Pollsmoor Correctional Facility in Cape Town. (David Harrison/The Union)
Before the advent of constitutional democracy of 1994, torture, other cruel, inhuman or degrading treatment or punishment was employed as a matter of course by the repressive apartheid and colonial regimes, through police and military personnel. These brutal practices either formally formed part of the pre-1994 South African penal and judicial system formally, or were unofficially employed by state actors, with complete disregard for human rights. Yet these individuals and the regime of the time faced little or no consequences for such actions.
Both the South African interim Constitution of 1993 and the final Constitution of 1996 introduced human rights for all people in South Africa and was designed to bring egregious human-rights violations such as torture and other cruel, inhuman or degrading treatment or punishment to an end.
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment creates an absolute prohibition of torture in international law. States are obliged to prevent torture and ill-treatment. South Africa is a state party to the convention. As such, this prohibition is also articulated in section 12 of our Constitution, as well as the Prevention and Combating of Torture of Persons Act. On September 20 2006, South Africa signed but did not ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was drafted to strengthen the original prohibition.
However, on March 28 2019, pursuant to section 231 (2) of the Constitution, Parliament ratified the optional protocol. As required by custom when a treaty is ratified, an instrument of ratification was deposited with the UN secretary general on June 20 2019. This completes the ratification process by South Africa and the optional protocol to the convention came into force on July 2- 2019.
Because South Africa is now a party to the optional protocol of the convention, the UN subcommittee for the prevention of torture’s mandate has been triggered. This mandate has two elements. The protocol gives the subcommittee the right to visit all places of detention in states that are party to the operational protocol and examine the treatment of people held there. The subcommittee may also choose to visit states in which people are deprived of their liberty.
However, at a national level, states are obliged to establish, designate or maintain national bodies known as national preventive mechanisms (NPMs) that work alongside the subcommittee. The subcommittee assists and advises these national bodies on ways to strengthen safeguards relating to detention, and reinforce their powers and independence.
The monitoring function of NPMs
The NPM is established to function as a system for regular monitoring of places where persons are, or may be, deprived of their liberty. The regular oversight is meant to examine the treatment of persons deprived of their liberty, with a view to strengthening their protection against torture and other cruel, inhuman or degrading treatment or punishment.
State parties have a number of options of how their NPMs should be structured. The structural options are based on the specific context of each state. Similarly, the definition of places of deprivation of liberty is expansive. In the South African context, this definition covers both traditional and non-traditional forms of detention, such as correctional centres, child- and youth-care centres, secure-care facilities, mental-health institutions, immigration-detention centres, and police- and military-detention facilities.
In South Africa, A number of bodies, such as the Judicial Inspectorate for Correctional Services (JICS) have been set up through legislation to perform oversight over correctional centres. However, many places of deprivation of liberty either do not have oversight mechanisms or the existing ones are weak or ineffective. In this instance, although policies such as standing orders and national instructions have been developed, police stations do not have regular independent oversight to examine the treatment of those detained.
Visits to these facilities on a regular basis are fundamental with a view to identifying conditions that could give rise to cruel, inhuman or degrading treatment or punishment. Places of detention need to be monitored to make sure the people living in them are safe and are treated with dignity. The optional protocol to the convention is about preventing any ill-treatment from occurring.
Civil society plays a critical role in the success of monitoring and awareness. As such, the role of civil society will need to be outlined. Section 13 (1)(b)(iii) of the South African Human RIghts Commission (SAHRC) Act already recognises the role and permits the participation of civil-society organisations in the work of the SAHRC. In this regard, it is envisaged that civil society will be an integral part of providing support to the NPM, including research and data verification. Civil Society also includes professionals such as medical doctors who have the expertise essential for the functioning of the mechanism. Mutually beneficial relationships will thus be established.
On that basis, the government has designated a multiple-body national preventive mechanism, to be co-ordinated by the SAHRC. Under the co-ordinating leadership of the SAHRC, the South African NPM will include institutions such as the JICS, the Independent Police Investigative Directorate, the Military Ombud and the Health Ombud.
Independence is vital
One critical requirement to be met by bodies who could constitute the national preventive mechanism is the requirement of independence. The optional protocol requires NPMs to be functionally, operationally, financially and legislatively independent. Most of these bodies are created by legislation and obliged to report to the executive. This is a critical risk the state must manage for an effective and credible national preventive mechanism.
There are a number of issues that the state, through the Department of Justice and Constitutional Development and the national preventive mechanism itself, should address in the immediate future. Firstly, although the SAHRC enjoys constitutional independence and protection as a national human rights institution and a chapter 9 institution, the mandate of the NPM should be clearly articulated in legislation. This is largely because of the multi-body nature of the mechanism.
The mandate must be clear on the powers of the NMP, to inter alia, freely choose which places of detention to visit, in line with articles 4 and 19 of the optional protocol; whether such visits are announced or unannounced; and access information and to make recommendations to the state. Secondly, the legislation must create a mechanism for the protection of the NPM and its personnel against any reprisals. This is essential for the effectiveness and independence of the national preventive mechanism. Without this protection, the NPM cannot work without fear, favour or prejudice.
The operational independence of the mechanism must be guaranteed. To achieve this, legislative provisions should clearly set out the source and nature of the NPM funding. It should specify the process for the allocation of annual funding to the body.
Through the NPM’s systemic analysis before, during and after monitoring visits (as well as follow-up visits), the system is able to identify trends, improvement or deterioration of the conditions of detention and provide recommendations to reinforce and implement protective measures as underscored by international and domestic human rights law.
The national preventive mechanism will, hopefully, make a contribution in reducing the worrying levels of torture and other cruel, inhuman or degrading treatment or punishment as detailed in South Africa’s report to the UN’s committee against torture.
Chris Nissen is a part-time commissioner at the South African Human Rights Commission and Kwanele Pakati is his research adviser