It
is the appellant's contention that his extradition from Zimbabwe is
prohibited in terms of the Extradition Act [Chapter 9:08] in that it
will conflict with the obligations of Zimbabwe under various
international and regional treaties. In particular, we have been
urged to have regard to the International Covenant on Civil and
Political Rights and to ...
It
is the appellant's contention that his extradition from Zimbabwe is
prohibited in terms of the Extradition Act [Chapter 9:08] in that it
will conflict with the obligations of Zimbabwe under various
international and regional treaties. In particular, we have been
urged to have regard to the International Covenant on Civil and
Political Rights and to the African Charter on Human and Peoples
Rights, to which Zimbabwe is a State party, as creating those
obligations at both international and regional levels.
Both
instruments do not carry specific non-refouler provisions.
It
is correctly submitted, on behalf of the appellant, that it is in
terms of Article 3 of the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment that
specific prohibition against expelling, returning or extraditing a
person to another State where there are substantial grounds for
believing that the person so expelled, returned or extradited would
be in danger of being subjected to torture is provided for.
Zimbabwe
is not yet a party to the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and has
thus not assumed the obligations imposed by Article 3 of the of the
United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
By
not voluntarily assuming the obligations set out in the United
Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Zimbabwe may nevertheless have
those obligations imposed upon it by the application of international
customary law…,.
It
is the position now that certain human rights may be regarded, by
their content and universal acceptance, as having entered into the
realm of customary law and thus become applicable to nations that may
not have assented to the particular instruments protecting these
rights by virtue of the superiority of international customary law
over all other laws. These rights include the prohibition of slavery,
genocide and torture.
See
MALCOLM N SHAW: International Law 4th
Ed…,.
PATEL
J: One
of the grounds of appeal in this matter raises an issue not
previously canvassed by our courts. This pertains to the status of
the United Nations Convention against Torture of 1985 at
international law and its impact on the law of extradition in
Zimbabwe.
Article
3 of the United Nations Convention against Torture of 1985 provides
as follows:
“1.
No State Party shall expel, return ("refouler") or
extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected
to torture.
2.
For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.”
Also
relevant for present purposes are the provisions of the International
Covenant on Civil and Political Rights and the African Charter on
Human and Peoples Rights. Article 7 of the International Covenant on
Civil and Political Rights prohibits the subjection of any person “to
torture or to cruel, inhuman or degrading treatment or punishment”.
In similar vein, Article 5 of the African Charter on Human and
Peoples Rights enjoins respect for “the dignity inherent in a human
being” and proscribes, inter
alia,
“torture, cruel, inhuman or degrading punishment and treatment.”
While
both instruments are explicit in their rejection and condemnation of
torture per
se,
they are silent as to the non-refoulement principle expressly
embodied in Article 3 of the United Nations Convention against
Torture of 1985.
Turning
to our domestic law, Part III of the Extradition Act [Chapter
9:08]
deals with the rendition of persons to and from designated countries,
including the respondent State. Section 15 of the Extradition Act, in
its relevant portion, stipulates that:
“No
extradition to a designated country shall take place in terms of this
Part -
(a)
If the grant of the request for extradition would conflict with the
obligations of Zimbabwe in terms of any international convention,
treaty or agreement; …,.”
It
is common cause that Zimbabwe is a party to the International
Covenant on Civil and Political Rights and the African Charter on
Human and Peoples Rights and that it is consequently obligated to
adhere to the provisions of these two august instruments. It is also
not in dispute, despite counsel for the respondent's erroneous
concession to the contrary, that Zimbabwe has neither signed and
ratified nor acceded to the United Nations Convention against Torture
of 1985. Zimbabwe is not alone in its non-adhesion to the United
Nations Convention against Torture of 1985. There are many other
States that have not as yet subscribed to the Convention or that have
done so with reservations.
In
any event, the question that arises in the present context is this:
Does the fact that Zimbabwe is not a party to the United Nations
Convention against Torture of 1985 entitle it to disregard the
requirements of Article 3 of the United Nations Convention against
Torture of 1985 and extradite an alleged offender to a State where he
would be in danger of being subjected to torture?
