African People's Union (PF ZAPU) supporters allegedly culminated in government-induced gross torture, rape and killings of the Ndebele people, who were largely believed to be dissident supporters of the PF ZAPU in Matabeleland and Midlands provinces of Zimbabwe.32 Furthermore, several people that were suspected to be dissidents and/or apartheid agents were allegedly tortured by the law enforcement agencies.33 Likewise, several people who were suspected to have violated the relevant laws or to be enemies of the state were allegedly tortured by the members of the CIO and the ZRP between 1980 and 2005.34 Notably, due to political intolerance on the part of the ruling ZANU PF government and the economic difficulties in the country, several university students, human rights activists, and members of the civil society and opposition parties that protested against the high cost of living (the food riots) were allegedly beaten and tortured by

government militias, the CIO, war veterans and members of the ZRP between 1998 and 2005.35

Moreover, it is alleged that during the period between 1999 and 2013, various human rights activists and members of the Movement for Democratic Change (MDC) were subjected to various forms of torture such as beatings, rape, electric shocks and other gross human rights abuse by the government-related militias, the CIO, war veterans and members of the ZRP.36 These forms of torture were mostly perpetrated by the aforesaid government agencies during the 2000, 2002, 2008 and 2013 general elections in Zimbabwe.37 This prevalence of this practice was exacerbated by the fact that there was no specific anti-torture legislation or the political will to investigate, prosecute and combat torture-related offences in Zimbabwe. The government retained most of the repressive tactics that were employed against the people by the Ian Smith regime. For instance, it introduced a number of repressive rules and legislation such as the General Notice 424A of 1990, Clemency Order 1 of 1995, Clemency Order 1 of 2000,38 Emergency Powers (Security Forces Indemnity) Regulations,39 and the Ombudsman Act,40 which provided numerous amnesties to the offenders and precluded any investigations relating to the conduct of the police, the army and the prison officers. Consequently the Ombudsman, which later became the Public Protector,41 had no powers to investigate and report on the torture and related human rights abuses that were being committed by the aforementioned law enforcement agencies. Other repressive laws that were employed by the government's law enforcement agencies to harass, manipulate and torture human rights activists, bona fide peaceful protesters and members of the opposition parties include the

Access to Information and Protection of Privacy Act,42 the Public Order and Security Act,43 the Criminal Law (Codification and Reform) Act44 and the Criminal Procedure and Evidence Act.45 Over and above, the Genocide Act,46 the State Liabilities Act,47 and the War Victims Compensation Act were not applicable to the Gukurahundi victims. Accordingly, the victims of torture could not claim their compensation and other remedies from the offenders or the government.48

Notably, the MDC formations (led by Morgan Tsvangirai and Arthur Mutambara) and the ZANU PF concluded a power sharing agreement known as the Global Political Agreement (GPA) in September 2008.49 The GPA was, inter alia, expected to combat torture, restore the rule of law and discourage politically motivated violence as well as the lack of accountability for human rights abuses in Zimbabwe.50 For instance, such violence and torture was mainly carried out by the army and ZANU PF supporters against the MDC supporters, especially prior to the election runoff in 2008. Nonetheless, gross human rights violations, especially torture, continued to be committed against human rights activists, human rights defenders and members of the opposition parties by government law enforcement agencies such as the CIOs, soldiers and the ZRP.51 Such torture was inflicted mostly upon people detained by the law enforcement agencies in order to extract information from them or to force them to confess something.52 It is further alleged that torture and other human rights abuses also continued to be committed against members of the opposition parties by ZANU PF-related groups such as the war veterans and the Chipangano and/or Border Gezi (the green bombers) youth militias, particularly, during and prior to the 2008 general election.53 Despite this, very little or nothing

