These matters were referred to this court by a Magistrate's
Court in terms of section 24(2) of the former Constitution of Zimbabwe
(“the former Constitution”). The applicants allege a breach of sections 15(1)
and 18 of the former Constitution.
The relief sought is a permanent stay of criminal
proceedings.
The facts of the matter are as follows.
PETROS
MAKAZA & GOLDEN NYIKA
The applicants were charged with contravening section 126
of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the
Act”), namely, robbery and theft. It is alleged that on 10 August 2012, at
Munyuki Shopping Centre in Epworth, the applicants unlawfully, intentionally
and violently took from William Mukurumidze (hereinafter referred to as 'the
complainant') his beret and his cell phone. The applicants deny the charges.
They contend that the complainant, a soldier attached to the
Presidential Guard, together with three of his colleagues, assaulted the
applicants on the night the alleged offences were committed for wearing 'MDC'
T-shirts. After assaulting the applicants, the complainant took them to the
police and accused them of the robbery and theft.
Thereafter, the arresting officer, together with the
complainant and seven other individuals, handcuffed the applicants and
proceeded to assault them with clenched fists and booted feet for allegedly
stealing the complainant's beret and cellphone and sought to extract a
confession from the applicants. After these assaults, the applicants were made
to wear MDC T-shirts and taken to Mbare where they were surrendered to members
of Chipangano, a vigilante brigade, who further assaulted and tortured them
severely.
In short, the applicants' case is that they were tortured
by both the police and members of the vigilante brigade who did so at the instance,
and with the connivance, of the police.
It is these assaults by the police and the vigilante
brigade that the applicants allege constitute torture and violated their
constitutional rights. They contend that because of this torture their
prosecution should be permanently stayed. In this connection they caused the
following questions to be referred to this court for determination, namely:-
(i) Whether a constitutionally legitimate prosecution can
be conducted where the State violates a fundamental right;
(ii) Whether the violation of rights in this matter
warrants a permanent stay of prosecution;
(iii) The remedy available to the applicants under the ubi
jus ibi remedium principle.
The respondent did not challenge the allegations of the
applicants. Consequently, the Court proceeds on the basis that they were
admitted. It is also not disputed that while the torture was intended to
extract from the applicants a confession to the commission of the crime, it did
not succeed in securing such a confession.
Article 1 of the United Nations Convention Against
Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment defines
torture as follows:
“…, 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 party 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.”
I have no doubt in my mind that the assault on the
applicants constitutes torture and is a violation of Article 1 of the
United Nations Convention Against Torture and Other Cruel or Inhuman or
Degrading Treatment or Punishment and also a violation of section 15(1) of
the former Constitution.
The respondent's case is that the ill-treatment of the
applicants, in breach of section 15(1) of the former Constitution, in this
particular case, does not taint the decision by the public prosecutor to
institute criminal proceedings against them. The respondent further argues that
the requirement for remand, as enshrined in section 13(2)(e) of the former
Constitution, had been complied with, despite the fact that the assault by the
police and the vigilante brigade was to gather evidence to sustain the
prosecution.
The respondent admits that the assault was perpetrated so
as to gather further evidence to sustain the prosecution. However, it is
accepted that no evidence was gathered as a consequence of the torture as the
applicants, despite the torture, denied committing the offence in question.
KHUMBUZO
GUMBO and SYDNEY NDACHENGEDZWA
They were both employed by EASYLINK (PVT) LTD, BULAWAYO, the
latter as a teller and the former, a security guard. They were charged with
contravening section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23],
“THEFT.” It was alleged that on 29 April
2012, the two applicants, together with two other tellers not yet arrested,
having intimate knowledge that a large sum of money had been deposited in their
employer's bank vault on 28 April 2012, had connived to steal, and had
thereafter stolen, the said cash, amounting to US$107,774= from their employer.
It was alleged that the four employees, ('the accomplices')
had taken advantage of the fact that they were the only ones on duty that day
and had access to the keys to the vault. They had, at closure of business at
about 4.20pm on 29 April, deliberately left the security door unlocked and the
alarm system unarmed in preparation for their return later that night to effect
the theft. It was further alleged that in order to feign a break-in, the
accomplices had cut the burglar bars of the toilet window, which they left
open, and destroyed the mother board of the CPU digital video recorder (the
CCTV) with a view to destroying the video evidence but unknowingly left the
hard drive which contained all the footage linking the accomplices to the
commission of the offence.
The State alleges that after their arrest, the applicants
had indicated their desire to make indications as to the place where they had
hidden the money. They led the police, who were accompanied by three (3)
details from Dog Section, to a bushy place beyond the Hillside area where their
handcuffs were removed. They were
allowed to alight from the vehicle for the purpose of making indications when
suddenly they ran off in opposite directions and the dogs were released after
them. The dogs caught up with them and were eventually called off by their
handlers but not before severe injuries had been inflicted on the applicants.
