Prevention and Combating of Torture of Persons Bill [B21-2012]

Submission to the Portfolio Committee on Justice & Constitutional Development, 31 July 2012

Introduction

The South African Human Rights Commission (Commission) welcomes the long-awaited introduction of the Prevention and Combating of Torture of Persons Bill (the Bill)in Parliament. The Bill seeks to give effect to South Africa’s international obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment (CAT), hereby criminalising, preventing and combating the act of torture. The Commission has, over the years, engaged with the Department of Justice and Constitutional Development on the development of the Bill and has closely monitored its evolution.

South Africa is no stranger to matters of torture. Our country’s Apartheid past bears memories of widespread and an institutionalised system of torture. It was, incidentally, the mysterious circumstances surrounding the death of Steve Biko that provided the impetus for the finalisation of the UN Convention Against Torture.[1] During the Truth and Reconciliation Commission process, victims divulged the brutality of their torture experiences exercised by the Apartheid state and the psychological long-term after effects which still resonates in many sectors of our society.[2] ‘’As long as survivors of human rights violations entertain secret notions of revenge, the perpetrators will maintain their control and power over their lives. Survivors need to let go of the perpetrator inside themselves by releasing their anger. If they don't, then the perpetrator still controls them, still haunts their memories, and still controls their destiny. They are still victims - powerless to effect change in their lives.’’[3]

The introduction of the Bill is an important recognition that South Africa is finally bringing its legislation in line with international norms and standards in the field of torture. The Commission welcomes the ultimate objective of the Bill, however it is concerned that some of the provisions do not adequately align with the CAT. The Commission notes that the Bill also lacks a victim-centred approach.

  1. The mandate of the South African Human Rights Commission

The SAHRC is a constitutionally created independent state institution. It is mandated by section 184 of the Constitution which states as follows:

“Functions of the South African Human Rights Commission

184.(1)The South African Human Rights Commission

must-

(a)promote, respect for human rights and a culture of human rights;

(b)promote the protection, development and attainment of human rights; and

(c)monitor and assess the observance of human rights in the Republic.”[4]

The Human Rights Commission Act (Act 54 of 1994) confers further responsibilities and duties on the Commission in executing its mandate. It is within this mandate that the SAHRC monitors the legislative process at a parliamentary and government department level. Where necessary the Commission responds to requests for comments and submissions on proposed legislation, regulations, and policies. It is within this statutory and constitutional framework that the Commission makes this submission to the Committee.

  1. Applicable International and Regional Human Rights Law Instruments

South Africa has become party to various international instruments that criminalise torture and has also participated in UN human rights mechanism in which its compliance with its international obligations has been reviewed.

2.1Convention Against Torture

In December 1984, the United Nations (UN) adopted the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). States that are party to the UNCAT are required to take effective measures to prevent torture within their borders and prohibit the return of persons to a country where they are likely to be tortured. It also establishes the treaty body Committee Against Torture to monitor the implementation of the Convention.

The Committee Against Torture is comprised of ten independent experts who meet twice a year in Geneva to review the reports of member states.[5] States Parties to CAT are required to submit reports within a year of ratification and every four years thereafter.

2.1.1South Africa and the CAT

In 1993, South Africa signed the CAT and ratified it in 1998. In 2005, South Africa submitted an initial Country Report which was reviewed by the Committee in November 2006.

In response to the initial Country Report, and the interaction between the Committee, government and civil society, the Committee issued its conclusions and recommendations to South Africa. Of relevance to the present submission, is the following recommendation:

“The State party should enact legislation with a specific offence of torture under its criminal law, with a definition fully consistent with article 1 of the Convention which should include appropriate penalties that take into account the grave nature of the offence, in order to fulfill its obligations under the Convention to prevent and eliminate torture and combat impunity.”[6]

The Committee expressed various concerns, including: the “lack of investigations of alleged ill-treatment of detainees and the impunity of law enforcement personnel”[7] The Committee was also concerned that, ‘there is no effective oversight mechanism established to monitor the conditions of persons placed in police custody”.[8] In this regard, the Committee recommended the following,

“The State party should adopt effective measures to improve the conditions in detention facilities…and establish an effective monitoring mechanism...”[9]

The Committee requested South Africa to provide detailed information on, inter alia, bills criminalising torture and any other laws relating to the implementation of the Convention[10] and requested that South Africa provide a response to the Committee within one year of its appearance.[11] South Africa is yet to respond to this request.[12] The next periodic report which was due on 31 December 2009 is still outstanding.

2.2Optional Protocol to the Convention Against Torture

In December 2002, the United Nations General Assembly adopted the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). In June 2006, the OPCAT formally entered into force. The OPCAT provides for the establishment of, "a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.”[13] It therefore obliges State Parties to set-up an independent national preventive mechanisms (NPM) to examine the treatment of persons deprived of their liberty, make recommendations to government authorities, strengthen protection against torture and comment on existing or proposed legislation.