has been done by the government to investigate and prosecute those who commit torture-related offences in Zimbabwe.54 In other words, although the Lancaster House Constitution, 197955 prohibited torture, the Criminal Procedure and Evidence Act, the POSA, the AIPPA and the Criminal Law Act continued to be arbitrarily enforced against human rights defenders, human rights activists and members of the opposition parties.56 Consequently, due to the absence of specific anti-torture legislation in the Zimbabwe, the affected persons had to rely on common law offences such as assault, assault with intent to do grievous bodily harm, rape, murder and attempted murder in a bid to claim their remedies from the offenders in the courts.57 Moreover, the inconsistent application and upholding of the rule of law poses another fundamental challenge to the reporting and combatting of torture cases in Zimbabwe. For example, it is alleged that torture activities that are perpetrated by the ruling party supporters against the human rights defenders sometimes go unpunished even if the crimes are reported to the police or brought to the relevant courts.58

3 Overview of the regulation of torture subsequent to 2013

The enactment of the Zimbabwe Constitution, 2013 brought some hope to many people that the rule of law, democracy and human rights would be consistently protected in Zimbabwe. For instance, the Zimbabwe Constitution, 2013 brought about several meaningful changes such as a relatively adequate Declaration of Rights that recognises socio-economic rights, independent institutions supporting democracy, the rule of law, the supremacy of the Constitution, the independence of the judiciary and the establishment of the Constitutional Court.59 Moreover, the Zimbabwe

Constitution, 2013 expressly prohibits all persons from using physical or psychological torture or cruel, inhuman or degrading treatment or punishment against other persons in Zimbabwe.60 Notably, this prohibition cannot be limited by any law in Zimbabwe.61 This suggests that apart from the limitations that could be imposed during a public emergency,62 the prohibition on torture cannot be restricted by any person or legislation.63 Accordingly, all forms, conduct and practices of torture against any persons in Zimbabwe are unconstitutional and invalid to the extent of their inconsistency with the Constitution.64

Nonetheless, apart from the prohibition of torture in the Zimbabwe Constitution, 2013,65 there is still no legislation to date that expressly outlaws torture-related practices in Zimbabwe.66 This shortcoming remains a serious impediment to the combatting of torture in Zimbabwe.67 Ironically, as stated above,68 the Criminal Procedure and Evidence Act, the POSA, the AIPPA and the Criminal Law Act are still selectively and arbitrarily enforced against ordinary people, especially human rights activists and members of the opposition parties.69 For instance, it is submitted that about 315 cases of arbitrary arrests, detention and torture of human rights activists such as Beatrice Mtetwa, Itai Dzamara, Patson Dzamara, Jestina Mukoko and several others were reported during the period between July and September 2014.70 Moreover, during the period between 2013 and 2016 several human rights activists and human rights defenders such as Beatrice Mtetwa, Abel Chikomo, Okay Machisa, members of Women of Zimbabwe Arise (WOZA), Zimbabwe Peace Project (ZPP) officials, Alec Muchadehama, Constance Gambara, Andrison Manyere, Itai Dzamara and about 20 000 displaced

residents of the Chingwizi camp in Masvingo were allegedly arrested, assaulted and tortured by the members of the ZRP.71 Most recently, Patson Dzamara was arrested and allegedly tortured by the members of the security services in April 2016 after he staged a peaceful one-man demonstration to request the release of his brother Itai Dzamara, who had allegedly been abducted by security officials in 2015.72 This clearly indicates that repressive legislation such as the Criminal Procedure and Evidence Act, the POSA, the AIPPA and the Criminal Law Act are still being unconstitutionally enforced to violate the fundamental human rights of human rights activists, particularly those who are active in defence of the right to freedom to demonstrate and petition, the right to freedom of expression and of the media, and the right to freedom of assembly and association.73 Likewise, the same repressive legislation is employed by the government's law enforcement agencies to violate the rights of members of the opposition parties and other bona fide protestors to freedom to demonstrate and petition, freedom of expression and the right to freedom of assembly and association74 in Zimbabwe.75

