Background on Association for the Prevention of Torture

Submission to the Portfolio Committee on Correctional Services on Department of Correctional Services Budget and Strategic Plan

9 April 2013

Background on Association for the Prevention of Torture

The Association for the Prevention of Torture (APT) is an international non-governmental organisation (NGO) based in Geneva which envisions a world in which no one is subjected to torture or other cruel, inhuman or degrading treatment or punishment (ill-treatment).

The APT has been leading the international campaign for the adoption, entry into force and effective implementation of the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT), an international legal instrument which seeks to open all places of detention to international and national scrutiny.

In South Africa, the APT has been working with various actors on the prevention of torture for a decade. In 2002 it organised the historic Robben Island Workshop which led to the adoption of the Robben Island Guidelines for the prohibition and the prevention of torture in Africa (RIG) by the African Commission on Human and Peoples’ Rights (ACHPR), and in 2012 co-hosted a commemorative seminar on the RIG together with the ACHPR and the South African Human Rights Commission (SAHRC). Since 2005, the APT has been working closely with the SAHRC,among others, towards the ratification and effective implementation of the OPCAT, and is deeply committed to assisting the government, civil society and other actors in South Africa to prevent torture and cruel, inhuman and degrading treatment or punishment and to deal with such occurrences when they take place.

APT welcomes the opportunity provided by Mr. Vincent G. Smith, Chairperson of the Portfolio Committee on Correctional Services, calling stakeholders to comment on the Department of Correctional Services Budget and Performance Plan. Given APT’s focus on torture and ill-treatment, this submission is focused on dealing with those aspects of the DCS budget and strategic plan.

Introduction

1. The Strategic Plan 2012/13 – 2016/17 of the Department of Correctional Services states the core objective of the DCS as: the ‘department remains committed to place humane and safe detention and rehabilitation at the centre of service delivery and to promote corrections as a society responsibility and in that sense contributing to enhanced public safety and reduced re-offending’ (our emphasis (p.10)).

1. One of the outcomes of the strategic objectives is that both remand detainees and sentenced offenders are held in secure, safe and humane conditions of custody (p.11), in accordance with the requirements of the Constitution, the Correctional Services Act No. 111 of 1998 (as amended) and other policy requirements such as the White Paper on Corrections of 2005. In addition, sentenced offenders must have correctional sentence plans, must be healthy and have their literacy, education and skills competencies improved. Remand detainees must have access to court processes, be healthy and have their family needs supported. Offenders under community corrections must be rehabilitated, monitored and accepted back into the communities.

1. This mandate is again stated in the 2013 Budget Vote for the Correctional Services, Vote 21.[1]

1. The Department has ordered its activities into five programmes: Administration; Incarceration; Rehabilitation; Care; and Social Reintegration with performance indicators and budget items allocated to each programme.

1. Our main concerns with the Budget and Strategic Plan lie with the lack of emphasis placed on ensuring the security of inmates in correctional facilities and of ensuring their well-being, as well as reducing their vulnerability to torture and ill-treatment. While the plans aim to deal with overcrowding, security and treatment of vulnerable inmates, we believe, these do not adequately deal with the issues confronting the department. These issues will be dealt with below.

Torture and other forms of ill-treatment

1. The findings handed down by the UN Human Rights Committee (HRC) on the Bradley McCallum case in November 2010 starkly highlighted the issue of torture and ill-treatment in correctional centres.[2] The Committee found that there had been a violation of Article 7 of the International Covenant on Civil and Political Rights (that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment), as a result of assaults, holding McCallum in incommunicado detention and refusing to allow him to test for HIV following a sexual assault by correctional officials. The Committee also found that there was a violation of Article 2(3) of the Covenant as a result of there being no effective investigation of the allegations of torture and ill-treatment. It also found a violation of Article 10 when McCallum was denied access to medical treatment following the assaults.

The Committee called upon the State to fulfil its obligation to provide McCallum with an effective remedy, including a thorough and effective investigation of his claims, prosecution of those responsible and full reparation including adequate compensation.

1. The McCallum matter highlights that torture and ill-treatment is prevalent in the prison system. Other reports have also highlighted this issue.

1. In 2011/2012, the Judicial Inspectorate for Correctional Services (JICS) reported that it has investigated 71 complaints in the category of ‘assaults on inmates by officials [that] can involve abuse of power and may qualify as torture’.[3] The report states that ‘inmates were assaulted with batons or shock shields used in conjunction with water’. Some inmates were ‘placed in single cells for days without food or basic amenities, and some are transferred subsequently to avoid these cases coming under the scrutiny of the SAPS’.[4]

1. According to the JICS assaults on inmates tend to occur as a response to inmates committing internal offences. Although the Department justifies this as a ‘necessary use of force’, JICS has found that ‘inmates tend to be assaulted after the need for force arises’, leading to the presumption that alternatives to the use of force could have been used.[5]

1. Despite these numerous allegations, the record of disciplinary proceedings or criminal prosecutions against correctional officials is negligible. Of 71 the complaints of assault, 6 had been investigated by the JICS, 15 reports were received by JICS from the DCS, disciplinary action had been taken against only one official, and a criminal docket opened in 12 cases. The case was withdrawn or the prosecution declined to prosecute in 4 of these cases.[6]

1. In addition to these 71 assault cases, the JICS reported that the Independent Correctional Centre Visitors (ICCVs) had received 3,928 complaints of assault by other inmates, and 1,945 assaults by correctional officials – both of which are reductions from previous years.

