ZIYAMBI JA:
This application is brought in terms of s 24(1) of the Constitution of Zimbabwe
which provides as follows:
“24 ENFORCEMENT OF PROTECTIVE
PROVISIONS
(1) If any person alleges that the
Declaration of Rights has been, is being or is likely to be
contravened in relation to him (or, in the case of a person who is detained, if
any other person alleges such a contravention in relation to the detained
person), then, without prejudice to any other action with respect to the same
matter which is lawfully available, that person (or that other person) may,
subject to the provisions of subsection (3), apply to the Supreme Court for
redress”.
The applicants, who are
members of an organisation called Women of Zimbabwe Arise (WOZA), a non-profit
organisation which seeks to advance the rights of women in Zimbabwe, allege
that their various rights enshrined in the Declaration of Rights as set out
below were violated by the respondents.
THE BACKGROUND
The applicants were arrested during
the course of a demonstration, on 15 April 2010, against what they alleged to
be the appalling service provision from the Zimbabwe Electricity Supply
Authority (Zesa), and detained at the Harare Central Police Station. The
first applicant is the Director of WOZA.
It was alleged by the first applicant that on arrival at the police station,
she was ordered by police officers at the Law and Order Section to remove her
shoes, jacket and brassiere causing her to remain with a single top and bottom.
She felt violated by being forced to remove such an intimate piece of apparel
and deposit it with the police. She was shocked to be handed a filthy bag
in which to place such intimate wearing apparel as well as her outer clothing
and personal belongings and this made the whole exercise 'all the more
dehumanising'.
She was force marched, barefoot on a dirty floor, to the holding cells where
her senses were assaulted by the choking smell of human excreta and flowing
urine of varying colours. The holding cells were 'full to overflowing'
with human excreta and the built-in beds were also covered with the same.
The lights did not work and the entire atmosphere was damp and dark without any
fresh air. She spent the night in one of the corridors huddled up
together with second, third and fourth applicants even though urine flowed
there as well.
During the night, she discovered that the toilet was within the cell.
When she needed to relieve herself she had to wade through a pool of
urine. The toilets had no running water and were full of human
excreta. She later discovered that this was because the toilets are
flushed from outside and are thus flushed at the pleasure of the police
officers who did not do so often judging by the fact that excreta from the
toilet was flowing into the cells.
There was no toilet paper and she was refused permission to carry her
own. The toilet bowl is not partitioned from the rest of the cell and it
was not possible to relieve oneself in privacy. She had to use the toilet
in full view of the other occupants of the cell.
No sanitary provisions were made for menstruating women, such as washing and
disposal facilities and provision of sanitary towels.
During the night, she requested blankets for warmth and was given three
blankets, which reeked of urine, for use by the sixteen detainees in the
cell.
There was no shower, no bathing or ablution facilities and no drinking water
was available. She had to depend on the kindness of those who visited her
for that.
Although certain cleaners came to mop the floor, they confined themselves to
cleaning the corridors and the cells were not cleaned. She was given no
food by the police and had to rely on the food brought to her by friends and
relatives. However, that was unpalatable as she had to eat it in the
corridor of the same cell which was over flowing with excreta. She spent five
nights in the cell under these conditions and her complaints to the police fell
on deaf ears.
The other three applicants associated themselves with these averments. In
addition, the second applicant alleged that her mobile phone, which she was
made to surrender to the police at the time of her detention by them, had been
tampered with.
The applicants claimed that in view of the above, their constitutional right to
protection from torture or to inhuman and degrading treatment or punishment as
enshrined in s 15(1) of the Constitution of Zimbabwe was violated by the
respondents.
They alleged also that the failure to make provision for the peculiar needs of
women, for example, sanitary facilities as set out above, amounted to
discrimination against women in violation of s 23 of the Constitution.
In essence, the applicants aver that
the circumstances in which they were detained, as narrated above, deprived them
of protection of the law guaranteed in s 18 of the Constitution, constitute
inhuman and degrading treatment prohibited under s 15 of the Constitution, and
amounted to a violation of their right enshrined in s 23 of the Constitution to
be protected from discrimination on the basis of sex. They sought declaraturs
to the effect that their constitutional rights enshrined in those sections of
the Constitution had been violated as well as certain consequential
relief.
