Stakeholder hearings on the prevalence of Torture in Correctional Centres

Meeting report

Torture in South African Correctional Centres: Stakeholder reports
South African Human Rights Commission (SAHRC) submission
Ms Judith Cohen, Parliamentary Officer, South African Human Rights Commission (SAHRC), noted that South Africa had been embarrassed at the international level by an incident of torture that occurred at St Albans Correctional Centre, involving then-inmate Mr Bradley McCallum. It had been a shocking incident, but it had to be borne in mind that torture occurred everywhere. South Africa was not unique. The question was what could be done to prevent it. McCallum had appeared before the Human Rights Commission at the United Nations (UN), having exhausted all domestic remedies without receiving redress.

South Africa’s failure to investigate McCallum’s complaints constituted a breach of Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), whilst Article 10 of the ICCPR provided that persons deprived of their liberty be treated humanely and with dignity. The UN Committee requested that South Africa provide information within 180 days about measures taken to give effect to the Committee’s views. The Department of Correctional Services (DCS) issued a joint media statement on 6 October 2011. However, the Committee had specifically requested that the government effectively publish the views of the Committee’s findings.

It was reported that on 17 July 2005, at St Albans Centre in Port Elizabeth, inmates had been made to strip naked and lie on the floor, each with their noses next to the anal cavity of the inmate in front of them. They were severely beaten. 20 female wardens walked over them and kicked them in the testicles. They were sprayed with water and hit with shock boards. Inmates were then made to lie in their own faeces and urine after losing control of bodily functions due to pain and shock. McCallum had been forced down in such a manner that his jaw was dislocated, and he lost teeth. He was barred from communicating with family and lawyers for a month, and was kept from medical care for two months. Inmates had treated their own wounds with ash and sand. A doctor refused to treat him. McCallum reported the incident to the police and the Judicial Inspectorate of Correctional Services (JICS), without effect. His counsel took the matter to the UN Human Relations Committee.

Ms Cohen said that South Africa had an obligation to prevent torture in terms of the Paris Principles, and it was a partner to the UN. The incident was an embarrassment to South Africa, especially since it was a country with a strong legal framework. There was potential to suppose that this incident was not isolated. The country did not have a good track record with regard to its reporting obligations at the international level. Reports to the UN Human Rights Committee had been outstanding since 2000.

Ms Cohen noted that the South African constitutional provisions were strong, but torture had not been criminalised. In the McCallum matter, the perpetrators could be charged only with assault, but not torture. South Africa had agreed to institute torture legislation. A Draft Bill on Torture had been sitting with the Department of Justice since 2003, and she urged that it must be brought to Parliament. This Portfolio Committee (PC) could assist with that. South Africa would be asked by the UN in May why torture had not been criminalised. There had to be mechanisms to prevent torture, and the State had to be vigilant. South Africa was included in the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and had signed it, but it had yet to be ratified, and the national preventative mechanisms set up. There had to be a system of regular visits to all places where people were deprived of their liberty. An individual complaints system would not suffice. The conditions under which people were kept also had to be observed. All staff had to know that torture was unacceptable. Imprisonment itself was the punishment, and torture should not be added to that.

Discussion
Mr V Magagula (ANC) noted that the Country had a good Constitution, which provided that torture was unacceptable. The Constitution even granted a right of privacy for prisoners, and this made it difficult to install surveillance cameras in cells, to protect inmates from abuse at night. There were conflicting rights. He remarked that the current Parliament had not refused to deal with the draft Bill on Torture, and this Portfolio Committee could certainly be approached to assist in getting this Bill through. South Africa was still a young democracy, and there was a learning and building process under way.

Ms Cohen responded that South Africa had a good human rights track record, but it was precisely that which placed pressure on the country, because it was highly regarded by the rest of Africa. OPCAT was a global forum at which people asked that South Africa lead by example, and show what could be done. There were high expectations. South Africa had also been involved in the drafting of OPCAT.

