Dissel, A.; van der Merwe, H. Submission to the 44th Session of the African Commission on Human and People’s Rights. Submitted by the Centre for the Study of Violence and Reconciliation: 5 November 2008
The Centre for the Study of Violence and Reconciliation (CSVR) is a multi-disciplinary South African non-governmental organisation. CSVR is a registered section 21 Company, and is also registered as a non-profit organisation. Since its inception in 1989, the CSVR has been dedicated to making a meaningful contribution to peaceful and fundamental transformation in South Africa, and in the Southern African region. Throughout this period, CSVR has been an innovator in preventing violence in South Africa and dealing with its effects and in building reconciliation in a historically divided society. In doing this, CSVR has always engaged with violence in all its forms: political, criminal, domestic, gendered, etc. and has deliberately pursued this agenda from a multi-disciplinary perspective, employing psychologists, sociologists, political scientists, historians, lawyers, criminologists, and community facilitators. It is engaged in research, policy interventions, advocacy and service delivery in respect of human rights, prevention of torture and treatment of victims of violence and torture.
This submission deals with the following components:
- Prevention of torture and other cruel, inhuman and degrading treatment or punishment
- Pardons and Prosecutions
1. Prevention of Torture and CIDT
The South African Constitution and Bill of Rights prohibits the commission of torture and other cruel, inhuman and degrading treatment. South Africa has ratified the Convention against Torture (CAT) in 1998, and in 2006, signed the Optional Protocol to the Convention. South Africa is also party to the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island Guidelines). Yet, despite this, South Africa has yet to operationalise CAT by introducing domestic legislation to make torture a criminal offence, and putting in place other mechanisms to prevent torture. A third draft Bill, the Combating of Torture Bill, was made available for comment in July 2008 (the first version having been drafted in 2003), and several organisations, including CSVR are taking the opportunity to make inputs with regards to strengthening the currently weakly drafted legislation.
Torture and ill-treatment are ongoing concerns in South Africa in a number of different contexts:
- In prisons: South Africa has the largest prisoner population in Africa, and at 163,294 prisoners in June 2008, it operates at 143% capacity. Although this represents the national situation, some prisons are severely overcrowded, such as Umtata medium which is 343% over capacity. Due to the implementation of minimum sentencing legislation since 1997 and the increase in magistrate’s courts jurisdictions, the numbers of prisoners serving long term sentences has increased dramatically, with the number serving life sentences having increased from 518 in 1996 to 7574 in 2007 (Judicial Inspectorate, 2008). Due to overcrowding, and poor facilities in many institutions, conditions are not in compliance with human rights norms and standards.
- Sexual and physical violence in prisons is widespread, and deaths in prison due to unnatural causes has increased to 80, although deaths due to natural causes has declined slightly (JIOP, 2008:26).
- Although the Judicial Inspectorate of Correctional Centres, and the Independent Correctional Centre Visitors conduct regular oversight visits, conditions and treatment of prisoners remain an ongoing concern.
- The Special Rapporteur on Prisons last visited South Africa in 2004, and some of the issues raised have still not improved. For example, the recommendation that staff salaries be increased to attract and retain staff has not improved, and the DCS is currently facing a staff 11% vacancy rate, which is particularly severe in the skilled professions, such as among psychologists, social workers and educators (DCS 2008:151).
- Torture and ill-treatment by police: CSVR conducted a study on torture as presented through the media in 2006 (CSVR, 2008 (forthcoming)) which indicated the most commonly reported forms of torture and ill-treatment is that which occurs at the hands of the police. This occurs during interrogation, arrest, crowd control, and during search and seizure and ‘special operations’. There also appears to be a substantial amount of violence and ill-treatment occurring between police colleagues. The SAPS is the only state institution to have approved a policy on the prevention of torture and ill-treatment in 1997, but practice remains largely unchanged. The Independent Complaints Directorate (ICD) conducts investigations into deaths in police custody/action, and may also investigate complaints by the police and use of police force. However, there is no statutory body which conducts regular oversight visits of police cells, where much of the abuse occurs.
- Detention of migrants and foreigners: Undocumented migrants are arrested and detained in two facilities in South Africa: at Lindela in Johannesburg and Musina near the Zimbabwean border.
- In its consideration of the South African report submitted to the UN Committee Against Torture in December 2006, the Committee recommended that South Africa should take all measures to prevent and combat ill-treatment of non-citizens detained in repatriation centers, provide non-citizens with adequate information about their rights, and accelerate its measures to reduce the backlog of asylum applications. It also recommended prompt, thorough and independent investigation of all allegations of ill-treatment and the establishment of an effective monitoring mechanism for the centres (CAT, 2006: para 16).
- Concerns continue to be raised regarding illegal and prolonged detention, torture and ill-treatment at both facilities, but in particular at Musina where detainees are held in a temporarily converted warehouse with no toilet facilities at night (Lawyers for Human Rights, 28/10/08). Although the South African Commission for Human Rights does have access to these facilities, they seldom do conduct visits, and no other regular system of oversight exists. Access by NGO’s and other interested parties is frequently denied.
As indicated above, it has been four years since the last visit of the Special Rapporteur on prisons and detention, and this visit was partially incomplete due to an illness of Ms Vira Chirwa. A follow up special mission to South Africa would be appropriate, particularly to investigate the treatment of people in police detention and the detention of undocumented and documented foreigners.
2. Pardons and Prosecutions
Since the provision of amnesty for human rights abuses under the Truth and Reconciliation Commission which concluded in 2001, the South African government has shown great reluctance to prosecute perpetrators of abuses of the apartheid era. While only pursuing prosecutions in four cases, it has instituted two further provisions that promote impunity. The new prosecutions policy announced in 2005 provides for very broad scope to forgo prosecutions without any provision for public and victim accountability. Furthermore, a pardons process instituted in 2008 provides for a process of presidential pardons for political cases while excluding victim participation in the process. Civil society has challenged the constitutionality of both these new policies since they do ignore victims’ rights to justice.
Compiled by:
Amanda Dissel
Manager, Criminal Justice Programme
Hugo van der Merwe
Manager, Transitional Justice Programme
References:
Committee against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. (2006) Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, 7 December 2006. 37th Session. CAT/C/ZAF/CO/1.
CSVR and MMP (2008 (forthcoming)) Torture in the News. Centre for the Study of Violence and Reconciliation and Media Monitoring Project. Johannesburg.
Department of Correctional Services (2008). Annual Report for the 2007/2008 Financial Year.
Judicial Inspectorate of Prisons (2008) Annual Report 2007/2008: Prisoners and Prisons.
“Police Officers Torture and Assault Detainees at Musina with Impunity”, Press Release, Lawyers for Human Rights. 28 October 2008, http://www.lhr.org.za/news/2008/police-officers-torture-and-assault-detainees-musina-with-impunity
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
