As assault charges are laid against the police in the aftermath of the Marikana massacre, the outrageous reality is that torture is still not criminalised in SA.
A draft of the Prevention and Combating of Torture of Persons Bill is before Parliament, but far from adoption.
The relevant parliamentary committee postponed the public hearings on it that had been scheduled for last month.
The hearings will now take place this month.
The draft bill is woefully deficient, as it neither holds the state accountable for torture that officials perpetrate on its behalf, nor guarantees redress or recompense for victims, according to the Centre for the Study of Violence and Reconciliation. These omissions are even more reprehensible in light of Marikana.
It is barely 18 years since South Africans formally ended a regime in which the police routinely used measures ranging from brute force to torture in silencing legitimate demands.
This is what informed the post-apartheid decision to transform the police force into a police service.
In a perilous lapse of memory, we have in the past few years seen a remilitarisation of the police amid resurgent calls from politicians for the police to use maximum force, signalling the rise of an authoritarian populist tendency in the ruling party.
It therefore doesn’t seem like a coincidence that, at the same time, legislators have been lackadaisical about criminalising torture. If lawmakers were compelled to act in the public interest, rather than to pander to factional, elite-driven interests in the ruling party to ensure their continued tenure in Parliament, the torture bill might have been passed a long time ago.
Instead, we have witnessed an enthusiastic punting of the Gender Equality Bill and a face-off over the Traditional Courts Bill between two of ANC leader Jacob Zuma’s myriad divergent support bases: the ANC Women’s League and traditional leaders.
These groups are pushing their constituencies’ interests through legislation in the run-up to the ANC national conference in Mangaung in December.
The Gender Equality Bill entrenches the principle of equitable representation of women in the upper echelons of the state and private sector.
Lulu Xingwana, the minister for women, children and people with disabilities, was betting on this bill to calm discontent in the ANC about her ministry’s lacklustre performance.
After all, the bill addresses the concerns of a constituency in the middle and elite classes who are still being locked out of senior positions because of their gender.
It is a worthy cause.
But the zealous promotion of the bill contrasts starkly with the silence from women in power, including Xingwana, about the collapse of organisations such as Rape Crisis and the Saartjie Baartman Centre which provide support services to women who survive gender-based violence.
These organisations help the most vulnerable: women with little resources who, without assistance, would remain trapped in domestic violence.
But the ANC Women’s League’s internal power base seemingly does not depend on such women.
Xingwana received an unexpected political boon in the form of the Traditional Courts Bill, as it allowed her to position herself as a defender of rural black women – face-to-face with the ANC’s traditionalist lobby, hell-bent on expanding its anti-democratic powers.
Contradictory reports abound about the status of the bill, with Xingwana even claiming its “overhaul”.
However, the justice department’s subsequent proposed revisions retain the bill’s recreation of the apartheid-era separate and unequal legal system for rural black people.
While these groups are jockeying for power, Zuma, with one eye on Mangaung, has tried to turn his TV-broadcasted faux pas equating womanhood with heterosexual motherhood into political capital.
He released the green paper on families to “contextualise” his statement, a move sure to be popular with his retrogressive support base.
This arbitrary use of laws and policies to shore up support from contending factions in the ruling party, instead of addressing the country’s real problems, unsurprisingly produces results that undermine the intent of the constitution and legislation adopted earlier on in the post-1994 process of democratic consolidation.
It causes a schizophrenia in the state which, among others, enables the police service, transformed in name only, to revert to its erstwhile violent ways in protecting the interests of a privileged few, culminating in the Marikana massacre.
Constitutional law expert Professor Pierre de Vos at the recent “People’s Power, People’s Parliament” civil society conference urged a rethink of political parties’ internal election processes to allow room for public representatives to represent the public rather than their parties’ interests.
De Vos’s argument is that changing the electoral system to allow some measure of direct representation, rather than the current system where party leaderships determine who goes to Parliament, is insufficient to address the lack of accountability.
The failure of the system of directly elected councillors to enhance accountability is a case in point.
After the examples set by countries such as Argentina, Mexico and Germany, a party law should be adopted to compel political parties to have democratic internal election procedures concordant with the country’s election laws.
The law should render internal elections of individual members to party lists open to scrutiny, including how individuals fund their campaigns.
Of course, party funding should also be transparent, as the “People’s Parliament” conference recommended in a memorandum handed to Parliament.
Who knows, lawmakers elected transparently may exhibit something that has become exceedingly rare in recent years: they may even follow their consciences when passing laws.
l Christi van der Westhuizen is a journalist and an author.