Mr J Selfe (DA) asked how the criminalisation of torture could be effected. There were problems of prosecution and oversight. Oversight mechanisms in prison all seemed to have failed. The McCallum incident had caused embarrassment. He wondered if Independent Correctional Centre Visitors (ICCVs) had been locked out during the incident. The Judicial Inspectorate and the Human Rights Commission had failed in this regard. The question was whether more oversight mechanisms were needed, or if the effectiveness of existing mechanisms had to be improved. Coordination of activities and sharing of experiences could improve oversight and make prisons transparent. He asked why there had been a failure to respond to calls from the UN. It might have been that admission could have consequences for the State, as it could be used in civil claims. There was a conflict between the capacity to be honest at the international level, and the need to limit the liability of the State.

Ms Cohen responded that the problem with the Judicial Inspectorate was that it only worked in a reactive way. There were no preventative visits. As to State liability, she noted that the legal fees for claims against the Department of Correctional Services (DCS) stood at just under R1 billion. There could be no impunity for torture. It would be more cost effective for the State if there were preventative mechanisms.

Mr Selfe was concerned that entities like the African Peer Review and the Robben Island Guidelines would provide volumes of guidelines, but no action. He asked about their current status.

Ms W Ngwenya (ANC) referred to the freedom and security of the person mentioned on page 10. Security of inmates was a challenge. Inmates killed or injured each other after lockdown at night. Surveillance cameras were needed in cells to enable wardens to check what was happening. Inmates died in assaults, and the guilty parties placed the card of someone they disliked next to the body. Cameras would assist in eradicating that. She asked what the Human Rights Commission’s view was on the matter.

The Chairperson added that the Portfolio Committee had adopted the stance that the prevention of torture and abuse superceded the right to privacy. Opposition had been expected, but thus far everyone had been in agreement. He agreed with Mr Selfe that there were sufficient policies, but that implementation was the problem. There had to be better surveillance.

Ms Cohen replied that the standard legal answer to the question of surveillance cameras in cells was that it depended on how it was done and where they were placed, and what degree of violation of privacy there would be. There were Constitutional limitations. She encouraged the Committee to consider these questions, noting that the Committee could work with state law advisers, and added ht that there were many academic experts who would be willing to provide input. The Portfolio Committee could be challenged, but it was worthwhile to proceed.

The Chairperson asked what was to be done. The Committee had most oversight power over the DCS. Training of officials had to be looked at. The question to be put to the DCS was why devices like electric shields were necessary. The DCS had to change its way of dealing with matters, and the Committee had to look at what could be done to minimise torture.

The Association for the Prevention of Torture (APT) submission
Ms Amanda Dissel, Delegate in South Africa, Association for Prevention of Torture, said, with reference to the McCallum case, that torture was not the same as assault. Many assaults were not even known to the authorities. The question was why people were scared to report. The Judicial Inspectorate for Correctional Services (JICS or Judicial Inspectorate) had to be informed when an inmate was segregated, but in many cases that had not been done. Torture was not criminalised in South Africa, but it could be prosecuted, even while the Torture Bill was not yet tabled. She pointed out the need for National Preventative Mechanisms (NPM), which would require reports from the DCS. In the United Kingdom the Ombudsman had to publish a report on every death in custody. The Judicial Inspectorate did not do that. There was a need for an external body like the Ombudsman. The state had to be held accountable. State responses had to be published, and perpetrators punished. If necessary, there had to be a system where individuals had to pay claims to victims.

Discussion
The Chairperson remarked that torture was not necessarily only committed by the state. He asked what the dividing line was between torture and abuse. If a gang leader decided that another prisoner was to be his “wife”, and raped him, he wondered if that amounted to torture. The solution would be to place the gang leader in a single cell. Solitary confinement was outlawed, but the question remained as to what to do with such people. In the gang hierarchy, nobody could touch a gang leader. It was simple to deal with officials, but after lockdown, rape occurred continually among inmates.

Mr Selfe likewise asked when an action would be classified as torture. He thought that inhumane living conditions and inmate on inmate violence could be seen as torture, as well as non-compliance with regulations regarding electric shock equipment.

Mr L Max (DA) asked about disciplinary measures against officials in the McCallum case.

Ms Ngwenya asked about the views of APT on CCTV surveillance in cells. She referred to the case of an inmate who claimed that his brother had been killed by DCS members, whereas the DCS insisted that he had been killed by inmates. No officials had been arrested.

Ms Dissel replied that it required skill and endurance to investigate such incidents. There would always be people who would not want to cooperate. There had to be a high-level commitment to preventative measures.

