The nearly 20-year-old democracy has yet to make torture a criminal offense
Almost 200 affidavits have been taken from arrested miners alleging they were tortured by police in detention facilities in Rustenberg, the nearest large town to the mines at the centre of recent unrest in South Africa. Yet it is a sad truth that these 200 alleged cases of torture do not represent an anomaly in modern South Africa.
The most recent report [PDF] from the Independent Police Investigative Directorate (IPID), the department tasked with the oversight over and investigations of South African police authorities, describes 797 new complaints received regarding deaths in custody over the most recent year. This is in addition to 2,493 complaints of criminal offense and 2,493 misconduct cases against the police services, including both the national South African Police Service (SAPS) and the Municipal Police Services (MPS).
These are the only readily available statistics that give some indication on the incidence of torture in South Africa — which is very often, according to Professor Peter Jordi of the Wits Law School. The reason better statistics have not been accumulated is that torture is not criminalised in South Africa’s domestic law. It is “difficult to work out the prevalence [of torture] because it is not a crime on its own,” Monica Bandeira, of the the Johannesburg-based Centre for the Study of Violence and Reconciliation (CSVR) and IRCT member, told Times Live. Rather, she said, torture cases are often defined as assault or causing grievous bodily harm.
A key problem in this re-defining of torture is that these charges do not take into account the particularly egregious nature of torture and the rights its victims have, such as full rehabilitation and compensation. However, the UN Convention Against Torture (UNCAT), which both defines torture and describes the state’s obligations in regards to allegations of torture, dictates that states shall criminalise torture in their domestic law; yet while South Africa ratified UNCAT in 1998, it has yet to make torture a criminal offense.
However, just next month the Prevention and Combating of Torture of Persons Bill [PDF], which will put the UN provisions into South African law, will come before Parliament. There have been both praises and criticisms of the bill — praise that it echoes the UNCAT in defining the perpetrators of torture as any official acting in their capacity as a state agent, which shall include teachers and state elderly care home workers; criticism that the bill also does not direct a specific agency to receive and investigate complaints of torture. Others point out that, as a result of the bill, a massive public education plan needs to be implemented to ensure people understand their rights.
Despite its shortcomings, which have been laid bare for all to see thanks to South Africa’s robust community of civil society actors, the bill should pass to ensure that, at a base minimum, torture becomes a criminal offense. Yet the implementation of the bill needs to take all valid criticisms into consideration — an independent investigative agency would need to be established and public education campaigns would be needed to ensure that people understand their rights if they ever come into contact with state authorities that abuse or torture.