The 2013 Constitution of Zimbabwe protects fundamental rights, including the right to life and the right to human dignity, both of which are inviolable.Ss. 48 and 51, 2013 Constitution of Zimbabwe, read with s. 86(3)(a) and (b).Similarly inviolable is the right to freedom from torture or cruel, inhuman or degrading treatment.S. 53, 2013 Constitution, read with s. 86(3)(c).In contrast, the right to personal security, including freedom from all forms of violence from public or private sources,S. 52(a), 2013 Constitution). may be limited by law "to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on human dignity and freedom, taking into account such factors as the interests of public safety and public order".S. 86(2), 2013 Constitution.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||Not party|
|Competence of CAT Committee to receive individual complaints||N/A|
|CAT Optional Protocol 1||Not party|
1998 Rome Statute of the International Criminal Court
|1981 African Charter on Human and Peoples' Rights||State Party|
|1998 Protocol to the African Charter on the African Court||Signatory|
|Article 34(6) declaration regarding individual petitions||N/A|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Not party|
Police Use of Force
Section 42 of the 1898 Criminal Procedure and Evidence Act (as amended) gives police officers the power to use “such force as may be reasonably justifiable and proportionate in the circumstances” to overcome resistance during arrest or prevent escape. Lethal force may be used where the person is suspected of having committed a serious offence and the person attempting the arrest believes on reasonable grounds that:
(a) the force is immediately necessary for the purposes of protecting the person attempting the arrest, any person lawfully assisting the person attempting the arrest or any other person from imminent or future death or grievous bodily harm; or
(b) there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or
(c) the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.
“Lethal force” is defined under the Act as “force that is likely to cause death or serious bodily injury.”
Use of Force in Custodial Settings
The existing Prisons Act is being overhauled. The 2016 Draft Prisons and Correctional Service Act addresses some, but not all, of the concerns relating to the current Prisons Act. It makes a distinction between the general use of force and the use of weapons, providing that the use of force against inmates must be "reasonably necessary" to ensure compliance with lawful orders or to maintain discipline in the prison or correctional facility.S. 37(1), 2016 Draft Prisons and Correctional Service Act.It, however, allows a correctional officer to use a weapon (including a firearm) against a prisoner where he or she is attempting to escape or is engaged in "violently disorderly behaviour".S. 37(1)(a), 2016 Draft Prisons and Correctional Service Act.Under the Bill, a prison officer may only use a weapon if he or she has reasonable grounds to believe that the escape cannot otherwise be prevented; has given clear prior warning that the weapon is about to be used; and the warning goes unheeded.S. 37(4), 2016 Draft Prisons and Correctional Service Act.When a weapon is used it must be the minimum force necessary in the circumstances to restrain the act intended, and shall, as far as reasonably possible, be used only to disable and not to kill.S. 37(5), 2016 Draft Prisons and Correctional Service Act.
Despite constitutional provisions that provide for the establishment of independent oversight bodies for law enforcement agencies none has so far been created. The the Zimbabwe Human Rights Commission (ZHRC) does, though, have the power to investigate alleged human rights violations, including by the police.
VIEWS AND CONCLUDING OBSERVATIONS OF UNITED NATIONS TREATY BODIES
The use of force by Zimbawean police has not been the subject of recent review by a United Nations treaty body.
Universal Periodic Review
In submissions on Zimbabwe with respect to its Universal Periodic Review in 2016, Human Rights Watch stated that torture and other ill-treatment of detainees by the police and intelligence services remained a serious and systemic human rights problem. Documented cases of torture included severe beatings that involve victims being punched, kicked, and struck with batons, beatings on the soles of the feet, repeated banging of detainees’ heads against walls and the shackling of detainees in painful positions.
Amnesty International stated that the Government and local authorities continued to evict people without adequate notice, alternative housing, compensation, and due process. The police often use excessive force during forced evictions, and the Government regularly failed to provide effective remedies to victims.
The use of force by Zimbawean police has not been the subject of recent review by the African Commission on Human and Peoples' Rights in Concluding Observations, but has been addressed in a number of individual communications.
Gabriel Shumba v. Zimbabwe
In this case, the African Commission interpreted excessive use of force that does not result in death as not being a violation of the right to life. This was so, despite the applicant having been forced to drink his own blood and urine, being injected with an unknown chemical substance while in police custody, and being subjected to prolonged electric shocks to his mouth, genitals, fingers, toes and other parts of the body.
Zimbabwe Human Rights NGO Forum v. Zimbabwe
In this case, the African Commission held that lethal use of force man only be lawful in a situation of self-defence or in the defence of others against the imminent threat of death or serious injury. This standard was not met by the shooting of a fleeing suspect in order to promote the general respect for the law.
S v. Reza and another (2004)
This case on appeal concerned two policemen who had been convicted of assault with intent to cause grievous bodily harm, for using a leather whip to assault a suspect on the soles of his feet in order to extract a confession. The court held that the actions of the police officers constituted torture as defined in international law, and that the existence of a motive such as the extraction of a confession as evidence of commission of a crime was a necessary element of torture. The Court noted that the fact that the beatings were specifically designed to induce intense pain to force a confession made the actions of the two officers unlawful.
S v. Mhomho (2007)
The appellant (a private soldier of the Zimbabwe National Army invoked the defence of lawful killing under Section 42 the Criminal Procedure and Evidence Act for unlawfully and intentionally killing another person in the back with a gun. The victim was running away when the appellant shot him, in the process of attempting to arrest him, on suspicion of being an illegal border crosser. The Court held that the Appellant should have taken other reasonable steps in the attempt to prevent the deceased from escaping before resorting to the use of the force that killed him; that the appellant acted precipitately and prematurely in taking the drastic action of shooting the deceased; and that the appellant was negligent in failing to take reasonable steps to ascertain the whereabouts of the deceased before discharging his firearm. His conviction of culpable homicide was upheld.