MALABA
DCJ:
INTRODUCTION
This
case is about a permanent stay of a criminal prosecution because of
torture and inhuman and degrading treatment to which the applicant
was subjected by State security agents prior to being brought to
Court on a criminal charge.
Jestina
Mukoko (hereinafter referred to as (“the applicant”) appeared
before a magistrate at Rotten Row Magistrates Court in Harare on 14
January 2009 in the case of Manuel
Chinanzvavana & Eight Ors No.8801-5/08. She
was charged with the offence of contravening section 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”).
Two
grounds were used to justify the request.
(i)
The first was that the institution of the criminal prosecution was
rendered invalid by the pre-charge ill-treatment to which the
applicant was subjected. 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 section 13(1) and not to be subjected to
torture or to inhuman or degrading treatment protected by section
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. It was also argued that the conduct of the State
security agents offended the sense of what the judiciary expects as
decent behaviour from law enforcement agents in the treatment of
persons in their custody.
The
contention was that the Court was obliged to refuse to countenance
the bringing of the criminal prosecution in the circumstances.
(ii)
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.
The
assumption was that section 15(1) of the Constitution contains a rule
that prohibits the admission or use, in legal proceedings by public
officials responsible for the initiation and conduct of criminal
prosecution and judicial officers, of information or evidence of the
crime obtained from an accused person or any third party by
infliction of torture, or inhuman or degrading treatment.
The
contention was that reliance on information or evidence of the crime
obtained from the applicant or a third party by torture, inhuman and
degrading treatment was a breach of the exclusionary rule and
unlawful.
It
also engaged the responsibility of the State in the violation of
section 13(1) of the Constitution. The effect of the argument was
that the decision to charge the applicant with the criminal offence
and the institution of the prosecution of it was not based on a
reasonable suspicion of her having committed the criminal offence.
The criminal prosecution was therefore not authorised by section
13(2)(e) of the Constitution.
The
magistrate was of the view that the raising of the question as to the
contravention of the applicant's fundamental rights was not
frivolous or vexatious. He referred the question to the Court for
determination.
The
relief sought by the applicant was an order of permanent stay of the
criminal prosecution.
THE
ORDER OF THE COURT
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
sections 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.
The
reasons for this order will be furnished in due course. The question
of the costs of the application will be dealt with in the judgment.”
THE
FACTS
The
reasons for the order are now given.
The
facts on which the determination of the question as to the
contravention of the fundamental rights referred to in the order was
based, were conveyed by oral testimony given by the applicant in the
Magistrates Court. They were also conveyed through the affidavit
deposed to by her on 12 January 2009 as well as by the arguments
addressed to the Court by counsel on behalf of the applicant.
The
truthfulness of the evidence conveyed by the means and methods
referred to was not contested by the respondent.
The
evidence is to the following effect.
On
3 December 2008 at 5am, the applicant was in bed at the family home
in Norton. In the house were her son, nephew and an employee. The son
came to the bedroom and said there were people at the gate to the
premises who wanted to talk to her. She woke up in a night dress
only. The son came back saying he understood that the people were
members of the police. Wearing a night dress only she walked to the
kitchen where she met seven men and one woman in plain clothes. They
said they were members of the police but did not produce identity
cards to show that they were police officers. Two of the men took
positions on each side of the applicant. They each held her by the
hand and led her to a Mazda Familia motor vehicle that was parked at
the gate. In the car was another man.
The
applicant asked her captors for permission to go back into the house
and dress properly. She was instead pushed into the rear seat of
the car. She was ordered to lie on the back seat between two men with
her face on the lap of one of them. The man on whose lap she was
forced to put her face had a gun across his thighs. Across the floor
of the car in front of the rear seat there was another firearm. A
jersey was used to blindfold her. She could hardly breathe as the
jersey was pressing against her nose. When she complained of
suffocation the tightness of the jersey was loosened a little bit.
She
said she was terrified by what was happening to her.
The
car was driven for about 40 minutes before it was stopped at a secret
place. During the journey the car radio had been switched on to
produce a very loud sound. She was led out of the car into a room
where she was told to sit on a chair. A woman gave her a dress which
she said she reluctantly put on in place of the night dress.
After
30 minutes of their arrival at the secret place, the applicant was
taken to another room and told to sit on the floor with legs
stretched forward. When the blindfold was removed, six men and one
woman started interrogating her. She was told to agree to become a
State witness in the case under investigation or be killed. She was
asked to give the name of an ex-police officer who visited her work
place seeking financial assistance to go outside the country. The
questions sought to solicit from her information to the effect that
she had used her organisation's funds to enable the ex-police
officer to go outside the country and undergo military training in
insurgency and terrorism.
The
applicant said when she told the interrogators that she could not
remember the name of the ex-police officer who had visited her office
in 2008, one of the men took a piece of a hosepipe about one metre
long. Another man took a coiled piece of iron. The two men took turns
to beat her with these objects several times on the soles of her feet
using severe force. She said her assailants were quite zealous in
what they were doing. She yelled in pain. When the first stretch of
beatings ended, a woman brought her pants to wear. The interrogation
and beatings stopped in the afternoon of the first day at the secret
place.
She
was blindfolded and taken to a room in which she was kept in solitary
confinement. The blindfold was removed each time she was in solitary
confinement.
In
the evening of the first day of her arrival at the secret place she
was blindfolded and taken to a room. She 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.
On
4 December 2008, the applicant was interrogated in the morning and
afternoon without being beaten. In the evening she was told that as
she was not co-operative, a decision had been made that she be
surrendered to a merciless group of men and women. A blindfold was
put around her head. She said she was gripped by fear. She thought
she was going to be killed as she was pushed into a car and told to
lie face down on the rear seat.
The
motor vehicle was driven for a considerable time before being stopped
at a secluded place. There was a sound of shuffling movement of
people outside the car. She thought her captors were preparing to
execute her. The car suddenly reversed and then drove on. The captors
asked about her workplace. They alleged that she worked for Voice of
America Studio. She said she told them she worked for Voice of the
People. The car got back to the secret place at 1:00am.
In
the morning of 5 December 2008, the applicant was taken to an
interrogation room. When the blindfold was removed she saw Rodrick
Takawira who was her workmate in the same room. One of the
interrogators said to her:
“You
have been lying all along, Rodrick has told us everything”.
Rodrick
was taken out of the room.
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
applicant said the interrogators wanted her to say that she had
assisted Ricardo Hwasheni to go to Botswana for military training so
as to carry out insurgent and terrorist activities in the country.
She said she told the interrogators that she had a brief interaction
with Ricardo when he visited their offices asking for assistance to
leave the country. She said she told the interrogators that she
referred Ricardo to Fidelis Mudimu who worked in the counselling
services unit of the organisation.
