Prevention and Combating of Torture of Persons Bill [B21-2012]: public hearings

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Justice and Correctional Services

03 September 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development held public hearings on the Prevention and Combating of Torture of Persons Bill [B21-2012]. The first submission was from the Southern African Catholic Bishops’ Conference who were of the view that the definition of torture in the Bill had to be aligned with the one in the United Nations Convention Against Torture. The Southern African Catholic Bishops’ Conference was of the view that clause 4(3)(b) equated the most menial foot soldier with the person in charge of an operation of systematic torture. The moral blameworthiness of a leader who ordered that acts of torture should be committed was much higher than that of someone who was forced to commit torture particularly those who almost had no choice.  The joint submission from the Woman’s Legal Centre, Sex Workers Education & Advocacy Taskforce, Sisonke advocated for the prohibition of cruel and inhuman treatment of sex workers. Lawyers for Human Rights submitted that the definition of torture in the Bill should be made applicable to all persons just like the definition found in the Convention. They also provided that the clauses on offences and penalties should apply equally between state officials and non-state persons and that he following wording should be inserted in clause 6(1)(b) ‘foreigner or any other persons who are within the territory of the state’. In terms of jurisdiction, the only requirement should be that a perpetrator be present on SA soil regardless of where they have committed their acts of torture. Lawyers for Human Rights provided two cases as precedent for their assertion that the Bill should make provision for extra-territorial jurisdiction, these were the Minister of Homa Affairs v Emmanuel Tsebe and the S v Mthembu cases.

Civil Society Prison Reform Initiative was of the view that the definition used in the Convention for torture should also be used in the Bill. They pointed out that in terms of sentencing the Bill only listed factors for consideration and was not clear how courts should use this. International jurisprudence emphasised the prohibition of torture as a peremptory norm. The phrasing in the Convention as well as the Robin Island Guidelines emphasise that the punishment must fit the gravity of the crime. It was proposed that a non-custodial sentence would not be appropriate and in terms of the sentencing norms and standards of SA an appropriate sentence should be specified in the Bill. Civil Society Prison Reform Initiative proposed that if a person has been accused of committing torture and there was a prima facie case that torture has been committed then he/she should be removed from their place of work and placed on suspension. The Centre for Legal Studies said to the Committee that in terms of the Southern African Development Community Protocol under Article 4(f); if there was a chance of torture, then this was a mandatory ground for refusal for extradition under the protocol. In terms of universal jurisdiction, states were obliged to arrest an individual. There did not have to be a link because the prohibition against torture was seen as an obligation ergo omnes or ius cogens norms. They submitted that the definition of torture in the Bill fell short of the definition contained in the Convention because it omitted the requirement committed at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. Even if one read clause 1 with clause 3 it still did not fulfil the requirement because it failed to provide the for the criminal liability of a public official who knew or should reasonably have known that  an act of torture had been committed. The Bill had to include some reference to other acts of ill treatment under clause 8. The offences and penalties section in the Bill was not clear on acts of torture committed at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. It had to be clear that the individual who committed torture as well as the public official who knew or should reasonably have known that an act of torture had been committed would face prosecution under the penalties contained in the Bill. Clause 4(4) should be extended to include domestic disturbance and strife. The Centre for Legal Studies further submitted that the Bill should apply retrospectively.

Members of the Committee pointed out to the Southern African Catholic Bishops’ Conference that that torture was an egregious form of human rights violation and asked if there was not a danger of devaluing the crime of torture if it was expanded and applied to other phenomena of society. The Committee suggested to Woman’s Legal Centre, Sex Workers Education & Advocacy Taskforce and Sisonke that the concerns they raised should be taken to the Police Portfolio Committee as they were the ones that performed oversight SAPS. The Committee requested from Lawyers for Human Rights for examples of countries that applied extra-territorial jurisdiction where the crime of torture was involved. The Committee also felt that the suggestion from Lawyers for Human Rights that the Bill should apply extra-territorially did not take cognisance of the  fact that South Africa was struggling to properly process cases within its own territory and also that there may not be cooperation from the corresponding state where a case was investigated. The Committee expressed horror at the suggestion from Civil Society Prison Reform Initiative that the common law principle of innocent until proven guilty should be overturned where the crime of torture was involved. The Committee also found it surprising that the organisation was advocating for minimum sentences in the Bill. The organisation pointed out that here was an omission of other acts of cruel, inhuman and degrading punishment in the Bill. The Committee was surprised that the Centre for Legal Studies submitted that the Bill should apply retrospectively given that South African courts have said that this generally did not apply in domestic law.