Mr Selfe remarked that South Africa had been committed to OPCAT since 1996, yet there had been no action. He asked about the discrepancy between ideals and action.

Mr Selfe noted that skills for oversight had to be developed. Ms Cindy Chikunga, who was also a qualified nurse, had accompanied the Committee on oversight, and it was possible to compile a better report of conditions.

The Chairperson remarked that although the High Court did oversight visits, there was a lack of ability to take corrective action. Their reports reached the PC. There had to be a tightening up of oversight.

Ms Dissel responded that more technical visitation was required. Judges lacked the necessary skills to make assessments on inmates and experts were needed.

Mr Mpho Mathabathe, Committee Researcher, Parliamentary Research Unit, said that there had not yet been a South African definition of what constituted torture. It differed from ordinary assault. However, it seemed that four conditions were required to prove torture; namely, that there had to be an element of suffering caused, the action had to be intentional; it had to happen with the consent of a public official, and there must be lack of action taken to alleviate suffering. Pain and suffering had to be the result of lawful action. Not just any assault or death could be classified as torture.

Ms Dissel replied that hitting someone once with a baton could not be regarded as torture. More serious assaults could be classified as torture, and less serious ones as ill-treatment. The UN advised that there should not be a distinction between torture and ill-treatment. Courts would henceforth have to define torture. Torture could assume the forms of actions or omissions. Failure to provide medical help could be classified as torture, as could failure to protect persons against sexual violence. CCTV surveillance of cells was therefore of relevance. The question was whether the definition of torture should be expanded to include non-state actors. Electronic surveillance of cells had to form part of a broader discussion of violence in correctional centres. In Johannesburg Medium A, there were 70 inmates to a cell. The question was if CCTV could see into such a situation. The underlying problem was lack of segregation of inmates and overcrowding. Violence was not disciplined. However, she pointed out that having CCTV was not the only option. It would not be effective if recorded material was not brought to the attention of the prison authority.

The Chairperson remarked that people would at least be more careful if they knew that they were being monitored by CCTV.

Mr Lukas Muntingh, Project Coordinator, Civil Society Prison Reform Initiative, said that there was no existing evidence that CCTV could guarantee the safety of prisoners. CCTV might be good for a suicide watch, but evidence suggested that prisoners would be safer if they were kept busy.

The Chairperson remarked that the realities of the South African situation had to be taken into account. Rehabilitation was not happening, due to overcrowding. Radical thinking was needed. Rehabilitation was simply not possible for a prisoner who knew that he was going to be raped that night. South Africa was 17 years into democracy, and the envelope had to be pushed.

Ms Carolyn Raphaely, Journalist, Wits Justice Project, asked if it would constitute torture when state officials were responsible for overcrowding.

The Chairperson opined that it was a function of the criminal justice system.

Ms Dissel replied that the UN Committee against Torture had raised the issue of overcrowding. There was a broad responsibility on the state to prevent overcrowding. On the other hand, if an official knew that someone was being raped, there was also individual responsibility on that official to prevent it.

Ms Cohen remarked that the DCS was at the end of the chain that led to overcrowding. Burdened systems and systems error had to be dealt with. There had to be a broader discussion on the subject.

Institute for Security Studies (ISS) submission
Mr Noel Stott, Researcher, Institute for Security Studies, told the Committee that although correctional officials sometimes had to resort to using equipment such as batons, shields and riot control agents, such equipment had to be used with “reasonable force”. The use of electric shock equipment posed a problem. This could be, and had in the past, been used as an instrument of torture. Electric shock shields had been used in the McCallum incident. He recommended that the use of electronically activated high security transport stun belts, and stun shields and stun batons/guns should be prohibited in South Africa, and that the use of chains and leg irons be prohibited in correctional centres.

Discussion
Mr Max asked what would replace the gadgets to be banned. There were dangerous prisoners, and there had to be some method of restraining them.

Mr Selfe likewise asked how escape artists could be prevented from escaping.

The Chairperson added that overcrowding had to be taken into account. There was a high inmate to official rate. If one warden had to take three inmates to Baragwanath hospital, there had to be the means to restrain them, if necessary. It seemed to him that banning of electronic shock equipment was practically possible, but not the banning of leg irons.