On
the fourth day she was blindfolded and taken to a room where she was
made to sit on a chair. When the blindfold was removed she saw nine
men and one woman sitting at a conference table. One of the men had
interrogated her before. They said they wanted to know more about
Zimbabwe Peace Project and documents it had in its possession on
human rights violations in the country. They asked about her
interaction with Ricardo Hwasheni.
She
said she told the interrogators that she had told Ricardo that her
organisation did not give money to people who wanted to go out of the
country. They asked her why she did not ask him which country he
wanted to go to. When she said that was not her business, the
interrogation became very aggressive.
The
applicant said the men became visibly angry. One of them threatened
to make her suffer. He said they were going to make her defecate.
Shaking
with fear and not sure whether she would come out of the room unhurt,
she was given a paper and told to write a statement. 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. According to her, it was not true that she had
referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit.
She said she did not make the statement freely and voluntarily. The
statement contained what she was told to write by her captors because
she believed that would make them release her.
On
14 December 2008 the applicant was taken to a conference room where
there was a cameraman. The men and women who had interrogated her
were present. The cameraman was introduced to her. She was told that
she was to be video recorded whilst making a statement about how she
met Ricardo Hwasheni. It was said a decision was to be made on the
basis of the statement whether to prosecute her or turn her into a
State witness.
After
saying what the interrogators wanted her to say, she was blindfolded
and taken to the room where she was kept in solitary confinement. She
was held in solitary confinement incommunicado until 22 December
2008.
On
22 December 2008 the applicant was blindfolded and taken by car in
the company of Rodrick Takawira to a place where they were turned
over to a police officer called Magwenzi. The police officer told
them not to remove the blindfolds before those who brought them left.
She said when the blindfold was removed she recognised the place
where they were left by their captors as Braeside Police Station.
She
was detained there.
The
police later obtained from a magistrate a warrant authorising a
search to be carried out at her house in Norton. She was taken to the
house. For the first time she saw members of her family. Whilst
under the custody of her captors she had not been allowed to
communicate with members of her family or her lawyer.
The
search of the house did not yield anything relevant to the allegation
that she recruited Ricardo Hwasheni to undergo military training for
purposes of carrying out insurgency and terrorism in the country.
On
23 December 2008 she was charged with the offence of contravening
section 24(a) of the Act.
The
facts on which the charge was based were extracted from the applicant
by interrogation at different times during the period of detention
extending from 3 to 14 December 2008.
On
the basis of the information on which the charge was brought against
the applicant, the public prosecutor instituted the criminal
proceedings.
The
applicant was then brought before the magistrate for remand pending
trial. 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.
Meaning
of section 15(1) of the Constitution
The
first point taken on behalf of the applicant was that the treatment
to which she was subjected by State security agents prior to the
charge being laid on her constituted a contravention of section 15(1)
of the Constitution.
Section
15(1) of the Constitution provides that:
“(1)
No person shall be subjected to torture or to inhuman or degrading
punishment or other such treatment.”
In
this case the only relevant concepts are “torture”; “inhuman
treatment” and “degrading treatment”. They make up the three
key elements of the protection of a person's dignity and physical
integrity from the prohibited treatment at the hands of public
officials.
Section
15(1) of the Constitution enshrines one of the most fundamental
values in a democratic society. Chahal
v United Kingdom
[1996] 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: (see section 25 of the
Constitution).
The
provision is subject only to the exercise by Parliament, when
properly constituted, of the power under section 52 of the
Constitution to amend, add to or repeal any provision of the
Constitution upon strict compliance with the procedure prescribed for
the purpose. Mike
Campbell (Pvt) Ltd v Ministry of Lands
2008 (1) ZLR 17 (S).
It
was in the exercise of the power conferred on it by section 52 of the
Constitution, that Parliament, by means of Act No.30 of 1990
(Amendment No.11) and Act No.9 of 1993 (Amendment No.13) provided
that six specific instances of treatment of individuals by the State,
shall not be held to be in contravention of section 15(1) of the
Constitution. These are:
(i)
treatment to prevent the escape from custody of a person who has been
lawfully detained (section 15(2));
(ii)
moderate corporal punishment inflicted upon a person under the age of
eighteen years by his parent or guardian or by someone in loco
parentis
(section 15(3)(a));
(iii)
moderate corporal punishment inflicted on a male person under the age
of eighteen years in execution of the judgment or order of a court
(section 15(3)(b));
(iv)
execution of a sentence of death in the manner prescribed in section
315(2) of the Criminal Procedure & Evidence Act [Cap.
9:07]
(section 15(4));
(v)
delay in the execution of a sentence of death (section 15(5)); and
(vi)
delay in the execution of any sentence imposed by a competent court
(section 15(6)).
The
qualities of absoluteness in the sense of being an unconditional
prohibition and non-derogability articulate the notion that the
prohibition is one of the most fundamental standards of a democratic
society. 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.
There
is a distinction intended to be made under section 15(1) of the
Constitution between torture on the one hand and inhuman or degrading
treatment on the other.
The
distinction between the notion of torture and the other two concepts
lies principally in the intensity of physical or mental pain and
suffering inflicted, in respect of torture, on the victim
intentionally and for a specific purpose. Torture is an aggravated
and deliberate form of inhuman or degrading treatment. What
constitutes torture, or inhuman or degrading treatment depends on the
circumstances of each case.
The
definition of torture often adopted by courts as a minimum standard
by which a determination of the question whether torture has been
committed or not, is that provided under Article 1(1) of the United
Nations Convention Against Torture and Other Cruel or Inhuman or
Degrading Treatment or Punishment 1987 (hereinafter referred to as
“the UN Convention on Torture”).
Article
1(1) of the UN Convention on Torture provides that:
“...
torture means any act 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. It
does not indicate pain or suffering arising only from, inherent in or
incidental to lawful sanction.”
The
definition of torture provided in Article (1)(1) is consistent with
the interpretation by the Court in its case law of the concept as
used in section 15(1) of the Constitution.
It
is important to note that in terms of the definition, the torture
must be inflicted for the purpose of obtaining information or a
confession. This is the mischief at which the UN Convention on
Torture is aimed.
Inhuman
treatment is treatment which when applied or inflicted on a person
intentionally or with premeditation causes, if not actual bodily
injury, at least intense physical or mental suffering to the person
subjected thereto and also leads to acute psychiatric disturbance
during interrogation: Ireland
v United Kingdom
[1978] 2 EHRR 167 para 167.
Degrading
treatment is treatment which when applied to or inflicted on a person
humiliates or debases him or her showing a lack of respect for or
diminishing his or her human dignity or arouses feelings of fear,
anguish or inferiority capable of breaking the person's moral and
physical resistance.
