not say what kind of torture the Victim suffered in police custody, and could not deny that it in fact occurred.
150. The Complainant also states that consequent to the Victim's incarceration, the Victim suffered severe
physical injuries and psychological trauma resultant from the torture. He states that the Victim received
treatment for physical injuries and psychological trauma from Parirenyatwa, Avenues and Dandaro Hospital
and clinics in Zimbabwe. He further states that when he fled to South Africa, the Victim was still suffering
from physical injuries, severe depression, nightmares, temporary impotence so much so that he had to
receive further treatment and counseling for trauma at the Centre for Studies of Violence and Reconciliation
for at least one year. During this period he was on anti-depressants and other medication. This also
contributed to the disruption of his family, according to Complainant.
151. The Respondent State denies all the allegations, but the African Commission notes that the
Respondent State has not responded fully to the specific allegations levied against it.23 For example, the
Complainant in his rebuttal to the Respondent State submission on the Merits, state that both he and his
legal counsel when he appeared in the Magistrate Court, the issue of the Victim's torture and ill-treatment
was brought up by his legal counsel. The Complainant state that the Magistrate ordered that the court room
be cleared so that he could take a look at the injuries of the Victim sustained as a result of the torture,
including the Victim's genitals. The Complainant state that as a result, the Magistrate ordered that the
Victim be taken to the hospital for treatment. The Magistrate order and the hospital admission form were all
transmitted to the Respondent State. The Respondent State chose not to address that issue.
152. The African Commission, in several previous decisions, has set out the principle that where
allegations of human rights abuse go uncontested by the Government concerned, the African Commission
must decide on the facts provided by the Complainant and treat those facts as give.24 This principle
conforms with the practice of other international human rights adjudicatory bodies and the Commission's
duty to protect human rights. Since the Respondent State did not fully respond to all the allegations the
African Commission must, regrettably, come to a conclusion based on the facts and opinions submitted by
the Complainant.
153. It is also instructive to note a number of judgments from other jurisdiction as regards individuals who
alleged torture whilst in custody. Some of these cases mention the inadequacies prevailing in many States
with regard to medical and legal investigation and documentation, and advise that the Principles of the
Istanbul Protocol are followed during investigation and documentation of torture. The first elaboration on the
Istanbul Protocol, for example, is found in the case of Bah and others v. Turkey, June 2004.25 The case
concerns about fifteen people detained (some were also arrested) in February 1996. All the persons
complained that they were tortured and one had a miscarriage as a result of torture during their period in
custody. All detainees, except two, had various medical reports supporting their allegations of torture and ill
treatment. The Court concluded that the Protocol contains full practical instructions for assessing persons
who claim to have been victims of torture or ill treatment, for investigating suspected cases of torture and
for reporting the investigation's findings to relevant authorities. The Court stressed the purposes of an
effective investigation and documentation of torture and other forms of ill treatment. It found inter alia that
"the Turkish authorities could not be considered to have acted with sufficient promptness or with
reasonable diligence, with the result that the main perpetrators of acts of violence have enjoyed virtual
impunity, despite the existence of incontrovertible evidence against them."26
154. In the instant matter, despite extensive medical evidences supplied by the Complainant, the
Respondent State did nothing to investigate and document the allegations. The African Commission notes
that, apart from its usual channels of communication with the Respondent State, its Secretariat also hand
delivered (which was signed by the Respondent State) the Complainant's rejoinder (containing extensive
medical documents and pictures) of the response of the Respondent State. The Respondent State decided
not to comment on all of the allegations made against it, apparently relying on its initial Merit submissions.
155. In that Merit submission the Respondent State says that the Victim allege that he was "forced to drink
his own blood" without specifying the nature of the injury and where the blood came from. It states that the
injuries sustained were not brought to the attention of the court on 16 January 2003 when the Victim first
appeared when it is expected they were still fresh and visible. However, the allegations have since been
brought to the attention of the Respondent State when the Complaint was first lodged with the African
Commission in May 2004. The African Commission informed the Respondent State of the very serious
allegations made against it on 13 December 2004 and subsequent communications with the Respondent
State. What did it do to investigate and bring the perpetrators to justice if the allegations were true? The
African Commission is not aware of any investigations undertaken by the Respondent State to (dis)prove
the very serious allegations made against it.
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