COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF SOUTH AFRICA

The Committee against Torture this morning began its consideration of the initial report of South Africa on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Charles Nqakula, Minister of Safety and Security of South Africa, said although torture was not yet defined in South Africa, the Constitution served as a legal framework to deal with other forms of torture such as assault, assault with intent to do grievous bodily harm, attempted murder, murder, violence and related abuses. The Truth and Reconciliation Commission had done excellent work in establishing the truth about the perpetrators and victims during the apartheid period, especially the creation of a bridge from South Africa’s past characterized by a society under massive violations of human rights committed by the State security forces moving towards a reconciled and united, non-racial, non-sexist society.

The Government had embarked on a path to transform its public service and security personnel in particular so as to reverse the culture of violation of human rights with impunity, Mr. Nqakula noted. The security personnel, namely the police, prison wardens and military officers, were being trained on the promotion and protection of human rights, in particular the total elimination and prevention of torture of persons suspected of having committed crimes, including convicted persons. Although there were some cases of assault or abuse of detained and arrested persons by police, the culture of human rights, especially the respect of rights of detained or arrested persons, was gaining more ground.

Serving as Rapporteur for the report of South Africa, Committee Chairperson Andreas Mavromatis asked the delegation to clarify the definition of torture as deemed by the Government of South Africa. He also asked the delegation to elaborate on the State’s policy on extradition and whether the prohibition of torture policy, as per the Convention, was upheld in all cases. Information was also sought about any cases of torture in prison facilities. The Rapporteur asked the delegation to provide further details about the incident which occurred at St. Albans prison in Port Elizabeth where a warden was killed in trying to stop an escape and there was a prison uprising.

Xuexian Wang, the Committee Expert serving as Co-Rapporteur for the report of South Africa, said the great efforts by the Government of South Africa to turn a new page in its history was highly commendable, although there some setbacks, mainly due to financial constraints. While welcoming the training being conducted for members of the police force, he asked how that training had been applied in reality, especially given the allegations of widespread police brutality. Referring to a report from a non-governmental organization indicating that in 1995 the number of deaths recorded in prisons was 200 and in 2004 the number rose to over 2,600, he asked what had contributed to this negative trend. Information was also sought on the situation of overcrowded corrective facilities, monitoring of these centres and the situation of minors in detention centres.

Also representing the delegation from South Africa were representatives from the Department of Justice and Constitutional Development, the Police Service, the Civil and Political Rights Office, and the Permanent Mission of South Africa to United Nations Office at Geneva.

The delegation will return to the Committee at 3 p.m. on Wednesday, 15 November, to provide its responses to the questions raised today.

South Africa is among the 142 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

The Committee will issue its final observations and recommendations on the report of South Africa when it concludes its session on 24 November.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Guyana to the questions posed by Experts on Monday, 13 November.

Report of South Africa

The initial report of South Africa (CAT/C/52/Add.3) draws attention to the South African Human Rights Commission (SAHRC) which was an institution for promoting the recognition of the human dignity, the achievement of equality and the advancement of human rights and freedom. It came into operation in October 1995. One of the functions of the SAHRC is to promote respect for human rights and a culture of human rights. The SAHRC also has the power to investigate and to report on the observance of human rights and to take steps to secure appropriate redress where human rights have been violated. It further notes that upon ratification or ratification and subsequent enactment into law, a convention becomes binding on South Africa as part of international law, although the provisions of a convention cannot be invoked before, or directly enforced by, the courts, other tribunals or administrative authorities.

As stated in the report, torture is not as yet regarded as an offence under South African criminal law. South Africa still has to incorporate the crime of torture into its domestic law. However, the Constitution provides for the right to freedom and security of a person, including the right not to be tortured and to be free from all forms of violence. Any person, including a state official, who commits an act of torture may be charged with the common law offence of assault, assault with the intent to do grievous bodily harm, indecent assault or attempted murder. The Promotion of National Unity and Reconciliation Act provides for various mechanisms in dealing with gross violations of human rights emanating from conflicts of the past.

