In 1987, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force, calling on States Parties to criminalise these human rights infringements. South Africa signed this Convention in 1993 and subsequently ratified it in 1998.
Apart from the provisions of the Convention, torture and other forms of inhuman and cruel treatment or punishment have been prohibited in terms of codified International Law since at least 1948. International treaties including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Conventions on the Law of Armed Conflict and the Rome Statute of the International Criminal Court, in one way or the other, prohibit torture and other acts of severe ill-treatment as a peremptory norm of International Law. This prohibition is absolute and non-derogable, meaning that no act amounting to torture or severe ill-treatment can be justified in any way or form, or for any reason whatsoever.
Apart from the Convention, in terms of section 1 of the Constitution, dignity is a founding value underlying our constitutional democracy. Section 10 of the Bill of Rights affirms the right to dignity as an inherent right and determines that every person has a right to have his or her dignity respected and protected. Moreover, section 12(1) of the Constitution provides that everyone has the right to freedom and security of the person, which includes the right not to be tortured in any way and the right not to be treated or punished in a cruel, inhuman or degrading way, whilst section 12(2) of the Constitution determines that everyone has the right to bodily and psychological integrity, including the right to security in, and control over, his or her body, as well as the right not to be subjected to medical or scientific experiments without their informed consent.
More than 14 years after South Africa ratified the Convention, legislation (the Prevention and Combating of Torture of Persons Bill) criminalising torture and incorporating other provisions of the Convention has finally been tabled in Parliament. In this regard, the Centre for Constitutional Rights recently made a submission to the Portfolio Committee on Justice & Constitutional Development and subsequently addressed the Committee during public hearings on some of the Bill’s technical drafting inadequacies and substantive shortcomings in relation to obligations created by the Convention.
Although the Bill aims to criminalise torture and provide for some of the obligations as created by the Convention, it still falls short of fully incorporating all obligations. For instance, the Bill fails to criminalise and address – apart from acts of torture itself – other acts of cruel, inhuman or degrading treatment or punishment, as elaborated in Article 16 of the Convention. The Convention does not only seek to prevent and punish “torture”, but also “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture”. Thus, an act could exclude any of the cumulative legal elements of the crime of torture and therefore would fall short of the international definition of “torture”, but could still amount to cruel, inhuman or degrading treatment or punishment.
The Bill also does not, as required by the Convention, fully exclude all “exceptional circumstances” which could be invoked to justify torture. In the absence of a complete exclusion of any ground for justification as required by the Convention, the danger always remains that operational necessity within the ambit of “national security” (or other commonly argued grounds for limitation of rights, including “imminence”, “necessity”, “public order” or “national interest”), could be incorrectly interpreted as possible grounds for justification.
In addition, the Bill fails to give effect to Article 3(1) of the Convention which determines that “[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The Convention places a positive obligation on States Parties not to expel, return, deport or extradite any persons to any State where such persons may be subjected to torture. The Constitutional Court in both the Mohamed-case and again in the Tsebe-judgement was of the same opinion. Article 3(1) does not only seek to prevent negligence on the side of States Parties when expelling, returning or extraditing persons, but also to positively prevent so-called extraordinary renditions where persons would be handed over by one country to other countries in order to be subjected to “enhanced interrogation” in the latter. In this regard, it would be necessary to revisit both the Extradition Act and Immigration Act in order to ensure alignment of provisions relevant to the incorporation of Article 3(1).
Strangely enough, the Bill currently also requires that a perpetrator who committed acts of torture in another country, be “lawfully present” in South Africa (or any other area of territorial sovereignty) in order for a competent South African court to enjoy jurisdiction in terms of this Bill. This falls short of fulfilling South Africa’s obligations to prosecute or extradite in terms of the provisions of the Convention as it limits the possibility of prosecuting alleged perpetrators who have entered South Africa (or any other area of territorial sovereignty) illegally after having committed acts of torture elsewhere.
