After a ten-year delay in enacting domestic legislation to criminalise torture in South Africa, the Draft Bill to Prevent and Combat Torture comes before the Portfolio Committee on Justice and Constitutional Development in Parliament today. Since the ratification of the United Nations Convention Against Torture (UNCAT) by the South African government on International Human Rights Day, 10 December 1998, the state has failed to date to domesticate UNCAT with the result that torture has yet to be criminalised in South Africa.
The delay in prohibiting and in criminalising torture in South Africa is a particularly regrettable situation given the experience of torture of thousands of anti-apartheid political activists who continue to live with the devastating psychosocial consequences of torture today.
The public hearings on the Draft Bill take place in the week in which the spotlight has fallen on the alleged torture of 130 of the 270 Marikana Lonmin mine workers detained on 16 August 2012 and held in various police cells in North West Province. In the absence of a statutory crime of torture in South Africa, the charges against the police officials allegedly responsible, are assault and assault with intent to commit grievous bodily harm.
Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of obtaining information from that person or from a third person, by or at the instigation or with the consent or acquiescence of a public official or another person acting in an official capacity. Hundreds of individuals have suffered these experiences in South Africa since 1994. All persons in places of involuntary detention are vulnerable as is borne out by the reports of investigations into the assaults and deaths of persons detained in correctional facilities, where it is reported that “officials have regarded themselves (as) above the law and (have) inflicted severe physical injuries that ultimately led to prisoners’ deaths.” Amongst those most vulnerable are undocumented migrants being transported or detained, persons detained in military detention facilities, children in secure care or educational facilities and those confined in health care facilities for medical, psychiatric or rehabilitative reasons.
Today, the submission of the SANTOC member organisations in Parliament, will focus on ensuring that the Draft Bill to Prevent and to Combat Torture will provide for the state to meet its obligations under UNCAT including the criminalisation of torture in domestic law; measures to prevent and to punish acts of torture and ill treatment; the prevention of the return of persons to countries where there may be tortured; to prosecute perpetrators of torture and to assist other states to prosecute torturers; to educate officials on the absolute prohibition of torture and ill treatment; to regularly review interrogation rules and practices; to promptly and impartially investigate torture allegations; to protect witnesses and victims of torture; to enable adequate and effective redress for victims of torture and ill treatment; and to ensure that the South African government complies with its reporting obligations to the Committee against Torture. SANTOC agrees that “South’s Africa’s previous reputation as a leader in Human Rights has been seriously damaged due to the failure to uphold its country obligations under international law.” (Sam Waterhouse, Community Law Centre).
For comment, please contact any of the organisations below.
Member Organisations of the Consortium:
- Centre for the Study of Violence and Reconciliation, Johannesburg: (011) 403-5650
- Institute for Healing of Memories, Cape Town: (021) 683 6231
- Khulumani Support Group, National Contact Centre, Johannesburg: (011) 833 2044 or 082 268 0223
- The Solidarity Peace Trust: (039) 682 5869
- The Trauma Centre for Survivors of Violence and Torture, Cape Town: (021) 465 7373