TORTURE IN ZIMBABWE, PAST AND PRESENT II. PROHIBITION OF TORTURE UNDER DOMESTIC LAW The Constitution provides a right to protection against torture: “ No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”69 The right is non-derogable. There is no specific crime of torture in Zimbabwean law, nor has torture been defined in Zimbabwean law, although Section 15(1) of the Constitution has been the subject of several leading Supreme Court judgments 70 where the meaning of inhuman or degrading punishment or other such treatment has been defined in its jurisprudence. In these cases close attention has been paid to norms of human rights law as expressed in international treaties and in decisions of other jurisdictions. III. CRIMINAL ACCOUNTABILITY OF PERPETRATORS III.1 . Substantive Law: Criminal Offences and Punishment There is no specific offence of torture in Zimbabwean law. Several common law offences may however be applied to prosecute and punish torture. Such offences are assault,71 assault with intent to do grievous bodily harm, 72 rape,73 administering poison or other noxious substance, 74 murder75 and attempted murder. The applicable sentences are largely at the discretion of the sentencing judge or magistrate.76 Murder carries a mandatory death sentence unless extenuating circumstances are found,77 in which case a period of up to life imprisonment may be imposed. Recent legislation has laid down a minimum sentence for rape in certain 69 Section 15(1) of the Constitution. 70 S v Ncube & Ors 1987 (2) ZLR 246 (S); 1988 (2) SA 702 (ZS); S v A Juvenile 1989 (2) ZLR 344 (S); 1990 (4) SA 151 (ZS); CCJP V Attorney-General 1993 (1) ZLR 242 (S); 1993 (4) SA 239 (ZS); 1993 (2) SACR 432 (ZS). 71 Assault consists in unlawfully and intentionally applying force to the person of another or inspiring a belief in that other that force is immediately to be applied to him; see P.M.A. Hunt and J.R.L. Milton: South African Criminal Law and Procedure, Vol. II, Common-Law Crimes, 2 nd .Ed., Juta & Co., 1982, at pp.462 et seq. Although there are some relatively minor differences between modern non-statutory criminal law in Zimbabwe and South Africa, reputable legal writers and judicial decisions from South Africa are frequently referred to in Zimbabwe courts, and have considerable persuasive authority. 72 It has been said that there must be “ the intent to do grievous bodily harm. It is not necessary that such harm has actually been done or that it should be either permanent or dangerous. If it be such as seriously to interfere with comfort or health it is sufficient.” - R v Matzukis 1940 SR 76. This Zimbabwe case was quoted with approval in the South African case of S v Madikane 1990 (1) SACR 377 (N) at 385-386 where the court held that the application of electric shocks constituted assault with intent to do grievous bodily harm. 73 Rape consists in intentional unlawful sexual intercourse with a woman without her consent: Hunt and Milton loc. sit. at pp.435 et seq. A lesser charge is one of indecent assault which consists in an assault which is itself of an indecent character: ibid. at pp. 494 et seq. 74 This consists in unlawfully and intentionally administering to another person a poisonous or otherwise noxious substance: ibid. at pp. 502 et seq. 75 Murder consists in the unlawful and intentional killing of another person: ibid at pp. 340 et seq. homicide consists in the unlawful negligent killing of another person: ibid. at pp.401 et seq. Culpable 76 Magistrates have no jurisdiction to try murder cases, but do have jurisdiction over the other common law crimes listed, including attempted murder and culpable homicide. 77 Section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The only other offence for which the death penalty may be imposed is treason. 14