The respondents opposed the application and relied on the affidavit of the
second respondent. They denied that the conditions in the cells were as
deposed to by the applicants. They averred that it is procedural for
detainees to be made to remove some of their apparel. This is standard
procedure and is provided for by s 41 of the Criminal Procedure and Evidence
Act [Cap 9:01] (“the Act”) as read with Police Standing Orders Volume
1. Arrested persons, they averred, are searched by the arresting detail
in strict compliance with the terms of the Act and particularly s 41(4) of the
Act with reference to women, and all money and articles connected with an
offence as well as all things which a prisoner could use to cause harm to
himself or others or which could be used to effect his escape are collected
from the arrested persons. They denied that the applicants were
ordered to remove their 'undergarments' because 'the law does not allow it' but
did not deny that they were made to remove their brassieres. Whatever was meant
to be conveyed by the term 'undergarments', the respondents' attitude, as
expressed in their heads of argument as well as in oral argument before us,
that brassieres are not necessary wearing material within the meaning of s 41
of the Act would appear to support the applicants' averment that they were made
to remove their brassieres. Indeed the respondents in their heads of
argument submit:
“The Applicants contend that they
were made to remove their undergarments and in their founding affidavit the undergarments
are specified as brassiere. They argue that it is necessary wearing
apparel. Although the brassieres are mentioned in their founding
affidavits, in their heads of argument they simply use the word undergarments,
which ordinarily would include panties. However since applicants' case is
founded on their founding affidavits, Respondents submit that what
Applicants were made to remove were their brassieres.” (My emphasis)
We therefore resolve this apparent
dispute of fact in favour of the applicants.
It was not denied that the
applicants were made to remove their shoes as this was 'standard
procedure'.
In response to the allegation that
the light in the cell was not functioning, they averred that the lighting
system at the police station is fully functional.
While the location of the toilet within the holding cell was admitted, it was
denied that the applicants had to wade through urine. The reason given
for the denial was that, if that had happened, the applicants would have
contracted a disease of some sort. They maintained that there is running
water at the police station and denied that there was human excreta flowing
into the holding cell from the toilet.
They averred, further, that it is
standard procedure that a police detail is placed on guard duty at the cells to
deal with detained persons' requests. Where no member is placed on guard
duty all suspects are to be visited at least every half hour. Such visits
are recorded in the charge office diary or report book maintained for this
purpose. [However neither the diary nor the report book was attached to the
opposing affidavit.]
They maintained that although no
toilet paper is kept in the cells, it is issued upon request. While it
was admitted that no sanitary provisions are made for menstruating women, the
women are permitted to bring their sanitary requirements. They
added that these concerns are being addressed by a committee set up
by Cabinet to look into the conditions of police and prison cells, which committee
is expected to make recommendations on how best to improve the detention
conditions of suspects and convicted persons.
It was denied that the blankets given to the applicants were dirty although, by
virtue of the number of detainees in the cells, they could have been
inadequate.
According to
police standards, so they averred, prisoners are to be supplied with good
drinking water and sufficient wholesome food. The inadequacy of these
provisions is also one of the matters being looked into by the committee.
It was denied that the cells were unclean as deposed to by the applicants
because, so it was averred, general hands scrub the police cells daily
with detergent and disinfectant during the daily prisoners' exercise period of
thirty minutes and the Officer in charge arranges for daily inspection of the
cells. The court was urged to inspect the cells in order to ascertain the
actual conditions prevailing thereat.
An inspection of three cells was
undertaken at the Harare Central Police Station, the applicants being unsure of
the actual cell in which they were detained. It is common cause that all
the cells are structurally standard.
It was apparent that great effort had been made to clean the floors of the
corridors and stairs leading to the cells. There was a heavy smell of
floor polish and the court had to step carefully to avoid falling by reason of
the slippery floors.
Of the cells inspected, two were
located on the second floor and one on the first floor.
The structural details differ little from that deposed
to in the applicants' papers. There were six built - in concrete beds in
bunk form in each of the cells. In the cell on the first floor there were
six folded blankets lying on one of the built - in concrete beds. The one
shown to the court was torn and frayed but appeared to be clean. There
was a toilet in one corner of each cell in the form of a raised platform in the
centre of which was an open hole. There was a wall approximately one
metre high separating the toilet from the rest of the cell but there was no
door. There was a small window about one metre from the ceiling which let
in some measure of light. There was a fluorescent light in the ceiling
which, though dim, was functioning. Directly above each toilet was a tap
of running water which emptied into the toilet hole. There was no toilet
paper, no soap, no wash basin, no bathing facilities and no drinking water.