The report also notes that the South African Police Service (the Police) developed a Policy on the Prevention of Torture and Treatment of Persons in Custody of the South African Police Service (the Policy). The Policy also deals with reports and complaints regarding acts of torture, steps to be taken in informing persons in custody of their rights, questioning of persons in custody and measures to prevent torture. Moreover, it states that while torture is not defined in the various defence laws of the State, ill treatment, assault and degrading treatment or punishment are covered by legislation. Torture, as a criminal offence, is not specifically mentioned either under the common or statute law. The common law crime of assault is, however, defined as unlawfully and intentionally applying force, directly or indirectly, to the person of another; or inspiring a belief in another that force is immediately to be applied to him.

Presentation of Report

CHARLES NQAKULA, Ministry of Safety and Security of South Africa, said that the apartheid system, which was characterized, amongst others, by state torture committed against black majority of South Africa, had raised grave concerns of the oppressed and the international community in general. As a response to this system, the liberation movements had been forced to go to exile and had waged an armed struggle against the apartheid system which the United Nations correctly declared as a crime against humanity. At the height of the struggle black women protested against the pass laws and were met with untold police brutality, which included torture, death and other forms of abuse.

It was recalled that the international community responded by declaring that apartheid constituted a violation of fundamental human rights and a threat to international peace and security. To demonstrate the concerns of the international community the United Nations adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973. The very inhumane actions of the state and its security forces led to what became known worldwide as the 1976 South African youth uprisings. The late 1980s students’ resistance campaigns by international organizations enabled South Africa’s first ever non-racial democratic elections in April 1994.

The report in question covered the period 1999 to 2002, the Minister noted. The apartheid system did not only violate South Africa’s oppressed peoples rights to human dignity and right to freedom, security of the person and the right not to be subjected to cruel, inhuman and degrading treatment, but other civil rights and political, social, economic and cultural rights. Therefore, the apartheid system which was tortuous in nature was the basis for the marginalization of the black majority at all levels if life, especially in government, education, workplace and business. Despite this challenge, the economy of South Africa had grown for the past 12 years.

After having taken the path of reconciliation and marching towards consolidation of democracy with a goal to address the legacy of apartheid, South Africa adopted the 1993 Interim Constitution and subsequently the final Constitution of the Republic of South Africa of 1996, he said. Although torture was not yet defined in South Africa, the Constitution served as a legal framework to deal with other forms of torture. In South Africa there was the Combating Torture Bill of 2005 aimed at criminalizing torture. The Bill was to be presented to the public domain for comment by various non-governmental organizations and civil society.

The head of the delegation stated that the Truth and Reconciliation Commission had done excellent work in establishing the truth about the perpetrators and victims during the apartheid period, especially the creation of a bridge from South Africa’s past characterized by a society under massive violations of human rights committed by the State security forces towards a reconciled and united, non-racial, non-sexist society. To demonstrate the Government’s commitment to democracy, the rule of law and human rights, it abolished apartheid laws, in particular the Internal Security Act of 1982 and the Terrorism Act of 1967.

The Government had embarked on a path to transform its public service and security personnel in particular so as to reverse the culture of violation of human rights with impunity, Mr. Nqakula noted. The security personnel, namely the police, prison wardens and military officers, were being trained on the promotion and protection of human rights, in particular the total elimination and prevention of torture of persons suspected of having committed crimes, including convicted persons. Although there were some cases of assault or abuse of detained and arrested persons by police, the culture of human rights, especially the respect of rights of detained or arrested persons was gaining more ground.

South Africa had an independent and impartial judiciary, which had jurisdiction over forms of torture such as assault, assault with intent to do grievous bodily harm, attempted murder, murder, violence and related abuses. The National Prosecution Authority had a crucial role to play in investigating and/or prosecuting crimes, he noted. The challenge faced by South Africa’s criminal justice system was a backlog of cases and overcrowding in police cells and correctional facilities. A number of programmes and measures had been taken to address and alleviate this problem.

In closing, the Minister noted that South Africa had in September this year signed the Optional Protocol to the Convention against Torture and that the Government would be looking at domesticating the obligations flowing from the Protocol.

Questions Raised by Committee Experts

ANDREAS MAVROMATIS, Committee Chairperson serving as Rapporteur for the report of the South Africa, said, while the report was very good, it needed some updating. Referring to a report by the World Organization Against Torture, he said that study explained how the situation of unemployment and inequality had led to a culture of violence in the country. That report had also addressed correctional service facilities. The Rapporteur asked the delegation for their response to the report.

