South Africa's failure to criminalise torture in domestic law leaves many citizens vulnerable to gross human rights abuses while in state custody.
South Africa’s failure to criminalise torture in domestic law leaves many citizens vulnerable to gross human rights abuses while in state custody, civil society experts have said.
The Civil Society Prison Reform Initiative at the University of the Western Cape’s Community Law Centre, with other civil society groups, including Lawyers for Human Rights and the Institute for Security Studies, recently launched a campaign for the “domestication” of the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment.
South Africa ratified the convention in 1998, but has yet to criminalise acts of torture, the initiative has pointed out.
It is dealt with as a lesser charge, most commonly assault or assault with intent to do grievous bodily harm (assault GBH). The correctional services department faces claims of about R986-million for alleged assault and bodily injury, according to its 2009-2010 annual report.
The latest report of the Judicial Inspectorate for Correctional Services, headed by Judge Deon van Zyl, lists more than 2 100 complaints of assault by officials on inmates and 4 900 complaints of inhumane treatment.
The Independent Complaints Directorate’s 2009-2010 report lists more than 900 cases of alleged assault GBH by police personnel.
Others vulnerable to abuse classifiable as torture under international law include detained, undocumented foreigners and immigrants, children in facilities such as reform schools, pre-trial detainees in police custody and patients in healthcare facilities such as psychiatric institutions, said Clare Ballard, a researcher at the Community Law Centre. “Wherever someone is deprived of liberty there’s a high risk of torture,” said the initiative’s co-ordinator, Lukas Muntingh.
The UN convention obliges South Africa to criminalise torture and take other steps, including educating South African officials that torture is banned, and developing and regularly reviewing interrogation rules and policies relating to the prevention of and punishment for torture.
“If we don’t acknowledge the problem we can’t develop the procedures to handle incidents of torture,” said Ballard.
“It’s important to create an offence different from that of assault or assault GBH, as these crimes are not associated with the malignant motives associated with torture, including coercion,” said Ballard.
The justice department said this week that a draft Bill on the prevention and combating of torture had been in the works since 2003, examining legislation from other countries and other international instruments.
But justice spokesperson Tlali Tlali emphasised the fact that an act of torture as defined by the convention would, in South African law, amount to a criminal offence.
“More importantly, the Constitution unequivocally determines that everyone has the fundamental right not to be tortured,” Tlali said. Someone accused of torture could be prosecuted for assault, assault GBH or attempted murder.
Tlali said the department intended to submit the bill to Cabinet before the end of the year for possible submission to Parliament by early 2012.
Police spokesperson Zweli Mnisi said the police had instituted extensive human rights training for police officers to combat incidents of assault and torture.
In the past year new legislation had been passed by Parliament to strengthen the Independent Complaints Directorate, Mnisi said. It would soon become the Independent Police Investigative Directorate, with stronger powers to investigate police officers who abuse human rights, including by the use of torture and assault.