MAKARAU JP: The appellant,
a foreign national, was arrested and prosecuted in Zimbabwe for
violating the national laws regulating dealings in arms and
munitions. He was sentenced to a term of imprisonment. Arising out of
the charges and whilst the appellant was still serving his term of
imprisonment in Zimbabwe, the respondent made a formal request to
Zimbabwe in terms of the Extradition Act [Chapter 9.08] (“the
Act”), for the extradition of the appellant. In its request, the
respondent alleged that the appellant had illicitly dealt in arms and
munitions in Zimbabwe as he was enroute to the respondent where he
had conspired to kill the head of that State or to illegally change
the Government of the respondent through unconstitutional means.
The request was heard by a Magistrates' Court sitting at Harare. At
the end of the hearing, the court a quo granted the request,
prompting the appellant to note this appeal before us in terms of
section 18 of the Act.
NATURE
OF APPEAL
The point was raised and argued
in limine
that an appeal under section 18 of the Extradition Act is an appeal
in the wide sense and this court does not first have to find a
misdirection on the part of the court a quo to substitute its own
decision in the matter. It was further argued that the appeal
connotes a re-hearing of the request and the making of an order that
the lower court should have made in the circumstances of the matter.
Section 18 of the Act reads:
“(1)
Any person, including the Government of the designated country
concerned, who is aggrieved by an order made in terms of section
seventeen may, within seven days thereafter, appeal against the order
of the High Court which, may, upon such appeal, make such order in
the matter as it thinks the magistrate ought to have made.
(2) In addition to the
jurisdiction conferred upon it in terms of subsection (1), in any
appeal in terms of that subsection, the High Court may direct the
discharge of the person whose extradition has been ordered if the
High Court is of the opinion that, having regard to all the
circumstances of the case, it would be unjust or oppressive to
extradite such a person -
(a) by reason of the trivial
nature of the offence concerned; or
(b) by reason of the lapse of
time since the commission of the offence concerned or since the
person concerned became unlawfully at large, as the case may be; or
(c) because the accusation
against the person concerned is not made in good faith in the
interests of justice; or
(d) by reason of the state of
health or other personal circumstances of the person concerned.”
The distinction between 'wide' appeals and appeals in the narrow
sense as raised in this appeal is not a novel argument in this
jurisdiction. It is a distinction that is argued in this court
regarding the determination of appeals from the refusal to grant bail
by lower courts and in the Supreme Court regarding appeals from
labour relations adjudicating bodies set up in terms of the Labour
Act.
The position was, in my view,
succinctly clarified by McNally JA in Agricultural
Labour Bureau & Anor v Zimbabwe Agro-Industry Workers Union
1998 (2) ZLR 196 (SC), in the following words:
“Perhaps
one can clarify the position by looking at the widely accepted
classification of appeals as formulated by TROLLIP J in Tickly &
Ors v Johannes NO & Ors 1963 (2) SA 588 (T), and approved by the
Appellate Division in South Africa in S v Mohamed 1977 (2) SA 531 (A)
at 538 and again in what is now KwaZulu-Natal in a case similar on
the facts to the present one, Metal and Allied Workers Union v Min of
Manpower 1983 (3) SA 238 (N) at 242B-D.
The three classes of appeals,
re-stated in the last of these cases, are:
1. an appeal in the wide
sense, ie a complete rehearing of and fresh determination on the
merits of the matter with or without additional evidence or
information;
2. an appeal in the ordinary
strict sense, ie a rehearing on the merits but limited to the
evidence or information on which the decision under appeal was given,
and in which the only determination is whether that decision was
right or wrong;
3. a review in which the
question is not whether the decision was correct or not, but whether
those who made it had exercised their powers honestly and properly.”
On the basis of the above, I am of the view that an appeal brought in
terms of section 18 of the Act is an appeal in the wide sense.
This is due to the language used in the section that gives the Appeal
Court wide discretion to substitute its own decision on the same
facts that were before the lower court in addition to granting power
to the court to take into account other factors of a humanitarian
nature. Thus, in my further view, in determining an appeal such as
the one before us, the Appeal Court need not first establish any
misdirection on the part of the lower court and re-hears the request
as argued before, together with any additional considerations of a
humanitarian nature that may be placed before it during the appeal
hearing. The correctness or otherwise of the approach adopted by the
lower court in coming to the conclusion that it did are therefore not
issues before this court.
