Court name
Supreme Court of Zimbabwe
Case number
SC 145 of 2004
Civil Appeal 217 of 2003

Kachingwe and Others v Minister of Home Affairs NO and Another (17/03) (SC 145 of 2004, Civil Appeal 217 of 2003) [2005] ZWSC 145 (17 July 2005);

Law report citations
Media neutral citation
[2005] ZWSC 145


REPORTABLE (131)

















Judgment No
SC 145/04


Civil Appeal No 217/03

















(1) NANCY
KACHINGWE (2) WELLINGTON CHIBEBE (3) ZIMBABWE
LAWYERS FOR HUMAN RIGHTS


v


(1) THE MINISTER
OF HOME AFFAIRS N.O. (2) THE COMMISSIONER OF
POLICE











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
SANDURA JA, CHEDA JA MALABA JA & GWAUNZA JA


HARARE JUNE 17 2004
& JULY 18, 2005








E. Matinenga,
for the appellants





C.C. Mudara, for
the respondents









CHIDYAUSIKU CJ: This application is brought in terms of s
24(1) of the Constitution of Zimbabwe. Section 24(1) of the
Constitution
provides that any person who alleges that the
Declaration of Rights has been, is being, or is likely to be,
contravened in relation
to him that person may apply to the Supreme
Court for redress. The relief sought by the applicants in this
matter is set out in
the draft order which provides as follows:-









“IT IS DECLARED:





1. That police holding
cells at police stations in Zimbabwe are degrading and inhumane and
unfit for holding criminal suspects.





IT IS ORDERED:





1. That the 1st
and 2nd respondents are directed to take all necessary
steps and measures within their power to ensure that:






(a) police holding cells are of reasonable size for the number of
persons they are used to accommodate.





(b) police holding
cells should have good ventilation.





(c) police holding
cells should have lighting sufficient to read by.





(d) police holding
cells should be equipped with a means of rest such as a fixed chair
or bench.





(e) each person obliged
to stay overnight in police custody should be provided with a clean
mattress and blankets.





(f) police holding
cells should have clean and decent flushing toilets with toilet paper
in a sanitary annex in the police cell.





(g) police holding
cells should have full sanitary provision for women who are
menstruating at the time of their detention and should,
on request,
be permitted to buy personal necessities with their own money.





(h) police cells should
have clean, decent and adequate washing facilities including soap.





(i) police cells should
have running water available in the cell.





(j) police cells should
have good drinking water available in the cell.





(k) persons in holding
cells should be given wholesome food at appropriate times and should,
on request, be permitted to buy food
and refreshments with their own
money.





(l) police holding
cells should be cleaned daily and a good standard of hygiene
maintained in the police holding cells.





(m) persons detained in
police holding cells should have reasonable access to medical
treatment.






2. The 1st and 2nd respondents are directed to
publish regulations in the Government Gazette governing the treatment
and maintenance of persons detained
in police holding cells.





3. The 1st
and 2nd respondents are directed to publish regulations in
the Government Gazette permitting and regulating the inspection of
police holding
cells by Magistrates and official visitors.





4. That the 1st
and 2nd respondents pay the costs of this application.”









The relevant facts of this case are to a large extent common cause.
The first and second applicants (hereinafter referred to
as
Kachingwe and Chibebe respectively) were arrested by the police and
detained in police cells overnight in respect of Kachingwe,
and for
two days in respect of Chibebe. The third applicant is Zimbabwe
Lawyers for Human Rights, a non-governmental organisation
with
capacity to sue and be sued in accordance with the laws of Zimbabwe.
The third applicant has not filed a separate draft order
but avers
in its supporting affidavit that it seeks an order declaring all
police holding cells throughout Zimbabwe as degrading
and inhuman.





The first respondent
is the Minister of Home Affairs, who is being sued, in his official
capacity, as the government Minister to
whom is assigned the
administration of the Police Act [Chapter 11:10].






The second respondent is the Commissioner of Police who has command,
superintendence and control of the Zimbabwe Republic Police.






On Friday, 13 June
2003, at about 3.30am Kachingwe was driving home along Enterprise
Road. When she turned right into Ardnalea
Road, she noticed a white
pick-up truck on the side of the road. There were three or four men
in the vehicle. The pick-up was
driving very slowly on the edge of
the road. When she drove past the pick-up it picked up speed and
followed her. She turned
into Sunninghill Close and the pick-up
truck also turned after her. She immediately became concerned that
the occupants of the
pick-up truck could be car jackers. The road
was deserted and Sunninghill Close was a dead end. She decided to
stop at Seasons
Restaurant which is at the corner of Sunninghill
Close and Ardnalea Road because she knew that these premises were
guarded. When
she stopped her motor vehicle the pick-up truck also
came to a stop and the men inside got out and surrounded her car.
She blew
her motor horn and a woman came out of the restaurant. She
explained to the woman why she had stopped outside the restaurant.

It turned out that that very night there had been a burglary at the
restaurant and that the men in the pick-up truck had been driving
around trying to see if they could locate the burglar before he went
far.





