COMMITTEE AGAINST TORTURE HEARS RESPONSE OF SOUTH AFRICA TO QUESTIONS RAISED ON REPORT

The Committee Against Torture this afternoon heard the response of South Africa to questions raised during the presentation of the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Tuesday, 14 November, Charles Nqakula, Minister of Safety and Security of the Republic of South Africa, said the preamble to the Constitution of South Africa recognised the injustices of the past, and maintained that every citizen was equally protected by law. The Truth and Reconciliation Process was embarked on to deal with atrocities of the past Government and challenges of the country in a manner peculiar to its own circumstances. This process was not meant to undermine the international principle which was against the gross violation of human rights, in particular the commission of torture with impunity.

Torture of whatever form was illegal, and also not in line with the Geneva Convention, and the law therefore did not encourage military commanders to give illegal orders, Mr. Nqakula said. There were various Acts that dealt with organised crime, vigilantism and paragraph-militarism, and people were prohibited by law to take the law into their own hands. The whole issue of torture was dealt with under the Correctional Services Act, proscribing the Code of Ethics and Conduct for Correctional Officials. The Act provided for protection of the rights of prisoners, regulated searches, the use of force, firearms and segregation. Violations of the Act resulted in criminal and disciplinary steps.

The Committee will submit its conclusions and recommendations on the report of South Africa towards the end of the session on Friday, 24 November 2006.

As one of the 142 States parties to the Convention against Torture, South Africa is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 3 p.m. on Thursday, 16 November, it is scheduled to hear the response of Hungary to the questions raised this morning during the presentation of its fourth periodic report.

Response of South Africa

CHARLES NQAKULA, Minister of Safety and Security of the Republic of South Africa, said he wished to reiterate his gratitude for the very warm welcome which was received by the delegation from the Committee. The preamble to the Constitution of South Africa recognised the injustices of the past, and maintained that every citizen was equally protected by law. In pursuit of these ideals and others, key declarations were made by both the first President of the Republic of a democratic South Africa, Nelson Mandela, and his successor, Thabo Mbeki. The essence of these statements was what drove the ideals and commitment to democracy of South Africa.

With regards to the definition of torture, the comments made by the Committee on this matter were appreciated, and the elements which were taken into account when defining torture were noted. The matter would be discussed, and an appropriate definition would be incorporated into the Bill currently under discussion. The Truth and Reconciliation Process was embarked on to deal with atrocities of the past Government and challenges of the country in a manner peculiar to its own circumstances. This process was not meant to undermine the international principle which was against the gross violation of human rights, in particular the commission of torture with impunity. The National Prosecuting Authority was considering the matters of those who had not been given amnesty or those who had not appeared before the Truth and Reconciliation Commission to make a full disclosure of atrocities they had committed, with a view to possible prosecutions.

The Constitution of the Republic of South Africa was the supreme law of the land, and any statutory or common law inconsistent with the Constitution was unconstitutional and invalid, and this principle also applied to customary international law. The Constitution recognised three spheres of Government, established at national, provincial and local levels. A traditional authority that observed a system of customary law could function subject to any applicable legislation or custom. The ordinary courts had power to apply customary law subject to the Constitution and any legislation that dealt with customary law. Torture of whatever form was illegal, and also not in line with the Geneva Convention, and the law therefore did not encourage military commanders to give illegal orders, Mr. Nqakula said. There were various Acts that dealt with organised crime, vigilantism and paragraph-militarism, and people were prohibited by law to take the law into their own hands.

Maximum Prisons had become a fixture of the correction system because of the high levels of serious and violent crimes, especially those that were part of organised aggravated robberies, and they were specifically designed for the incarceration of serious murder, rape, and aggravated robbery offenders. There was a serious case of over-crowding in the Correctional Services facilities, and this had a negative impact on the rights of the inmates and was not conducive to rehabilitation, as well as compromising the health of inmates and causing stress. The Government was searching for answers to the problem, Mr. Nqakula said.

In terms of the Refugees Act, no one was refused entry, expelled, extradited or returned to any country, or subjected to any similar measure if, as a result of such refusal, expulsion, extradition, return or other measure, such persons were compelled to return to a country where they feared prosecution on grounds of race, religion, nationality or political opinion, or if their life, physical safety or freedom would be threatened. The whole issue of torture was dealt with under the Correctional Services Act, proscribing the Code of Ethics and Conduct for Correctional Officials. The Act provided for protection of the rights of prisoners, regulated searches, the use of force, firearms and segregation. Violations of the Act resulted in criminal and disciplinary steps. When a prisoner died and a medical practitioner could not certify that the death was due to natural causes, the Head of Prisons had to report the death to the Department of Health for a possible post-mortem or inquest into the death, Mr. Nqakula said.