1. The physical conditions of detention, often in overcrowded conditions, has often been highlighted in the JICS reports as problematic and may, in certain instances constitute cruel, inhuman and degrading treatment or punishment. .

DCS Response to issues of torture and ill-treatment

1. Despite the recurring allegations of torture and other forms of ill-treatment against inmates, the DCS has, in our view,notadequately outlined a coherent strategy to reduce these problems in its Strategic Plan and Budget Vote.

1. For example, under the Programme ‘Incarceration’, one of the strategic objectives is to:

1. Reduce escapes, assaults and unnatural deaths
2. Reduce overcrowding
3. Ensure that all offenders with a sentence longer than 24 months have correctional sentence plans
4. Reduce the length of time that remand detainees spend in correctional facilities; and
5. Provide facilities that will contribute to humane detention.[7]

However, the immediate outcomes stated under this objective only partially respond to these needs. Immediate outcomes here are reducing the number of escapes from custody; reducing the number of inmates assaulted; reducing the number of unnatural deaths; reducing the length of time spent in remand detention; and increasing the number of inmates with correctional sentence plans.[8]

1. In stating only the outcomes of the programmes, the Strategic Plan, and the Budget Vote, do not indicate how the DCS intends to reduce the number of assaults or unnatural deaths.

1. In terms of improvement of conditions, the DCS appears to have focused on upgrading existing correctional facilities and creating additional bed space at existing facilities, which will increase approved accommodation from 118154 in 2011/2012 to 122432 in 2015/2016.[9] Unfortunately, it is not clear whether new accommodation will be built, or whether the ‘capacity’ of correctional facilities will be increased, and whether this takes into account the appropriate allocation of space and services required per inmate.

1. Funds have also been allocated for small projects which include upgrading of structures at correctional facilities; the installation of security fencing, access gates and visitors waiting rooms; installation of standby generators; replacement of kitchen equipment, boilers and incinerators; and power, water and sewerage facilities.[10]

1. Again, it is not clear from the plan, what impact this expenditure will have on the daily experience of inmates.

General recommendations to prevent and combat torture and ill-treatment

1. The following sections discuss various measures that should be taken to prevent torture and ill-treatment in correctional institutions, as well as in other places of detention. Measures to prevent and combat torture should be put in place at the legislative, administrative and operational levels.

1. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) places an obligation on States parties to the UNCAT.[11] These are briefly outlined and discussed:

1. Each State party is obliged to take legislative, administrative, judicial and other measures to prevent torture. No exceptional circumstances may be invoked to justify acts of torture, and an order from a superior officer may not be involved to justify torture (Article 2).

1. To ensure that all acts of torture are offences under its criminal law. This also applies to attempts to commit torture and complicity in acts of torture. Each State party must ensure that these acts are punishable by appropriate penalties (Article 4).

1. The Prevention and Combating of Torture of Persons Bill, 2012 goes some way to criminalizing torture and ensuring that perpetrators are prosecuted and punished.

1. Article 10 of UNCAT calls upon States to ensure that education and information regarding the prohibition of torture are fully included in the training of law enforcement personnel and people involved in the custody, treatment or interrogation of any individual subjected to any form of arrest, detention or imprisonment. A prohibition against torture must be included in the rules or instructions issued in regard to the duties and functions of any such personnel.

1. Section 8 of the Prevention and Combating of Torture of Persons Bill provides that public officials involved in the custody, interrogation of treatment of persons under any form of detention, must be educated and informed about the prevention of torture, and they must be trained on the prohibition, prevention and combating of torture.

1. The UNCAT obliges States also to regularly review interrogation rules and practices as well as arrangements for the custody and treatment of persons in detention or imprisonment (Article 11);

1. Effective measures to guarantee the rights of people in custody include: such as maintaining an official custody register; the right of detainees to be informed of their rights; the right to promptly receive independent legal assistance; independent medical assistance; right to contact relatives; and the rights of detainees to have their complaints promptly and impartially examined.[12] However, regular oversight is needed to ensure that inmates are accorded these rights in practice.

1. Article 12 of the UNCAT requires the state to ensure that its competent authorities conduct a prompt, impartial investigation wherever there are reasonable grounds to believe that an act of torture has been committed.

