Torture, Inhuman and Degrading Treatment and the Admissibility of Evidence.

Abstract

Section 24 of the Constitution of Zimbabwe gives the Supreme Court the power to declare any law to be in violation of the Declaration of Rights and hence unconstitutional and invalid. This has not always been the position. Under s.26 (2)(b) as read with s.26 (3)(b) of the Constitution, no pre-existing law was to be held to contravene the Declaration of Rights until five years after the date of independence. A similar prohibition, but without the time restriction, was found in the 1961,1965,1969, and 1979 Constitutions.* 1 Therefore, on 18 April 1985, for the first time a court in Zimbabwe was empowered to strike down a preexisting law as unconstitutional. It was clearly the intention of the drafters of the Constitution that pre-existing laws should be reviewed, and if necessary, struck down. With this in mind, it is the purpose of this article to discuss the application of s.15 of the Declaration of Rights to the law of evidence. Section 15 provides “No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.” I will argue that existing laws which allow evidence obtained as the result of torture, inhuman or degrading treatment to be admissible are unconstitutional and must be struck down. First I will discuss the content of what is forbidden, i.e. the definition of torture, inhuman or degrading treatment. Next I will discuss the enforcement of the provision, particularly with regard to the law of evidence.