RIGHTS BEHIND BARS A Study of Prison Conditions In Zimbabwe 2018 2. INTRODUCTION The rights of persons deprived of their liberty are both explicitly and implicitly provided for in various international and regional instruments.1 Of the various regional and international treaties, Zimbabwe has signed, ratified or acceded to the ICCPR, CEDAW, ICESCR, CRC, CRPD, ACHPR, AWP and the ACRWC. The signing of a human rights instrument does not mean the State consents to be bound by the treaty, but it is an expression of the State’s willingness to complete the treaty-making process and an obligation to ‘refrain, in good faith, from acts that would defeat the object and the purpose of the treaty’.2 Ratification or accession to a human rights instrument is the international act which indicates a State’s consent to be bound by a treaty.3 Therefore it means that the provisions of the instruments which Zimbabwe has ratified or acceded to are legally binding on it, and the State has an obligation to domesticate the provisions into national law. The main Principles, Minimum Rules and Declarations which provide a comprehensive outline of safeguards and the rights of persons deprived of their liberty are the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules);4 the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;5 and the Basic Principles for the Treatment of Prisoners.6 The rights of children deprived of their liberty are provided for separately in rules and guidelines adopted by international and regional bodies.7 These instruments are centred on the principle of the best interests of the child, and they deal with issues related to both prevention and treatment in child justice. Although the Principles, Minimum Rules and Declarations constitute ‘soft law’8 and are not legally binding, they are of persuasive value in international law and would be consistently referred to in 1 2 3 4 5 6 7 8 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI; UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III); UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p 85; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3; UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171; UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13; UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3; UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106; UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104; Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (Banjul Charter), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); African Union, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, 11 July 2003; Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990). Articles 10 and 18 of the Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331. Articles 2(1)(b), 14 (1) and 16 of the VCLT. See General Assembly, A/RES/70/175. UN General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment A/ RES/43/173. UN General Assembly, Basic Principles for the Treatment of Prisoners: resolution / adopted by the General Assembly, 28 March 1991, A/RES/45/111, available at: http://www.refworld.org/docid/48abd5740.html [accessed 28 December 2017]. UN General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines): resolution / adopted by the General Assembly, 14 December 1990, A/RES/45/112; UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules): resolution / adopted by the General Assembly, 29 November 1985, A/RES/40/33; UN General Assembly, United Nations Rules for the Protection of Juveniles Deprived of Their Liberty: resolution / adopted by the General Assembly, 2 April 1991, A/RES/45/113 and The African Commission on Human and Peoples’ Rights, Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, meeting at its 32nd ordinary session held in Banjul, The Gambia. Soft law refers to guidelines, policy declarations or codes of conduct which set standards of conduct; it does not create enforceable obligations. 11