The
relevant notions in the definition of degrading treatment are those
of humiliation and debasement. The suffering and humiliation involved
must go beyond the inevitable element of suffering or humiliation
connected with a given form of legitimate or fair treatment: Woods
v Commissioner of Prisons & Anor
2003 (2) ZLR 421 (S) at 432C-B.
It
follows from the definition of the relevant concepts that not every
treatment which causes some discomfort to the person in detention
violates section 15(1) of the Constitution. Otherwise no one could be
arrested, detained and interrogated in the investigation of crime.
The treatment must reach the minimum level of severity before it
constitutes a breach of the absolute prohibition under the section.
The
assessment of the minimum level of severity is relative.
The
question whether or not the requisite threshold of breach of the
fundamental right has been reached in a particular case is determined
by the consideration of such factors as the nature and context of the
treatment; manner and method of its execution, as well as the
duration of the treatment, its physical and mental effects and in
some cases the age, sex and state of health of the victim: Ireland
v United Kingdom supra
para 162; S
v Ncube & Ors
1987 (2) ZLR 246 (S) at 271A-G; Soering
v United Kingdom
[1989] 11 EHRR 439 para 100; Woods
v Commissioner of Prisons & Anor supra
at 431G.
APPLICATION
OF SECTION 15(1)
Applying
the principles of the law on what constitutes a contravention of
section 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
reasons for the decision are these.
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”: Amris K, “Long
Term Consequences of Falanga Torture”,
Torture
Vol. 19 Number 1 IRCT 2009.
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. It was in aid of the interrogation the purpose of which
was the extraction from her of information on the assistance her
organisation was suspected of having given to Ricardo Hwasheni to
enable him to undergo military training outside the country.
The
prolonged periods of solitary confinement incommunicado on the
occasions she was not being interrogated constitutes inhuman and
degrading treatment. S
v Masitere
1990 (2) ZLR 289 (S) at 290F.
It
is important to note, however, that solitary confinement is not to be
deemed to be contrary to the prohibition under section 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 section
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.
The
treatment was intended to induce in her fear and anguish. She said
she feared for her life when the motor vehicle was stopped in the
middle of the night at the place she could not see. She heard the
sound of people shuffling about as if preparing to execute her.
The
feelings of fear and anguish generated in her by the treatment had
the intended effect of debasing her.
The
purpose of the prohibition of acts violative of section 15(1) of the
Constitution is to protect human dignity and physical integrity. 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.
FIRST
GROUND
Effect
of Pre-charge Abduction and Violation of Section 15(1) on Criminal
Prosecution
The
grounds on which the relief sought were premised on the court making
a finding that the applicant was kidnapped from home and subjected to
ill-treatment in the form of torture, inhuman and degrading treatment
by State security agents prior to being charged with the criminal
offence by the public prosecutor.
The
general effect of the contention advanced on the first ground was
that the Court should not countenance a prosecution of an accused
person for a criminal offence in circumstances in which he or she was
kidnapped and subjected to torture, or inhuman or degrading treatment
by public officials exercising executive authority prior to the
charge being brought against him or her. The argument was that the
institution of criminal proceedings in the circumstances would be an
abuse of court process.
The
question for determination is whether ill-treatment in breach of
section 15(1) of the Constitution prior to the charge being brought
against the victim taints the subsequent decisions to lay the charge
and institute criminal prosecution against him or her regardless of
the question whether the requirements of section 13(2)(e) of the
Constitution have been complied with or not.
The
decision of the Court on this point is that ill-treatment per
se
has no effect on the validity of the decisions to charge the victim
with a criminal offence and institute prosecution proceedings against
him or her. It is the use of the fruits of ill-treatment which may
affect the validity of the decisions depending on compliance or
non-compliance by the public prosecutor with the requirements of
permissible deprivation of personal liberty under section 13(2)(e) of
the Constitution.
The
reasons for the decision are these.
The
requirements which a public prosecutor has to bear in mind and comply
with to make a valid decision to charge an accused person with a
criminal offence and institute a criminal prosecution on the charge
are prescribed by section 13(1) of the Constitution.
The
section recognises that every person has a fundamental right to
personal liberty.
It
then makes provision for the protection of the right against
interference by the State by declaring that no person shall be
deprived of personal liberty. Recognising the principle that the
right to personal liberty is not an absolute right, the section goes
on to specify cases listed as exceptions to the prohibition in which
deprivation of personal liberty is permissible upon strict compliance
with the prescribed requirements.
The
requirements of permissible deprivation of personal liberty in the
case of a person suspected of crime are in section 13(2)(e) of the
Constitution. They constitute the standard by which the validity of
the decision by the public prosecutor to charge the accused person
with the criminal offence and institute criminal proceedings is to be
measured.
The
effect of prohibition of arbitrary deprivation of personal liberty is
the promotion of lawful arrest or detention and prosecution of
persons suspected of having committed crimes. It is the deprivation
of personal liberty in connection with the criminal justice process
that is relevant to the determination of the issues raised.
Once
a measure such as a criminal prosecution is based on a decision to
charge the accused person with the criminal offence which complies
with the requirements of permissible deprivation of personal liberty
it is a lawful measure. It cannot be a subject of an order of
permanent stay on the ground that the accused person was kidnapped
and subjected to torture, or inhuman or degrading treatment before
the charge was brought against him or her. The ill-treatment to which
the accused person would have been subjected would have taken place
when he or she was in a state of lawful deprivation of personal
liberty. It is usually inflicted after the person has been deprived
of personal liberty by arrest and detention.
Section
13(1) of the Constitution provides that:
“(1)
No person shall be deprived of his personal liberty save as may be
authorized by law in any of the cases specified in subsection (2).
(2)
The cases referred to in subsection (1) are where a person is
deprived of his personal liberty as may be authorized by law –
(a)...
(b)...
(c)...
(d)...
(e)
upon reasonable suspicion of his having committed or being about to
commit, a criminal offence.”
Section
13(4)(b) provides that:
“(4)
Any person who is arrested or detained –
(a)...
(b)
Upon reasonable suspicion of having committed or being about to
commit a criminal offence;
and
who is not released shall be brought without undue delay before a
court; and if any person arrested or detained upon reasonable
suspicion of his having committed or being about to commit a criminal
offence is not tried within a reasonable time, then, without
prejudice to any further proceedings that may be brought against him,
he shall be released either unconditionally or upon reasonable
conditions, including in particular such conditions as are reasonably
necessary to ensure that he appears at a later date for trial or for
proceedings preliminary to the trial.”
Failure
to comply with the requirements for a valid decision to charge the
accused person with a criminal offence and the institution of
criminal prosecution proceedings against him or her implicates a
violation of the principle of legality or rule of law enshrined by
section 18(1) of the Constitution.