The above is the approach we take in determining this appeal.
GROUNDS OF APPEAL
The appellant raised three main grounds on appeal why he should not
be extradited to the respondent;
Firstly, he contended that the lower court erred in holding that the
respondent had established a prima facie case.
Secondly, he contended that the court did not specifically address
its mind as to whether Zimbabwe would be violating any of its
international obligations should it extradite the appellant to the
respondent.
Finally, he urged this court to take into account his failing health
and to hold that it would be unjust or oppressive to have him
extradited to the respondent.
The first two grounds of appeal are founded on the provisions of
section 17(1) which provides guidelines to lower courts in
determining when to grant an order in favour of the requesting State.
The section provides as follows:
“(1)
Where a person has been brought before a magistrates court in terms
of subsection of section sixteen the court, if satisfied that -
(a) the person concerned is
the person named in the warrant under which he was arrested; and
(b) the extradition is not
prohibited in terms of this Act; and
(c) either -
(i) that a prima facie case is
established; or
(ii) in case in which a record
of the case has been submitted in terms of the proviso to paragraph
(b) of subsection(1) of section sixteen, that the record of the case
indicates, according to the law of the designated country concerned,
that the person concerned has committed the offence to which the
extradition relates or that he has been convicted of such offence and
is required to be sentenced or to undergo any sentence therefor in
the designated country concerned, as the case may be;
shall
subject to section nineteen, order that such person be extradited to
the designated country concerned……………”
In casu,
there is no dispute as to the identity of the appellant and the fact
that the warrant of arrest produced by the respondent relates to the
appellant. The first two grounds of appeal arise from whether the
extradition of the appellant to the respondent is prohibited in terms
of the Act and, if not, whether a prima facie case has been
established by the evidence submitted by the requesting State.
It appears to me convenient to deal with the appeal on the basis of
the above three contentions made on behalf of the appellant in the
order in which they appear in the legislation cited above. In other
words, the first inquiry will be whether the extradition of the
appellant is prohibited in terms of the Act. In my view, once that
issue is determined against the extradition of the appellant that
will mark the end of the inquiry as the three pre-requisites laid out
in section 17 of the Act are cumulative rather than disjunctive.
WHETHER THE EXTRADITION OF THE APPELLANT IS PROHIBITED IN TERMS OF
THE ACT
It is the appellant's contention that his extradition from Zimbabwe
is prohibited in terms of the Act in that it will conflict with the
obligations of Zimbabwe under various international and regional
treaties. In particular, we have been urged to have regard to the
International Covenant on Civil and Political Rights and to the
African Charter on Human and Peoples Rights, to which Zimbabwe is a
State party, as creating those obligations at both international and
regional levels. Both instruments do not carry specific non-refouler
provisions.
It is correctly submitted on behalf of the appellant that it is in
terms of Article 3 of the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment that
specific prohibition against expelling, returning or extraditing a
person to another State where there are substantial grounds for
believing that the person so expelled, returned or extradited would
be in danger of being subjected to torture is provided for.
Zimbabwe is not yet a party to the convention and has thus not
assumed the obligations imposed by Article 3 of the convention.
By not voluntarily assuming the obligations set out in the UN
Convention against torture, Zimbabwe may nevertheless have those
obligations imposed upon it by the application of international
customary law as fully explained in the judgment by PATEL J, the
draft of which I have had sight of and agree with.
It is the position now that
certain human rights may be regarded, by their content and universal
acceptance, as having entered into the realm of customary law and
thus become applicable to nations that may not have assented to the
particular instruments protecting these rights by virtue of the
superiority of international customary law over all other laws.
These rights include the prohibition of slavery, genocide and
torture.
Having arrived at the conclusion that Zimbabwe has an obligation not
to extradite any person to a country where there are substantial
grounds for believing that the person so expelled, returned or
extradited would be in danger of being subjected to torture, I will
now proceed to deal with the issue of whether the apprehension by the
appellant that if extradited to the respondent, he is likely to be
tortured is well founded.
