This application
is brought in terms of section 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 Women of Zimbabwe Arise.
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 dehumanizing.'
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 the 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 overflowing 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 section 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 section 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 section 18 of the
Constitution, constitute inhuman and degrading treatment prohibited under section
15 of the Constitution, and amounted to a violation of their right, enshrined
in section 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 section 41 of
the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) as read with
the Police Standing Orders Volume 1. Arrested persons, they averred, are
searched by the arresting detail in strict compliance with the terms of the
Criminal Procedure and Evidence Act [Chapter 9:07] and particularly section
41(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], 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 section 41 of the Criminal
Procedure and Evidence Act [Chapter 9:07] 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.”…,.
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
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.
Counsel for the
applicants 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 section 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 section 41 of the Criminal Procedure and Evidence Act [Chapter 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.”…,.
They contend that
a woman's brassiere is not 'necessary wearing apparel' as contemplated by the
Criminal Procedure and Evidence Act [Chapter 9:07]. 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 section 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)…,.
Many decisions of
this Court have dealt with the issue of what constitutes inhuman or degrading
treatment. See for example S v Ncube
& Ors 1987 (2) ZLR 246 (SC); Nancy
Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04; Jestina Mukoko v The Attorney General SC11-12.
In Nancy Kachingwe & Ors v Minister of Home
Affairs & Anor SC145-04,
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
page 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 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:
a. To screen the
toilet facility from the rest of the cell to enable inmates to relieve
themselves in private;
b. To provide a
toilet flushing mechanism from within the cell;
c. To provide
toilet paper;
d. To provide a
wash–basin; and
e. To provide a
sitting platform or bench;
constitute
inhuman and degrading treatment prohibited in terms of s15(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 Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04 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
Nancy Kachingwe & Ors v Minister
of Home Affairs & Anor
SC145-04 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 section 15 of
the Constitution.
REMOVAL
OF BRASSIERES
The applicants
averred that their brassieres are items of intimate under-clothing, 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 section 15 of the right enshrined therein.
Accordingly, the
applicants have established, in this regard also, that their right enshrined in
section 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 section 18.
Having found the
treatment experienced by the applicants to amount to a violation of sections 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 sections 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 section 23 of the Constitution of Zimbabwe, not
to be discriminated against, have been violated.
2. The
applicants' rights, in terms of section 15 of the Constitution, to protection
from inhuman and degrading treatment, have been violated.
Consequently, it
is ordered that:
1. 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:
a. The holding
cells shall have clean and salubrious flushing toilets with toilet paper and a
washing bowl.
b. The flushing
toilets shall be cordoned off from the main cell to ensure privacy.
c. A good
standard of hygiene shall be maintained in the holding cells.
d. Every person
detained in police custody overnight shall be furnished with a clean mattress
and adequate blankets.
e. Adequate
bathing facilities shall be provided for all persons detained in custody
overnight.
f. Every person
detained shall have access at all times to wholesome drinking water from a
source other than the tap above the toilet.
g. Women detained
in police custody shall be allowed to keep their undergarments, including
brassieres, and to wear suitable footwear.
2. There shall be no order as to costs.
