The cruelty recently meted out to a teenage boy in police custody was condemned as an act of torture, but subsequent charges which were later instituted amounted to unlawful wounding, triggering the question as to whether a person can be charged with torture in Guyana.
Torture is considered a common-law offence and can be instituted as a charge just as any other common-law offence in the country, some legal sources have said, but there is apparently no precedent for this. On the other hand, there are some attorneys who say that Guyana’s municipal law makes no statutory provision for the offence of torture and as a result, the officers implicated in the horrific abuse of the teenage faced unlawful wounding charges.
The Constitution prohibits torture by offering citizens protection from inhuman treatment. Article 141(1) of the Constitution says that no persons shall be subjected to torture or to inhuman or degrading punishment or other treatment.
“Torture is not an offence according to the laws of Guyana, but it is a crime in international law,” attorney-at-law Anil Nandlall told Stabroek News recently. He referred to torture as a modern law, which has no statutory provisions in Guyana, since no legislation was enacted here creating the offence. Nandlall is of the opinion the current laws are sufficient to address acts which can be deemed as torture and he also stressed there is no need for a new law.
Senior Counsel Bernard DeSantos said torture is an offence under common-law while indicating that there are no statutory provisions for it. “As far as I know, it is an offence,” DeSantos said when contacted. He explained that torture involves a number of things saying that it is not a single act, but that a number of acts constitute torture. “It might be a process where a person is subjected to mistreatment, it is a form of mental and physical harassment which harms the body or mind of a person,” De Santos said.
Nandlall said too that while human rights activists might call for torture to be legislated as an offence, “there is no need”. He said the current laws including charges such as felonious wounding and unlawful wounding are sufficient to cover serious crimes which are committed. He questioned whether a new offence would improve the law asking, “What is the point?”
“Far as I am aware there is no such criminal charge of torture that anyone can be charged with. That is why they [police] were charged with unlawful wounding,” attorney-at-law Gino Persaud said. He told this newspaper there are other assault charges including actual bodily harm and grievous bodily harm depending on the severity of the injury which can be instituted. However, Persaud indicated that an individual can still seek redress in the courts in a case where torture is alleged.
According to Persaud, if a person is looking for redress then the most appropriate action would be to file a constitutional motion seeking declarations that the actions of the aggressor violated a constitutional right of the applicant, that is, the right not to be subjected to torture or cruel, degrading and inhuman treatment. He said there is abundant case law that can be applied, adding that the remedy the applicant would be seeking would be damages.
The prohibition of torture has special status in international law and various human rights treaties define it in various ways. Retired judge Donald Trotman said torture is not a criminal offence in the country, but noted there are several aspects of torture which could be viewed as criminal. “The laws make provision for offences such as wounding… even attempted murder,” Trotman stated.
He defined torture as inhuman and degrading punishment saying “it’s an umbrella field” because it includes mental and physical torture. Trotman said that both summary and indictable jurisdictions currently provide for abuses that can be considered as torture. However, he said that “just to make things” absolutely clear there may be room for an offence of torture to be included on the books.
Trotman, who is also President of the United Nations Association of Guyana (UNAG), said Guyana is not best country in the world in the practice of its human rights, but he said too “we are not the worst”. He noted that the primary responsibility to protect the rights of all citizens within the state is the government’s responsibility, but he pointed out that some abuses occur outside the state machinery including domestic violence.