The
principle of legality requires that every decision or act of a public
official which affects the rights or interests of an individual must
be in accordance with an existing law otherwise it violates the
rights of the individual concerned.
The
requirements for permissible deprivation of personal liberty are part
of the protection of that right. Compliance with the requirements is
consistent with the principle of the rule of law. In that way the
public prosecutor and the Court are prevented from acting
arbitrarily.
Section
18(1) provides that:
“(1)
Subject to the provisions of this Constitution every person is
entitled to the protection of the law.
“(1(a))
Every public officer has a duty towards every person in Zimbabwe to
exercise his or her functions as a public officer in accordance with
the law and to observe and uphold the rule of law.”
The
provisions of sections 13(1) and 15(1) of the Constitution protect
two separate but related fundamental human rights. One right is not
constitutive of the other. They are autonomous and under protective
requirements peculiar to their nature and ambit. That means that the
rights may be violated independently of each other.
The
infliction of torture or inhuman or degrading treatment on an accused
person affects his dignity and physical integrity. It does not in
itself affect his or her criminal liability. The other right protects
the individual from arbitrary arrest, detention and prosecution by
agents of the State.
The
same person may be a victim of ill-treatment by law enforcement
agents whilst at the same time he or she is a villain having
committed a criminal offence against another person. The
applicability of a particular constitutional provision should turn on
the reasons it was included in the Constitution and the evils it was
designed to eliminate.
The
existence of reasonable suspicion of the accused person having
committed the criminal offence with which he or she is charged and
prosecuted is critical to the determination of the validity of the
decisions to charge him or her with the criminal offence and
institute criminal prosecution on the charge.
A
charge is an official act by which notification is given by the
competent authority of an allegation that the accused person has
committed a criminal offence. In Attorney
General v Blumears & Anor
1991 (1) ZLR 118 (S) at 122A-B GUBBAY CJ said:
“The
standard for the deprivation of personal liberty under section
13(2)(e) of the Constitution are facts and circumstances sufficient
to warrant a prudent man in suspecting that the accused person had
committed, or was about to commit, a criminal offence. This standard
represents a necessary accommodation between the individual's
fundamental right to the protection of his personal liberty and the
State's duty to control crime.”
It
is the existence or absence of reasonable suspicion of the accused
person having committed the criminal offence he or she is charged
with which provides an answer to the question whether pre-charge
ill-treatment of an accused person had anything to do with the
institution of the criminal prosecution.
The
purpose of instituting criminal proceedings against an accused person
on reasonable suspicion of having committed the criminal offence with
which he or she is charged is to prove the circumstance of his or her
guilt. It is also to give effect to the law which proscribes the
conduct he or she is charged with as a crime.
The
decision to charge the accused person with the criminal offence and
prosecute the crime would be based on the evidence of acts he or she
would be suspected of having committed before he or she was subjected
to ill-treatment by law enforcement agents. The prosecution would be
directly connected with the crime.
If
each time an accused person was subjected to torture, or inhuman or
degrading treatment prior to being charged with a criminal offence,
the Court was obliged to order a permanent stay of the criminal
prosecution, the requirements of permissible deprivation of personal
liberty which form the standard for the validity of the decision by
the public prosecutor to institute the criminal proceedings against
the accused person would be reduced to mere words. It would implicate
the principle of legality which requires the Court to uphold conduct
which is in accordance with law.
The
availability of the procedure under section 13(2)(e) of the
Constitution means that where the criminal prosecution meets all the
requirements of permissible deprivation of the accused person of
liberty, it cannot be impugned notwithstanding the fact that the
accused person was kidnapped and subjected to torture or inhuman or
degrading treatment before the charge was brought against him or her.
Section
24(4) of the Constitution provides a remedy to the individual whose
fundamental right has been violated.
No
right to personal liberty would have been violated in relation to the
accused person by the institution of criminal proceedings in the
circumstances. An illegal arrest or detention without more, has never
been viewed as a bar to subsequent prosecution for an offence the
accused person is reasonably suspected on untainted evidence of
having committed.
That
does not mean that the accused person has no remedy for the
pre-charge contravention of fundamental rights.
Kidnapping
a person is a criminal offence.
Compensation
under section 13(5) of the Constitution is payable to a person who is
unlawfully arrested or detained. It is also an appropriate remedy for
the redress of a contravention of a fundamental right available to
the Court in the exercise of the wide discretionary power under
section 24(4) of the Constitution.
A
finding that the decision by a public prosecutor to charge an accused
person with a criminal offence was based on reasonable suspicion of
his or her having committed the offence effectively means that the
criminal prosecution is lawful. It means that there is evidence on
which proof of the commission of the acts defined as the crime with
which the accused person is charged would be based at the trial. It
also means that the wrongful conduct of ill-treating the accused
person prior to being charged with the criminal offence had nothing
to do with the decisions to institute and conduct the criminal
prosecution. S
v Harington
1988 (2) ZLR 344 (S); Blanchard
& Ors v Minister of Justice
1999 (2) ZLR 24 (S); Mthembu
v The State
2008 SCA 51 para 35.
As
a matter of law and fact it is clear that where reasonable suspicion
of the accused person having committed a criminal offence existed at
the time the public prosecutor charged him or her with the offence in
question and commenced criminal prosecution proceedings, the
prosecution must be taken to have been properly instituted regardless
of the fact that the accused person was subjected to torture, or
inhuman or degrading treatment prior to the charge being brought
against him or her. The charge and prosecution would be a product of
the consideration by the public prosecutor of evidence on the conduct
of alleged wrong doing by the accused person.
There
is nothing in the Constitution which requires the Court to permit an
accused person, reasonably suspected of a criminal offence and
properly charged, to escape prosecution because he or she was
subjected to torture or inhuman or degrading treatment prior to the
charge being brought against him or her.
The
Constitution does not guarantee protection against prosecution to an
accused person reasonably suspected of having committed a criminal
offence on account of having been subjected to torture, or inhuman or
degrading treatment before the charge was laid on him or her. Giving
effect to the proposition advanced on behalf of the applicant would
violate the constitutional principle of proportionality.
The
principle requires that a fair balance be struck between the
interests of the individual in the protection of his or her
fundamental rights and freedoms and the interests of the public in
having those reasonably suspected of having committed criminal
offences tried and if convicted, punished according to law.
Acting
in the manner suggested by the applicant, would mean that the purpose
of criminal law is to protect the interests of a person suspected of
crime at the expense of the victim and society. That would be
tantamount to providing a guarantee of immunity from prosecution to a
person reasonably suspected of having committed a criminal offence in
every case in which proof is produced that he or she was kidnapped
and subjected to torture or inhuman or degrading treatment by agents
of the State prior to being charged with a criminal offence. The
victims of crime would be denied the right to the protection of the
law. Justice demands, however, that each man and woman be given what
is due by his or her conduct.