The Bill furthermore does not comply with Article 10(2) of the Convention which places a positive duty on States Parties to insist on the inclusion of the prohibition of torture or other acts of cruel, inhuman or degrading treatment or punishment in the departmental “rules or instructions issued in regard to the duties and functions of any such person”. Thus, apart from criminalising the respective prohibited acts and besides the duty to educate and inform public officials about the prevention of those prohibited acts (which is indeed included in the Bill), States Parties also have a duty to ensure that such acts are unambiguously prohibited in terms of departmental policies, standard operating procedure or national directives. Article 11 of the Convention furthermore requires States Parties to “keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction”. The Bill currently contains no provision forcing government departments to align and regularly revise policy and operational procedure in line with the Bill and the Convention.
Article 13 of the Convention determines that “[e]ach State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities”. This Article also determines that States Parties must “ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given”. In order to give effect to Article 13, it is crucial to ensure that the Bill determines that a victim of torture or other acts of cruel, inhuman or degrading treatment or punishment has a right to level a complaint regarding such activities. Such a right would include an unlimited right to disclose any of the aforementioned acts and a right to access relevant information related to those alleged acts and circumstances surrounding such alleged acts. No legislation should be able to prevent information about, or related to, alleged acts of torture or other acts of cruel, inhuman or degrading treatment or punishment to be withheld or disclosed on any grounds, including those of national security and security classification. In short, acts of torture or ill-treatment may not be classified as state secrets.
Acts of torture and other acts of inhuman, cruel or degrading treatment or punishment violate the right to dignity, the right to freedom and security of the person, as well as the right to bodily and psychological integrity, in the most heinous manner. The act of one person inflicting severe physical or mental pain on another in order to achieve any objective can only be described as a gross human rights violation. Such violations are of a particular concern when the perpetrator is acting on behalf of a government which, in principle, has a duty to protect the rights of its citizens and other people within its jurisdiction.
Considering South Africa’s history, it is hard to imagine that, even though South Africa ratified the Convention more than 14 years ago, torture (as defined by this international instrument) is still not criminalised in South Africa. At a recent commemorative seminar on the 10th Anniversary of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robin Island Guidelines), adopted by the AU in 2002, Catherine Dupe Atoki, chairperson of the African Union (AU) Commission on Human and Peoples’ Rights, remarked that state-sanctioned torture continued to be prevalent across Africa – the main culprits, according to her, being police and prison officials. According to Atoki the main reason for the continuous use of torture methods in Africa is the “lack of political will to prevent torture”. Judging from the fact that only eight of the 54 AU member States have criminalised acts of torture – South Africa not being one of them – Ms Atoki’s inference is perhaps not far from the truth.
Obligations created in terms of the Convention provide for the minimum standards which States Parties should implement. Nothing prohibits South Africa to provide for stricter legislative measures to prevent and punish torture and all related activities. Considering our history, one would almost expect South Africa to be at the forefront of preventing and prosecuting torture and all other acts of inhuman, cruel and degrading treatment or punishment, especially when commissioned or committed by government officials. This stems not only from South Africa’s duty to incorporate the provisions of the Convention, but also from practically giving effect to values and rights enshrined in the Constitution. Even after tabling of the Bill, it remains somewhat disquieting to note that in its current draft, the Bill seems to be incorporating only some of the bare essentials of obligations created in terms of the Convention. This amidst a number of media reports and court records (including the Mohamed-case and the Khalid Rashid-matter) reflecting the mounting allegations related to possible acts of torture or other ill-treatment in contravention of more than one obligation in terms of the Convention and involving South African government officials. More recently, in Southern African Litigation Centre v National Director of Public Prosecutions the High Court held that South Africa has a duty to prevent, investigate and prosecute acts of torture against perpetrators who have committed these acts outside of South Africa, but who find themselves in South Africa. The latter is also an obligation in terms of the Convention.
In its current draft, however, the Bill is unfortunately not yet reflecting the resolve of South Africa to effectively and comprehensively prevent and punish acts of torture and other acts of inhuman, cruel and degrading treatment or punishment. The Bill to be adopted needs to be comprehensive and clear in its message: Torture and other inhuman, cruel and degrading treatment will not be tolerated in South Africa, and perpetrators of these heinous and serious human rights infringements will be prosecuted and punished without exception. South Africa still has the opportunity to prove the chairperson of the AU Commission on Human and Peoples’ Rights wrong by adopting comprehensive legislation fully incorporating the Convention, and not leaving any room to manoeuvre for those who think that these atrocious acts could be justified in any way.
Adv Johan Kruger
Centre for Constitutional Rights