 

 The Centre for Legal Studies said to the Committee that in terms of the Southern African Development Community Protocol under Article 4(f); if there was a chance of torture, then this was a mandatory ground for refusal for extradition under the protocol. In terms of universal jurisdiction, states were obliged to arrest an individual. There did not have to be a link because the prohibition against torture was seen as an obligation ergo omnes or ius cogens norms. They submitted that the definition of torture in the Bill fell short of the definition contained in the Convention because it omitted the requirement committed at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. Even if one read clause 1 with clause 3 it still did not fulfil the requirement because it failed to provide the for the criminal liability of a public official who knew or should reasonably have known that  an act of torture had been committed. The Bill had to include some reference to other acts of ill treatment under clause 8. The offences and penalties section in the Bill was not clear on acts of torture committed at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. It had to be clear that the individual who committed torture as well as the public official who knew or should reasonably have known that an act of torture had been committed would face prosecution under the penalties contained in the Bill. Clause 4(4) should be extended to include domestic disturbance and strife. The Centre for Legal Studies further submitted that the Bill should apply retrospectively. 

 

The Centre for Constitutional Rights suggested that discrimination under clause 1 should be included in the Bill. Other acts falling short of torture should be reflected in the objective of the Bill or under Clause 2(1)(a). The reference to ‘no exceptional circumstances whatsoever’ in terms of the Convention was not fully reflected in clause 4(4) of the Bill. This should also be included in the Bill. Clause 4(5) should be made a bit clearer as it was currently ambiguous. Clause 6(1)(c) had the words ‘lawfully present’ and this was problematic as it limited jurisdiction. The Extradition Act and Immigration Acts should be read together with the Bill. No legislation should limit the right of a complainant alleging torture. The Bill was silent on other acts of torture or inhumane treatment that fell short of torture and this was a concern. The Bill was also silent on forms of punishment for acts that fell short of the definition of torture. The rule of thumb in terms of international law was that treaties and conventions that were signed by member states were usually the bare minimum; such treaties did not limit member states from going beyond the provisions of a convention or treaty.

 

The South African Human Rights Commission in their submission highlighted the attitude of the international community regarding South Africa’s performance where torture was concerned. The Commission informed Members that South Africa had attracted a lot of attention for its failure to ratify the Convention. When South Africa presented its initial report to the Committee Against Torture one of the recommendations were that there should be a definition of torture that was fully consistent with Article 1 of the Convention. South Africa came under the spotlight at a peer review conference in 2008 and one of the recommendations made were to enact legislation that was in line with Article 1. When South Africa appeared before the United Nations in May of this year numerous recommendations were made to South Africa once more. It was pointed out that the definition of torture in the Bill did not conform with that found in the Convention. The Commission was concerned with what Parliament would do as part of its oversight function to ensure that victims had access to justice. It was suggested that Clause 5 should substitute ‘complainant’ with ‘victim’ so that there was a victim oriented perspective in the Bill. Victims would also include family members of a victim of torture. The words ‘harm or threaten or intimidate the victim’ should be inserted in Clause5(f). The words ‘and degree of serious physical harm’ should be inserted in clause 5(g).

Amnesty International highlighted to the Committee that the pattern in South Africa was beginning to fit the language used by the Committee Against Torture, this mean that the torture was systematic, habitual and widespread. Amnesty International advocated for the extension of the Bill beyond the criminalisation of the act of torture; the full extent of South Africa’s obligations under the Convention and the wide ranging commendable objectives of clause 2(1) that had to be implemented. Amnesty International supported the reparations aspect of the Bill and said that it should also be extended to families and dependents as well as those directly affected. It was suggested that the term ‘complainant’ should be replaced with ‘victim’ because many people in these situations were unable to raise a compliant because of a lack of legal assistance. It was further suggested that Clause 4(4) of the Bill did not fully reflect the extent of the absolute and non-derogable prohibition of torture prohibition of torture as set out in Article 2(2) of the Convention. There should be a positive legal duty on the state to promote awareness.