The OPCAT establishes a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) to oversee the implementation of the Protocol. Its functions include the right to visit all places where persons are deprived of their liberty. This could include for example, prisons, police cells, drug rehabilitation centres, child and youth care centres, psychiatric institutions and in some cases old age homes. The NPM may also make recommendations to government on the conditions of detention. It also assists and advises the national preventive mechanisms to, inter alia, strengthen safeguards relating to detention, reinforcing the NPM’s powers andindependence.[14]

2.2.1South Africa and the OPCAT

In September 2006, the South African government signed the OPCAT. However, it is yet to ratify the OPCAT and establish a NPM. In terms of section 5 of the Human Rights Commission Act (54 of 1994), the SAHRC has established section 5 Committee on Torture which meets annually to advise the Commission on steps to take to promote the ratification and implementation of CAT and OPCAT in South Africa. The Committee has representation from civil society, academia, and independent institutions such as the Judicial Inspectorate for Correctional Services (JICS) and Independent Police Investigative Directorate (IPID).

2.3.UN Human Rights Council’s Universal Periodic Review
The Universal Periodic Review (UPR) is aunique human rights mechanism of the United Nations Human Rights Council.[15] It is a peer review mechanism which aims to improve the human rights situation on the ground by assessing the fulfilment of each UN member state’s human rights obligations.[16] It also assesses positive developments and challenges in this area.[17]

2.3.1South Africa and the UPR process

On 15April 2008, South Africa appeared for its first UPR session. Unfortunately, South Africadid not provide a written submission and only made an oral submission to the Council.

The UN Human Rights Council had several concerns regarding torture in its outcome report.[18] The following recommendations were made to South Africa

“Enact a legislation which would, in line with article 1 of the Convention against Torture, prevent and eliminate torture and combat impunity”.[19]

“Follow up on the recommendation made by the Committee against Torture to adopt all necessary measures to prevent, combat and punish violence against women and children.”[20]

“Ratify the Optional Protocol to the Convention against Torture at the earliest opportunity”[21]

In May 2012, South Africa appeared in its second cycle of the UPR.[22] The Council again expressed several concerns relating to torture and noted the inaction of recommendations made during the first review. The following recommendations were therefore made to South Africa[23]:

‘’Pay special attention in the adoption of laws and their implementationto change of negative social practices particularly with respect to; torture andill treatment in detention, sexual violence and discrimination against womenand the protection of children’’[24]

‘’Define torture in its national criminal legislation, prosecute and punishperpetrators of torture, and ratify as soon as possible the OP-CAT’’[25]

‘’Enact legislation which would, in line with Article 1 of the Conventionagainst Torture (CAT), prevent and eliminate torture, and ratify OP-CAT atthe earliest opportunity’’[26]

‘’Adopt as soon as possible legislation criminalising acts of torture andraise awareness of law enforcement officials regarding the absolute prohibitionof the use of torture and other inhumane and degrading treatment’’[27]

‘’Take the necessary legislative measures to prevent, prosecute andpunish acts of torture and other cruel and degrading treatment, in accordancewith international standards, including through the ratification of the OP-CAT’’[28]

In September 2012, South Africa is expected to provide feedback to the Human Rights Council in relation to the recommendations.[29]

2.4African Charter on Human and Peoples’ Rights

In October 1986, the African Charter on Human and Peoples’ Rights (African Charter) entered into force after its adoption in 1981 by the Assembly of Heads and States and Government of the Organisation of African Unity.[30] On 9 July 1996, South Africa acceded to the African Charter. The African Charter promotes and protects human rights and fundamental freedoms on the African continent.

The Charter specifically prohibits torture. Article 5 states that,

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”[31]

2.4.1African Commission on Human and Peoples’ Rights

The Charter establishes the African Commission on Human and Peoples' Rights. The African Commission is tasked with ensuring the promotion and protection of Human and Peoples' Rights throughout the African Continent. In carrying out its functions it interprets provisions of the African Charter and performs other tasks as entrusted to by the Assembly of Heads of State and Government of the African Union.[32] It is therefore the oversight body and implementation arm of the African Charter.