WHETHER THERE ARE SUBSTANTIAL GROUNDS FOR BELIEVING THAT THE
APPELLANT WILL BE SUBJECTED TO TORTURE, CRUEL, INHUMAN OR DEGRADING
TREATMENT IF EXTRADITED
The appellant has sought to rely on the Report presented by Mr
Gustavo Gallon, a Special Representative for Equatorial Guinea to the
UN Commission on Human Rights, a report by the International Bar
Association on a fact finding mission conducted in 2003, a report by
an observer of the International Bar Association on the trial of du
Toit, and a report by Amnesty International on the same trial. All
these reports were adduced into evidence before the magistrate
conducting the hearing. The appellant also led viva voce evidence
from Mr Andrew Chigovera, former Attorney-General of Zimbabwe and
Commissioner on the African Commission for Human and Peoples'
Rights.
Similar reports to the ones
adduced into evidence in this hearing were adduced into evidence
before NGOEPE JP in South Africa in the matter of Kaunda
and Others v President of the Republic of South Africa
2004 (5) SA 191 (T). In addition to the report by the International
Bar Association of 2003, the applicants before NGOEPE JP also relied
on reports that had been compiled in 2004 by the Human Rights
Committee of the General Council of the Bar of South Africa and
another report by an Advocate Henning SC, of the office of the
National Director of Public Prosecutions in South Africa, who visited
Equatorial Guinea after the arrest of certain South Africans in
connection with the matter for which the extradition of the appellant
is being sought.
In treating the evidence adduced in the form of the reports detailed
above, NGOEPE JP was of the view that it did not constitute expert
evidence of the efficacy and fairness of the justice delivery systems
in both Zimbabwe and Equatorial Guinea and he declined to make
declarations based on these reports condemning the justice delivery
systems in both countries.
I am compelled to agree with the learned judge.
It is generally accepted that the International Bar Association and
Amnesty International are international bodies of standing. It is
also generally accepted that they have dealt with matters relating to
human rights for a considerable period. Despite the international
standing of the International Bar Association, NGOEPE JP was not
swayed to accept the report of 2003 as constituting expert evidence
on the efficiency and fairness of the justice delivery system in
Equatorial Guinea. The same report was adduced into evidence before
the trial court without any further basis having been laid as to the
authors of the report and their expertise in issues relating to
torture and the legal system of Equatorial Guinea. While the report
may not be false or biased as alleged by the Attorney-General of
Equatorial Guinea, it does not constitute expert evidence before the
court for the purposes of the law.
The same observations apply to the report by Amnesty International.
In passing, I note that the reports point a bleak picture of the
justice delivery system in the respondent State and if true, then the
apprehension of the appellant that he will not be afforded a fair
trail are well founded. It is however my finding that the reports
fall short of affording the court expert evidence on the fairness or
otherwise of trials in the Equatorial Guinea and of the existence of
a consistent pattern of gross, flagrant or mass violations of human
rights in the respondent State.
The appellant also adduced into evidence a report by Mr Gustavo
Gallon, a Special Representative for Equatorial Guinea to the UN
Commission on Human Rights. The expertise of the UN in Human Rights
issues is beyond dispute. The expertise of Mr Gallon on Equatorial
Guinea was however not laid out and in any event, the report was
produced in 2001, depicting the conditions then. In my view, it can
hardly constitute evidence of the state of things in 2007.
As indicated above, the appellant
led viva voce
evidence from the former Attorney-General for Zimbabwe and
Commissioner on the African Commission for Human and Peoples'
Rights. His evidence was in essence to the effect that when he was
Commissioner with the African Union, he would receive reports similar
to the ones that were adduced into evidence by the appellant. The
contents of these reports did not therefore surprise him.
With respect, the witness did not testify of any first hand
experiences where the respondent State violated human rights as
alleged by the appellant. His views that the appellant was unlikely
to receive a fair trial were derived from the reports and others that
he had received as Commissioner.
Again, with respect, while the witness had spent a long time dealing
with human rights issues, his expertise on the human rights record
and history of the respondent State was hardly set out. His knowledge
of the alleged record of the respondent State appears to be limited
to the reports that he read and, in my view, that barely places him
above the court to which such reports have also been made available.