Furthermore, the Prescription Act,76 the Genocide Act, the Police Act,77 the State Liabilities Act,78 and the War Victims Compensation Act have continued to be arbitrarily enforced by the courts and other relevant authorities to delay or discourage affected persons from claiming their

compensation for torture-related offences from the state.79 Further, the president could exercise his constitutional prerogative to grant mercy to offenders80 by pardoning any persons who were convicted of torture and gross human rights offences during the general elections in Zimbabwe. This has somewhat encouraged some unscrupulous persons and law enforcement agencies to continue committing torture-related offences with impunity.81

4 The role of law enforcement agencies and related role players in the prohibition of torture

4.1 The CIO

The CIO is housed in the Ministry of State for National Security in Zimbabwe.82 It is responsible for providing internal and external security to the people of Zimbabwe by combating any security-related threats from within and/or outside the country.83 It normally provides security to the president, vice presidents, cabinet ministers and diplomats that work in and outside Zimbabwe.84 The CIO is also a member of the Central Intelligence and Security Services of Africa (CISSA).85 The constitutional mandate and functions of the CIO are provided in the Zimbabwe Constitution, 2013.86 Nevertheless, unlike other members of the Zimbabwean security forces, there is no specific legislation that regulates the operations and/or functions

of the CIO.87 The officers of the CIO report to a director-general who is appointed by the president after consultation with the relevant minister.88

Notwithstanding the functions and mandate of the CIO stated above, members of the CIO have allegedly been associated with the perpetration of organised political violence, abductions, torture and other related gross human rights abuses against human rights activists and members of the opposition parties in Zimbabwe.89 For instance, some members of the CIO were allegedly directly or indirectly involved in the abduction, torture and/or death of human rights activists and members of opposition parties such as Beatrice Mtetwa, Chris Dhlamini, Morgan Tsvangirai, Nelson Chamisa, Jestina Mukoko, Tonderai Ndira, Susan Tsvangirai and Itai Dzamara.90 It is further stated that some members of the CIO are sometimes involved in partisan politics and conduct that violates the fundamental human rights and freedoms of other persons in Zimbabwe.91 This could, in some instances, indicate that the members of the CIO conduct their duties arbitrarily, without any legislative accountability and in contravention of the Zimbabwe Constitution, 2013,92 which prohibits them from engaging in partisan politics and other activities that violate the fundamental human rights and freedoms of other persons.

4.2 War veterans

The war veterans (former guerrilla soldiers) are members of the Zimbabwe National Liberation War Veterans Association (ZNLWVA), which was formed in 1990.93 The ZNLWVA was formed to facilitate the peaceful

integration of war veterans into society.94 In addition, the ZNLWVA is aimed at ensuring that the needs and welfare of all war veterans are provided by the government.95 The welfare of war veterans is recognised in the Zimbabwe Constitution, 201396 and the War Veterans Act.97 Nevertheless, despite the important contribution made by the war veterans during the liberation war, several of them have been implicated in various violent torture-related activities and gross human rights violations against ordinary people in Zimbabwe from 2000 to date.98 For instance, it is submitted that the war veterans led a violent invasion of white-owned commercial farms (the so-called third Chimurenga) and attacked, tortured and killed several white farmers in Zimbabwe between 2000 and 2005.99 Furthermore, the war veterans have been an integral part of the ZANU PF's violent political weaponry and strategy for survival during general elections in Zimbabwe. For instance, it is submitted that the war veterans were used to drum up support for the ruling party by engaging in violent campaigns, intimidating, beating, torturing and/or killing opposition party supporters in both urban and rural areas of Zimbabwe, particularly during the election years 2000, 2005, 2008 and 2013.100 Be that as it may, very few war veterans have been prosecuted and/or convicted for their torture-related offences in Zimbabwe to date.101

