A HIGH Court bid to force President Emmerson Mnangagwa to sign into law a charter outlawing the abduction and torture of government critics and activists has been dismissed, with the court saying it cannot compel him to do so.
Human rights lawyer Obey Shava had cited Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi, Mnangagwa, the Parliament of Zimbabwe and the Zimbabwe Human Rights Commission as respondents, respectively.
The lawyer wanted the court to order Mnangagwa to sign and accede to the Convention Against Torture (CAT) saying failure to do so is a breach of his right to equal protection and benefit of the law.
He also sought an order that Mnangangwa within 12 months from the date of the order should ensure that CAT is brought to Parliament for ratification.
Shava also sought an order that Ziyambi within six months deposits the necessary instruments of accedence to CAT with the United Nations.
High Court judge Justice Gladys Mhuri, however, dismissed the application.
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“If there is a deviation from or an infringement of this right occurs, it can rightly be said that there is derogation from this law, meaning there is no equal protection and benefit of the law,” the judge said.
“I find, in the result, that applicant’s relief based on the sec 56(1) infringement cannot be granted.
“The second question to be determined is whether this court can compel second respondent (Mnangagwa) to sign CAT.”
She added: “It is my considered view that this court cannot compel the second respondent to do what it is by law not compelled to do, to wit sign a convention.
“... the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.
“... this court cannot compel second respondent to do what he is not compelled by law to do. Consequently, I cannot grant the mandamus order sought by applicant.
“In the result, the application is hereby dismissed with no order as to costs.”
Shava had argued that CAT can only be part of the laws of Zimbabwe after it had been executed by the President or under his authority.
Shava submitted that this should be done expeditiously in compliance with section 324 of the Constitution, which provides that all constitutional obligations must be performed diligently without delay.
He said he had been a victim of torture, cruel and degrading treatment.
Shava also referred to other incidents where rights activists were kidnapped and tortured.
He cited the case of Tonderai Ndira, who he alleged was abducted on May 13, 2008 from his home in Mabvuku by 10 men; James Chidakwa and Takudzwa Ngadziore (October and November 2023, respectively) who were abducted by alleged State agents and tortured.
Shava also mentioned the late Tinashe Chitsunge and Bishop Tapfumaneyi Masaya who were reportedly abducted and tortured in November 2023.
He also referred to Gukurahundi, the abduction of opposition supporters in 2000 and 2018 as well as other election incidents of violence, among other human rights violations.
However, Shava’s application was opposed by Ziyambi and Mnangagwa, but Parliament indicated that it would abide by the court’s decision, while the Zimbabwe Human Rights Commission did not file any papers and neither did it appear for the hearing.
CAT is a UN convention which 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 territories.
CAT was adopted by consensus in the General Assembly of the UN in1984 and came into operation on June 26, 1987.
Zimbabwe and Tanzania are the only Sadc countries that have neither signed nor ratified it.