On the basis of the above, we are therefore unable to hold that we
have sufficient evidence before us that the appellant is at risk of
being subjected to torture if extradited to Equatorial Guinea.
It appears further that while the appellant may have good grounds for
fearing that he stands the risk of being tortured if extradited to
the respondent, his apprehension stems from the reports that I have
detailed above. The history depicted by the reports is in my view to
be viewed in light of the concessions made by the respondent's
Attorney General that not only will the respondent appoint a judge
from outside the respondent to try the matter, but will open up the
trial to international observers and will not seek the death penalty
in the event that the appellant is convicted. These may be mere
promises but no evidence was placed before us that the respondent
will not honour such promises. We therefore have no basis at law for
not believing the respondent in this regard. The effect of the
concession made by the respondent's Attorney General is to minimize
the risk that the appellant will be subjected to torture if
extradited to the respondent.
PRIMA FACIE CASE
The Act provides in section 16 that the request for extradition
submitted to the Minister must be accompanied by such evidence as
would constitute a prima facie case in a court of law in Zimbabwe.
The law further provides in section 17 that the court hearing the
request must order the extradition of the person concerned if it is
satisfied that the two pre-requisites set out above have been met,
and, in addition, that a prima facie case has been established
against the person whose extradition is sought.
It was contended on behalf of the appellant that the respondent had
failed to establish a prima facie case against the appellant.
In my view, the concept of a prima facie case is one of those legal
concepts that are easier to recognize than to define. The concept
eludes definition not only due to the fact that it deals with
subjective measures of the cogency of evidence presented before a
trier of fact, but also because the term is used loosely in both
civil and criminal proceedings without a distinction having been
attempted.
It appears to me that in civil
cases, our courts have adopted the attitude that for interim
protection by the court in the form of an interdict pending the
determination of some other suit between the parties, a prima facie
case is established once a cause of action is established even where
the chances of the applicant to succeed in sustaining the cause of
action are open to doubt.
That a prima facie case in civil
suits for the obtaining of interim protection is simply the setting
out of facts establishing a possible and plausible claim against the
respondent without the evidence necessary to prove such a claim
appears to me clearly from the following remarks by CHATIKOBO J (as
he then was) in Sultan
v Fryfern Enterprises (Pvt) Ltd & Anor
2000 (1) ZLR 188 (HC):
“I
have deliberately refrained from making definitive findings of fact
because it may well be that further affidavits (if any are filed for
the return date) or oral evidence may justify a different conclusion.
At this stage I am concerned only with the question whether a prima
facie case has been shown. I am satisfied it has.”
It then appears to me that a different test is used when a prima
facie case has been established by a plaintiff in a civil trial to
avoid absolution from the instance being granted at the close of his
or her case. The test requires the establishment of more than a cause
of action. Evidence must be adduced to prove the cause of action and
must be so cogent as to enable a court to give judgment on it in
favour of the plaintiff unless it is successfully rebutted.
It is my view that the test used
to establish a cause of action at the end of the plaintiff's case
is the same used to establish a case at the end of the prosecution
case to avoid a discharge of the accused person. It is the adducing
of evidence upon which a court may convict unless such evidence is
rebutted. (See Kachipare
v S 1998 (2) ZLR 271
(S)). Obviously the different burdens of proof applicable in civil
and in criminal proceedings apply in establishing prima facie cases
in both proceedings. The test however appears the same to me.
While it is accepted that
extradition proceedings are not criminal proceedings per se, it
appears to me that the standard of when a prima facie case has been
established as used in civil proceedings is not applicable in
extradition proceedings for the main reason that the powers granted
to a magistrate conducting a hearing in terms of the Act are similar
to the powers of a magistrate conducting a preparatory examination
under the Criminal Procedure and Evidence Act [Chapter 9.07],
a procedure that is now defunct, having been amended out of the
criminal procedure due to non-use.