There were also two
officers from the Zimbabwe Republic Police at the restaurant. The
two police officers came out and Kachingwe
explained to them the
circumstances of her stopping her vehicle outside the restaurant.
The police officers were satisfied with
the explanation of Kachingwe
and allowed her to proceed to her home. She drove off and the
police officers watched her turn into
the gate of her residence at
309 Sunninghill Close.





On Thursday, 19 June
2003, a detective constable Charamba (hereinafter referred to as
“Charamba”) drove to Kachingwe’s house
and obtained personal
details of Kachingwe from her housekeeper. He thereafter telephoned
Kachingwe round about mid-day. Charamba
informed Kachingwe that he
was a police officer and that he wished to interview her at Highlands
Police Station. Kachingwe consulted
her lawyer, Ms Cathrine
Chitiyo. It was arranged between them that Chitiyo would accompany
her to Highlands Police Station. Kachingwe
thereafter telephoned
Charamba to re-arrange the time for their meeting at the Police
Station and to advise him that she would be
accompanied by her legal
practitioner. According to Kachingwe the involvement of a legal
practitioner infuriated Charamba who insisted
that Kachingwe comes to
the Police Station before 4 pm that day.






At about 4 pm Kachingwe, in the company of her legal practitioner,
arrived at Highlands Police Station. Her legal practitioner
identified herself to the police officers at the reception.
Charamba was standing near the reception at the entrance of the
Criminal
Investigations Department Office. He identified himself as
the officer whom Ms Chitiyo and Kachingwe had come to see.
According
to Kachingwe, Charamba immediately launched into a tirade
about Kachingwe’s refusal to see him immediately upon his request
and
that he was incensed with Kachingwe for coming to the police
station accompanied by her legal practitioner. He advised Kachingwe
that he was not prepared to interview her in the presence of her
legal practitioner. Charamba advised Kachingwe that he wanted
to
interrogate her in connection with the theft that had recently
occurred at Seasons Restaurant in Glen Lorne but that he would
only
do so the following morning. Kachingwe was told that she would have
to spend the week-end in police custody and would be taken
to Remand
Court on Monday 16 June 2003. Ms Chitiyo and Kachingwe protested at
this turn of events to no avail.






Charamba then
directed that Kachingwe be detained in a police cell. Before being
taken to the police cell a policewoman led her
into another office
where she was instructed to remove her shoes, her T-shirt, her jacket
and her bra and these, and other personal
belongings, were placed in
a safe.




The
police officer informed her that she could only have one layer of
clothing in the police cell and that she therefore had to
choose one
item of clothing from among the T-shirt, the jumper and the jacket.
She elected to wear the jumper as she thought that
it was warmer than
the jacket. This was in June when the weather is fairly cold. The
police officer accompanied her barefoot
to the police cell. The
police cell wherein she was detained is in an outbuilding at the rear
of the police station. She alleges
that the cell was pitch black.
She further alleges that as she stepped into the cell she was greeted
by a foul choking stench of
human excreta. She also found three
other women in the cell. The floor of the cell is concrete and it
being in the midst of winter
the cell was very cold. She contends
that there was one small dirty torn blanket in the cell which the
police expected all the
inmates to share. She denies the contention
by the police that she was given a blanket and some bedding facility.





At about 7 pm her
legal practitioner, Ms Chitiyo, arrived back at the police station
with a warm cardigan and food. She was permitted
to swap the jumper
for the warmer cardigan. She was also allowed to eat the food that
was brought by Ms Chitiyo and she shared
the food with other women in
the cell. She contends that the police never offered her any food
and refused her request for more
blankets.





Later on in the
evening one woman was admitted into the cell bringing the total
number to five. It was Kachingwe’s contention
that the five of
them were forced to suffer the indignity of huddling together under a
single blanket in order to keep warm. She
estimated that the
temperature that night was in the region of 7?C.





When she woke up the
following morning the police cell was no longer dark because it was
now daylight and she observed that there
were no windows in the cell.
She looked around the cell and made the following observations.
The cell was about 3 metres wide
and 8 metres long. The cell did
not have a flushing toilet. The only toilet facility was a toilet
bowl on a raised concrete platform
on which one squats. The toilet
bowl had faecal matter close to the brim and that caused the whole
cell to stink. It appeared
to her that the toilet bowl is evacuated
at the pleasure of the police officers at the Police Station. She
also observed a pool
of water that had collected around the bottom of
the platform. The concrete platform on which the toilet bowl is set
is not partitioned
from the rest of the cell and no provision is made
for the use of the toilet bowl in privacy. As a result the
occupants of the
police cell are forced to use the toilet bowl in the
full view of the other occupants of the cell much to the disgust and
humiliation
of everyone forced to endure such indecency. There was
no toilet paper in the cell. There was no soap, no hand basin and
no shower
in the cell. There was no running water in the cell and
no drinking water either. It was her observation that the floor and
the
walls of the cell were dirty and dusty. The holding cell had no
electric light.