4.3 The Zimbabwe Defence Forces (ZDF)

The ZDF falls under the Ministry of Defence and it comprises of the Zimbabwe National Army (ZNA) and the Zimbabwe Air Force (ZAF).102 It is submitted that the ZDF are responsible for the domestic and external security of the country.103 Like other arms of the Zimbabwean security forces,104 the ZDF were governed by both the Zimbabwe National Security Council Act105 and the Defence Act106 during the Government of National Unity (GPA). Currently, the functions of the ZDF are outlined in the Defence Act and entrenched in the Zimbabwe Constitution, 2013.107 For instance, the ZDF are obliged to protect the interests, territorial integrity and national security of the people of Zimbabwe in accordance with the relevant law and the Zimbabwe Constitution, 2013.108 The ZDF are further obliged to respect the fundamental rights and freedoms of all persons and to execute their duties in a patriotic, professional and non-partisan manner.109 In relation to this, the ZDF are politically accountable to both the president and the parliament.110 Despite this, it is stated that some members of the ZDF have been directly or indirectly implicated in various acts of torture-related political violence against human rights activists and members of the opposition parties during general elections in Zimbabwe.111 For example, it is reported that the ZDF soldiers were deployed across the country to mobilise support for the ruling party by coercing, intimidating, beating and torturing people during the 2008 general elections, especially, in the rural areas.112 Accordingly, it is submitted that these human rights abuses were mostly committed by soldiers against the villagers of Buhera, Nyanga, Chipinge, Gokwe, Zhombe, Mberengwa, Silobela, Chivhu, Marondera and Uzumba.113 It is reported that the soldiers' violence, intimidation and torture

are usually targeted at the supporters of the opposition parties, human rights activists and other human rights defenders such as journalists, NGOs and lawyers.114 This could have been exacerbated by the fact that the ZDF leaders have, on numerous occasions, openly declared their allegiance to the ZANU-PF despite the fact that such partisan conduct is expressly prohibited by the Zimbabwe Constitution, 2013115 and the Defence Act.116 Notably, the partisan conduct of the ZDF and other security services leaders was also laid bare on 6 December 2012 when they attended a ZANU-PF annual conference in Gweru.117

4.4 The ZRP

The ZRP was established in 1980 and is regulated by the Police Act118and administered by the Ministry of Home Affairs. The Police Act outlines the role and duties of the ZRP in the maintenance of public order and safety in Zimbabwe.119 These duties are also provided in the Zimbabwe Constitution, 2013.120 Accordingly, members of the ZRP are obliged to execute their duties in a patriotic, non-partisan and professional manner and in accordance with the relevant law and the Zimbabwe Constitution, 2013.121 This indicates that all the members of the ZRP are constitutionally required to respect the fundamental rights and freedoms of all persons and not to engage themselves in the political activities of any political party.122 Thus, the ZRP officers must conduct their duties of investigating and preventing crime, protecting and securing the lives and property of all people, maintaining law and order and preserving the internal security of the people

of Zimbabwe in accordance with the Zimbabwe Constitution, 2013.123 The ZRP is further obliged to exercise its functions without fear or favour and in co-operation with other related regional and international bodies.124 Accordingly, the ZRP is a member of the Southern African Regional Police Chiefs Cooperation Organisation (SARPCCO).125 Notably, the SARPCCO Code of Conduct prohibits police officers from using excessive force, torture, cruel, inhuman and degrading treatment or punishment against any person.126

The ZRP is further required to comply with international human rights standards and guidelines for law enforcement.127 It is submitted that the ZRP, like any police force in any democratic country, must seriously consider adopting human rights training measures for police officers and an adequate human rights policy128 that will be consistently and impartially enforced to combat torture-related human rights abuses in Zimbabwe.129 This follows various reports that the ZRP has sometimes abandoned its constitutional mandate by engaging in partisan political violence, intimidation and torture against members of opposition parties, human rights activists and human rights defenders.130 It is further alleged that the ZRP has consistently and arbitrarily enforced repressive legislation such as the POSA, the AIPPA and the Criminal Law Act to violate other people's fundamental human rights such as the rights to life; freedom from torture or cruel, inhuman or degrading treatment or punishment; liberty; privacy; human dignity; freedom to demonstrate and petition; freedom of expression