It
would also mean that one person who fell into the hands of law
enforcement agents who decided to break the law and maltreat him or
her would escape prosecution whilst another person who fell into the
hands of law abiding law enforcement agents would not. That would be
despite the fact that they were both reasonably suspected of having
committed the criminal offences with which they were charged. Each
would have known that his or her act was criminal. He or she would
have committed the act before being placed in the custody of law
enforcement agents.
Where
there is no direct connection between the fruits of the torture or
inhuman or degrading treatment to which the accused was subjected and
the institution of the criminal prosecution, justification for an
order of permanent stay of the criminal proceedings cannot be found
in the pre-charge ill-treatment of the accused person. If the order
were made it would be on the ground that there was no reasonable
suspicion of the accused person having committed the offence with
which he or she was charged.
In
urging the first ground on the Court, Mr Gauntlett
relied on the decision of the South African Appellate Division in S
v Ebrahim
1991 (2) SA 553 (A).
It
is necessary to briefly look at the circumstances in which the
decision was made to see whether the principles relied upon in that
case are applicable to the facts of this case.
The
appellant, a South African citizen by birth, fled to Swaziland whilst
under a restriction order which confined him to Pinetown in Natal. In
December 1986 he was forcibly abducted from his home in Mbabane by
persons acting as agents of the South African State. He was taken to
South Africa and handed over to the police. The police detained him
in terms of security legislation. He was subsequently charged with
treason, convicted and sentenced to twenty years imprisonment with
labour.
Prior
to pleading to the charge, the appellant launched an application
seeking an order that the court lacked jurisdiction to try him. The
contention was that his abduction was in breach of international law
and thus unlawful. The application was dismissed. An appeal against
the ruling succeeded.
STEYN
JA carried out a review of Roman and Roman-Dutch authorities on the
question whether the court lacked jurisdiction.
The
learned Judge of Appeal came to the conclusion that under both
systems the removal of a person from an area of jurisdiction in which
he had been illegally arrested to another area was considered to be
tantamount to abduction. The court held that there was a rule at
common law which limited a court's jurisdiction in criminal cases.
That rule was to the effect that even if an offence was committed
within the area of jurisdiction of the court it does not have
jurisdiction to try the offender if he was abducted from another area
of jurisdiction by agents of the State.
The
head note to the judgment shows that the court continued at p582C-E
as follows:
“Several
fundamental legal principles are implicit in these rules (of the
Roman-Dutch Law) namely, the preservation and promotion of human
rights, good international relations and sound administration of
justice. The individual must be protected against unlawful detention
and against abduction, the boundaries of jurisdiction must not be
violated, State sovereignty must be respected, the legal process must
be fair towards those who are affected by it and the misuse of the
legal process must be avoided in order to protect and promote the
dignity and integrity of the administration of justice. The State is
also bound thereby. When the State itself is a party to a case, as
for example in criminal cases, it must as it were come to court with
'clean hands'. When the State is itself involved in an abduction
over territorial boundaries, as in the present case, its hands are
not clean. Rules such as those mentioned are evidence of sound legal
development of high quality.”
The
court in Ebrahim's
case approved of the decision of the Federal Court of Appeal for the
Second Circuit in United
States v Toscanino
500F 2d 267 (1974).
The
appellant, an Italian National protested that agents of the United
States government had abducted him from Uruguay and taken him to
Brazil where he was held in custody and tortured. From there he was
conveyed by aeroplane to the United States. He was arrested and
brought to trial on a charge of conspiring to import narcotics into
the country.
The
trial court had followed the prevailing judicial authorities on the
interpretation of the principle of due process and its application to
such cases. Judicial policy at the time was represented by the
decisions of the United
States Supreme Court in Ker v Illinois
(1886) 119 US 436 and Frisbie
v Collins
(1952) 342 US 519. These decisions held that where an accused person
was brought to court on a proper charge he or she was in the lawful
custody of the court and as such the court had no right to inquire
into the means or method used to secure his or her presence before
the court.
In
holding that the concept of due process under the Fourth Amendment of
the United States Constitution had been broadly interpreted and as
such justified an inquiry by a court into the circumstances in which
an accused person had been brought before the court, the Federal
Court of Appeal departed from the line of binding decisions of the
Supreme Court of the United States. In United
States v Alvaren–Machain
(1992) 119 Led. 2nd
441 that court re-affirmed its previous decisions by a majority
thereby effectively overruling the decision in Toscanino's
case.
The
reasoning in Ebrahim's
case was endorsed by the Court in S
v Beahan
1991 (2) ZLR 98 (S) as having “the quality of being in accord with
justice, fairness and good sense”.
The
principles have been applied in subsequent similar type situations in
South Africa; in Mohammed
v President of the Republic of South Africa & Ors
2001 (3) SA 893 (CC).
The
same principles have been adopted and applied by the United Kingdom
courts in similar cases of accused persons who had been forcibly
abducted from territories of sovereign States by security agents of
the receiving State, in some cases with the connivance of the
prosecution agency, in R
v Horseferry Road Magistrates
(1994) 1AC 42; R
v Mullen
[2000] QB 520; and R
v Loosely
[2001] UKHL 53.
There
is no doubt that the contention urged on the Court was animated by
the principles enunciated in Ebrahim's case.
What
is clear from the cases is that the principles in question provided a
basis for an answer to a defence to the charge placed on the accused
person to the effect that the court lacked jurisdiction to try him.
The reason given in each of the cases was that the appearance of the
accused person before the court was brought about by his forcible
removal by agents of the receiving State from the territory of
another sovereign State in breach of international law and the
sovereignty of that State. The accused person would at the time of
the abduction have been under the protection of the laws of the State
in which he lived. He would have been outside the boundaries of the
territorial jurisdiction of the court.
The
cases merely recognised a long standing principle of international
law that abduction by one State of persons located within the
territory of another, violates the territorial sovereignty of the
second State. The breach of international law in the circumstances is
usually redressed by the return of the person abducted.
The
principles enunciated in Ebrahim's
case and those that followed it, were applied in the determination of
the question of lack of jurisdiction because the courts accepted that
the principles formed part of the meaning of the applicable
international norms. They do not provide a basis for challenging the
validity of decisions by a public prosecutor to charge a person who
is resident in the area of jurisdiction of the court with a criminal
offence which it has jurisdiction to hear.
The
principles are not an answer to the question whether a court, whose
duty is to protect fundamental human rights, can decline jurisdiction
in a case in which the accused person complains that his or her
fundamental rights have been contravened by the institution of
criminal prosecution proceedings after he had been kidnapped and
subjected to torture, or inhuman or degrading treatment by agents of
the State within the area of jurisdiction of the court.
