Country Extent to which national legislation deals with ED Zimbabwe In Zimbabwe, neither the Constitution nor criminal laws specifically refer to ED as a crime. However, the Constitution of 2013 has enshrined a number of rights which seek to protect individuals from harmful conduct such as ED. Section 49 of the Constitution enshrines the right to personal liberty, which includes that a person cannot be detained without a trial and cannot be deprived of his/her personal liberty arbitrarily or without just cause. Additionally, Section 53 of the Constitution prescribes freedom from torture or cruel, inhuman or degrading treatment or punishment, stating that no person may be subjected to physical or psychological torture or cruel, inhuman or degrading treatment or punishment.291 Further, the legislation on kidnapping, which criminalises the deprivation of freedom of bodily movement, intending to cause such deprivation, or realizing that there is a real risk or possibility that such deprivation may result,292 provides for a sentence of life imprisonment with the option of a fine in some circumstances.293 Libya Libyan legislation specifically prohibits ED and torture, but the definition of ED is not in line with that recognised under International Law. Article 1 of Law No. 10 of 2013 criminalises torture, forced disappearances and discrimination stating, “Whoever kidnaps or detains a human being or deprives the same of any of his personal freedoms, whether by force, threats or deceit, shall be punished with imprisonment.”294 This notably lacks essential elements in the ICPPED definition, namely (i) the involvement of agents of the state or those acting with the support of the State, (ii) a refusal to acknowledge the deprivation of liberty or concealment of the person’s fate, (iii) which places such person outside the protection of the law. Only a small number of States recognise ED as a crime against humanity. Out of the 17 States that have ratified ICPPED, only Mali, Niger, South Africa and Senegal have adopted legislation to criminalise enforced disappearance as a crime against humanity.295 active hostilities, each Party to the conflict must search for persons who have been reported missing by the adverse Party.”297 • Madagascar’s Military Manual (1994) states that missing persons must be searched for.298 Otherwise, certain elements of the ED framework can be found in States’ military guidance, for example, in Chad, Kenya, and Madagascar, an obligation to search for missing persons and/or to notify families of victims is codified in respective guidance to the military: However, it is clear from the above that there is a real need to revisit and codify the offence of ED. African States are therefore encouraged to ratify the ICPPED and to adopt the guidelines on ED expected to be published in due course by the African Commission, in accordance with its resolution in 2020, in order to effectively prevent and protect against ED on the continent.299 The following paragraphs set out the specific obligations which must be codified, and, where appropriate, highlights gaps and shortcomings in existing legislation, policy and practice. • Chad’s Military Instructor’s Manual (2006) states: “Searches must be carried out to trace missing persons.”296 • Kenya’s LOAC Manual (1997) provides: “As soon as circumstances permit or, at least, at the end of 291 292 293 294 295 296 297 298 299 ZLHR, Enforced Disappearances, supra note 93, p. 24. Criminal Law (Codification and Reform) Act, Chapter 9:23, Act 23/2004, Section 93 (1) (a). Criminal Law (Codification and Reform), supra note 292, Section 93 (1). LFJL, Unforgotten: Enforced Disappearance in Libya, supra note 92, p. 12. According to the IHL Database, 2020, Part IV: Under Mali’s Penal Code (2001), “enforced disappearance” is a crime against humanity; according to Niger’s Penal Code (1961), as amended in 2003, “abduction of persons followed by their disappearance” is a crime against humanity; South Africa’s ICC Act (2002) reproduces the crimes against humanity listed in the 1998 ICC Statute, including the “enforced disappearance of persons”; Senegal’s Penal Code (1965), as amended in 2007, lists “the abduction of persons followed by their disappearance” as a crime against humanity “when committed on the occasion of a widespread or systematic attack against any civilian population.” Burundi (Law on Genocide, Crimes against Humanity and War Crimes (2003)) and the Congo (Genocide, War Crimes and Crimes against Humanity Act (1998)) also recognise ED as a crime against humanity when committed as part of a widespread or systematic attack against any civilian population. IHL Database, 2020, Part IV. Ibid. Ibid. ACHPR, Resolution on the Drafting of Guidelines for the Protection of All Persons from Enforced Disappearances in Africa supra note 21. 44