and the freedom to demonstrate and petition.131 In addition, it is alleged that the ZRP is still relying on frivolous charges, arbitrary arrests and the detention of political and human rights activists in order to intimidate, torture and prevent them from fully enjoying their fundamental human rights.132 For instance, the ZRP has sometimes arbitrarily enforced the Criminal Procedure and Evidence Act133 by employing excessive force and torture against members of the opposition parties and human rights defenders such as Okay Machisa, Save Zimbabwe Coalition members, Operation Murambatsvina (Operation Restore Order) victims, WOZA and ZPP officials.134 In other words, although the Criminal Procedure and Evidence Act135 provides that the ZRP officers may use reasonable force to prevent crime and/or to effect an arrest, the ZRP officers have sometimes allegedly used lethal and excessive force against human rights activists, political activists and human rights defenders during their peaceful gatherings and protests.136 Moreover, despite the fact that torture is prohibited in the Zimbabwe Constitution, 2013,137 over 5 000 people were reportedly tortured by the ZRP officers at public gatherings and peaceful protests, especially, during the period between the 2008 and 2013 general elections.138

5 Selected regional efforts to combat torture-related human rights violations

Several African countries have taken legal and other relevant practical measures to ratify and comply with the provisions of the UN Convention

against Torture and the Rome Statute of the International Criminal Court (ICC Statute).139 Given this background, some developments regarding the combatting of torture in countries such as South Africa, Uganda, Madagascar, Democratic Republic of the Congo (DRC), Burundi, Cameroon, Senegal and Zimbabwe are briefly discussed below.

Notably, the use of torture, cruel, inhuman and degrading punishment against any person is prohibited under the Constitution of South Africa, 1996 (Constitution of South Africa).140 South Africa also ratified the ICC Statute on 10 November 2000.141 In relation to this, South Africa enacted the International Criminal Court Act142 in accordance with the ICC Statute. It is submitted that the ICC Act is employed to investigate and prosecute the perpetrators of torture as a crime against humanity as well as other international crimes regardless of where they are committed.143 This could suggest that the principle of universal jurisdiction binds South Africa to investigate and prosecute any allegations of the commission torture as a crime against humanity even if it is committed in other countries. Despite these positive developments, South Africa refused to arrest the Sudanese president Omar Al-Bashir who was indicted by the International Criminal Court for several offences including genocide, crimes against humanity, rape and torture against the ordinary Sudanese people. This shows that although countries may ratify international instruments, enforcing such instruments consistently remains a serious challenge in many jurisdictions.

Moreover, South Africa signed the UN Convention against Torture in 1993 and ratified it in 1998.144 Nonetheless, South Africa enacted the Prevention and Combating of Torture of Persons Act145 only in July 2013. This shows that although South Africa ratified the UN Convention against Torture in 1998, it delayed complying with its obligation to enact anti-torture legislation.146 Accordingly, before the enactment of the Torture of Persons Act, torture-related offences were outlawed under common law and the Constitution of South Africa.147 Like the UN Convention against Torture,148 the Torture of Persons Act provides that torture is caused by any act in which severe pain and suffering, whether physical or mental, is intentionally inflicted on another person by a public official or other person acting in an official capacity.149 This shows that any negligent or reckless acts of torture do not suffice. In addition, any torture that is perpetrated by persons who are not public officials or acting in an official capacity is not expressly prohibited under both the UN Convention against Torture and the Torture of Persons Act.150 Similarly, both the UN Convention against Torture151 and the Torture of Persons Act152 provide that torture must be inflicted for the purposes of: (a) obtaining information or a confession from the tortured persons; or (b) punishing them for an act they committed or are suspected of having committed or of planning to commit. Consequently, acts of torture that are inflicted on other persons for no specific purpose do not suffice.153 Nevertheless, unlike the UN Convention against Torture,154 the Torture of Persons Act does not expressly prohibit the use of cruel, inhuman and degrading treatment or punishment by the torturers against other persons. Furthermore, the Torture of Persons Act does not prohibit torture that is merely inherent in or incidental to lawful sanctions.155 Further, the Torture

of Persons Act156 does not expressly provide any defences for torture-related offences committed during a war, the threat of war, internal political instability or any other public emergency.