A detainee would have to drink from the tap right above the open toilet
hole. The flushing mechanism for the toilet was located outside the cell
and the toilets were flushed at the convenience of the police.
In addition to the Court's
observations above, the established facts were that the applicants, women, were
made to remove their brassieres and shoes and to place them in a bag with their
other belongings. The court was shown a canvas bag of the type used by
the applicants and noted that it, as well as the others observed to be hanging
nearby, was dirty probably by reason of use by other detainees. Established
also was the fact that the applicants were made to walk barefoot to and in the
cell. There were sixteen detainees including the applicants in the cell which
was meant to accommodate six people. Only three blankets were provided
for use by the sixteen occupants of the cell. The applicants were provided with
no food or drinking water, no toilet paper or soap. The occupants of the
cell were unable to flush the toilet after use, having to depend on the
pleasure of the police to flush it from outside.
THE COMPLAINT AGAINST DISCRIMINATION
Section 23(1) of the Constitution
provides:
“23 PROTECTION FROM DISCRIMINATION
ON THE GROUNDS OF RACE, ETC
(1) Subject to the provisions of
this section—
(a)
no law shall make any provision that is
discriminatory either of itself or in its effect; and
(b)
no person shall be treated in a
discriminatory manner by any person acting by virtue of any written law or in
the performance of the functions of any public office or any public authority.
(2)
For the purposes of subsection (1), a law
shall be
regarded as making a provision that
is discriminatory and a person shall be regarded as having been treated in a
discriminatory manner if, as a result of that law or treatment, persons of a
particular description by race, tribe, place of origin, political opinions,
colour, creed, sex, gender, marital status or physical disability are
prejudiced—
(a)
by being subjected to a condition,
restriction or disability to which other persons of another such description
are not made subject; or
(b)
by the according to persons of another
such
description of a privilege or
advantage which is not accorded to persons of the first-mentioned description;
and the imposition of that condition, restriction or disability or the
according of that privilege or advantage is wholly or mainly attributable to
the description by race, tribe, place of origin, political opinions, colour,
creed, sex, gender, marital status or physical disability of the persons
concerned.”
The applicants allege that they were treated in a discriminatory manner in that
firstly, they were subjected to sanitary conditions, restrictions or
disabilities that peculiarly isolate them and amount to inhuman and degrading
treatment. In that connection it was submitted that:-
'treatment which results in some
partiality or inequality of treatment is the popular meaning of the word
'discrimination' and is the meaning which should be adopted in this case for
'It is the duty of the court to hold the scales evenly between different
classes of the community and to declare invalid practice, which...results in
partial and unequal treatment to a substantial degree between different sectors
of the community.”
Secondly, they were made to remove
their brassieres which were not only inhuman and degrading but
discriminatory. I will revert later in this judgment to the question of
inhuman and degrading treatment.
THE FAILURE TO PROVIDE SANITARY
PROVISIONS FOR MENSTRUATING WOMEN
The applicants were alive to the
fact that on them rests the onus of establishing that they were treated in a
discriminatory manner. Mr Uriri submitted that the discharge of
the onus which lay on the applicants had been facilitated by the admission by
the second respondent that the Police do not provide sanitary provisions for
menstruating women. That is not so.
While the idea would appear to be
abhorrent that sanitary provisions are not afforded to women in custody, the
applicants do not allege that they were menstruating and were refused sanitary
provisions by the Police. They simply allege that no such provisions are
made for women generally. But s 24 (1) of the Constitution
does not allow the applicants to be torchbearers for women in general.
The applicants have to show that there has been a violation of the declaration
of rights in relation to themselves. This, they have failed to do and
accordingly no violation of the applicants' rights under this head has been
established.
THE ORDER TO REMOVE THEIR BRASSIERES
The applicants further contend that
the order to remove their brassieres was discriminatory. The respondents
submit that in requiring them to remove their brassieres, they were acting in
terms of s 41 of the Criminal Procedure and Evidence Act [Cap 9:07]
which states as follows:
“41
(1) ...