At about 6 am the following day
Kachingwe‘s legal practitioner brought her a wet towel and a fresh
change of clothing and some breakfast.
She was permitted to change
her clothing and freshen up with the towel. She thereafter had her
breakfast in the fenced enclosure
where she observed litter of
rubbish and scraps of food eaten by previous occupants of the cell.





It was Kachingwe’s
contention that the police did not offer the women detained with her
any breakfast. Kachingwe’s office hired
another legal
practitioner to assist her. A Mr Gula-Ndebele of Gula-Ndebele and
Partners arrived at the Highlands Police Station
between 9 am and 10
am. Kachingwe was then interviewed in the presence of her new legal
practitioner and she denied any knowledge
of the theft at the Seasons
Restaurant. She was eventually released at about 12 pm.





In brief the contention
of Kachingwe is that the conditions under which she was detained
constitute inhuman and degrading treatment
and violated her
fundamental right conferred by s 15(1) of the Constitution. She
particularized the condition that constituted
the inhuman and
degrading treatment as follows:






(1) The cell in which she was detained was filthy as human excrement
and urine collected in an open toilet bowl causing her much
distress.





(2) The toilet bowl was
not partitioned off from the rest of the cell and therefore there was
no privacy in the use of the toilet.





(3) The cell was
unhygienic as there was no toilet paper, no soap, no running water
and no shower.





(4) The cell had no
windows and therefore there was no natural light in the cell.





(5) There was no
lighting in the cell and therefore at sunset the occupants are in the
dark all the time.





(6) She was required to
be barefoot in the cell that was filthy and in spite of the low
temperatures in the cell.





(7) There was no
bedding in the cell.





(8) The cell did not
have clean drinking water.





(9) She was forced to
wear one layer of clothing in spite of the temperature in the cell
being very low.






There is a striking resemblance between the treatment accorded
Kachingwe and that of Chibebe. I will, therefore, not recount it
in
any detail as that will amount to recounting a similar story.





Chibebe was arrested
on 9 December 2002 and was detained in police cells at Matapi Police
Station. Before being detained in the
police cell he was ordered to
remove his shoes, socks, jacket, tie, belt and watch. He was left
with only his shirt and trousers.
The conditions of the cell at
Matapi Police Station were very similar to the conditions at
Highlands Police Station as described
by Kachingwe.





He too alleges that
upon entering the cell he was assaulted by the choking smell of human
faeces and urine. He was detained in
the same cell with seven other
inmates. There was insufficient bedding for each prisoner in the
cell and that he and his companion,
Mr Shambare, spent the better
part of the night standing against the wall and that the in-mates had
to share a few blankets in the
cell. Shortly after being detained
he learnt that the stench in the cell emanated from the toilet inside
the cell. The toilet
was not a flushing toilet and consisted of a
hole in a corner of the cell. Owing to the fact that there was no
light in the cell
the prisoners were forced to use their bare feet to
locate the hole in the floor. In a situation where one is naturally
fearful
of soiling one’s feet people attempted to relieve
themselves around the toilet hole instead of the hole itself.





He also discovered
that the toilet hole was not partitioned off for privacy and that if
the inmates want to relieve themselves they
had to do so in the full
view of the other inmates. Chibebe contends that the police cell
was most unhygienic because there was
no running water, no soap, no
hand basin, no shower and no toilet paper. There was no drinking
water in the cell.





Chibebe and the other
inmates were allowed out of their cell into the fenced enclosure for
about 10 minutes per day. Chibebe contends
that while detained he
received no food and the police cells were never cleaned. The
inmates had to clean it themselves during
the period they were
allowed out into the fenced enclosure for exercise. Chibebe
contends that his treatment while in detention
was inhuman and
degrading for substantially the same reasons as Kachingwe.





The third applicant is
cited as a Human Rights Organisation whose object is to encourage the
growth and strengthening of human rights
at all levels of Zimbabwean
society. It is a universitas that can sue and be sued. The
third applicant contends that all the police cells in Zimbabwe are
much the same as those described
by Kachingwe and Chibebe. On that
basis the third applicant, in its affidavit, is seeking a declarator
that all police cells throughout
Zimbabwe are unfit for the holding
of criminal suspects and that the first and second respondents be
ordered to take the necessary
corrective measures to right the
violation of the Constitution of Zimbabwe, or any other relief.





Members of the court
visited the police holding cell in question at Highlands Police
Station. Kachingwe’s description of the
police holding cell is
consistent with the observation made by the members of the court.
In particular it was observed that the
toilet is not partitioned off
from the rest of the cell to provide for privacy to the users.
There was no toilet paper, no wash-basin,
no drinking water, no
sitting place. The toilet is flushed from outside and windows were
broken. The police holding cell in question
is old having been
built in 1935.





