HARARE – The High Court has ruled that President Emmerson Mnangagwa cannot be compelled to ratify the United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Lawyer Obey Shava who was beaten and left for dead on a Harare street in July 2023 sued Mnangagwa as he asked the High Court to order him to enact a law in line with the convention prohibiting torture.

Mnangagwa opposed the application, denying that there is widespread torture of activists in Zimbabwe.

High Court judge Gladys Mhuri has ruled that the president cannot be compelled to do things he is not legally bound to do.

“A submission was made that Zimbabwe is one of only two countries that has not acceded to and ratified the convention against torture. Be that as it may, it is my considered view that this court cannot compel the president to do what it is by law not compelled to do, to sign a convention. Here then kicks in the doctrine of separation of powers,” Mhuri ruled.

“Consequently, I cannot grant the mandamus order sought by applicant. In the result, the application is hereby dismissed with no order as to costs.”

In his application filed at the Harare High Court on December 12, 2023, Shava, who was represented by Tendai Biti of Zimbabwe Lawyers for Human Rights (ZLHR), wanted the court to compel Mnangagwa and other respondents namely, justice minister Ziyambi Ziyambi, parliament and the Zimbabwe Human Rights Commission to accent to and ratify the Convention Against Torture that was adopted by the United Nations General Assembly in December 1984 and which came into operation in June 1987.

The human rights lawyer wanted the convention to be ratified before parliament within 12 months of the granting of the court order.

He charged that Mnangagwa’s failure to accede to the convention was a breach of the constitution and is also a violation of his right to equal protection of the law codified by section 56 of the constitution and a breach of his right to constitutionalism and the rule of law guaranteed under section 47 of the constitution.

The lawyer bemoaned the systematic pattern of enforced disappearance, abduction, torture and cruel and degrading treatment carried out by state security agents against human rights defenders, opposition party supporters, lawmakers and ordinary citizens. These actions included being injected with unknown substances.

To support his application Shava listed other cases of opposition activists who were tortured or killed including James Chidhakwa, an opposition activist, Takudzwa Ngadziore, Tinashe Chitsunge and Bishop Tapfumaneyi Masaya.

Shava argued that cases of torture are never investigated and no-one is prosecuted for committing such heinous crimes.

The constitution, Shava argued, protects first generation rights such as the right to life, liberty, fair trial, human dignity and the right not to be subjected to torture, cruel or degrading treatment and that torture is implicitly prohibited under section 48 of the constitution, which provides for the right to life and also under section 51, which protects the right to human dignity.

He told the High Court that despite the existence of progressive constitutional provisions on torture, personal liberty, fair trial, legal representation, human conditions of detention, human dignity, these have not been incorporated into subsidiary legislation and are not being enforced in practice.

He argued that Mnangagwa, chiefly, was bound by the constitution to take measures to ensure the enactment of a law criminalising torture.

There was no reason, he said, why the president should fail to accede to the convention.

Shava submitted that Zimbabwe is out of step with the rest of Africa and the world as 162 out of 193 members of the UN have become state parties to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

He contended that out of 55 African countries, only four – Zimbabwe, Angola, Tanzania and Sahrawi Arab Democratic Republic – have neither signed nor ratified the convention. Of the 15 SADC countries, 12 are state parties and only two – Zimbabwe and Tanzania – have neither signed nor ratified the convention.

His arguments however did not find favour with the judge who ruled that his application was devoid of merit.