They
are not applicable to facts of a case the consideration of which has
to take into account the existence or absence of reasonable suspicion
by the public prosecutor of the accused person having committed the
criminal offence with which he or she has been charged.
The
principles enunciated in Ebrahim's
case cannot be transposed and applied to facts of cases which do not
raise for determination questions of breach of boundaries of criminal
law jurisdiction.
Different
principles apply in the determination of the issues raised by the
facts of this case.
The
cocktail of the principles of the relevant international law would
have to have been violated by the receiving State before a criminal
prosecution which followed could be said to be an abuse of legal
process and a breach of the principles of protection and promotion of
the dignity and integrity of the administration of justice. The
cocktail comprises the principles of the preservation and promotion
of the human right to personal liberty; the protection of individuals
from unlawful detention and abduction; the protection of boundaries
of territorial jurisdiction and the protection of foreign State
sovereignty.
Needless
to say the last two principles would not form part of the law
applicable to the facts of this case.
The
analogy was inappropriate.
The
forcible abduction of an accused person from foreign territory by
agents of the receiving State has the effect of barring jurisdiction
by the courts because it involves breach of an affront to the
sovereignty of the refuge State. The act of arresting a person is an
act of sovereignty. In such a case that power would have been
exercised by one State in the territory of another State. Deriving
from the cases of foreign abduction the proposition that in every
case in which the accused person was subjected to torture, or
inhuman, or degrading treatment before being charged with the crime
the Court is obliged to order a permanent stay of the criminal
prosecution was an ingenious argument which was unhelpful in the
determination of the issues.
To
discharge the constitutional mandate of enforcing or securing the
enforcement of fundamental human rights and freedoms enshrined in the
Constitution, the Court must exercise the power expressly conferred
on it. Its duty is to determine the question whether the conduct of
the State forming the subject of complaint contravenes the
fundamental right or freedom sought to be enforced. It must come up
with an affirmative or negative answer to that question after
consideration of all the circumstances of the case.
It
is unthinkable, in the circumstances, that the Court can restrict the
exercise of the power and not inquire into the method by which the
presence of an accused person before it was secured. It has to
inquire if the allegation is that the conduct of the public officers
involved in bringing the accused person violated his or her
fundamental right.
The
only occasion in which the Court can decline to exercise its powers
under section 24(4) of the Constitution is if it is satisfied that
adequate means of redress for the contravention alleged are or have
been available to the person under other provisions of the
Constitution or under any other law. What it cannot do is to decline
to exercise the power to determine the question whether or not the
fundamental right has been or is being or is likely to be contravened
by the conduct of the State forming the subject of complaint properly
brought before it.
The
argument that a criminal prosecution following a pre-charge illegal
arrest, detention and infliction of torture or inhuman or degrading
treatment constituted abuse of process requiring a stay of
proceedings would have to contend with the requirements of
section13(2)(e) of the Constitution and show the fundamental right or
freedom guaranteed by the Constitution that has been violated by the
institution of the criminal prosecution in those circumstances. It is
not necessary to consider the argument in this case.
THE
SECOND GROUND
Effect
of Pre-charge Abduction and Violation of section 15(1) on Criminal
Prosecution
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.
In
the raising of the issue of the wrongful conduct of public officers
antecedent to the charge being brought against the accused person and
its connection with the prosecution proceedings instituted was the
suggestion that the responsibility of the State was engaged in
occasioning a violation of the accused person's fundamental right
to personal liberty.
In
such a case there had to be produced clear evidence of a direct
connection between the antecedent breach of the fundamental right of
the accused not to be subjected to torture, or inhuman or degrading
treatment and the decision to charge and prosecute him or her. 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
section 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.
The
contention advanced on behalf of the applicant on the second ground
was premised upon an interpretation of the provisions of section
15(1) of the Constitution which recognises that the prohibition
contains a rule, by which it imposes an obligation on public officers
charged with the responsibilities of initiating and conducting
criminal prosecution and judicial officers who preside over them, not
to admit or use information or evidence obtained from an accused
person or any third party by torture, or inhuman or degrading
treatment.
Three
issues arise in this context for determination. They are:
(i)
whether or not section 15(1) of the Constitution contains a rule
prohibiting the admission or use, in any legal proceedings, of
information or evidence obtained from an accused person or defendant
or any third party by infliction of torture or inhuman or degrading
treatment.
(ii)
On whom does the burden of proving the essential elements of the rule
lie and what is the standard for the discharge of the onus.
(iii)
What effect does a finding that the onus has been discharged have on
the question of the contravention of the fundamental rights of the
accused person protected under sections 13(1); 15(1) and 18(1) of the
Constitution.
Section
15(1) of the Constitution and Evidence obtained by Torture
The
Court takes the first point for determination.
Its
decision on the point is that 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.
The
reasons for the decision are these.
Article
15 of the UN Convention on Torture requires State parties to ensure
“that any statement which is established to have been made as a
result of torture shall not be invoked as evidence in any proceedings
except against a person accused of torture as evidence that the
statement was made”.
Article
15 of the African Commission Guidelines on the Rights to a Fair Trial
and Legal Assistance in Africa and Article 16 of the Guidelines on
the Role of Prosecutors adopted by the Eighth United Nations Congress
on the Prevention of Crime and Treatment of Offenders in Havana Cuba
on 27 August to 7 September 1990 are important.
They
recognise the existence of an obligation on the public prosecutors
not to use or rely on information or evidence obtained from an
accused person or any third party by torture, or inhuman or degrading
treatment to make decisions in the exercise of prosecutorial powers.
The
relevance of the reference to the provisions of Article 15 of the UN
Convention on Torture is not in the substance of the obligation
imposed on State parties. It is on the principle of interpretation
involved.
Of
importance to the determination of the question before the Court, is
the recognition and acceptance of the principle that the rules in
Article 15 of the UN Convention on Torture and the UN Guidelines on
the Role of Prosecutors are based on the interpretation of Article 5
of the Universal Declaration of Human Rights (1948).
Article
5 prohibits in absolute and non-derogable terms infliction of
torture, inhuman or degrading treatment or punishment on any person.
The
African Commission Guidelines on Legal Assistance are based on the
interpretation of the relevant provisions of the African Charter on
Human and People's Rights (1981).
Article
5 of the African Charter prohibits torture, inhuman and degrading
treatment or punishment of any person.
The
principle of interpretation which emerges is that the fact that a
stand-alone rule has been used to denote the meaning of a primary
provision does not prevent a court interpreting the meaning of a
primary provision in similar language as covering the matters
explicitly dealt with in the rule if the meaning of the primary
provision has not been explained by a similar rule.
The
principle under consideration was applied by the European Court of
Human Rights in Soering
v United Kingdom
(1989) 11 EHRR 439.