The criticism relating
to the structural conditions of the detention cell, such as the
failure to partition off the toilet area,
the absence of a wash-basin
and a shower are irrefutable. The respondents however contend that
Kachingwe and Chibebe were provided
with food and blankets. The
respondents also averred that the holding cells were cleaned
regularly in compliance with standing
orders. The respondents also
pleaded scarcity of resources for the failure to provide better
facilities in the holding cells.






Counsel for the respondents also raised a point in limine,
namely, that Kachingwe has no locus standi to bring these
proceedings on two grounds. Firstly, it was argued, that she is a
foreigner and, as such, is not entitled to any
protection under the
Constitution, in particular s 15. Secondly, it was argued that she
is not entitled to the relief set out in
the draft order as it was
too wide and did not relate to her.





Dealing with the first
objection, s 15(1) of the Constitution provides that:-






“No person shall be subjected to torture or to inhuman or degrading
punishment or other such treatment.”









While s 24(1) of the Constitution provides that:-






“If any person alleges that the Declaration of Rights has been, is
being, or is likely to be contravened in relation to him …
then,
without prejudice to any other action with respect to the same matter
which is lawfully available, that person … may, subject
to the
provisions of subsection (3), apply to the Supreme Court for
redress.”









It is quite clear from the language of s 15(1) of the Constitution
that there is no distinction between a citizen and a non-citizen
in
respect of the protection availed under that section. Section 15(1)
prohibits the subjection of any person, irrespective of
the status of
that person, to torture, or to inhuman or degrading treatment. I
see nothing in the language of s 15(1) that the
lawmaker intended to
limit the protection provided therein to citizens only.





I am, therefore,
satisfied that a resident such as Kachingwe is entitled to approach
this Court in terms of s 24(1) of the Constitution
and seek redress
for the alleged violation of her constitutional right conferred by s
15(1) of the Constitution. It is also quite
clear from the language
of s 15(1) of the Constitution that it applies to both citizens and
non-citizens. This point, in limine, therefore fails.




Turning
to the second ground of objection, namely that the applicant
Kachingwe is not entitled to the relief sought in the draft
order
filed of record. I accept that there is substance in this
objection. The relief sought by the three applicants in the draft
order is wider than what they are entitled to on the evidence. The
applicants seek a mandamus compelling the respondents to do
all the things set out in the draft order. Mr Mudara submitted
that Kachingwe has no interests in obtaining such a general order.
He argued that for Kachingwe to have locus standi she must
have direct and substantial interest in the relief sought. In this
regard it was submitted that the Court must be satisfied
that her
interest in the relief sought in the draft order satisfies the
following criteria:



(a) a direct interest that is not too remote from the relief sought;


(b) a substantial
interest that is not too abstract or academic;


(c) a real interest not
a hypothetical one;


(d) a sufficient or
patrimonial interest






In support of the above submissions the following authorities were
cited. See Dalrymple and Others v Colonial Treasurer 1910 TS
372 at 379; De Waal & Ors v Van der Horst & Ors 1918
TPD 277 at 284; Roodepoort-Maraisburg Town Council v Eastern
Properties (Prop) Ltd
1933 AD 87 at 101; Ex parte Mouton and
Another
1955 (4) SA 460 (A) at 464 A-B; Cabinet of the
Transitional Government for the Territory of South West Africa v Eins

1988 (3) SA 369 at 387-389D.





On the facts of this
case I am satisfied that neither Kachingwe nor any of the other
applicants have established any of the above
interests to entitle
them to the general relief sought in the draft order. Apart from
this the only evidence before this Court
relates to two specific
police holding cells. There is no evidence regarding the condition
of police holding cells throughout Zimbabwe.
Although Kachingwe and
Chibebe do not seek, in the draft order, a declarator that their
constitutional right conferred by s 15(1)
of the Constitution was
violated by the respondents, that is the essence of their complaint
in the founding affidavits. In my view
s 24(4) confers jurisdiction
on this Court to enable it to make an order to address this complaint
even though it is not specifically
sought in the draft order.





In regard to the
alleged degrading and inhuman treatment the respondents’ stance is
that although s 15(1) of the Constitution
prohibits inhuman and
degrading treatment Kachingwe’s and Chibebe’s treatment did not
amount to inhuman and degrading treatment.
It was argued that the
conditions of the police holding cells where the applicants were
held, and prisons in general, are not required
to and cannot match
those of a free person.





In support of this
submission, counsel for the respondents referred the court to the
remarks of GUBBAY CJ in the case of Blanchard and Ors v Minister
of Justice, Legal and Parliamentary Affairs
1999 (2) ZLR 24(S) at
p 30E-F. The learned CHIEF JUSTICE had this to say:-






“The lawful incarceration of the applicants causes the necessary
withdrawal or limitation of many privileges and rights previously
enjoyed in a free and democratic society. Persons in custody simply
do not possess the full range of freedoms of un-incarcerated
individuals.”