Notably, Madagascar outlawed torture by enacting Act No 2008-008 Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment157 in accordance with the recommendations of the UN Human Rights Committee in 2008. This Act provides some compensatory measures and redress for the victims of torture.158 The DRC incorporated the prohibition of torture-related offences in its Penal Code in 2011. This prohibition was introduced in accordance with the definition of torture which is contained in the UN Convention against Torture.159 This has allegedly resulted in several public officials being convicted of various torture-related offences in DRC to date.160 Uganda enacted the Prevention and Prohibition of Torture Act161 in accordance with the UN Convention against Torture in 2009. This Act also prohibits public officials from inflicting cruel, inhuman and degrading treatment or punishment on other persons.162 Likewise, Burundi and Senegal enacted anti-torture legislation in 2009 and 1996 respectively. Cameroon also enacted its anti-torture legislation in accordance with the UN Convention against Torture in 1997.163 While other African countries have made commendable efforts to prohibit and combat torture as stated above, Zimbabwe has not ratified the UN Convention against Torture and there is no anti-torture legislation in Zimbabwe to date.164 Consequently, despite the fact that Zimbabwe has signed and/or acceded to some regional anti-torture instruments such as the ACHPR,165 the African Union Guidelines and Measures for the Prohibition of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines),166 and the African Commission of Human and People's

Rights (African Commission),167 it has not yet complied with its obligations to outlaw torture and timeously prosecute perpetrators of torture without fear or favour.168

These positive regional efforts to combat torture could be negatively affected by some African countries that are not consistently enforcing or have not ratified and/or are threatening to withdraw from the ICC Statute. The effectiveness of these regional efforts is also complicated by the immunity provisions contained in the Malabo Protocol, which prohibits the prosecution of any incumbent head of state and/or government or anybody acting or entitled to act in such capacity and/or other relevant state officials during their tenure of office for their human rights offences.169 These immunity provisions could have, to some extent, encouraged state executives to evade liability and accountability for their human rights-related offences in Africa.

6 Selected international efforts to combat torture-related human rights violations

Torture is also outlawed in various international instruments such as the UN Convention against Torture,170 the Code of Conduct for Law Enforcement Officials,171 the UN Human Rights Committee's anti-torture guidelines,172 the International Covenant on Civil and Political Rights (ICCPR),173 the UDHR,174 the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

(Guidelines on the Right to a Remedy and Reparation for Victims)175 and the ICC Statute.176 For instance, as stated earlier,177 the UN Convention against Torture is the main international human rights treaty that expressly prohibits torture and mandates member states to enact their own anti-torture laws in accordance with its provisions.178 As stated above,179 the UN Convention against Torture provides, inter alia, that torture-related offences are committed if: (a) severe physical or mental pain or suffering (torture) is intentionally inflicted on another person (a victim) by a public official or someone acting in an official capacity; (b) the torture was inflicted for purposes such as obtaining information or a confession or punishing the victim for an offence that he or she has committed or is suspected of having committed; or (c) the torture was meant for intimidating or coercing or discriminating against the victim.180 Thus, less severe acts of torture that are inflicted on other persons for no specific or premeditated objective do not give rise to the torture offence under the UN Convention against Torture.181 Moreover, the words "for such purposes as" that are contained in the definition of torture under the UN Convention against Torture could suggest that the list of purposes for inflicting torture on other persons is not exhaustive.182 Furthermore, torture-related activities that are committed by unscrupulous private persons who are neither public officials nor acting in an official capacity are not expressly prohibited under the UN Convention against Torture.183 Torture-related activities that are inherent in or incidental to lawful sanctions do not give rise to the torture offence under the UN Convention against Torture.184 It also appears that any negligent or reckless acts of inflicting severe pain or suffering on others do not suffice for the purposes of the offence of torture under the UN Convention against Torture,