That
Court held, on the interpretation of Article 3 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (1953) (“the ECHR”), that the prohibition by the Article
was the basis for the rule against admission or use of information or
evidence established to have been obtained or in respect to which
there were substantial grounds for believing that it was obtained
from the defendant or a third party by infliction of torture, inhuman
or degrading treatment.
Considering
the fact that Article 3 of the ECHR did not spell out in specific
terms as did Article 3 of the UN Convention on Torture that no State
“shall extradite a person where there are substantial grounds for
believing that he would be in danger of being subjected to torture”,
the European Court of Human Rights at para 88 of the judgment in
Soering's
case
supra
said:
“The
fact that a specialised treaty should spell out in detail a specific
obligation attaching to the prohibition of torture does not mean that
an essentially similar obligation is not already inherent in the
general terms of Article 3 of the European Convention.”
The
obligation on the State, through its agents, not to admit or use in
criminal proceedings, information or evidence obtained from an
accused person or any third party by infliction of torture, inhuman
or degrading treatment is not explicitly set out by a separate
provision in the Constitution. It would be contrary to the object and
purpose of the prohibition under section 15(1) of the Constitution to
allow admission or use of such information or evidence in any legal
proceedings.
A
proper interpretation of section 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 section 15(1) of the Constitution.
The
obligation is inherent in the general terms of the section. It enjoys
with the general prohibition the same qualities of being absolute and
non-derogable.
The
condemnation is more aptly categorised as a constitutional principle
than as a rule of evidence.
The
obligation is an exception to the general rule of evidence enacted by
section 48(1) of the Civil Evidence Act [Cap.
8:01].
That rule is to the effect that evidence of violation of a
fundamental right or freedom is admissible in legal proceedings
unless its admission would bring the administration of justice into
disrepute. Paradza
v Chirwa & Ors NNO 2005
(2) ZLR 94 (S) at 111G-112D; A
& Ors v Secretary for State for Home Affairs [2005]
UKHL 71 para 12.
At
various stages of the whole process of proceedings by which the State
deals with persons suspected of crime who are in the custody of
public officers, the Constitution imposes duties for the protection
of the fundamental rights of the suspect.
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
rationale for the exclusionary rule is the protection of any person
suspected of a crime who is in the custody of a public officer from
torturous, or inhumane or debasing invasions of his or her dignity
and physical integrity. Its object is to ensure that criminal
prosecutions which are a direct consequence of the pre-trial
illegality violative of fundamental rights of an accused person to
freedom from torture, inhuman and degrading treatment are not used to
give legitimacy to such conduct.
The
rule has nothing to do with the fair determination of the guilt or
innocence of the accused person.
Where
there is independent evidence which has been obtained lawfully and on
which reasonable suspicion of the accused person having committed the
criminal offence with which he or she is charged is founded, an order
of permanent stay of a criminal prosecution is not justified.
The
rule represents a device designed to deter disregard for
constitutional prohibitions and give substance to constitutionally
protected fundamental rights.
The
exclusionary rule as a remedy for the enforcement of the protection
of fundamental rights under the Constitution is not intended to
immunise an accused person from criminal prosecution for any action
he or she is reasonably suspected of having committed which is
provable at the trial by independent evidence lawfully obtained.
Information
or evidence obtained from an accused person or any third party by
torture, or inhuman or degrading treatment if admitted or used in
legal proceedings would reduce section 15(1) of the Constitution to a
mere form of words.
As
JACKSON J put it in the dissenting opinion in Korematsu
v United States
(1944) 323 US 214 at 246 “once judicial approval is given to such
conduct it lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent
need”.
In
People
(Attorney-General) v O'Brien
(1965) IR 142 KINGSMILL MOORE J of the Supreme Court of Ireland said
that:
“to
countenance the use of evidence extracted or discovered by gross
personal violence would... involve the State in moral defilement.”
In
A
& Ors supra
at para 35 LORD BINGHAM OF CORNHILL quotes from a report
by Mr Alvaro Gil–Robles,
the Council of Europe Commissioner for Human Rights on his visit to
the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where
he said:
“Torture
is torture whoever does it; judicial proceedings are judicial
proceedings, whatever their purpose - the former can never be
admissible in the latter.”
Giving
as a reason for holding in S
v Nkomo
1989 (3) ZLR 117 (S) that a court was under an obligation not to
admit or use in any proceedings evidence of objects pointed out as
part of confessions extracted from an accused person by torture
MCNALLY JA at p131F said:
“It
does not seem to me that one can condemn torture while making use of
the mute confession resulting from that torture, because the effect
is to encourage torture.”
In
A
& Ors supra
at para 39 LORD BINGHAM OF CORNHILL quotes from the work on “The
United Nations Convention Against Torture”
(1988) where Burgers and Danelius suggest at p148 that:
“...
it should be recalled that torture is often aimed at ensuring
evidence in judicial proceedings. Consequently, if a statement made
under torture cannot be invoked as evidence, an important reason for
using torture is removed and the prohibition against the use of such
statements as evidence before a court can therefore have the indirect
effect of preventing torture.”
Lastly,
in Mthembu's
case
supra the
South African Supreme Court of Appeal ruled that the admission of
evidence obtained through the use of torture would compromise the
integrity of the judicial process and bring the administration of
justice into disrepute.
The
reason given is that torture is barbaric, illegal and inhuman and is
one of the most serious of human rights violations. That court
applied the exclusionary rule against the admission or use of
information or evidence obtained by torture in legal proceedings as
an exception to the general rule contained in section 35(5) of the
Constitution of South Africa.
The
section provides that:
“evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render that
trial unfair or otherwise be detrimental to the administration of
justice.”
It
is clear that the rationale for the exclusionary rule against the
admission or use of information or evidence obtained from an accused
person or any third party by infliction of torture, or inhuman or
degrading treatment as contained in section 15(1) of the
Constitution, is founded on the absolute obligation imposed on the
State.
It
is also founded on the revulsion which attaches to the source of such
information or evidence coupled with its offensiveness to civilized
values and its degrading effect on the administration of justice.
The
rule applies even when the evidence is reliable and necessary to
secure the conviction of an accused person facing serious charges.
The
reliability or probative value of the information or evidence is
irrelevant because its admissibility is prohibited in absolute and
peremptory terms.
It
is vital in a society governed by the rule of law that persons in the
custody of public officials should not be subjected to ill-treatment
of the level of severity prohibited by section 15(1) of the
Constitution.
ONUS
The
Court takes the second point for determination.
Its
decision is that the onus is on the applicant to establish, on a
balance of probabilities, that the information or evidence of the
crime used by the public prosecutor to charge her with the criminal
offence and prosecute her for it was obtained by the infliction of
torture, inhuman and degrading treatment at the hands of the State
security agents prior to the charge being brought against her.