1. Provision exists for a complainant to lodge a complaint with the South Africa Police Service and to have the complaint investigated by them. The Independent Inspecting Judge may receive and deal with complaints submitted by a prisoner, or by the Minister of National Council on Correctional Services,[13] and may also hold hearings or an enquiry in furtherance of carrying out an investigation.[14]

1. The Judicial Inspectorate of Correctional Services (JICS) has broad statutory functions and powers to visit and inspect correctional centres, receive inmate complaints and report on treatment of inmates in correctional centres and prison conditions.[15] The Correctional Services Act provides for mandatory reporting to the inspecting judge in certain circumstances: All instances of deaths in custody or segregation of inmates for disciplinary purposes must be reported to the JICS, and they have the discretionary power to conduct, or instruct the national commissioner of correctional services to conduct an enquiry into the death. [16] In respect of deaths in custody, mandatory segregation, the use of mechanical restraints, and where force has been used against a prisoner without the prior authorisation of the Head of Correctional Centre.[17]

1. Despite these provisions, the JICS reports that ‘despite the fact that instances of unlawful use of force by correctional officials appear to be common practice within many of our correctional centres’, only three reports were made to the Inspectorate during 2009.[18]

1. In addition, the Judicial Inspectorate seldom carries out full scale investigations itself, but rather oversees investigations conducted by the police. The McCallum case demonstrates the shortcomings in respect of impartial and thorough investigations of allegations of torture.

1. Article 16 of the UNCAT provides that the State party must undertake to prevent acts of cruel, inhuman or degrading treatment or punishment with do not amount to torture, when such acts are committed by or at the institution of or with the consent or acquiescence of a public official or other person acting in official capacity.

1. The Strategic Plan and Budget Vote make no mention of the impending obligations under the Prevention of Torture Bill. The DCS needs to plan and budget for training and other measures to prevent torture and ill-treatment.

Prevention through regular oversight visits

1. An important component of preventing torture and other forms of ill-treatment is through the establishment of impartial and effective mechanisms for visits and oversight over places of detention.[19] The Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment recommends that all states should ratify the Optional Protocol to the Convention against Torture (OPCAT) and establish effective mechanisms to carry out preventive visits to places of detention.[20]

1. OPCAT provides for the establishment of a system of independent regular visits to all places of detention with the aim of preventing torture and other forms of ill-treatment. Such visits may be conducted at the international level by the Sub-Committee on the Prevention of Torture (SPT). At the domestic level, OPCAT calls for the establishment of one of more National Preventive Mechanisms (NPMs).

1. National Preventive Mechanisms must, at minimum be granted the power to:

1. Regularly examine the treatment of persons deprived of their liberty in places of detention with a view to strengthening their protection against torture and other forms of ill-treatment;

1. To make recommendations to the relevant authorities with the aim of improving the treatment and conditions of persons deprived of their liberty, and;

1. Submit proposals and observations concerning existing or draft legislation.[21]

1. South Africa is a signatory to OPCAT, and APT is informed that ratification is considered for the near future. In a submission to the Portfolio Committee in 2011, APT considered the existing structures in terms of their compliance with the OPCAT principles, and will not discuss these in detail again here.[22]

1. The Judicial Inspectorate for Correctional Services does fulfill some of the obligations that would apply to South Africa under OPCAT. It facilitates inspections of correctional centres; through its ICCVs, it facilitates regular visits to correctional centres; and it reports in a general way on its findings by means of an annual report. Recently, the Portfolio Committee has ensured that the JICS reports to it on a quarterly basis, where more details are provided on some individual concerns and cases.

1. These structures are important as they provide a mechanism for regular visits to prisons, investigations of complaints, and a vehicle for dealing with inmate complaints.

1. The JICS can also monitor and track trends and concerns over a period of time, and its annual reports and other forms of reporting on prison conditions over the years has been an important avenue for providing a window into the treatment and conditions experienced by inmates in prison, and for raising concerns with the public and with the authorities. In this sense, it has played an important oversight function. Although not completely compliant with OPCAT, this body fulfils a number of OPCAT requirements.[23] The JICS is currently investigating how it can become more independents so as to fulfill the OPCAT conditions of independence.[24]

1. Over the years since its establishment, the Judicial Inspectorate has continued to raise concerns about inhumane conditions in treatment, and many instances of abuse of inmates amounting to ill-treatment or torture.

1. Article 22 of the OPCAT provides that the authorities of the State party must examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures. The JICS submits reports of correctional centre inspections to Heads of Correctional Centre together with recommendations and it monitors compliance. The quarterly reports reflect a worrying extent of non-compliance or delays in carrying out the recommendations.

1. Though in terms of OPCAT the NPM is not required to have the power to enforce its recommendations, it is important for it to be able to monitor the progress (or otherwise) of its recommendations through the system, so as to be effective in preventing torture and ill-treatment. It is important to look at ways to strengthen the effectiveness of the JICS in this regard. The APT supports the initiative of the Portfolio Committee to review the effectiveness of the JICS, due to be discussed in July 2013.

Conclusion