The South African No Torture Consortium made the following suggestions to the Committee for consideration: the Bill had to balance between dealing with perpetrators and affording reparation to victims; it had to ensure that torture did not occur on a systematic level as seen during the apartheid era and there had to be a victim sensitive complaints procedure. The Bill did not state clearly what structures and institutions were available where victims could lay their complaints. Article 7 should be expanded in the Bill. Victims should be eligible for psychosocial and psychological remedies. There were different models of rehabilitation. The Bill had to recognise the opportunity for restorative justice.

 

Members of the Committee pointed out to the Southern African Catholic Bishops’ Conference that that torture was an egregious form of human rights violation and asked if there was not a danger of devaluing the crime of torture if it was expanded and applied to other phenomena of society. The Committee suggested to Woman’s Legal Centre, Sex Workers Education & Advocacy Taskforce and Sisonke that the concerns they raised should be taken to the Police Portfolio Committee as they were the ones that performed oversight SAPS. The Committee requested from Lawyers for Human Rights for examples of countries that applied extra-territorial jurisdiction where the crime of torture was involved. The Committee also felt that the suggestion from Lawyers for Human Rights that the Bill should apply extra-territorially did not take cognisance of the  fact that South Africa was struggling to properly process cases within its own territory and also that there may not be cooperation from the corresponding state where a case was investigated. The Committee expressed horror at the suggestion from Civil Society Prison Reform Initiative that the common law principle of innocent until proven guilty should be overturned where the crime of torture was involved. The Committee also found it surprising that the organisation was advocating for minimum sentences in the Bill. The organisation pointed out that here was an omission of other acts of cruel, inhuman and degrading punishment in the Bill. The Committee was surprised that the Centre for Legal Studies submitted that the Bill should apply retrospectively given that South African courts have said that this generally did not apply in domestic law.

 

The Committee asked the Centre for Constitutional Rights if other acts of cruel, inhumane and degrading punishment were not criminalised already in terms of assault with intent to do grievous bodily harm. The Committee further posed the question that if one widened the ambit of the Bill would it not be diluted. A Member asked of the South African Human Rights Commission as to what degree the legislature would be required to provide for compensation for victims of torture given that there were high levels of crime in South Africa and thus other victims that would have to be considered as well. The Committee also pointed out to the South African Human Rights Commission that in a criminal case it would be the state that would lead the prosecution against an accused; it could not also be asking that compensation should be provided to the victim given that this would come from state coffers, this would be a clear conflict of interest. A Member asked that if South Africa was going to be required to prosecute a person suspected of torture, why it should pay compensation for acts of torture committed elsewhere.

Meeting report

Presentation: Southern African Catholic Bishops’ Conference
Adv Mike Pothier, Parliamentary Liaison Officer from the Southern African Catholic Bishops’ Conference (SACBC), said that the part that dealt with the perpetrator in the definition for torture had been separated. The United Nations (UN) Convention referred to pain and suffering inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Instead the Bill accommodated those who were not public officials themselves. This did not make sense, the Bill ended up stretching the definition of public official. If there was no particular reason for this, then the definition in the UN convention should be adopted. The phrasing of something that was merely incidental to the main sanction was a little too wide under Clause 3 and made it easy to excuse severe pain and suffering. Clause 4(3)(a) was favourable. However clause 4(3)(b) equated the most menial foot soldier with the person in charge of an operation of systematic torture. The moral blameworthiness of a leader who ordered that acts of torture should be committed was much higher than that of someone who was forced to commit torture particularly those who almost had no choice. National security was used all over the world as an excuse to commit all forms of egregious violence and it should be ruled out as a justification for torture, therefore it should be added in Clause 4(4). Clause 8 was important because a huge number of public officials in the law and order sectors had a vague understanding of what constituted torture. Once the Bill became law most would not innately understand that a little step out of line during an interrogation would constitute torture according to the definition in the Bill. Strong parliamentary oversight would be required for this.

Discussion
Prof G Ndabandaba (ANC) asked if there was a distinction made between an offender and a perpetrator in the definition of torture in the view of the presenter.

Mr J Jeffery (ANC) said that in the definition for torture the SACBC wanted the Committee to follow the UN Convention but improve on it where pain and suffering was concerned.

Ms M Smuts (DA) agreed with Mr Jeffery and asked why should there be an insertion of ‘only’ in the proviso under clause 3?

Ms D Schäfer (DA) said that surely torture did not happen at the spur of the moment; it was usually prolonged and happened over a period.