(2)
A peace officer or other person arresting
any person under this Part may search that person, and shall place in safe
custody all articles, other than necessary wearing apparel, found on him.” (My
emphasis)
They contend that a woman's
brassiere is not 'necessary wearing apparel' as contemplated by the Act.
They aver that in some places women go about bare breasted. The
applicants, who are all women, aver, on the contrary, that a brassiere is, for
them, a necessary piece of intimate wearing apparel.
I am unable to accept the contention by the respondents that brassieres do not
fall within the class of necessary wearing apparel for women. It was
submitted on behalf of the applicants that to oblige them to remove such
undergarments was to subject them to discriminatory treatment. The submission
is not without merit. It seems to me that the blanket application of the
requirement that each detainee is allowed one layer of clothing and one
undergarment ignores the fact that the applicants being women, have, by reason
of their sex, personal needs which differ from that of men and has resulted in
discrimination against the applicants, who by virtue of their biological
make-up, have need of two undergarments. The applicants have in our view
established that their right enshrined in s 23 of the Constitution to
protection against discrimination has been violated.
THE RIGHT TO BE PROTECTED AGAINST
TORTURE OR CRUEL AND INHUMAN PUNISHMENT OR TREATMENT
Section 15(1) of the Constitution of
Zimbabwe provides:
“15 PROTECTION FROM INHUMAN
TREATMENT
(1)
No person shall be subjected to torture or
to inhuman or degrading punishment or other such treatment.
(2)
No treatment reasonably justifiable in the
circumstances of the case to prevent the escape from custody of a person who
has been lawfully detained shall be held to be in contravention of subsection
(1) on the ground that it is degrading.”
Section 15, therefore, proscribes torture, inhuman punishment, degrading
punishment, inhuman treatment, degrading treatment. See S v Ncube
& Ors 1987 (2) ZLR 246 (SC) at 264 C-H.
Many decisions of this Court have
dealt with the issue of what constitutes inhuman or degrading treatment. See
for example Ncube's case, supra, Nancy Kachingwe & Ors v Minister
of Home Affairs & Anor SC 145/04, Jestina Mukoko v The
Attorney General SC 11/12.
In the Nancy Kachingwe case, this Court declared that the applicants
were subjected to inhuman and degrading treatment. It found that the holding
cells in which the applicants had been detained overnight at Highlands Police
Station and Matapi Police Station, respectively, fell short of the minimum
standards of decency. It said at p 10 and 11 of the cyclostyled judgment:
“I have no doubt in my mind that the
holding cell that the court inspected at Highlands Police Station, the same
holding cell in which the Kachingwe was detained overnight, does not comply
with elementary norms of human decency, let alone, comply with internationally
accepted minimum standards. In particular, the failure:
- To screen the toilet facility from the rest of the cell
to enable inmates to relieve themselves in private;
- To provide a toilet flushing mechanism from within the
cell;
- To provide toilet paper;
- To provide a wash – basin; and
- To provide a sitting platform or bench;
constitute inhuman and degrading
treatment prohibited in terms of s 15(1) of the Constitution. The
evidence clearly establishes that Chibebe was subjected to similar
treatment.”
The remarks quoted above apply equally
to the cells at Harare Central Police Station which were seen by the Court.
That there was a sitting platform surrounding the toilet hole and a one metre
wall separating the toilet from the rest of the cell is of little significance
because there was no door and the one metre wall is inadequate to provide
privacy to the users of the toilet.
Thus the conditions experienced by
the applicants in the Kachingwe case are little or no different from
those experienced by the applicants in the instant case. In addition, the
applicants shared the cell, which was made to accommodate six people, with
thirteen others. It was not denied that no drinking water was available
to the applicants. However, even assuming that the tap in the cell was
meant to be the source of drinking water for the occupants of the cell, the
implications arising from the fact that the tap was positioned directly above,
and emptied into, the toilet which could only be flushed from without, are too
ghastly to contemplate.
The applicants in Kachingwe's case
were detained for one night. The position in respect of the applicants is
aggravating in that they were detained in such degrading conditions for four
days and forced to rely on relatives for food and drinking water.