I would hazard to suggest that by specifically granting to
magistrates the powers they enjoyed when conducting the now defunct
preparatory examinations, and, by directing them to “receive
evidence in the same manner,” the legislature intended that the
test to be employed under section 17 of the Act as to when a prima
facie case has been established must be similar to that which was
used at preparatory examinations. I cannot envisage a situation where
having granted magistrates powers to conduct extradition hearings as
if they were conducting preparatory examination, the legislature
intended them to use tests other than the ones used at such
proceedings. If this was its intention, it would have used specific
language to that effect or would have defined what constitutes a
prima facie case for the purposes of the section.
In commenting on the test used at a preparatory examination, the
author Reid Rowland in his book: Criminal Procedure in Zimbabwe had
this to say under paragraphs 9-16:
“At
the end of a PE, the question which the magistrate has to answer is
whether the evidence put before him by the prosecution and the
defence raises a prima facie case against the accused. The magistrate
does not have to be satisfied that he would convict on that evidence.
The standard of proof that the prosecution must satisfy at a PE is
thus a very low one.”
It thus appears to me that the standard of proof required at the
close of a preparatory examination is somewhat lower that that
required at the close of a State case during a trial. It is trite
that at the close of the prosecution case the trial court must be
satisfied that it has before it evidence upon which it may convict
the accused of the offence charged. The author Reid Rowland has
specifically opined that such evidence is not necessary at the close
of a preparatory examination although he has used the term “prima
facie case” without attempting to define the term.
I would further hazard that a prima facie case for the purposes of
section 17 is established by evidence tending to prove the offence
and linking the person whose extradition is sought to the offence. It
does not require evidence proving the guilt of the person concerned
of the charged offence.
In this regard, I am in agreement
with the submissions made by Mr
Samkange on behalf of
the appellant that a magistrate can only order the extradition of a
person if such evidence is produced as would justify the committal
for trial of the person if the crime had been committed in Zimbabwe.
Thus, the question that a court hearing a request to grant an
extradition order has to ask itself at the end of the hearing is
whether it has received such evidence as would in its opinion justify
putting the person concerned on trial.
At the hearing, Mr Samkange directed most of his challenges against
the admissibility of certain documentary evidence that was produced
by the respondent. In this regard, he was of the view that such was
secondary evidence and was not admissible in terms of section 32 of
the Act.
It is in this regard that I do not agree with the submissions made by
Mr Samkange.
It is trite that at a preparatory examination, the rules relating to
the admissibility of evidence are somewhat more relaxed than at
trial. Thus, at a preparatory examination, evidence that would
constitute hearsay evidence at the trial is admissible as affidavits
are generally admissible. Thus, the admissibility of evidence at an
extradition hearing is governed not only in terms of section 32 of
the Act but also in terms of the Criminal Procedure and Evidence Act
before the amendment.
In particular, Mr
Samkange for the
appellant has sought to challenge the admissibility of the statements
from the appellant and from Servaans Nicholas du Toit on the
technical grounds that the statement by the appellant was not freely
and voluntarily made while that by du Toit was not authenticated in
terms of section 32 of the Extradition Act.
In my view, even if the challenges against these two statements are
sustained, there is still enough evidence establishing a prima facie
case against the appellant. The oral evidence of Detective Chief
Superintendent Madzingo that he recorded a statement from du Toit in
which the appellant was directly implicated cannot be challenged.
The evidence of the Attorney - General of the respondent that his
country is in possession of information regarding the alleged offence
and implicating the appellant cannot be challenged. Further, the
statements of agreed facts in the trials of Mark Thatcher and Jacob
Hermanus Albertus Carlse in South Africa did not require
authentication in terms of section 32 of the Act as they were not
originating from the respondent but from South Africa. Such
statements implicate the appellant in the alleged offence and are
admissible as they would have been admissible at a preparatory
examination in this country.
It has been argued that Jacob Hermanis Albert Carlse may not be
available to testify on behalf of the respondent in that country.
That, in my view, is beside the
point. At this stage of the inquiry, the guilt or otherwise of the
appellant is not in issue. We do not in this hearing have to be
satisfied that there will be evidence upon which the appellant will
be convicted of the offence. The evidence adduced by the respondent
may not be forthcoming or may not be sufficient to sustain the
charges but, in my view, it does establish a prima
facie case for the
purposes of having the appellant committed for trial if the offence
had been committed in Zimbabwe. As discussed above, the standard of
proof required at this stage is not such as to put the appellant to
his defence during a trial or evidence upon which a court may
convict, but evidence tending to link the appellant to the alleged
offence and to which he has to proffer an answer when charged.
