Kachingwe v. Minister of Home Affairs N.O.

Report No. SC 145/04
Download Judgment: English

This was a civil appeal regarding the conditions in Zimbabwe’s police holding cells. The first and second Applicants, Kachingwe and Chibebe, were arrested by the police, with Zimbabwe Lawyers for Human Rights serving as the third Applicant. The first Applicant was detained in a police cell overnight. The second Applicant was detained for two days.

The police cells that the Applicants were held in did not have either artificial or natural lighting, ventilation, running water, wash basin, shower, soap, bedding, seating, heating or toilet paper. The toilet was overflowing, could not be flushed, and was not separated from the remainder of the cell and could not be used except in full view of the other detainees. Up to seven detainees were placed in each cell, and the cells contained litter and human excrement that had not been cleaned. The Applicants were also not provided with food, blankets, or access to medical treatment, and were required to wear only one layer of clothing and go barefoot, despite the cold and unsanitary conditions in the cell. There was evidence that these conditions prevailed in prison holding cells throughout Zimbabwe.

The Applicants alleged that the conditions under which they were detained constituted inhuman and degrading treatment in violation of their rights conferred in section 15 (1) of the Constitution of Zimbabwe, which provides that:

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

They sought an order for the improvement of conditions in all police holding cells in Zimbabwe before the Supreme Court of Zimbabwe. The Respondents challenged Kachingwe’s standing as a non-citizen, whether the Applicants had standing for the remedy of detention reform at large, and the merits of the claim.

On the procedural questions, the Court held that Kachingwe had standing as a non-citizen, but that the broad relief sought by the Applicants was not supported by the evidence brought by the applicants.  The Court thus only considered the claims relating to the cells that the Applicants were held in.

On the merits, the Court held that detainees were entitled to the rights enshrined in section 15(1) of the Constitution of Zimbabwe.  It rejected the Respondent’s argument that section 15(1) did not apply to prisoners, reiterating previous jurisprudence that incarcerated persons were particularly vulnerable and in need of protection as they were especially vulnerable to torture, inhuman and degrading treatment.  The court also reiterated that convicted persons were not, by the mere fact of their conviction, denied the constitutional rights they otherwise possessed and that no matter the magnitude of their crime, prisoners did not forfeit the protection afforded them by section 15 (1).

In its analysis of section 15(1), the Supreme Court relied upon international instruments, including the African Charter on Human and Peoples Rights; the Inter-American Convention on Human Rights; International Covenant on Civil and Political Rights, the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (the UN Body of Principles); and the European Convention on Human Rights, as well as the jurisprudence of the regional human rights courts. The Supreme Court considered that the African, Inter-American, and European regional human rights courts had treated substantially similar situations as constituting inhuman and degrading treatment, and that the minimum standards laid down in the UN Body of Principles had not been met.

In light of the standards laid down in this jurisprudence, the Supreme Court held that conditions under which the two applicants were held at the two police cells in question clearly constituted inhuman and degrading treatment.  The Court singled out the following as particularly indicative of inhuman and degrading treatment:

  • The failure to screen the toilet facility from the rest of the cell to enable inmates to relieve themselves in private;
  • The failure to provide a toilet flushing mechanism from within the cell;
  • The failure to provide toilet paper, a wash basin, or a sitting platform or bench in the cells.

Consequently, the Supreme Court ordered the respondents 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.”

 

“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.” Page 20.

“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.” Page 20.

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