Detention for four or five nights in the conditions described by the applicants
in my view constitutes a gross violation of the applicants' right not to be
subjected to inhuman and degrading treatment. Accordingly, I find that
the applicants were detained in conditions that constitute inhuman and
degrading treatment in violation of their right enshrined in s 15 of the
Constitution.
REMOVAL OF BRASSIERES
The applicants averred that their
brassieres are items of intimate underclothing and being forced to remove them
was inhuman and degrading. The respondents could only submit in reply
that in some cultures women go about bare breasted. However, it would
seem to me that the applicants are in a better position to comment on this
issue. They have said how humiliated they felt not only by being made to
remove what were personal underclothing but also by being forced to place them
in a dirty bag.
The question then is posed: Are
these measures reasonably necessary to prevent the applicants' escape from
custody? Surely not. Further, such treatment cannot be justified by
the reasoning that the applicants might use these items of clothing to harm
themselves - for then any item of clothing can be turned into a weapon or an
instrument for self-affliction or suicide.
Detention ought not to reduce the
detainee to humiliation and indignity. Every detainee is entitled to be
treated with some modicum of decency and respect. The order to the
applicants to remove their brassieres caused them great humiliation. Such
treatment meted out to the applicants cannot be said to be reasonably necessary
to prevent their escape which is the only derogation allowed by s 15 of
the right enshrined therein. Accordingly, the applicants have established, in
this regard also, that their right enshrined in s 15 not to be subjected to
cruel and inhuman and degrading treatment has been violated by the
respondents.
REMOVAL OF SHOES
The applicants averred that they
were made to walk barefoot on dirty floors. The respondents deny that the
floors were dirty and based their denial on the fact that Standing Orders
require the floors to be cleaned. However, the respondent admits that there
were sixteen persons, including the applicants, detained in one cell which is
meant for six people. It is admitted also that the toilet in the cell is
only flushed at the pleasure of the police from outside. The cells
are cleaned only once a day during the detained persons daily exercise period
of 30 minutes. In these circumstances, the probabilities are that the
floor of the cell did become wet with human waste as deposed to by the
applicants. To require the applicants to walk barefoot in such unsanitary
conditions is to subject them, in my view, to inhuman and degrading treatment.
THE ORDER SOUGHT
The applicants premised their
argument on the fact that the conditions experienced in the Police cells
amounted to a violation of their right to the protection of the law enshrined
in s 18. Having found the treatment experienced by the applicants to
amount to a violation of ss 15 and 23 we do not consider it appropriate or
necessary to grant the declaratur sought in this regard.
SEIZURE OF CELLPHONES
The papers establish that personal
possessions of detainees are taken on detention and stored pending their
retrieval on the release of the detainee. No breach of an enshrined right
has been shown in this regard. Suffice it to say that a claim for any
damages suffered as a result of such seizure may be made in the appropriate
forum.
CONCLUSION
The applicants have established that
their rights enshrined in ss 15 and 23 of the former Constitution of Zimbabwe
were violated by the respondents. We consider the following order to be
appropriate.
ORDER
It is declared:
1. That the applicants' rights
in terms of s 23 of the Constitution of Zimbabwe not to be discriminated
against, have been violated.
- The applicants' rights, in terms of s 15 of the
Constitution, to protection from inhuman and degrading treatment have been
violated.
Consequently it is ordered that:
- The first and second respondents are directed to
take all necessary steps and measures within their power
to ensure that at Harare Central Police Station:
- The holding cells shall have clean and salubrious
flushing toilets with toilet paper and a washing bowl.
- The flushing toilets shall be cordoned off from the
main cell to ensure privacy.
- A good standard of hygiene shall be maintained in the
holding cells.
- Every person detained in police custody overnight shall
be furnished with a clean mattress and adequate blankets.
- Adequate bathing facilities shall be provided for all
persons detained in custody overnight.
- Every person detained shall have access at all times to
wholesome drinking water from a source other than the tap above the
toilet.
- Women detained in police custody shall be allowed to
keep their undergarments including brassieres, and to wear suitable
footwear.
- There shall be no order as to costs.
GARWE JA:
1
agree
MAKARAU JA:
I agree
GOWORA JA:
1 agree
OMERJEE
AJA:
I agree
Zimbabwe Lawyers for Human Rights, applicants' legal practitioners
Attorney General's Office, respondents' legal practitioners