Adv Pothier said that the definition in the Bill for torture was wide enough; who the victim was, was immaterial. If the Convention happened to fall short of domestic law then there was nothing that prevented the Committee from improving on it. There was no requirement that the Convention had to be slavishly followed. The words ‘incidental to’ did not sit well under clause 3. If the idea of unavoidability was incorporated in clause 3 then it would not limit authorities from carrying out their duties however they would have to show that the pain and suffering caused was indeed unavoidable. The Convention did not apply to private citizens committing torture perhaps because it was in their nature to bind states and not citizens. Private citizens who carried out acts of torture as defined in the Bill would still be punished under criminal law or other Acts.

Ms Smuts said that torture was an egregious form of human rights violation, was there not a danger of devaluing the crime of torture if it was expanded and applied to other phenomena of society.

Adv Pothier replied that yes the danger existed; the question would be how one would define torture so as to prevent every physical assault, causing of pain or suffering by every public servant from falling under the definition of torture whilst at the same time providing a definition that zeroes in on the crime of torture itself. The wording of the Convention was very wide and there were many actions currently committed by civil servants that would fall foul of the definition. Prosecutors would make the decision whether to charge somebody under the provisions of the Bill or the common law and each case would be decided on its own merits.

Mr S Swart (ACDP) said that in clause 1(c) the implication was that attempted torture was the equivalent of actual torture whereas under common law the attempt to commit a crime and the actual commission of a crime were two different things.

Presentation: Woman’s Legal Centre, Sex Workers Education & Advocacy Taskforce, Sisonke
Ms Stacey-Leigh Manoek, Attorney from the Woman’s Legal Centre (WLC) said the organisation found that one of the human rights violations that sex workers suffered under, at hands of the South African Police Services (SAPS) was torture as well as inhumane, cruel and degrading treatment. Sex workers were a marginalised group and should be protected from torture regardless of the illegal nature of their work. Sex workers have reported that they suffered severe mental and physical abuse at the hands of SAPS members. Sex workers have also reported that they were physically assaulted by the police. In the aggravating factors of the Bill, the following words should be inserted ‘Whether the complainant suffered mental or physical harm relating to the cumulative effect of repeated harassment or sexual coercion’. This was because sex workers were regularly harassed by police. Many sex workers have reported being denied medical treatment by police officers after being tortured when under police detention. It should be included in the Bill that cruel and inhuman treatment of sex workers should be prohibited.

Discussion
Mr Jeffery said that he was sympathetic to the concerns raised relating to the illegal treatment of sex workers. However the Bill was legislation that adopted the Convention against torture and assimilating it with domestic law. Bringing in sex workers would give the Bill a completely different perspective. All the issues raised were already crimes and the problem was monitoring.

Ms Manoek said that the organisation had used what it witnessed happening to sex workers for purposes of a submission in the Bill to highlight that what sex workers went through continuously could be viewed as torture.

Ms Schäfer said that harassment did not constitute torture and agreed with Mr Jeffery. All detainees were subject to the conditions in cells not just sex workers.

Ms Manoek said that when the police committed these acts against sex workers they acted with impunity and removed all forms of identification so it was difficult to bring them to book.

Ms C Pilane-Makaje (ANC) said that cruel, inhumane and degrading treatment had to be a punishable offence.

Mr Jeffery suggested that the concerns should be taken to the Police Portfolio Committee as they were the ones that performed oversight over the South African Police Services (SAPS).

Mr Swart agreed.
Presentation: Lawyers for Human Rights
Mr Lesirela Letsebe, Attorney at Lawyer for Human Rights (LHR), said that South Africa’s (SA) colonial and apartheid history must not be forgotten. It was the torture of Steve Biko that provided the impetus for the drafting of the convention against torture. The fact that SA was a constitutional democracy was not a guarantee that there would be no torture or cruel, inhumane or degrading punishment. The definition of torture that was defined in the Bill departed from the definition outlined in the Convention. The definition of torture in the Bill should be made applicable to all persons just like the definition found in the Convention. The clauses on offences and penalties should apply equally between state officials and non-state persons. Section 6 was problematic. There were two recent judgments on extra territorial jurisdiction that had been recently delivered that should be considered and incorporated in the Bill. The following wording should be inserted in clause 6(1)(b) ‘foreigner or any other persons who are within the territory of the state’. In terms of jurisdiction, the only requirement should be that a perpetrator be present on SA soil regardless of where they have committed their acts of torture. The prosecution of such a person should be endorsed by the National Director of Public Prosecutions (NDPP). The Bill did not expressly acknowledge extraditions. The Bill did not provide for an anticipated arrival of person accused of torture. The Bill had to incorporate the requirement for the extradition of suspects. If happens to be an extradition request, SA authorities should either accept or undertake to make some sort of attempt within a defined time period. Where a prosecution was not possible the state had to issue a nolle prosequi certificate to allow for private prosecutions. There should also be an inclusion of a ground of anticipated presence of a suspect within SA territory as described in Section 6 to found jurisdiction and begin the process upon his or her arrival.

