The reopening of the inquest into Neil Aggett’s February 1982 death in detention is a troubling reminder of torture’s role in our history. But the practice continues. Last year, the Independent Police Investigative Directorate (Ipid) recorded 270 allegations of torture by police.
This is more than the number recorded by Ipid, or its predecessor the Independent Complaints Directorate, in any previous year. Over the past seven years Ipid has recorded 1 077 cases of torture.
The gross human rights violations documented by the Truth and Reconciliation Commission (TRC)included 5 002 instances of torture, against 2 900 people, the majority of them occurring in the 1980s. Most cases involved beatings, but more than 2 000 involved other methods such as being forced into painful postures, electric shocks, suffocation or mental torture.
The Security Branch of the South African Police was the primary state agency implicated in testimony before the TRC. It found that “torture was used systematically by the Security Branch, both as a means of obtaining information and of terrorising detainees and activists”.
But the TRC’s engagement with apartheid era torture was a partial one; it focused exclusively on politically related human rights violations.
Torture was also practised widely by police units responsible for dealing with crime rather than political resistance. The Brixton Murder and Robbery Squad in Johannesburg was the most infamous. It was certainly not the only one.
A 1995 report by a group of non-governmental organisations highlighted close to 100 allegations of torture by police from the Vaal Triangle. Many of the allegations emerged after Dutch violence monitors found electric shock equipment in the garages of the Vanderbijlpark Unrest and Crime Investigation Unit in May 1994. Torture allegations involving police units in Cape Town and Durban were also documented in the report.
In the years of the transition, with the introduction of the Bill of Rights and the focus on police reform, it might have seemed that South Africa would break decisively with the use of torture.
In November 1998, South Africa ratified the United Nations Convention Against Torture and the South African Police Service released a prevention of torture policy.
Police internal regulations on the management of people in custody were revised to be line with the policy.
Subsequent provisions also foregrounded a concern with torture. The Independent Police Investigative Directorate Act, passed in 2011, included allegations of torture as one of the offence to be investigated by Ipid. In 2013 the Prevention and Combatting of Torture of Persons Act, which criminalised torture, was passed.
But the continuing high number of allegations of torture indicate that existing mechanisms have not been effective. As at the end of March 2019, Ipid investigations has resulted in criminal convictions for two of the 1 077 cases that it has received, with 22 disciplinary convictions against police also related to allegations of torture.
This raises questions not only about the need to strengthen Ipid’s investigations of torture, but also about strengthening prevention. The relevance of torture prevention is also further enhanced by the fact that, on June 20 last year South Africa ratified the Optional Protocol to the UN Convention Against Torture (OPCAT).
This requires South Africa to establish a national preventive mechanism to monitor places of deprivation of liberty. This has now been established under the South African Human Rights Commission, which will play a co-ordinating role together with bodies such Ipid and the Judicial Inspectorate for Correctional Services.
South Africa’s ratification of the OPCAT and establishment of the national preventive mechanism take place alongside another important anti-torture initiative.
During recent years a European Union backed pilot initiative, under the auspices of the Human Rights Commission, has been testing a system of independent monitoring of police cells. This culminated at the end of 2019 when almost 100 independent visits to police holding cells were carried out by the commission.
Independent custody monitoring systems provide for independent visitors to inspect custody facilities to ensure that people in custody are being humanely treated. Such schemes, sometimes called lay visitor schemes, exist in various countries. Though there are mechanisms for the inspection of prisons there is currently no independent system for inspecting police custody facilities in South Africa.
The initiative while in its infancy is critical. Police figures indicate that in the region of 1.5-million people are held in police custody each year. Research shows that pre-trial custody is a high risk area for rights abuse. In addition to torture there are also high rates of deaths and a continuing problem of rape in police custody.
Independent police custody monitoring should form part of a set of measures that reduces the risk of torture and other human rights violations in police custody. This is in line with the OPCAT, which states that “the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature, based on regular visits to places of detention”.
As part of the initiative towards establishing the national preventive mechanism, the system of independent visits needs to be strengthened and independent legislation to formally establish the national preventive mechanism must be passed by Parliament.