SA finally set to legislate torture as a crime
The criminalisation of torture is to be brought a step closer when Parliament’s portfolio committee on justice and constitutional development holds public hearings on the Prevention and Combating of Torture of Persons Bill during the next parliamentary session.
The move comes more than 10 years after SA signed the UN Convention on Torture. The delay has outraged human rights organisations, including the Civil Society Prisons Reform Initiative, an NGO that called last year for hasty action to remedy the situation.
The bill is intended to incorporate into law the Convention on Torture, which SA ratified in December 1998. The Department of Justice and Constitutional Development briefed the committee on Wednesday on the provisions of the convention.
Committee chairman Luwellyn Landers said advertisements would go out shortly calling for written submissions from the public and interested parties.
In a submission to the committee on correctional services last year, the Civil Society Prison Reform Initiative expressed concern that torture was taking place at the hands of or with the acquiescence of correctional officers and called on the government to criminalise torture. The NGO said several incidents of torture had been reported by the media, including allegations made by remand detainees at Grootvlei Prison.
It also cited the Department of Correctional Services’ report for 2010/11, which indicated that “assaults” in prisons had increased in the preceding few years, and the Judicial Inspectorate of Prisons’ report for the last financial year, which said there had been 2 276 complaints of “member-on-inmate” assaults.
The NGO said it was apparent from the judicial inspectorate’s annual report that the perpetrators of assaults were not fully investigated by the state or disciplined by the department. A notorious example was the McCullum case in which, in July 2005, a mass assault took place at the St Alban’s Prison in Port Elizabeth.
One of the victims, Bradley McCullum, lodged a complaint with the UN Human Rights Commission (UNHRC) after numerous failed attempts to have the case investigated. During the assault, correctional services officials subjected McCullum and other inmates to sustained abuse, including making them lie naked on the floor with their noses in the anus of the person in front of them.
According to a summary of McCullum’s testimony, the “prisoners were taunted, sprayed with water and beaten with batons, shock boards, broomsticks, pool cues and pickaxe handles”.
“At some point one warder inserted a baton into (McCullum’s) anus. Fear and shock caused the prisoners to defecate and urinate on themselves and others linked to them in the human chain.”
The UNHRC established that the force with which McCullum was assaulted caused the dislocation of his jaw and the loss of several teeth. According to the UNHRC findings, McCullum was refused an HIV test after coming into contact with the bodily fluids of other prisoners during the attack.
The assault reportedly took place after a warder at the prison, Babini Nqakula, was stabbed to death by an inmate.
In a civil case brought later by 67 of the inmates, the assault was described as a “campaign of terror”.
One inmate alleged he had been sexually assaulted with a pool cue “as prisoners were watching and warders were laughing”.
The State said that the warders “feared for their lives because they were outnumbered by the inmates”.
The UNHRC found that McCullum’s right to be free from torture, protected by Article 7 of the International Covenant on Civil and Political Rights, had been violated and directed that the “state party (was) under an obligation to provide the author with an effective remedy, including thorough and effective investigation of the author’s claims… prosecution of those responsible and full reparation, including adequate compensation”.
SA was also found to have breached Article 2, which requires state authorities to investigate alleged rights abuses and to remedy any violations.
Prison authorities also fell foul of Article 10 by failing to provide prompt and proper medical care.
According to the Prison Reform Initiative, such cases highlight that the government has yet to criminalise torture as the UN convention requires.
It said that without comprehensive legislation incorporating the elements of the convention’s definition of torture, the problem would remain undefined and without remedy. A draft bill was prepared in 2003.
Legislation from the UK, Australia, Ireland, Canada and New Zealand, as well as national legislation and international instruments, were considered. The draft bill was submitted in 2004 to numerous roleplayers for comment, after which a further draft bill was prepared.
However, the bill was not included in the department’s legislative programmes in following years because of competing priorities. Its preamble recalls the “shameful history of gross human rights abuses, including the torture of many of the citizens and inhabitants of South Africa”.
Besides giving effect to SA’s obligations under the UN convention, the bill aims to recognise torture as an offence and to prevent and combat its occurrence within or across the borders of SA. The convention calls on states to put in place effective measures to prevent torture in their territories and seeks to prevent people from being transported from one country to face torture in another. In terms of the bill, torture is not to be tolerated, even when there is a war. The bill places a responsibility on the state to create awareness around the prohibition of torture. Landers said he expected widespread interest in the bill.