Counsel also referred us to the dicta of Justice REHNQUIST in Bell
v Wolfish
441 US 520 (1979), which was cited with approval in
Blanchard, supra, wherein the learned judge (as he then was)
stated as follows at 537:-






“Once the government has exercised its conceded authority to detain
a person, pending trial, it obviously is entitled to employ
devices
that are calculated to effectuate this detention. Traditionally
this has meant confinement in a facility which, no matter
how modern
or how antiquated, results in restricting the movement of a detainee
in a manner in which he would not be restricted if
he simply were
free to walk the streets pending trial. Whether it be called a
jail, a prison, or a custodial centre, the purpose
of the facility is
to detain. Loss of freedom of choice and privacy are inherent
incidents of confinement in such a facility.
And the fact that such
detention interferes with the detainee’s understandable desire to
live as comfortably as possible and with
as little restraint as
possible during confinement does not convert the conditions or
restrictions of detention into ‘punishment’.”









Mr Mudara further submitted that the order sought by the
applicants was of an administrative nature which the courts are
unable to regulate.
In support of this proposition he relied on the
remarks of GUBBAY CJ in Blanchard, supra, wherein he stated at
34C-D:-






“… it is not appropriate for this Court to direct, as requested
on the applicants’ behalf, that the food supplied should not
first
be tasted by the person delivering it. The power to examine the
food and the method employed is not the sort of administrative
procedure that courts are inclined to interfere with. To do so
would amount to an unnecessary intrusion into the sphere of those
charged with and trained in the running of penal institutions.”









It was further argued that similar sentiments were expressed in the
case of Soobramoney v Minister of Health, Kwazulu-Natal 1997
(12) BCLR 1696 (CC) wherein CHASKALSON P made the following remark at
1705-1706, para 29:-






“The provincial administration which is responsible for health
services in Kwazulu-Natal has to make decisions about the funding
that should be made available for health care and how such funds
should be spent. These choices involve difficult decisions to
be
taken at the political level in fixing the health budget and at the
functional level in deciding upon the priorities to be met.
A court
will be slow to interfere with rational decisions taken in good faith
by the political organs and medical authorities whose
responsibility
is to deal with such matters.”









In conclusion Mr Mudara submitted that the obligations
sought by the applicants from the respondents are dependent upon the
resources available for such
purposes and that the corresponding
rights themselves are limited by reason of lack of resources. The
respondents further submitted
that the application was fraught with
many practical difficulties and that it is not clear from the papers
what the applicants want
to be remedied or rectified. It was also
argued that the relief sought was vague and unenforceable and that on
that basis the application
should be dismissed.





While the relief as
set out in the draft order presents the applicants with some
difficulty in that the applicants have no locus standi to
demand such relief and that no evidence was placed before the Court
to justify the grant of such relief, that does not preclude
the Court
from determining whether the treatment meted out on Kachingwe and
Chibebe constitute degrading and inhuman treatment.
The issue in
this regard is whether or not Kachingwe and Chibebe were subjected to
inhuman and degrading treatment contrary to
s 15(1) of the
Constitution, and whether Kachingwe and Chibebe, as detainees, are
entitled to any protection in terms of s 15(1)
of the Constitution,
and, if so, was such right violated by the respondents? As already
stated s 15(1) of the Constitution provides
that no person shall be
subjected to torture or to inhuman or degrading punishment or other
such treatment.










I entertain no doubt that the law maker intended s 15(1) of the
Constitution to protect all persons irrespective of whether or
not
they are imprisoned or detained in police cells. Indeed detained
and imprisoned persons must have been in the forefront of
the
lawmaker’s mind when he enacted s 15(1) of the Constitution.
Incarcerated persons are particularly vulnerable and in need
of such
protection as they are liable more than anyone else to torture,
inhuman and degrading treatment. Indeed this Court has
held that
convicted persons are not, by the mere fact of their conviction,
denied the constitutional rights they otherwise possess
and that no
matter the magnitude of their crime they do not forfeit the
protection afforded them by s 15(1) of the Constitution of
Zimbabwe.
See Conjwayo v Minister of Justice Legal and Parliamentary
Affairs and Ors
1992 (2) SA 56 (ZSC) and Woods and Ors v
Minister of Justice, Legal and Parliamentary Affairs and Ors
1995
(1) SA 703 (ZSC).





I am persuaded by the
applicants’ further submission that the legal principles enunciated
in the cases of Conjwayo supra, and Woods, supra,
extend equally to persons who are detained in police holding cells on
suspicion of having committed criminal offences. On this
basis I am
satisfied that s 15(1) of the Constitution of Zimbabwe applies to
people like Kachingwe and Chibebe who are held by the
police in
holding cells on suspicion of having committed an offence.






Having come to that conclusion the next issue that falls for
determination is whether the treatment Kachingwe and Chibebe received
whilst under detention constitutes a violation of their
constitutional right guaranteed by s 15(1) of the Constitution.





The following facts are
common cause in this case.






