Draft constitution’s lack of clarity

Amy S Tsanga

A COMFORTING aspect of any document put forward for public scrutiny as a draft is the implied notion that it holds room for improvement and fine-tuning. In this light, the way the current draft constitution has tackled the issue of torture as well as the death penalty merits some critical analysis, with a view to suggesting improvements. The wording of the torture clause (4.10) in the draft represents a loss of alarming proportions when compared to the draft of 2000, for instance.
To put this in perspective, in granting freedom from torture, cruel, inhuman and degrading treatment, the 2000 draft constitution went further to state that “for the sake of clarity cruel, inhuman and degrading treatment includes gender-based violence”. This was a gain of seismic proportions for women in particular who often experience the most heinous forms of inhuman and degrading treatment arising from this type of violence.
The inclusion of gender-based violence in the prohibition of torture stood us apart in efforts to highlight how certain key human rights that are taken for granted as being gender-neutral in application are in fact very ‘gendered’ in the way they are experienced by men and women in society, hence the need for sensitising them. Torture is one of them. Yet this significant clarification of the torture clause has been omitted from the current draft despite the reality that torture of women in the private sphere continues unabated.
Take, for example, the story of a soldier that appeared in the Herald of July 30 2012, in which he gave his wife the choice of stabbing her with a knife or drinking his urine for allegedly gossiping about him with her family. Obviously, aware of the real dangers to her life that could result from being stabbed, she chose to drink his urine.
Buoyed by his success in controlling and petrifying his victim, he went on to give her water to drink taken from the toilet bowl. This was purportedly to cleanse her of demons which he said possessed her. Still unsatisfied with the magnitude of his own brutality, he went on to force unprotected sex on her, well knowing his HIV status. The media captured these details as part of a case of wilful transmission of HIV and Aids.
These types of barbaric actions by men in particular against their female partners that include punching, urinating, defecating, burning, stabbing and maiming are commonplace and widespread in Zimbabwe.
According to media reports, of which they are legion for anyone who has cared to keep track of the banality of evil in our midst, the perpetrators, among them ordinary citizens also include politicians, doctors, lawyers, magistrates, police officers, soldiers, and supposed men of God.
Unfortunately, rather than being seen as forms of torture whose domain of operation is the private sphere, these acts tend to be taken as being merely symbolic of aggravated forms of domestic violence.
Yet they constitute the dominant form of torture and cruel and degrading treatment that women are likely to encounter, if they are lucky to survive. The argument that to include torture arising from gender-based violence as torture cheapens its essence misses the reality of the overlaps in intent and purpose behind this type of torture and the so-called “official torture”.
As women human rights specialists concur, in a similar manner both are designed to inflict pain, psychological humiliation and to instil  fear as well as subservience in the victim. The difficulty with embracing private torture as torture, stems from the fact that for far too long, what happens in the home has been allowed to go without deeper scrutiny and any real serious consequences. Punishment for domestic violence has been light, not to talk about the general absence of compensation for victims.
Given that women’s experience of torture in Zimbabwe as is also exemplified by political violence, spans both the public and the private sphere, with the latter being most dominant, it is imperative to include gender-based violence under the relevant clause, as had been successfully done in the 2000 draft.
It is misguided to hide behind assumptions that a gender-neutral clause on freedom from torture will equally meet the needs of both men and women. Also arguments such as that the draft released incorporates issues of domestic violence as well as rights such as dignity and security of the person are not enough given the endemic nature of the problem.
If the intention is that the constitution should inculcate values of dignity and security of the person, then it is vital that the constitution sends a clear message of condemning torture as encompassing gender-based violence. This would relay the view that the home is also a powerful site for addressing torture.
It would also have significant implications for the recruitment and training of those tasked with the protection of citizens and the administration of justice. It would also put the state under added scrutiny in terms of how it implements provisions that seek to protect women in both the private and public spheres.
Therefore, in order to design this clause to suit the gendered experiences of both men and women with torture, inhuman and degrading treatment, what should be added is the following phrase: “For the sake of clarity it is declared that cruel, inhuman and degrading treatment includes that arising from gender-based violence.”
On another different aspect, the clause on the death penalty (4.5) has been captured in a manner which will not survive constitutional scrutiny in a court of law from an equality and non-discriminatory perspective. While protecting the young (those under 21), and the old (those over 70) from the death penalty, the current draft has taken a clearly discriminatory stance by declaring that the death penalty cannot be applied to women.
The current position has been that a pregnant woman should not receive the death penalty for compelling reasons that an innocent party is involved. In the draft constitution, there is no compelling reason for the exclusion of all women. The fact is the death penalty is archaic and should simply be done away with. The “eye for an eye” stance does not even accord with the principles of ubuntu. Not that I am suggesting compensating a death with a young girl because that too will simply not do.
Despite people’s views, the law can and should run ahead of the thinking in society on this matter and carry out its role of raising people’s consciousness. What women need to understand is they are not the sole beneficiaries of gender equality clauses. Men too will be at liberty to challenge aspects that violate their constitutional rights to equality.
There is no reason whatsoever why a man sentenced to death should not bring a matter on the unconstitutionality and discriminatory manner in the treatment of the death penalty, if this clause is allowed to stand.
l Tsanga is a senior University of Zimbabwe lecturer in law.