The Rapporteur asked the delegation to clarify the definition of torture as deemed by the Government of South Africa. In terms of corporal punishment in the school system, the Rapporteur asked what the Government intended to do to ensure that this practice was no longer carried out as called for in the State’s laws.

With regard to the Constitution, he asked whether tribal laws were applicable in the Constitution. Moreover, he asked the delegation to elaborate on the State’s policy on extradition and whether the prohibition of torture policy, as per the Convention, was upheld in all cases. Information was also sought about any cases of torture in prison facilities.

The Rapporteur asked the delegation to provide further details about the incident which occurred at St. Albans prison in Port Elizabeth where a warden was killed in trying to stop an escape and there was a prison uprising.

Generally, he also asked whether laws and practice in the country adhered to the absolute prohibition of torture. Referring to a specific case cited in the report – Mohamed and Another v President of South Africa and Other 2001 – he asked for information on the status of that case, which involved extradition.

Other questions raised by the country Rapporteur were those pertaining to the State party’s asylum practices, modifications to the prison system in the country, the status of the Combating Torture Bill, the Truth and Reconciliation Commission, and independent complaints from South Africa.

XUEXIAN WANG, the Committee Expert serving as Co-Rapporteur for the report of South Africa, said the great efforts by the Government of South Africa to turn a new page in its history were highly commendable, although there some setbacks, mainly due to financial constraints.

While welcoming the training being conducted for members of the police force, he asked how that training had been applied in reality, especially given the allegations of widespread police brutality.
Referring to a report from a non-governmental organization indicating that in 1995 the number of deaths recorded in prisons was 200 and in 2004 the number rose to over 2,600, he asked what had contributed to this negative trend. Information was also sought on the situation of overcrowded corrective facilities, monitoring of these centres and the situation of minors in detention centres.

The Co-Rapporteur, while welcoming the Government’s efforts to host a high number of asylum seekers and illegal immigrants, asked the delegation to shed more light on the alleged cases of abuse of some of these persons.

Referring to an incident in August 2004 in Harrismith in Free State where illegal arms were alleged to have been used resulting in death, Mr. Wang asked the delegation for their response to that report, which was non-conclusive.

The Co-Rapporteur asked further questions on a number of issues which included cases of applications for amnesty, compensation and rehabilitation for victims of torture in recent years, statements obtained under torture, and cases of rape and sexual abuse against children. He noted that, according to reports, there were more than 5,000 cases of rape reported last year and between 2003 and 2004 over 21,000 cases of rape of children. He asked what measures had been taken by the State party to address this problem.

Another Committee Expert asked about the time spent in a detention facility for those applying for refugee and/or asylum status. He also asked about the system of legal assistance, maximum security prisons, the admission of guilt, the situation of organized gangs and vigilantes, and armed violence and registration of firearms.

The Expert also noted that there had been a reported rise in the number of cases of trafficking of children, and asked the delegation why there had been no specific legislation in South Africa in this regard.

Other Experts raised a series of questions pertaining to, among other things, police training and policies dealing with cases of torture and ill treatment, the practice of preventative detention, the age for criminal responsibility, the practice of capital punishment in South Africa, and HIV/AIDS and how its high prevalence in the country might contribute to violence and ill treatment.

Returning to the subject of extradition, another Expert asked whether assurances were required or received in any instances for persons being returned to another country who may face the risk of torture and what the legal requirements were in place to that effect.

As to cases of rape in prison, the Expert asked whether there were any rules in place that would require the suspension or transfer of officers against whom such cases were in progress and whether any were under consideration.

On the issue of military justice, she noted that torture was not defined as a military offence as per the report, and that, according to the South African Human Rights Commission, no cases of torture had occurred in the armed forces of South Africa. Referring to the country’s involvement in United Nations peacekeeping missions and patterns of sexual abuse by peacekeepers, in particular in the Democratic Republic of the Congo where more than 30 South African peacekeepers had been investigated for such crimes, she asked whether South Africa had conducted its own investigations into such cases.