1. That the police cells in which both Kachingwe and Chibebe were
detained measured roughly 24 square metres.


2. That inmates had to
relieve themselves in the full view of others.


3. That the toilet
could only be flushed from outside the cell.


4. There was no toilet
paper.


5. There was no
wash-basin.


6. There was no soap.


7. There was no running
water in the cell and there was no drinking water either.


8. There was no
electric light in the cell.


9. That the detainees
were allowed out of the cells for only a short period of time per
day.


10. That there were
several inmates in one cell.







Kachingwe and Chibebe make further allegations regarding the denial
or failure to provide food, blankets, the cleanliness of the
cells,
etc. These allegations are disputed by the respondents. The
respondents contend that Kachingwe and Chibebe were provided
with
food, blankets, bedding and that this was done in terms of the
standing orders and directives regulating conditions of detained
persons in police custody.







It is common cause that Police Standing Orders promulgated under s 9
of the Police Act [Chapter 11:10] make provision for adequate
food to
be given to prisoners, that prisoners should be given sufficient
bedding, refreshments, and rations etc. In terms of these
Police
Standing Orders every detainee is supposed to be issued with three
clean blankets which are required to be returned to the
police upon
his release. The Police Standing Orders also require that the
blankets should be cleaned, dried and folded. They
provide that
blankets issued to a prisoner who remains in police custody for a
lengthy period shall be washed and dried after seven
days. The
standing orders provide that a general hand should scrub each police
cell daily with detergent and disinfectant. The
cell cleaning
should take place during the daily exercise period whenever possible.





Further the Police
standing orders provide that the Member-in-Charge should arrange for
cells to be checked daily after scrubbing
out by the general hand.
The standing orders also provide that the exercise yards and cells
surrounding should be swept out daily
by the general hand and should
be inspected simultaneously with the cells inspection, etc.





There is a dispute of
fact on the papers on whether the police complied with the
requirements of the Police standing orders on the
days the first and
second applicants were in detention.





The respondents
contended that they did while the applicants’ contend that whilst
they were in detention the police did not carry
out their duties as
required of them by the Police standing orders. This dispute of
fact, in my view, cannot be resolved on the
papers. However, this
matter can be determined without resolving these factual disputes for
the following reasons.





The question of whether
the police carried out their duties as set out in the Police standing
orders or not is essentially an administrative
issue and not a
constitutional issue. The question of whether or not the police
have complied with what is required of them in
terms of the standing
orders is more of a matter for review than a constitutional issue.
I, however, accept that police compliance
with the standing orders is
of some relevance to this application but not critical for its
determination.





I now turn to deal with
the issue of what constitutes torture, inhuman or degrading
punishment or treatment and whether the first
and second applicants
were subjected to treatment or conditions that constitute torture,
inhuman or degrading punishment or treatment.





Counsel for the
applicants submitted that the court can derive some guidance in
determining this issue from decisions of some international
tribunals
on human rights that have adjudicated on this issue and the reports
of the African Commission on Human and Peoples’ Rights.
The
American Convention on Human Rights, in Article 7, prohibits torture,
inhuman and degrading punishment. The African Charter
on Human and
Peoples’ Rights also prohibits torture, inhuman and degrading
punishment in Articles 1 and 5. The International
Covenant on Civil
and Political Rights also outlaws torture, inhuman and degrading
punishment. The United Nations Body of Principles
for the
Protection of All Persons under Any Form of Detention or Imprisonment
also prohibits torture, inhuman or degrading punishment
and sets out
minimum standards for the treatment of detained persons. One can
safely say that torture, inhuman or degrading punishment
is
universally proscribed.





In the case of Hilaire,
Constantine and Benjamin et al
v Trinidad and Tobago,
Inter-American Court of Human Rights Series C No 94 (21 June 2002),
the Inter-American Court of Human Rights found that the conditions
under which the applicants were held were inhuman and degrading
because the cells received little or no natural light, lacked
sufficient
ventilation, the sanitation facilities were primitive and
degrading, the cells were tiny and overcrowded, exercise was very
limited
and medical facilities were virtually non-existent. The
cells were so overcrowded that some of the prisoners had to sleep
sitting
or standing up and the inmates were confined to those
conditions for long periods of at least twenty-three hours a day.





The Court also found
that the applicants suffered these conditions for an extensive period
of time and concluded that the State had
failed to ensure respect for
the dignity inherent in all human beings as well as their right not
to be subjected to cruel, inhuman
or degrading treatment or
punishment.





The Court declared that
the detention conditions in Trinidad and Tobago were completely
unacceptable and that that was sufficient
to constitute a violation
of Article 5(1) and 5(2) of the Convention.





In the course of its
judgment the Inter-American Court of Human Rights also stated that
any person deprived of his liberty has the
right to be treated with
dignity and the State had the responsibility and the duty to
guarantee the detained person’s integrity
while detained. The
court also observed that the State, being responsible for the
detention facilities, is the guarantor of the
rights of detainees.





