In 1998, South Africa signed the UN Convention against Torture. In so doing, the country undertook to take internal measures to prevent torture.
In 2006, the government went one step further by signing the optional protocol in the Convention against Torture, which makes provision for the monitoring of government institutions where torture is likely. South Africa announced its intention to ratify this in September last year but has not yet done so.
By ratifying the convention, the government agreed to legislate torture as an “own crime” with specially defined consequences for those found guilty. Currently, those who commit torture are tried under general laws, such as assault. But the Prevention and Combating of Torture of Persons Bill was drafted and passed through Parliament in November last year.
In order to become law, the Bill must first be approved by the National Assembly and then by the National Council of Provinces. After that, it is sent to the president for assent, and only then will it become an Act.
But will changing the law really help to combat torture, or provide any benefits for torture victims?
According to the chairperson of the African Commission on Human and People’s Rights, Catherine Atoki, absolutely. “Most constitutions in Africa prohibit torture, but you need to have a law that makes it a crime. If there is no commensurate punishment, then your prohibition comes to nought!”
Defining the Bill
To Clare Ballard, a researcher for the Community Law Centre at the University of the Western Cape, passing the torture Bill will be “a huge deal” for the average victim, who has little psychosocial assistance. She and several other experts feel that having a law dealing with torture will reduce the prevalence of the problem. It would mean a victim would not need to sue in order to get assistance. It would ensure that prosecution would become “more visible and more swift”. It would introduce monitoring structures. It would also allow independent people to investigate torture cases, rather than the police, who are often the subject of the complaints.
Llewellyn Landers, chairperson of the justice and constitutional development portfolio committee, which oversaw the approval of the Bill in the National Assembly, says: “We have had our debate on the Bill and, normally after we have approved it, it is sent to the National Council of Provinces.”
The Bill was not on his personal list of Bills in the council and Parliament’s website states that the Bill is still in the National Assembly. But Landers says it is possible that the list has not yet been updated.
UN definition of torture
- It is intentionally inflicted
- It is not legally permissible
- It causes severe pain and suffering – either physical or mental
- It is carried out with the intention of extracting information from a person, bribing someone, or punishing a person
- It is committed by an officer of state