In
my view, the answer to this question must be predicated on an
analysis of the principle against torture in the international
sphere.
It
is axiomatic that every treaty or convention must be interpreted and
applied in a wider international context. It is also incontrovertible
that torture is universally prohibited at the international level.
This prohibition is encapsulated not only in instruments of global
application, viz. the Universal Declaration of Human Rights of 1948
and the International Covenant of 1966, but also in regional human
rights instruments applicable in Europe, Latin America and Africa. It
was further restated by the United Nations General Assembly in its
Resolution 3452 (XXX) of 1975 and eventually culminated in Article 2
of the Convention against Torture. See A
& Others v Secretary of State for the Home Department (No.2)
[2006] 2 AC 221…, (a decision of the House of Lords).
The
first corollary of the universal proscription of torture is that it
imposes upon every State obligations which are applicable erga
omnes,
that is to say, towards all other States, which are then endowed with
correlative rights. The second corollary is that the principle
against torture has evolved into a peremptory norm or jus
cogens,
viz. a principle endowed with primacy in the hierarchy of rules that
constitute the international normative order. As such, it cannot be
derogated or deviated from by any State or group of States.
See
the judgement of the International Criminal Tribunal for the Former
Yugoslavia in Prosecutor
v Furundzija
(unreported) Case No. IT 95-17/I 10 (1998)…, cited in the case of A
& Others v Secretary of State for the Home Department (No.2)
[2006] 2 AC 221..,.
The
overarching nature of the principle against torture imposes certain
additional duties on States. It requires States to do more than
simply eschew the practice of torture and to give more positive and
wider effect to the principle in the fulfilment of their
international obligations. In this respect, the decision of the
European Court of Human Rights in Soering
v The United Kingdom
11 EHRR 439…, is particularly instructive and highly persuasive. In
interpreting Article 3 of the European Convention on Human Rights
vis-à-vis Article 3 of the United Nations Convention against Torture
of 1985, the Court held as follows,…,:
“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. It would
hardly be compatible with the underlying values of the Convention…,
were a Contracting State knowingly to surrender a fugitive to another
State where there were substantial grounds for believing that he
would be in danger of being subjected to torture, however heinous the
crime allegedly committed. Extradition in such circumstances, while
not explicitly referred to in the brief and general wording of
Article 3, would plainly be contrary to the spirit and intendment of
the Article…,.”
I
fully concur with and respectfully adopt this holistic approach to
the obligations of States with respect to the principle against
torture. In my view, the principle entails the duty of States to
interpret and implement the requirements of human rights treaties
that they have subscribed to in a manner that affirms and advances
rather than one that negatives or dilutes the principle.
Accordingly,
the general prohibition against torture contained in Article 7 of the
International Covenant on Civil and Political Rights and in Article 5
of the African Charter on Human and Peoples Rights must be construed
to incorporate, by necessary intendment, the principle of
non-refoulement embodied in Article 3 of the United Nations
Convention against Torture of 1985.
It
follows that in order to comply with its general obligations against
torture under the International Covenant on Civil and Political
Rights and the African Charter on Human and Peoples Rights, Zimbabwe
is required to abide by and take into account the specific
prohibition against extradition to a State where there exists the
danger of the person extradited being subjected to torture. This is
so notwithstanding that Zimbabwe is not a party to the United Nations
Convention against Torture of 1985. To construe the general
prohibition against torture otherwise would inevitably operate to
render the prohibition nugatory and illusory on the international
plane.
To
conclude, I take the view that the extradition of any person to a
designated country where he or she would be placed in danger of being
subjected to torture would conflict with the obligations of Zimbabwe
in terms of the International Covenant on Civil and Political Rights
and the African Charter on Human and Peoples Rights. It would
therefore be contrary to and prohibited by section 15(a) as read with
section 17(1)(b) of the Extradition Act [Chapter 9:08].