In the case of
Kalashnikov v Russia (2003) 36 EHRR 34 the European Court of
Human Rights ruled that the detention of the complainant in a cell
that was overcrowded,
poorly ventilated, infested with cockroaches
and ants, with a lavatory that provided insufficient privacy, with no
bedding material
and other necessary items constituted inhuman and
degrading treatment contrary to the provisions of Article 3 of the
European Convention
which provides:-






“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”









There are striking similarities between Kalashnikov’s case,
supra, and this case. In particular, the defence raised by
the Russian Government are similar to the defence raised by the
respondents
in this case. There is also a similarity in what is
alleged to constitute inhuman and degrading treatment in the two
cases. Kalashnikov alleged that he was subjected to inhuman
and degrading treatment in the following respects:






(1) The cell in which he was detained was overcrowded and insanitary.





(2) The cell measured
between 17 and 20 square metres and each bed in the cell was used by
two or three in-mates and, at any given
time, there was between .9
and 1.9 square metres of space per inmate in the applicant’s cell.
Inmates took turns to sleep on
the basis of 8 hours of sleep per
person. In this regard the Court observed that the European
Committee for the Protection from
Torture, Inhuman or Degrading
Punishment had set 7 square metres per prisoner as an approximate and
desirable guideline of the detention
cells.





(3) There was
inadequate ventilation.





(4) That the inmates
were allowed 3 to 4 hours of outdoor activity per day.





(5) The cell was
infested with pests.





(6) Toilet facilities
were inadequate in that only a partition measuring 1.1 metres high
separated the lavatory pan in the corner
of the cell from a wash
stand next to it but not from the living area. There was no screen
at the entrance of the toilet. The
applicant had to use the toilet
in the full view of other inmates.





(7) The applicant was
detained for a long period of time under the above conditions. He
was detained for 4 years and 10 months.






The Russian Government submitted that it was doing its best but did
not have adequate resources to provide better facilities.
In this
regard it was common cause that for economic reasons conditions of
detention in Russia were very unsatisfactory and fell
far below the
requirements set out for penitentiary establishments in member states
of the Council of Europe. However, the Government
of Russia
contended that it was doing its best to improve conditions of
detention in Russia and that it had adopted a number of programmes
aimed at the construction of new pre-trial detention facilities, the
reconstruction of the existing ones would lead to the elimination
of
diseases within the prisons. It was also accepted that the
implementation of programmes being undertaken would allow for a
two-fold
increase of space for prisoners and for the improvements of
sanitary conditions in pre-trial detention facilities.





It was further
accepted by the Court that the Russian Government had taken measures
to improve the detention facilities where the
applicant’s cell was
located and the Court was satisfied that the Russian Government had
no positive intention of humiliating or
debasing the applicant and
that although such intent is a factor to be taken into account, the
absence of any such intent does not
necessarily exclude a finding of
violation of Article 3 which prohibits torture, inhuman or degrading
punishment.






On the basis of the above factors the Court concluded that the
applicant’s condition of detention, in particular, the severely
crowded and insanitary environment and its detrimental effect on the
applicant’s health and well-being combined with the length
of the
period during which the applicant was detained in such conditions
amounted to degrading treatment. The Court, accordingly,
concluded
that there had been a violation of Article 3 of the Convention, that
is to say, that the applicant had been subjected to
cruel, degrading
and inhuman treatment.





Mr Matinenga also
argued that the provision of the African Charter on Human and
Peoples’ Rights and the International Covenant on Civil and
Political
Rights (hereinafter referred to as the “African Charter”
and the “ICCPR”) are part of our national law and that in terms
of these international instruments inhuman and degrading punishment
is prohibited. In this regard he argued that the Constitution
of
Zimbabwe Amendment (No 7) Act 1987 (No. 23 of 1987) which came into
effect on 31 December 1987, amended the Constitution of Zimbabwe
by
inserting a new section 111B which provides:-






“Any International Convention, treaty or agreement which –






(a) has been entered into or executed by or under the authority of
the President; and





(b) imposes fiscal
obligations upon Zimbabwe






shall be subject to ratification by the House of Assembly.”









The House of Assembly was later repealed and substituted by
Parliament. He argued that the effect of that amendment to the
Constitution
in 1987 was that international conventions and treaties
that were signed or acceded to, by, or under the authority of the
President
and that did not impose a fiscal obligation on Zimbabwe
were integrated into the domestic national law of Zimbabwe without
explicit
legislation, as they did not require the approval or
ratification of Parliament.





He further argued
that s 111B was, however, later amended by the Constitution of
Zimbabwe Amendment (No 12) Act, 1993 (No. 4 of
1993) so that any
convention, treaty or agreement which was acceded to, concluded or
executed by or under the authority of the President
before 1 November
1993 and which, immediately before that date, did not require
approval or ratification by Parliament, remained
part of the law of
Zimbabwe after the 1993 amendment.





He submitted that
Zimbabwe signed and ratified the African Charter and the ICCPR in
1986 and 1991, respectively. On that basis,
he submitted that by
assenting to the African Charter and the ICCPR Zimbabwe is bound by
the provisions of these treaties which are
part of our national law.
In support of this proposition he relied on the case of Trendtex
Trading Corporation Ltd v Central Bank of Nigeria
[1977] 1 All ER
881 (CA) at p 888F-G. He also relied on the case of S v Petane
1988 (3) SA 51 (CPD) at p 56F-G in which the court held that the
attributes of customary international laws which are directly
operative
in the national sphere are those that are either
universally recognised or have received the assent of the country.