Mr Stott agreed that electronic belts were not really necessary. He added that it was also not necessary for shields and batons to be electrified. There were alternatives to leg chains.

Civil Society Prison Reform Initiative (CSPRI) submission
Mr Lukas Muntingh, Project Coordinator, Civil Society Prison Reform Initiative, said that the state could not excuse itself from the obligations to address torture that were imposed by its ratification of the United Nations Convention against Torture (UNCAT) in 1998.

Reports on lethal force used by officials showed that deaths resulted from aggravated assault inflicted by officials as punishment or retaliation. It was concluded that many officials regarded themselves as above the law. Another disturbing fact was that assaults were committed by groups of officials on single inmates.

UNCAT defined torture as any act that caused pain and suffering intentionally inflicted, committed by or with the consent of a public official. However, UNCAT did not provide a definition for cruel, inhuman or degrading treatment (CIDT). There was, however, an obligation on state parties to prevent both torture and CIDT. Personnel working with people deprived of their liberty had to be properly trained on a continuous basis. Currently the South African Police Service (SAPS) was the only government department that had a policy on the prevention of torture. There had to be clearer guidelines for prompt and impartial investigation into acts of torture believed to have been committed.

Mr Muntingh submitted that in order to comply with Article 10 of the UNCAT, the DCS had to amend its training programmes to include education on the prohibition of torture. The DCS had to report deaths in custody and segregation of prisoners to the Judicial Inspectorate for Correctional Services (JICS). The mandate of the JICS had to be extended to include investigative powers. It was recommended that the Portfolio Committee call on the DCS to report on progress made with investigation and prosecution of alleged perpetrators of incidents of torture.

Discussion
Mr Selfe noted that the briefing noted that an omission to act could be included in the definition of torture. He also noted that the definition drafted in the Torture Bill emphasised intent. The question was whether that draft definition was sufficient. It had been recommended that the Judicial Inspectorate be granted powers of investigation, but here he raised the question if this body had sufficient capacity.

Mr Muntingh responded that torture could not happen by accident. It was necessary also to include carelessness in a definition. He suggested that the Judicial Inspectorate should be asked what it needed to be empowered for investigation. That might include forensic skills.

Mr Cwele asked how “necessary force” was determined.

Mr Muntingh replied that necessary force was the amount of force required to stabilise a situation. It was defined in the legislation.

The Chairperson referred to powers of investigation for the Judicial Inspectorate, and wondered why this would be needed if the SAPS already had investigative powers. He asked if it would be a solution to improve police powers of investigation.

Mr Muntingh replied that the police had a bad track record when it came to investigations in prison. They had no legitimacy in the correctional service environment, and were easily suspected of being in collusion with officials.

The Chairperson said that a lack of effective monitoring could contribute to a lack of successful convictions. What was missing was education. Information was power. Inmates had to know their rights with regard to torture. At present, inmates did not even know their rights when on parole. Inmates had to be empowered to be their own guardians.

Mr Muntingh agreed that prisoners had to be briefed on their rights concerning torture.

Ms Venessa Padayachee, National Manager, National Institute for Crime Prevention and Reintegration of Offenders, noted that the SAPS could not be part of an independent oversight mechanism. There had to be separate deliberations about an independent body that could move oversight from being merely reactive to preventative. A clear definition of torture was needed. The question was whether overcrowding in itself constituted torture. She asked about the possibility of cooperation between the Judicial Inspectorate and the SAHRC. The root causes had to be addressed, although in this regard she pointed out that OPCAT did not say what the root causes were. The problem was that although a human rights culture was enshrined in the Constitution, it was not “lived” in practice in South Africa. There had to be professionalisation of the DCS. She agreed with Mr Muntingh that rehabilitation was the best safeguard against torture. Rehabilitation needs must also be considered.

The Chairperson concluded that the Committee would need to engage further with the DCS about torture. Torture legislation had to be prioritised. An education campaign was required. He agreed with Ms Padayachee about cooperation between the Judicial Inspectorate and the Human Rights Commission, but the Portfolio Committee and the Judiciary also had to be part of the process. There was a need to establish what would be required, from a preventative and investigative point of view. Oversight had to be independent. The use of electronic shock devices had to be reviewed.

The meeting was adjourned.