The charge is denied by the applicants.
They allege that upon their arrest on 30 April 2012, they
were taken to the offices of the CID where they were interrogated. Khumbuzo
Gumbo was assaulted with batons on the legs and under the feet. It is common
cause that when he appeared in the Magistrates' Court injuries were visible on
both his knees and feet and his leg was swollen. Thereafter, on the following
day, they were taken by homicide police for indications and further
interrogation. As they passed Hillside Police Station, they were joined by a
van from the Dog Section. They arrived at a certain spot and were made to alight
from the vehicle. They were interrogated and in the process dogs were set on
them, as a result of which each applicant sustained severe injuries from dog
bites and had to be hospitalised.
The factual disputes which arise from the two conflicting
accounts as to how the injuries were sustained by the applicants cannot be
resolved by this court.
The applicants allege that they were tortured in order to
obtain evidence to be used at the trial. Both the torture and the motive
therefor are denied. The respondents, while accepting that the applicants were
bitten by the dogs, deny that the applicants were tortured. In any event, the
respondents deny that any evidence was obtained as a result of the assault, or,
that it was intended to use any such evidence in the prosecution of the
applicants.
DISPOSITION
The questions referred for determination have, to a large
extent, been answered by this Court in Mukoko v The Attorney-General 2012 (1)
ZLR 321 (S). They are:
(i) Whether any trial can be based on evidence extracted
through a violation of the right enshrined in section 15(1) of the former
Constitution;
(ii) Whether or not the use at the trial of information
obtained as a result of torture will violate the right of the applicants to a
fair hearing enshrined in section 18(2) of the former Constitution;
(iii) Whether the applicants' right to protection against
torture was violated.
In Mukoko v The Attorney-General 2012 (1) ZLR 321 (S), this
Court had this to say…, on the effect of evidence extracted through torture on
a prosecution:
“The decision of the Court on this point is that
ill-treatment per se has no effect on the validity of the decisions (decision)
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 (decision) depending on
compliance or non-compliance by the public prosecutor with the requirements of
permissible deprivation of personal liberty under s 13(2)(e) of the
Constitution.”
The prosecutors, in the present matters, are not relying on
the ill-gotten fruits of the ill-treatment of the applicants to institute the
prosecution.
On the authority of Mukoko v The Attorney-General 2012 (1)
ZLR 321 (S), the fact that the applicants (in the Petros Makaza and Golden Nyika case) were tortured in violation of
section 15(1) of the former Constitution, cannot form the basis of a
permanent stay of prosecution where such torture does not yield the evidence
the State seeks to rely on. Furthermore, the requirements of remand, as
envisaged in section 13(2)(e) of the former Constitution, had been
complied with - despite the torture by the police.
The same must apply to the Khumbuzo Gumbo and Sydney Ndachengedzwa cases.
In view of the disputes of fact concerning the purpose and
intent of the assault perpetrated on the applicants, it has not been
established that the treatment meted out to the applicants constitutes torture
as defined above. However, that notwithstanding, the applicants argue that the
ill-treatment by the police was such as to warrant a stay of prosecution.
The instant cases are distinguishable from Mukoko v The
Attorney-General 2012 (1) ZLR 321 (S).
In Mukoko v The Attorney-General 2012 (1) ZLR 321 (S), Mukoko
was tortured before she was charged. The
State sought to rely on the confession obtained as a result of the torture to
sustain the charges.
In the Petros Makaza and Golden Nyika case, the applicants did not confess despite
the torture. On their own evidence, they, as it were, resisted the torture. The
prosecution is based on the evidence of the complainant and other witnesses.
Similarly, in the Khumbuzo
Gumbo and Sydney Ndachengedzwa case, no evidence was obtained from the
alleged assault or ill-treatment.
In both matters, there is no direct connection or nexus
between the fruits of the alleged torture or inhuman or degrading treatment to
which they were subjected and the institution of the criminal proceedings. In
these circumstances, an order of the permanent stay of the criminal proceedings
is not the appropriate remedy.
This conclusion is regrettable in the extreme.
It is, however, an inevitable consequence of the proper
interpretation of the law. This Court abhors the torture of an accused person.
Torture is wholly unacceptable to this Court but it cannot be a bar to
prosecution where the prosecution is based on evidence not extracted by such
torture. The appropriate remedy for the applicants lies in a claim for damages
and not a stay of prosecution.
In this regard, the applicants also submitted that the ubi
jus ibi remedium principle entails that for every right violated there should
be a corresponding remedy.
I, however, do not accept, on the facts of the instant
cases, that the stay of prosecution is the appropriate remedy. The torture is
not in any way linked to the prosecutions at hand in the Magistrates Court. The
applicants have not shown that there was any evidence procured as a result of
their torture which the respondent intends to use for the purpose of their
prosecution. The applicants' remedy, as I have already stated, may lie in a
civil claim for damages or in a prosecution of the perpetrators of the assault
or torture.