Questions by Committee Experts

ANDREAS MAVROMATIS, Committee Chairperson serving as Rapporteur for the Report of the South Africa, said the conclusions of the Committee would be issued after discussion among the Committee. The Committee was already satisfied, as a number of the issues that had been raised by the Committee were already being dealt with, such as the inclusion of a definition of torture in legislation. The State party was urged to stick to the minimum standard therein, and invited to expand on it. Extradition, expulsion and return should also be catered for, as well as the requirement of the Convention that if a person could claim imminent danger of torture, then nothing could justify extradition, expulsion and return.

About the sentencing of 36 or 90 years, this appeared to be strange, Mr. Mavromatis said, even though it was to reinforce the importance of the crime. He then asked what had happened with regards to two specific cases, the Rasheed and Mohammed cases, and whether there had been any follow-up in this regard. Further, he asked for more details of allegations of rough handling that had taken place in a prison.

XUEXIAN WANG, the Committee Expert serving as Co-Rapporteur for the Report of South Africa, said he shared the comments of the Chair about South Africa’s determination as to what it was going to do with the country in the future. Education and training was a primary tool for prevention against torture, and the extent of this in South Africa was very positive. Currently, the police were only obliged to report deaths in custody to the ICD for investigation, and Mr. Wang commented that an investigation by an independent body would be more impartial. Monitoring and oversight was very important in preventing crimes in detention centres, custody and prison, and he asked if it would be possible to set up an independent mechanism to report on people in police custody and children in detention, care, or held in psychiatric institutions.

With regards to corporal punishment, there was a Children’s Act of 1995 which contained no provision on this, and Mr. Wang inquired whether it would be possible to amend the Act in this regard, noting that training of all teachers with regards to corporal punishment should be implemented.

Other Experts raised a range of issues, including on such topics as whether there was any sort of public assistance or legal aid provided to indigent victims of violations of rights; allegations of sexual exploitation and aggression and whether these matters were also investigated by ICD, and how this was processed; what was being done with regards to future amnesties for crimes committed in the pre-apartheid era; who was responsible for establishing criminal policy within the State party; the permissible length for pre-trial detention; factors that would allow the country to continue to develop democratically; issues related to the presence of South African United Nations peacekeepers; and whether there had been follow-up with regards to a specific case of extradition to Pakistan.


Response by Delegation

Responding, Mr. Nqakula said on the matter of the person who was sent to Pakistan, this person was visited by a representative of the Ministry of Safety and Security, and he was indeed in Pakistan. South Africa was going to look very closely at the definitions of torture as indicated in the Convention, so that its own definitions would be aligned to what was in the Convention. Very important suggestions had been made, and these were in line with South Africa’s thinking, and it was examining an overall monitoring structure that would be bigger than the ICD and would have a wider remit. The Minister would be presenting the case to consider which recommendations could be included in the laws and legislation of the country. With regards to South Africa’s understanding of what correctional institutions were designed for, this was for rehabilitation, and therefore the long sentences mentioned by Experts did not sit well with this intention of rehabilitation. However, South Africa wished to be very strict with regards to certain issues, such as the rape and murder of its women and children. South Africa looked very sceptically at cases that involved the taking of life and other serious and violent matters.

With regards to corporal punishment, a written answer had been provided. It was not correct that there was wide-spread corporal punishment in schools, but there had been cases where educators in some schools had assaulted learners, and these cases had been taken up by law enforcement agencies, as corporal punishment was outlawed a long time ago, Mr. Nqakula said . The ICD was not investigating cases such as misconduct on the part of South Africa’s soldiers, wherever they may be, as it was not part of its mandate. However, a resolution had been made to find an overarching structure to deal with cases of misconduct among the armed forces as well as the security services. The issue of policy with regards to crime was in all the legislative framework, which dealt with all manner of crimes. What the police was allowed to do was to define a framework for implementing legislation stemming from that policy. The matter of pre-trial detention was being examined and a process was being begun to establish other forms of processes to deal with such prisoners.

Responding to further questions, the delegation said a departmental investigation unit and whistle-blowing policy had been established so that people could report incidents of corruption, and a training session was held so as to ensure that managers were trained in ethics and anti-corruption. On training of police officers, having considered that the Convention had been signed, the police services had decided to evaluate the services within the police that dealt with arrestees and detainees. All new police officers were taught about human rights as a basic course in their training, and all other police officers had been given training courses and lessons to make them aware of the rights of individuals. Legal assistance was given at the expense of the State on the basis of a means test. A challenge remained to educate people so as to take advantage of this opportunity for justice.

For use of the information media; not an official record

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