In the Minister of Homa Affairs v Emmanuel Tsebe case the Constitutional Court (CC) court held that SA may not send a person back to a country if that country had not given the requisite assurance that an individual would not face the death penalty. In the interests of fugitives evading punishment for committing serious crimes, the court recommended the passing of legislation to give SA court’s jurisdiction to try certain specified offences despite the fact that they were committed outside SA. In the Southern African Litigation Centre and Another vs National Director of Public Prosecutions and others the High Court held that the SA authorities had a duty to investigate Zimbabwean officials implicated in acts of torture in that country.

Discussion
Mr Swart referred to page 6 and said that the Southern African Litigation Centre case was a welcome and it would be interesting to know the outcome of the appeal and whether the NDPP had complied with the court order. The LHR had submitted that the definition of torture was wider in the Convention than in the Bill in that it included private persons. The correct reading would seem to be the opposite of that assertion in other words the Convention only mentioned public officials.

Mr Jeffery agreed with the point raised by Mr Swart on the definition of torture in the Convention. To include everybody in the definition would be going way beyond the Convention. Where in the Convention was it stated that there would be extra-territorial jurisdiction? Was the LHR suggesting that if for example Mr George W Bush arrived in SA he should be arrested and tried for torture committed in Iraq by American forces? To try somebody in SA would mean resources had to be spent and also there would have to be cooperation from the authorities of the other state. The country’s justice system had problems processing crimes committed in SA, should there really be an obligation on the National Prosecuting Authority (NPA) to start prosecuting somebody who committed torture elsewhere just because they happened to be in SA? Which other countries had taken this stance and extended their jurisdiction?

Mr Letsebe said that just because extra territorial jurisdiction for the crime of torture had not been applied elsewhere or that it may not be politically correct did not legally preclude such a stance being taken or for SA to set a standard.

Mr Jeffery asked if this would apply in a country that battled to process cases within its own jurisdiction.

Mr Letsebe said that this would not diminish the nature of the offence created, torture would still remain a crime that was committed elsewhere and SA would have an international obligation to prosecute.

Mr Jeffery asked where such an obligation existed.

Ms Smuts said that this existed under the Rome Statute.

Mr Jeffery said that the Rome Statute was different.

Mr Letsebe maintained that just because this had not happened before SA should not be precluded from setting a good example on that basis.

Submission: Civil Society Prison Reform Initiative
Mr Lukas Muntingh, Director at Civil Society Prison Reform Initiative (CSPRI), said that the thrust of the CSRI’s submission was that the Bill had to domesticate the Convention in the most comprehensive manner. It was important to note that the Bill would have implications for the Department of Justice and Constitutional Development (DoJ&CD), law enforcement authorities as well agencies that dealt with person deprived of their liberty such as drug rehabilitation centres. The Convention placed four broad duties on SA. The first was to criminalise torture and combat and impunity, the second was to prevent torture, the third was to provide redress and rehabilitation and the fourth was a duty to report to the Committee Against Torture (CAT) on measures taken to give effect to obligations under the Convention. The submission dealt with these four broad duties. On page 3, paragraph 8 dealt with the duty to combat impunity. CSPRI was of the view that the definition used in the Convention for torture should be used. The definition in the Bill omitted the words ‘with the consent or acquiescence of a public official...or other person acting in that capacity’. The Bill also emitted the phrase ‘for such purposes as’ and then it presented a closed list of intentions or purposes for which torture could be used. The phrasing in Article 1 of the Convention should be used. In terms of sentencing the Bill only listed factors for consideration and it was not clear how courts should use this. International jurisprudence emphasised the prohibition of torture as a peremptory norm. The phrasing in the Convention as well as the Robin Island Guidelines emphasise that the punishment must fit the gravity of the crime.