The African Commission has reiterated that African States are required, under the UNCAT, to ensure that all acts of torture and other forms of degrading treatment and punishment are made offences under their criminal law and to, “take concrete measures to respect their commitments with regard to the right of victims to an effective remedy for the human rights violations suffered as a result of torture and other ill-treatment.” [33] The African Commission has further stated that, ‘’the duty to assist victims must extend beyond measures to treat, support and provide reparation and rehabilitation for victims. It is imperative that States translate their commitment to the fight against torture with measures that also guarantee that victims and human rights advocates will not be subjected to reprisals and revictimisation’’[34]

From 18 April to 12 May 2012, the African Commission held its 51st session. During the session, the Committee for the Prevention of Torture in Africa (CPTA), recommended that State Parties take the following measures:

1.Ensure that torture is criminalized in the national legal framework in conformity with the Convention against Torture and the Robben Island Guidelines. States Parties must go beyond the simple prohibition of torture in their constitutions and adopt specific legislation criminalizing torture that provides for adequate sanctions and a framework where victims of torture can be compensated and rehabilitated;

2.For States Parties that have bills criminalizing torture pending before their legislatures, to speed up the process of adoption and enactment of this bills in to law;

3.For States Parties that have not yet done so, to ratify as soon as is practicable, the Optional Protocol to the UN Convention Against Torture and ensure its effective implementation, notably by setting up effective National Preventive Mechanisms (NPM) with all the requisite guarantees to undertake regular unannounced visits to places of deprivation of liberty.

4.In that regard, the CPTA particularly urges the Republic of Cameroon to deposit the instruments of ratification of OPCAT as soon as possible and to initiate an inclusive dialogue on the process of NPM establishment;

5.To ensure that adequate training on human rights standards and specifically on the Robben Island Guidelines is provided to all services responsible for dealing with persons deprived of their liberty, notably, judges and magistrates, the police, correctional services personnel, immigration officials, defense forces etc.

6.To take all necessary measures to ensure that allegations of torture are thoroughly investigated and that all perpetrators are subject to the legal process in order to curb impunity. Measures should also be put in place to ensure that victims of torture and other forms of ill-treatment are adequately compensated and rehabilitated.‘’[35]

2.4.2RobbenIsland Guidelines

In July 2003, the African Union formally approved the “African Union’s Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa”. This regional African document deals with the prohibition of torture and the establishment of a NPM. It is also known as the “Robben Island Guidelines” (‘Guidelines’ or ‘RIG’), as it was initially drafted on RobbenIsland in South Africa.

The Guidelines are divided into three parts:

  • The first relates to the 'Prohibition of Torture'. It calls on States to ratify existing legal instruments relating to torture and to integrate them into domestic legislation.[36] It also requests that States cooperate with regional and international human rights mechanisms. It particularly states that the act of torture must be criminalised and prosecuted.
  • The second part of the Guidelines relate to the 'Prevention of Torture'. It presents a range of preventative measures, covering the different stages of criminal law procedure in which there is a real risk of torture occurring.[37] It details the safeguards that should be provided, during arrest, custody, temporary detention, trial and imprisonment in general.[38]
  • The third part of the Guidelines looks at ways of responding to the needs of victims of torture.

The Guidelines highlight the need to establish oversight mechanisms to regularly visit places where persons are deprived of their liberty. It particularly calls for educational and human rights training of law enforcement officials.It is regarded as an essential tool for States in fulfilling their national, regional and international obligations to strengthen and implement the prohibition and prevention of torture.[39]

The concept of torture prevention is central to both OPCAT and the RIG. The Guidelines however contain detailed provisions on the practical implementation of prevention measures and aims to guide State Parties in this regard. The year 2012 signifies the 10th Anniversary of the Robben Island Guidelines. In late August 2012, the SAHRC will be co-hosting an event with the AU to commemorate the occasion.

2.5 Customary International Law

The prohibition of torture is regarded as a fundamental principle of international law, andis generally regarded as having the special status of a ‘peremptory norm’ or jus cogens.[40] This means that States cannot choose to disregard or derogate from it. Thus, the prohibition is binding on States regardless whether particular treaties have been ratified.

  1. Domestic Law

3.1Constitution of the Republic of South Africa, Act 108 of 1996

The Constitution of South Africa, Act 108 of 1996, specifically prohibits torture and cruel inhuman and degrading treatment or punishment. Section 12(1) of the Bill of Rights states:

“12.Freedom and security of the person.

(1) Everyone has the right to freedom and security of the person, which includes the right-

(d) not to be tortured in any way; and

(e) not to be treated or punished in a cruel, inhuman or degrading way.”

3.2Landmark court ruling on torture

In April 2008, the Supreme Court of Appeal (SCA) issued a landmark ruling in the matter of Mthembu v The State.[41] The Court held that evidence obtained through the use of torture is inadmissible, even when the evidence was reliable and necessary to secure the conviction of an accused facing serious charges.[42] The Court reiterated the absolute prohibition of torture within the Constitution and held that the use of torture by the police, for the purposes of obtaining evidence, fell within this prohibition.
The Court further held that the admission of evidence obtained from torture compromises the integrity of the judicial process and brings the administration of justice into disrepute. It stated that torture is one of the most serious human rights violations as it is “barbaric, illegal and inhumane”.[43] ‘