On the basis of the above, we are of the view that a prima facie case
has been established against the appellant.
ADDITIONAL
CONSIDERATIONS
As an Appeal Court, we are enjoined by section 18(2) of the Act to
determine whether there are any additional considerations upon which
we may bar the extradition of the appellant. At the time of the
hearing of the inquiry before the court a quo, the appellant had
developed a life threatening hernia that then required immediate
surgery. That was six months ago. It is hoped that in the time it has
taken us to make a determination in this appeal the condition has
been suitably attended to and has consequently reduced in its threat
to the appellant's life.
Additionally, in this regard, we note and take into account the
contents of an affidavit dated 23 July 2007 and filed before this
court. The affidavit is sworn to by a Doctor Motu who is based at the
Malabo Prison Hospital in Equatorial Guinea. In essence, Dr Motu
certifies that the medical staff at Malabo Prison Hospital and staff
at other hospitals in Malabo are fully competent to carry out hernia
operations.
Without in any way attempting to downplay the appellant's medical
condition, it is our view that his state of health is not such that,
having regard to all the circumstances of the matter, it would be
unjust or oppressive to extradite him to the respondent.
In the result, the appeal is dismissed.
PATEL J: One
of the grounds of appeal in this matter raises an issue not
previously canvassed by our courts. This pertains to the status of
the United Nations Convention against Torture of 1985 at
international law and its impact on the law of extradition in
Zimbabwe.
Article 3 of the Convention provides as follows:
“1. No State Party shall expel,
return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.”
Also relevant for present
purposes are the provisions of the International Covenant on Civil
and Political Rights and the African Charter on Human and Peoples
Rights. Article 7 of the International Covenant prohibits the
subjection of any person “to torture or to cruel, inhuman or
degrading treatment or punishment”. In similar vein, Article 5 of
the African Charter enjoins respect for “the dignity inherent in a
human being” and proscribes, inter
alia, “torture,
cruel, inhuman or degrading punishment and treatment”.
While both instruments are
explicit in their rejection and condemnation of torture per
se, they are silent as
to the non-refoulement principle expressly embodied in Article 3 of
the Convention against Torture.
Turning to our domestic law, Part
III of the Extradition Act [chapter
9:08] deals with the
rendition of persons to and from designated countries, including the
respondent State. Section 15 of the Act, in its relevant portion,
stipulates that:
“No
extradition to a designated country shall take place in terms of this
Part —
(a)
if the grant of the request for extradition would conflict with the
obligations of Zimbabwe in terms of any international convention,
treaty or agreement;
………………………………………………………”.
It is common cause that Zimbabwe
is a party to the International Covenant and the African Charter and
that it is consequently obligated to adhere to the provisions of
these two august instruments. It is also not in dispute, despite Mr.
Jagada's erroneous
concession to the contrary, that Zimbabwe has neither signed and
ratified nor acceded to the Convention against Torture. Zimbabwe is
not alone in its non-adhesion to the Convention. There are many other
States that have not as yet subscribed to the Convention or that have
done so with reservations.
In any event, the question that arises in the present context is
this: Does the fact that Zimbabwe is not a party to the Convention
against Torture entitle it to disregard the requirements of Article 3
and extradite an alleged offender to a State where he would be in
danger of being subjected to torture. In my view, the answer to this
question must be predicated on an analysis of the principle against
torture in the international sphere.
It is axiomatic that every treaty
or convention must be interpreted and applied in a wider
international context. It is also incontrovertible that torture is
universally prohibited at the international level. This prohibition
is encapsulated not only in instruments of global application, viz.
the Universal Declaration of Human Rights of 1948 and the
International Covenant of 1966, but also in regional human rights
instruments applicable in Europe, Latin America and Africa. It was
further restated by the United Nations General Assembly in its
Resolution 3452 (XXX) of 1975 and eventually culminated in Article 2
of the Convention against Torture. See A
& Others v Secretary of State for the Home Department (No. 2)
[2006] 2 AC 221, at 254-259 (a decision of the House of Lords).
