The Right Not to be Tortured; The Right to See a Doctor Of One’s Own Choice;
and The Right to a Prompt Bail Decision.
Introduction
On 31st July three human rights activists, Robson Chere, Namatai Kwekweza and Samuel Gwenzi, as well as Vusumuzi Moyo, an artist and sound engineer, were forcibly removed from a domestic commercial flight at Robert Mugabe Airport.
They were held incommunicado by State agents for at least eight hours before being handed over to the Police. On Friday 2nd August they were brought before a magistrate for remand, charged with disorderly conduct at a gathering held some days earlier outside the Harare Magistrates Court.
They alleged that after being taken from the aircraft they had been subjected to torture in the form of physical assaults, threats and abuse. Chere in particular bore visible signs of serious assault: his clothes were blood-stained, he was limping and he appeared to be in pain.
At the hearing Chere’s lawyer applied for him to be examined by his own doctor but the magistrate refused the application, saying he could be examined by prison doctors instead. It later transpired that doctors attend the prison only two days a week, so Chere was not examined by them until the following Tuesday.
As to the accused persons’ allegations of torture, the investigating police officer gave evidence to the effect that it could not be established who might have assaulted them. Nonetheless the magistrate said the police should investigate the allegations.
The accused persons applied for bail but their application was postponed to the following Monday, the 5th August, when the hearing started late in the afternoon and had to be further postponed to the next day.
Thereafter the magistrate repeatedly granted the prosecutor further postponements despite objections by the defence lawyers. A ruling on bail was finally given 10 days later, on the 16th August, when the magistrate refused bail on the ground that the accused persons might re-offend.
What happened to the four accused persons was a shocking indictment of Zimbabwe’s justice system.
Torture
The first, and obvious, point to make is that torture – defined internationally as the infliction of severe pain or suffering by public officials for the purpose of punishment, intimidation, coercion or extracting a confession – is utterly abhorrent and can have no place in a country that has any respect for human rights. Section 53 of our Constitution absolutely prohibits torture and other cruel, inhuman or degrading treatment.
The accused persons in the present case were apparently healthy and uninjured when they were taken off the aircraft and arrested. When they appeared in court a few days later, still in custody, they complained of torture and at least one of them showed clear signs of injury. In the absence of a credible explanation to the contrary the inference is almost irresistible that they were indeed tortured.
When persons are arrested they must be brought before a court within 48 hours: this is stated in section 50(2) of the Constitution and echoed in section 41A (7)(c) of the Criminal Procedure and Evidence Act.
One purpose of these provisions is to enable the court to satisfy itself that the arrested persons have been treated properly and, above all, that they have not been subjected to torture.
In this case the magistrate should herself have taken steps to investigate the accused persons’ complaints very closely, rather than leaving it to the police to do so. She should have ordered that all officers involved in their arrest and detention be brought to court and questioned by the accused persons’ lawyers. She should have insisted that all the accused persons be medically examined by their own doctors and by doctors appointed by the State. If she had done this she would have demonstrated how seriously torture must be taken in a country that respects the rule of law.
Right of Detained Persons to Medical Care
The magistrate also erred in refusing to order Chere to be examined by his doctor. Apart from the fact that the refusal delayed Chere’s medical examination by four days, it violated his constitutional right to see his own doctor. According to section 50(5)(c) of the Constitution, persons in detention have the right to be visited (and by inference to be examined) by their chosen medical practitioner. This is restated in section 41A(7)(c)(v) of the Criminal Procedure and Evidence Act.
So when Chere’s lawyer sought to have him examined by his own doctor, the lawyer was not seeking a favour from the court: he was asking the magistrate to accord Mr Chere a right to which he was entitled by virtue of the Constitution, the supreme law of the land.
Right to Bail
Section 50(1)(d) of the Constitution states:
“(1) Any person who is arrested—
…
(d) must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”.
In other words, accused persons are entitled to bail. Section 117(1) of the Criminal Procedure and Evidence Act repeats this right.
We shall not comment on whether there were compelling reasons for refusing bail to the four accused persons in this case, though we note that a propensity to commit further offences is a recognised ground for refusing bail. What is very concerning in this case is the delay that occurred before the four were finally refused bail. It took two weeks before a decision was reached on whether to grant them bail, and during that time they were kept in custody and had no right of appeal to a higher court.
Decisions on bail must be made quickly because they affect the liberty of individuals. Courts have emphasised this in the past and rules of court state that bail applications and appeals must be set down “with the utmost urgency”. The magistrate in this case should not have allowed the bail proceedings to drag on for two weeks.
Investigation of Complaints of Torture
As we said earlier, the magistrate directed that the accused persons’ allegations of torture should be investigated by the police. This is obviously unsatisfactory. Whoever tortured the accused persons were either police officers or members of some other security service. It would test the independence, dedication and professionalism of any police officer to investigate such a case. But at present there is no independent institution to investigate cases of torture and other misconduct on the part of members of the security services.
The Zimbabwe Independent Complaints Commission was established by statute in 2022 to conduct just such investigations. Unfortunately the Commission has not been made operational: no commissioners have been appointed, it has no staff and no government funds have been allocated for its activities. It exists only on paper, in other words.
In the absence of an independent organisation to investigate the torture allegations in this case, the magistrate should have done her best to investigate them herself, as we have suggested, by calling all the officers responsible for arresting and detaining the accused persons and allowing them to be cross-examined by the accuseds’ lawyers.
Conclusion
Perhaps the most disturbing aspect of this case has been the way the court, and the justice system as a whole, ignored the legitimate constitutional rights of the four accused persons. The fact that they were probably tortured was almost brushed aside, trivialised, as though torture were something to be expected, especially by people who oppose the Government. There seems to have been no real attempt to investigate the shocking allegations they raised, to take steps to ensure that such things can never happen again. This case has shown how desperately we need an effective independent commission to investigate allegations of torture against the security services and to recommend remedies for such instances of abuse as are found to have been proved.
The case has highlighted other areas of serious concern. The magistrate’s refusal to allow an arrested person exhibiting obvious injuries to see his own doctor was a clear violation of the Constitution. Whenever accused persons appear in court and complain of assault while in custody, magistrates should order their immediate examination by qualified medical professionals – by their own doctors if they request it, otherwise by State medical officers.
Another serious concern is the delay that occurred in deciding whether the accused persons should be released on bail. This was also a violation of the Constitution and it happens too often. Bail, as we have said, affects people’s liberty and must always be treated as a matter of urgency.
An overhaul of our justice system is called for, including the retraining of magistrates to instil in them respect for the rights of accused persons. Also, the importance of police officers knowing about and respecting the constitutional rights of arrested persons cannot be overstated. It should perhaps be remembered that, unlike judicial officers, police officers are not protected by law from being sued for damages.