This contention was
not disputed by the respondents. I have no doubt that, in all
probability, Mr Matinenga is correct in this regard.
However, I feel that this point was not sufficiently argued for me to
make a firm determination of this
point. The determination of that
point of law is not necessary for the determination of this case.






In any event the provisions proscribing torture, inhuman and
degrading punishment as set out in those international instruments
are
almost identical to the wording of s 15(1) of the Constitution of
Zimbabwe that proscribes torture, inhuman or degrading punishment.






Mr Matinenga
also referred us to a number of reports of the African Commission
which was established to promote human and peoples’ rights and
to
ensure their protection in Africa. I agree with Mr Matinenga
that these reports are persuasive. The following are some of
the reports which Mr Matinenga cited. He cited the case of
Huri-Laws v Nigeria 225/98 reported in the 14th
Annual Activity Report 2000 -2001. At p 300 of the above-mentioned
Compilation the complainant, a non-governmental organisation,
had
alleged, amongst other things, that a member of the Civil Liberties
Organisation, another human rights non-governmental organisation,
had
been detained in a sordid and dirty cell under inhuman and degrading
conditions where he was denied medical attention and access
to his
family and lawyer, and also denied access to journals, newspapers and
books.





The African
Commission ruled in paragraph 41 at p 306 that the detention of the
member in a sordid and dirty cell, in health threatening
conditions
and in which access to medical attention and the outside world was
denied amounted to cruel, inhuman and degrading treatment
in
violation of Article 5 of the African Charter.





Similarly in the case
of Civil Liberties Organisation v Nigeria 151/96 reported in
the 13th Annual Activity Report: 1999 – 2000 at p 266
of the above-mentioned Compilation, a complaint was filed against the
detention of
various persons in dark cells, with insufficient food,
no medicine or medical attention. The African Commission made a
finding
in paragraph 25 at p 270 that the deprivation of light,
insufficient food and lack of access to medicine or medical attention
constituted
a violation of Article 5 of the African Charter.





In the case of John
D. Ouko v Kenya
232/99 reported in the 14th Annual
Activity Report: 2000 – 2001 at p 144 of the above-mentioned
Compilation the complainant alleged that throughout the period
of his
detention he was detained in a 2 by 3 metre basement cell with a 250
watts electric bulb which was left on throughout his
10 months’
detention and that he was denied bathing facilities and was subjected
to both physical and mental torture. The African
Commission ruled
that the conditions of the complainant’s detention were a violation
of the complainant’s right to the respect
of his dignity and
amounted to inhuman and degrading treatment in violation of Article 5
of the Charter. The African Commission
further ruled that the
treatment and conditions of Ouko’s detention ran contrary to
the minimum standards contained in the United Nations Body of
Principles for the Protection of All Persons
under Any Form of
Detention or Imprisonment, particularly Principles 1 and 6.





Principle 1 of the
United Nations Body of Principles provides as follows:-






“All persons under any form of detention or imprisonment shall be
treated in a humane manner and with respect for the inherent
dignity
of the human person.”









Principle 6 of the United Nations Body of Principles provides:-






“No person under any form of detention or imprisonment shall be
subjected to torture or to cruel, inhuman or degrading treatment
or
punishment. No circumstance whatsoever may be invoked as a
justification for torture or other cruel, inhuman or degrading
treatment
or punishment.”









The above international norms provide a useful guideline for the
determination of this case.





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 s
15(1) of the Constitution. The evidence clearly establishes
that
Chibebe was subjected to similar treatment.






The third applicant has alleged that conditions in the police holding
cells throughout Zimbabwe are the same as those described by
the
first and second applicants. This may be the case but the matter
cannot be determined on the basis of the third applicant’s
mere say
so. Accordingly the Court cannot grant the relief sought in the
draft order but will make the following declaration and
order:-







1. That the first and second applicants, that is, Kachingwe and
Chibebe, were detained under conditions that constituted inhuman
and
degrading treatment in violation of s 15(1) of the Constitution.





2. That the conditions
of detention in police cells at Highlands and Matapi Police Station
are inhuman and degrading.





3. The respondents are
directed to take immediate measures to ensure that the holding cells
at Highlands and Matapi Police stations
have toilets that are
screened off from the living area, with flushing mechanisms from
within the cells, wash-basins and toilet paper.





4. The first and second
applicants are awarded costs but there will be no order as to costs
in respect of the third applicant.











SANDURA JA: I
agree.








CHEDA JA: I
agree.








MALABA JA: I
agree.








GWAUNZA JA: I
agree.








Honey &
Blanckenberg,
applicants’ legal practitioners



Civil Division of the Attorney-General’s Office, respondents’
legal practitioners