since they lack the relevant criminal intent.185 In relation to this, other scholars submit that such negligent or reckless acts do not amount to torture, but they could be regarded as cruel and inhuman conduct.186 Notably, such cruel, inhuman and degrading treatment or punishment of other persons is prohibited under the UN Convention against Torture.187 The UN Convention against Torture does not provide a minimum and/or maximum penalty for torture. Nonetheless, it obliges member states to impose penalties that reflect the gravity of the torture offences in question in order to combat impunity.188 It does not expressly provide any defences for torture-related offences regardless of the prevailing circumstances during their commission.189

As stated before,190 the ICC Statute is usually employed to investigate and prosecute perpetrators of torture as a crime against humanity and other international crimes.191 In this regard, it should be noted that the ICC Statute is sometimes employed to prohibit torture as a crime against humanity192 as well as to prohibit torture as a war crime.193 For instance, with regard to torture as a crime against humanity, the ICC Statute prohibits the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused.194 Nevertheless, this prohibition does not apply to pain or suffering that is inherent in or incidental to lawful sanctions.195 The ICC Statute also provides that the perpetrators of torture should know that their conduct is intentionally targeted at a widespread or systematic attack against a civilian population by a government or an organisation.196 Notably, like the position under the UN Convention against Torture stated above, the ICC Statute requires that the conduct of the torturer should cause or ought to have caused severe

pain or suffering to the victim.197 Moreover, such severe pain or suffering (torture) should be or ought to have been a systematic attack against a civilian population by a government or an organisation. This could suggest that torture-related systematic attacks on other persons by private persons that are not part of a government or an organisation per se do not qualify as torture offences under the ICC Statute. It also appears that such torture is strictly required to have occurred to the victim while in the custody or control of the torturer.198 Further, unlike the position under the UN Convention against Torture stated above, the ICC Statute does not expressly and strictly require that the torture-related conduct should have a specific purpose.199

With regard to torture as a war crime, the ICC Statute prohibits torture during international armed conflicts200 and non-international armed conflicts.201 In this regard, the ICC Statute provides that torture as a war crime must cause pain or suffering on other persons for a particular purpose. In addition, the ICC Statute stipulates that torture or the inhuman treatment of other persons during international conflicts and wars is a breach of the 1949 Geneva Convention's rules on such conflicts and wars.202 However, the ICC Statute's prohibition of torture as a war crime does not expressly require the perpetrator to be a public official or to act in an official capacity.

The World Organisation against Torture (WOAT) and CAT have also played key roles in the enforcement of the UN Convention against Torture globally.203 Moreover, the Guidelines on the Right to a Remedy and Reparation for Victims have usefully provided some reparatory measures that could be enforced against the perpetrators of torture in different jurisdictions.204 Likewise, the anti-torture guidelines of the UN Human Rights Committee205 and the Code of Conduct for Law Enforcement Officials206 have been employed in several jurisdictions to discourage law enforcement agencies and other public officials from engaging in torture-related activities against other persons.207 Also, the ICCPR,208 the Declaration on Torture

and the UDHR209 have to date equipped several member states to take effective legislative, administrative, judicial and other relevant measures to prevent torture in their jurisdictions. For example, the ICCPR prohibits the use of torture and other forms of ill-treatment and obliges member states to investigate, prosecute and impose appropriate penalties against all the perpetrators of torture.210

