‘ED cannot be forced to outlaw abduction and torture’ -Newsday Zimbabwe

President Emmerson Mnangagwa

THE SUPREME Court’s bid to force President Emmerson Mnangagwa to enact a convention banning the kidnapping and torture of government critics and activists has been rejected; The court said it could not force him to do this.

Human rights lawyer Obey Shava had cited Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi, Mnangagwa, the Zimbabwe Parliament and the Zimbabwe Human Rights Commission as respondents respectively.

The lawyer asked the court to order Mnangagwa to sign and accede to the Convention Against Torture (CAT), saying failure to do so amounted to a violation of his right to equal protection and benefit of the law.

He also sought an order directing Mnangangwa to ensure that the CAT is brought to Parliament for approval within 12 months from the date of the decision.

Shava also sought an order that Ziyambi submit the necessary documents of accession to the United Nations to the CAT within six months.

However, High Court judge Justice Gladys Mhuri rejected the application.

“If a deviation from this right or a violation occurs, it can rightly be said that there is a deviation from this law, that is, there is no equal protection and benefit from the law,” the judge said.

“Consequently, I find that the applicant’s relief for the breach of section 56(1) cannot be granted.

“The second question to be determined is whether this court can compel the second respondent (Mnangagwa) to sign the CAT.”

He added: “In my opinion, this court cannot compel the second defendant to do something that is not required by law, namely to sign a contract.

“… The judiciary should not interfere with the processes of other branches of government unless required to do so by the Constitution.

“… this court cannot force the second defendant to do something that is not required by law. As a result, I am unable to grant the applicant’s requested writ of mandamus.

“As a result, the application was dismissed without any award as to costs.”

Shava argued that the CAT could only become part of Zimbabwean law after it was enacted by or under the authority of the President.

Shava stated that this should be done quickly, in accordance with Article 324 of the Constitution, which provides that all constitutional obligations must be diligently fulfilled without delay.

He said he was subjected to torture and cruel and degrading treatment.

Shava also touched on other incidents where rights activists were kidnapped and tortured.

He referred to the case of Tonderai Ndira, who he claimed was abducted from his home in Mabvuku by 10 people on 13 May 2008; James Chidakwa and Takudzwa Ngadziore (October and November 2023 respectively) were abducted and tortured by alleged State agents.

Shava also mentioned the late Tinashe Chitsunge and Bishop Tapfumaneyi Masaya, who were reportedly kidnapped and tortured in November 2023.

He also cited Gukurahundi, the kidnapping of opposition supporters in 2000 and 2018, and other violent election incidents, among other human rights violations.

However, Shava’s application was opposed by Ziyambi and Mnangagwa, but while Parliament stated that it would comply with the court’s decision, the Zimbabwe Human Rights Commission did not submit any documents and did not attend the hearing.

The CAT is a UN convention that requires States to take legislative, administrative, judicial and other measures to prevent acts of torture or cruel, inhuman or degrading treatment or punishment within their territory.

The CAT was unanimously adopted by the UN General Assembly in 1984 and became operational on 26 June 1987.

Zimbabwe and Tanzania are the only Sadc countries that have not signed or ratified the convention.

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