The
reason for the decision is that it is the accused person or defendant
who has to raise the question of contravention of fundamental rights
by the State. It is he or she who would have knowledge of what was
done to him or her and what information was extracted as a result of
the ill-treatment. It was then for the State to prove beyond
reasonable doubt that the decision to charge the applicant with and
prosecute the criminal offence was taken upon consideration of
independent information or evidence of the crime lawfully obtained
and on which reasonable suspicion of her having committed the
criminal offence was based.
The
applicant discharged the onus on her.
She
established by oral and affidavit evidence that in bringing the
charge of contravening section 24(a) of the Act against her and
initiating the prosecution proceedings, 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. It is important
to emphasise the fact that the ordering of the exclusion of evidence
obtained by torture or inhuman or degrading treatment assumes
implicitly that the remedy does not extend to barring the prosecution
based on evidence wholly untainted by the misconduct of the law
enforcement agents. It is also important to point out that where the
allegations by the accused are contested by the State, it is the
court before which the allegations are first made or the trial court
which must hear the parties and decide question of facts.
Effect
on Violation of Exclusionary Rule
Finally,
the Court takes the third point for determination.
Its
decision on this point is that 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
sections 15(1) and 13(1) of the Constitution.
The
breach of section 13(1) of the Constitution lies not in the use of
torture, inhuman and degrading treatment to obtain the information or
evidence of the crime from the applicant. That is a breach of section
15(1) of the Constitution.
The
violation of section 13(1) of the Constitution lies in the use of, or
reliance by the public prosecutor on, the information or evidence
obtained by torture, inhuman and degrading treatment for the purposes
of making the prosecutorial decisions.
Had
the public prosecutor rejected the information or evidence of the
crime obtained from the applicant by torture, inhuman and degrading
treatment, there would have been a violation of section 15(1) of the
Constitution but no breach of section13(1) provided the criminal
prosecution was supported by a reasonable suspicion of her having
committed the criminal offence with which she was charged.
The
reason is that the criminal prosecution would be a proceeding for the
proof beyond reasonable doubt of the guilt of the accused person of
the crime with which he or she is charged, based on no more or less
evidence of the criminal acts than was available at the time of their
commission.
The
criminal prosecution was a direct consequence of the violation of
section 15(1) of the Constitution.
The
absolute and non-derogable fundamental right of the applicant not to
have information or evidence of the crime obtained from her or any
third party by torture, or inhuman or degrading treatment used or
relied upon by the public prosecutor in making the prosecutorial
decisions to charge her with the criminal offence and institute the
criminal prosecution was contravened.
There
was also a violation of the applicant's fundamental right to the
protection of the law guaranteed by section 18(1) of the
Constitution.
By
acting in the manner he did, the public prosecutor failed to act in
accordance with the requirements of the protection of the fundamental
rights prescribed by sections 15(1) and 13(1) of the Constitution.
He
acted in breach of the principle of the rule of law.
It
is clear from the facts that at the time the State security agents
kidnapped the applicant from home and later detained her at the
secret place, they did not have reasonable suspicion of her having
committed the criminal offence she was later charged with. They then
used torture, inhuman and degrading treatment during interrogation to
extract from her information or evidence on which they expected that
the public prosecutor would act as a basis of a reasonable suspicion
of her having committed the criminal offence with which she was then
charged.
The
effect of the operation of the exclusionary rule is that the whole
conduct of the State security agents in kidnapping and detaining the
applicant and subjecting her to torture, inhuman and degrading
treatment was a violation of the fundamental rights guaranteed to her
by section 13(1), 15(1) and 18(1) of the Constitution.
It
also shows that the criminal prosecution was a direct consequence of
the violation of section 15(1) of the Constitution thereby engaging
the responsibility of the State in the contravention of sections
13(1) and 18(1) of the Constitution.
In
so far as the applicant suggested that she should not be prosecuted
because her presence in court followed her unlawful arrest or
kidnapping and ill-treatment by State security agents she could not
claim immunity from prosecution on those grounds alone because her
body is not a suppressible fruit and the illegality of her detention
and treatment could not deprive the Government of the opportunity to
prosecute her and prove her guilt on independent evidence wholly
untainted by the misconduct of law enforcement agents. United
States v Crews
445 US 463 (1980) p474; Key
v Attorney General & Anor
1996 (4) SA 187 (CC) at 195G-196B.
COSTS
The
Court takes the question of costs for determination.
Its
decision on this point is that there be no order as to costs. The
reasons for the decision are these.
Section
24(4) of the Constitution gives the Court a wide discretion as to the
choice of a practical and effective remedy which can appropriately
redress a violation of a fundamental human right or freedom.
An
order of permanent stay of the criminal prosecution was considered by
the Court to be the appropriate remedy for the redress of the
violation of the applicant's fundamental rights. The violation
would otherwise have continued. In
re Mlambo
1991 (2) ZLR 339 (S) at 355B-E.
In
selecting an appropriate remedy under the Constitution the primary
concern of the Court must be to apply the measures that will best
vindicate the values expressed in the Constitution and to provide the
form of remedy to those whose rights have been violated that best
achieves that objective. This flows from the Court's role as
guardian of the rights and freedoms which are entrenched as part of
the supreme law of the country. Osborne
v Canada
(1991) 82DLR (4th)
321 at 346e-f.
Costs
are in the discretion of the Court.
It
is permissible in cases of this nature to order that costs incurred
should follow the event. Bull
v Attorney-General of Zimbabwe
1987 (1) ZLR 35 (S).
Nonetheless
a constitutional question was raised with regard to which the answer
was not self-evident.
The
question whether section 15(1) of the Constitution imposes an
absolute and non-derogable obligation on the State, through its
agents, not to admit or use information or evidence of the crime
obtained from an accused person or defendant by infliction on him or
her or any third party of torture, or inhuman or degrading treatment
had not been raised and exhaustively determined by the Court before.
The
opportunity arose for the Court to clarify the law on the fundamental
right of a person accused of a crime not to have information or
evidence obtained from him or her by infliction of torture, or
inhuman or degrading treatment admitted or used against him or her in
any legal proceedings.
The
legal question had to be clarified not only for the benefit of
accused persons in similar circumstances. It has been clarified for
the benefit of public prosecutors and judicial officers. The victor
is therefore not the applicant but the administration of justice.
The
respondent did not challenge the correctness of the factual basis of
the constitutional question. He properly took the view that the
resolution of the legal question was in the public interest. The
Court considers that the respondent should not be penalised by an
order of costs. There will be no order as to costs.
CHIDYAUSIKU
CJ: I agree
SANDURA
JA: I agree
ZIYAMBI
JA: I agree
GARWE
JA: I agree
Mtetwa
and Nyambirai,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,
respondent's legal practitioners