Despite these commendable international efforts to combat torture and the fact that Zimbabwe has ratified the ICCPR, more still needs to be done to combat torture in Zimbabwe. For instance, as stated earlier,211 Zimbabwe has not yet ratified the UN Convention against Torture. Moreover, despite the fact that Zimbabwe has ratified the ICCPR, it has not yet enacted any anti-torture legislation to date. This could indicate that Zimbabwe is not complying with the treaties that it has signed as well as other international best practice on torture. This could further suggest that the government and other relevant stakeholders do not respect the relevant courts212 and the Zimbabwe Constitution, 2013 which outlaws torture and binds Zimbabwe to respect and abide by the relevant international law, treaties and conventions that it has acceded to and/or ratified.213 As indicated before,214 this flaw has created a culture of impunity among the perpetrators of torture in Zimbabwe, who are still continuing with their illicit torture activities without being investigated and prosecuted.215

7 Concluding remarks

As stated earlier,216 various regional instruments such as the ACHPR, the Robben Island Guidelines and the African Commission guidelines have been usefully utilised to combat torture-related activities in many African countries. Likewise, international instruments such as the UN Convention against Torture, the UN Human Rights Committee's anti-torture guidelines, the ICCPR, the UDHR, the Guidelines on the Right to a Remedy and Reparation for Victims and the ICC Statute have also played a key role in

the enactment of anti-torture legislation in several countries to date.217 It is submitted that the ICC Statute and the UN Convention against Torture are the main instruments that have been employed to combat torture in many jurisdictions to date.218 In relation to this, the fact that the prohibition on torture and other related practices was contained in the Lancaster House Constitution, 1979219 and currently, in the Zimbabwe Constitution, 2013220 is commendable. However, Zimbabwe has not ratified the UN Convention against Torture to date. Moreover, although Zimbabwe has ratified the ICCPR and the ACHPR, it sometimes does not comply with their anti-torture provisions.221 Consequently, torture has remained an illicit tool employed by law enforcement agencies and other unscrupulous persons in order to unconstitutionally punish or extract information and confessions from the accused persons in Zimbabwe to date.222 The organised violence and torture, forced disappearance and abduction of Jestina Mukoko and Itai Dzamara are cases in point.223 As stated before,224 this could have been worsened by the arbitrary enforcement against human rights defenders, human rights activists and members of the opposition parties of repressive legislation such as the Criminal Procedure and Evidence Act, the POSA, the AIPPA and the Criminal Law Act. Accordingly, the government and other relevant authorities have to date grappled to consistently and timeously investigate and without fear or favour prosecute the perpetrators of torture-related offences in accordance with the Zimbabwe Constitution, 2013.225 This has culminated in a culture of impunity among the perpetrators of torture and many injustices among the victims of torture in Zimbabwe.226

Given this background, it is submitted that Zimbabwe should seriously consider ratifying the UN Convention against Torture. In this regard, Zimbabwe should urgently enact adequate anti-torture legislation in accordance with the UN Convention against Torture in order to combat all torture-related activities in the country.227 Such legislation should provide a comprehensive definition of torture and appropriate penalties for the offenders in accordance with the gravity of the torture offence in question. It

is further submitted that Zimbabwe should respect and abide by the Zimbabwe Constitution, 2013 and all the international or regional instruments that it has ratified, especially, those that prohibit torture. It is also recommended that the law enforcement agencies and other relevant authorities in Zimbabwe must consistently investigate and prosecute the perpetrators of torture-related offences without fear or favour or impunity. In the light of this, the government of Zimbabwe should also take legislative, administrative, judicial and other relevant measures to ensure that all the victims of torture are compensated or provided with some redress from the perpetrators of torture. The government of Zimbabwe should also take legislative and other relevant measures to provide all law enforcement officers with training on human rights protection. It is further submitted that the government of Zimbabwe should embark on human rights and torture-related public awareness activities across the country. In addition, the government of Zimbabwe should establish effective independent complaints mechanisms where members of public can report misconduct and torture offences against law enforcement agencies, security services or other offenders in accordance with the Zimbabwe Constitution, 2013.228 Lastly, it is recommended that all repressive legislation such as the Criminal Procedure and Evidence Act, the POSA, the AIPPA and the Criminal Law Act must be repealed or amended in accordance with the Zimbabwe Constitution, 2013.229

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List of Abbreviations