A prosecution predicated on a confession extracted through
torture is unlawful and unconstitutional….,.
We were urged by counsel for all the applicants to grant a
permanent stay of prosecution on the basis that this court cannot countenance
the illegality of the pre-trial torture and assaults inflicted by the police or
their agents on the applicants.
The question was raised in Mukoko v The Attorney-General
2012 (1) ZLR 321 (S)…, and determined thus…,:
“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 wrongdoing 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.”
That is not to say that in an appropriate case the Court
may not feel constrained to order a permanent stay of proceedings where there
has been pre-trial violation of the fundamental rights of an accused person.
But this remedy will only be granted in extremely rare circumstances (see
Mutsinze v Attorney General CC13-15…,) and each case must be decided on its own
merits.
For the reasons outlined above, the applications for
permanent stay of prosecution cannot succeed.
In the result, the applications are dismissed with no order
as to costs.
GARWE JCC:
I have gone through the judgment of the late former Chief
Justice and agree with the general proposition he makes that ill-treatment of
an accused person per se has no effect on the validity of the decision by the
authorities to prosecute such person on a criminal allegation. Indeed, this
view was expatiated in the case of Mukoko v The Attorney-General 2012 (1) ZLR
321 (S), cited in the main judgment.
The view is further expressed by the late Chief Justice
that where there is no direct correlation between the fruits of the alleged
torture or inhuman or degrading treatment to which an accused person is
subjected and the institution of the criminal proceedings, an order of
permanent stay of the criminal proceedings is not the appropriate remedy. It is
further opined that the appropriate remedy may lie in a claim for damages and
not a stay of prosecution. Implicit in this remark is the suggestion that
however serious or reprehensible the violation might be, as long as there is
reasonable suspicion upon which an arrest is effected, the court is powerless
to intervene and order a permanent stay of the criminal proceedings.
I consider the above remarks too wide, and, further, that
they do not correctly reflect the law in terms of the current constitutional
dispensation. In terms of section 53 of the Constitution, no person may be
subjected to torture, or cruel, inhuman or degrading treatment or punishment.
In terms of section 176 of the Constitution, the Constitutional Court, Supreme
Court and High Court have inherent power to protect and regulate their own
process and to develop the common law. In terms of section 85 of the
Constitution, the Constitutional Court can grant appropriate relief including a
declaration of rights and an award of compensation.
In my view, in a case where the violation of an accused
person's rights is serious, this court may well determine that, depending on
other considerations, such as the seriousness of the offence the accused is
facing, a permanent stay is warranted. It is correct that the grant of a
permanent stay is exercised in the most exceptional of circumstances. The
corollary to this is that where such exceptional circumstances exist, the court
may well feel inclined to grant a permanent stay.
In Jonathan Mutsinze v The Attorney General, Zimbabwe CC13-15,
I cited with approval remarks…, of the judgment of the International Criminal
Court in ICC 01/04-01/06-772 Appeals Decision, The Prosecutor v Thomas Lubanga
Dy-70, that the power to stay proceedings permanently may be exercised:-
“Where either the foundation of the prosecution or the
bringing of the accused to justice is tainted with illegal action or gross
violation of the rights of the individual making it unacceptable for justice to
embark on its course.”
I further quoted with approval remarks in Police v Sherlock
2009 SASC, 64, a decision of the Supreme Court of South Australia, that: -
“The justification for staying a prosecution is that the
court is obliged to take that extreme step in order to protect its own
processes from being used for purposes alien to the administration of justice…,.”
In my view, therefore, this court can, in an appropriate
case, order a permanent stay of prosecution even where there is enough evidence
on which a prosecution can be sustained. What constitutes an appropriate case
is an issue I prefer to leave for another day.
Indeed, the late former Chief Justice, notwithstanding the
clear position adopted earlier in his judgment, appears to accept, towards the
end of the judgment, the principle that such a remedy may well be available to
an accused person. In this regard, he states:-
“This is not to say that, in an appropriate case, the court
may feel constrained to order a permanent stay of proceedings where there has
been pre-trial violation of the fundamental rights of an accused person. But this remedy will only be granted in
extremely rare circumstances….,.”
With the above remarks, which contradict the earlier part
of the judgment, I would certainly agree.
Where an accused person is subjected, at the pre-trial
stage, to the most serious violations of his fundamental rights and he
approaches this court for relief, this court must surely have the jurisdiction
to grant the ultimate order of a permanent stay of criminal proceedings….,.
In the result, I would qualify the main judgment by adding
the rider that torture or degrading or cruel punishment inflicted on an accused
person may well justify a permanent stay of criminal proceedings, but this will
be in very exceptional circumstances where the court feels that on the facts,
it cannot preside over a matter involving a serious violation of an accused
person's rights.
The ubi ius ibi remedium principle would apply.