It was proposed that a non-custodial sentence would not be appropriate and in terms of the sentencing norms and standards of SA an appropriate sentence should be specified in the Bill. The CAT has noted that a custodial sentence of 16-20 years was appropriate. The Bill did not provide a clause that dealt with evidence obtained via torture; domestic case law has already dealt with this matter in S vs Mthembu. There should be a clause in the Bill that provided for this. Paragraph 32 of the submission recommended that the Bill should include a two-stage inquiry in a case where torture has been alleged. If a person alleges torture their testimony must be assessed, if a prima facie case was established then the state had to use independent evidence to show that torture did not occur. The most difficult area was how to provide redress, the submission dealt at length with this. Included in the submission were the Van Boven and Bassiouni principles which included restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. The Bill should also include a definition of what was a victim of torture. The duty to prevent torture should include not just the legislature but it should also exist at operational level. Witnesses and complainants should be protected from retaliation and intimidation. If a person has been accused of committing torture and there was a prima facie case that torture has been committed then he/she should be removed from their place of work and placed on suspension.

Discussion
Mr Jeffery said that CSPRI had said that the definition in the Bill had omitted the inclusion of torture where a public official had acquiesced or consented however this was in the Bill under the definition of public official. Was the CSPRI really asking for minimum sentences especially given what this organisation does? Evidence obtained as a result of torture was already covered in SA law, should there really be an insertion of this in the Bill. Innocent until proven guilty was a fundamental tenant of SA law; it was alarming that CSPRI was advocating that it should be disregarded where torture was concerned. It may be difficult to collect evidence but torture usually involved bodily injury and this may be easier to pick up in a medical report. The last sentence at paragraph 34 on page 11 was not clear because the state’s job was to prove that there was torture and the defence’s job was to prove that there was no torture. Why should the state have the responsibility to get an expert to say that there wasn’t torture? The proposals were alarming.

Mr Swart said that he was alarmed by the evidentry part of the submission, why should this crime be any different from others in terms of the burden of proof requirement? In S v Mthembu was it not that such evidence would be inadmissible. It seemed that there was a test that was set out in the Supreme Court of Appeal (SCA).

Ms Smuts asked why the point was made for non-custodial sentences when this was not in the Bill.

Ms Schäfer said that she wanted to reiterate her horror to subvert the common law principle of innocent until proven guilty. What was the view of CSPRI that if somebody was given orders from above they should be less guilty than the one who issued them in the first place, would this be a mitigating factor for a penalty?

Mr Muntingh replied that it would not hurt to use the definition of torture in Article 1 of the Convention in the Bill. The Bill did not exclude a suspended prison for instance; therefore the legislature should provide guidance to the courts. The crime of torture could be added to the Schedule of the Criminal Procedure Act.

Mr Jeffery asked if the CSPRI was asking for minimum sentences.

Mr Muntingh replied no, the request was that the punishment should fit the crime. If somebody was taken under police custody and left with injuries that they did not have when they went in, there had to be a plausible explanation for this view was expressed by the European Court (EC). It was the duty of the state to protect an individual. This was the approach of the individual. The Mthembu case dealt with a witness that was tortured and it was his admissions under torture that lead to discovery of evidence that implicated Mthembu. Mthembu’s was successful on this basis. Therefore the Bill would be strengthened if there was something on evidence obtained under torture. More information would be sought on the view that if somebody was given orders from above they should be less guilty than the one who issued them in the first place.

Ms Gwen Dereymaeker, Researcher at CSPRI, said that on the issue of extra territorial jurisdiction and the whether there were other countries that applied it. This was an obligation under the Convention Against Torture (CAT) inn Article 7.

Mr Jeffery said that Article 7 referred to Article 5 which in turn referred to persons on a boat, ship and nationals. Which countries do this?

Ms Dereymaeker said that Mr Habré was a Chadean dictator who had allegedly committed acts of torture in Chad. He fled to Senegal and victims of torture had tried to have him prosecuted but Senegal was reluctant. Belgium intervened and investigated the matter, sent an extradition party to Senegal who did not want to cooperate. The African Union (AU) then stepped in and wanted the dictator to be tried on African soil. Nothing materials of this until Belgium brought a case against Senegal at the International Criminal Court (ICJ). The ICJ ordered Senegal to either try or extradite Mr Habré; the legal foundation was the Convention against torture. Since then the AU had set up a special tribunal with African jurists and judges to try the matter on African soil. This was an example of acts of torture committed in Chad by Chadeans but the matter would be dealt with in Senegal.