The first corollary of the
universal proscription of torture is that it imposes upon every State
obligations which are applicable erga
omnes, that is to say,
towards all other States, which are then endowed with correlative
rights. The second corollary is that the principle against torture
has evolved into a peremptory norm or jus
cogens, viz. a
principle endowed with primacy in the hierarchy of rules that
constitute the international normative order. As such, it cannot be
derogated or deviated from by any State or group of States. See the
judgement of the International Criminal Tribunal for the Former
Yugoslavia in Prosecutor
v Furundzija
(unreported) Case No. IT 95-17/I 10 (1998), paras. 147-157, cited in
the case of A &
Others, supra,
at 259-262.
The overarching nature of the
principle against torture imposes certain additional duties on
States. It requires States to do more than simply eschew the practice
of torture and to give more positive and wider effect to the
principle in the fulfilment of their international obligations. In
this respect, the decision of the European Court of Human Rights in
Soering v The United
Kingdom 11 EHRR 439,
at paras. 80-91, is particularly instructive and highly persuasive.
In interpreting Article 3 of the European Convention on Human Rights
vis-à-vis Article 3 of the Convention against Torture, the Court
held as follows, at para. 88:
“The fact that a specialised
treaty should spell out in detail a specific obligation attaching to
the prohibition of torture does not mean that an essentially similar
obligation is not already inherent in the general terms of Article 3
of the European Convention. It would hardly be compatible with the
underlying values of the Convention…….. were a Contracting State
knowingly to surrender a fugitive to another State where there were
substantial grounds for believing that he would be in danger of being
subjected to torture, however heinous the crime allegedly committed.
Extradition in such circumstances, while not explicitly referred to
in the brief and general wording of Article 3, would plainly be
contrary to the spirit and intendment of the Article ……..”.
I fully concur with and respectfully adopt this holistic approach to
the obligations of States with respect to the principle against
torture. In my view, the principle entails the duty of States to
interpret and implement the requirements of human rights treaties
that they have subscribed to in a manner that affirms and advances
rather than one that negatives or dilutes the principle. Accordingly,
the general prohibition against torture contained in Article 7 of the
International Covenant and in Article 5 of the African Charter must
be construed to incorporate, by necessary intendment, the principle
of non-refoulement embodied in Article 3 of the Convention against
Torture. It follows that in order to comply with its general
obligations against torture under the International Covenant and the
African Charter, Zimbabwe is required to abide by and take into
account the specific prohibition against extradition to a State where
there exists the danger of the person extradited being subjected to
torture. This is so notwithstanding that Zimbabwe is not a party to
the Convention against Torture. To construe the general prohibition
against torture otherwise would inevitably operate to render the
prohibition nugatory and illusory on the international plane.
To conclude, I take the view that the extradition of any person to a
designated country where he or she would be placed in danger of being
subjected to torture would conflict with the obligations of Zimbabwe
in terms of the International Covenant and the African Charter. It
would therefore be contrary to and prohibited by section 15(a) as
read with section 17(1)(b) of the Extradition Act.
In any event, insofar as concerns
the appellant in casu,
I am inclined to agree with the Judge President, albeit tentatively,
that the appellant has failed to adduce the evidence necessary to
sustain his appeal on the ground that he would be subjected to
torture in the respondent State. In addition, I fully agree that the
respondent State has established the requisite prima
facie case against the
appellant in terms of section 17(1)(c)(i) of the Extradition Act. I
am also satisfied that there are no additional considerations under
section 18(2)(d) of the Act precluding the appellant's extradition
to the respondent State.
In the result, the appeal must be
dismissed.
Byron Venturas & Partmers; appellants' legal practioners
Attorney- Generals Office, respondent's legal practitioners
1. See Malcolm N Shaw: International Law 4th Ed at page
204
2. See Bozimo Trade And Development
Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors
2000 (1) ZLR 1 (HC); Cooper v Leslie
& Ors 2000 (1) ZLR 14 (HC); Charuma
Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors
2000 (1) ZLR 85 (SC)
3. See section 17(4) of the Extradition Act