Mr Jeffery asked which countries had this in their law.

Ms Dereymaekr replied Belgium and Senegal just incorporated it in their law.

Presentation: Centre for Applied Legal Studies
Ms Kathleen Hardy, Attorney at the Centre for Applied Legal Studies (CALS) said that in terms of the Southern African Development Community (SADC) Protocol under Article 4(f) if there was a chance of torture, then this was a mandatory ground for refusal for extradition under the protocol. In terms of universal jurisdiction, states were obliged to arrest an individual. There did not have to be a link because the prohibition against torture was seen as an obligation ergo omnes or ius cogens norms. The submission from CALS proposed that the definition of torture in the Bill fell short of the definition contained in the Convention because it omitted the requirement committed at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. Even if one read clause 1 with clause 3 it still did not fulfil the requirement because it failed to provide the for the criminal liability of a public official who knew or should reasonably have known that  an act of torture had been committed. State parties had to adopt effective measures to prevent authorities from consenting to or acquiescing in any acts of torture. Failure to do so amounted to a violation of the Convention. This provision extended a state’s obligations to the private sphere, so it should be interpreted to extend the state’s failure to protect individuals against acts of torture.

There was an omission of other acts of cruel, inhuman and degrading punishment in the Bill. These other acts should be criminalised and punished. The CAT had said that states had to prohibit, prevent and redress torture and other acts of ill treatment. The Bill had to include some reference to other acts of ill treatment under clause 8. The offences and penalties section in the Bill was not clear on acts of torture committed at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. It had to be clear that the individual who committed torture as well as the public official who knew or should reasonably have known that an act of torture had been committed would face prosecution under the penalties contained in the Bill. Clause 4(4) should be extended to include domestic disturbance and strife. The aggravating circumstances for sentencing were ambiguous and more guidance had to be afforded to the courts. CALS submitted that the Bill should apply retrospectively. There should be a provision for the duty to report especially given that SA was late with submitting its reports. There should be an explicit provision of the Bill on evidence obtained via acts of torture. A person could be convicted of a crime in terms of the general principles of law recognised by the community of nations. Section 35 of the Constitution provided for the right to not be tried for an act or omission that was not an offence under national or international law at the time that it was committed. Section 232 of our Constitution provides that customary international law s law in the Republic unless it was inconsistent with the Constitution or an Act of Parliament. Torture was an international crime; the prohibition against torture was customary international law. The Bill should have an explicit provision that it would apply from the date of ratification being 10 December 1998. The principle of legality only referred to where a new crime or a new offence was created; torture has always been a crime.

Discussion
The Chairperson asked if there was any precedent for the retrospective application of a new law.

Ms Hardy replied that there was some but not much.

The Chairperson asked how the legislature would get past the courts.

Ms Hardy replied that the Bill was not a new offence; this had been law under customary international law for many years. What was the point of Section 232 of the Constitution? Uganda not so long ago implemented their Rome Statute Act and there was a lot of talk about whether they would implement retrospectively and they failed to do so. That failure led to them getting into some trouble and difficulties in implementing the law on the ground.

Ms Schäfer said that if torture was not a crime then why had the NPA not conducted prosecutions in accordance with this and why was it said that it was not a crime in our domestic law? Was CALS not supporting the previous submission which it had endorsed on overturning the principle of innocent until proven guilty? Was CALS stating that the police could be held liable for not responding to cases that involved domestic violence?

Ms Pilane-Makaje said that the retrospective argument was plausible however in terms of application this would be difficult due to certain individuals being pardoned and granted amnesty.

The Chairperson asked if CALS was in favour of minimum sentences.

Ms Hardy said that CALS was happy that there were custodial sentences in the Bill. The CAT has said that where death occurs as a result of torture than it was of the view that a life sentence should be imposed. More information would be provided on the retrospective application of the Bill. Police should be charged as the Domestic Violence Act did not work, ill treatment at the very least could be used to charge the police.

The meeting paused for lunch.

 

Ms Hardy said that CALS was happy that there were custodial sentences in the Bill. The CAT has said that where death occurs as a result of torture than it was of the view that a life sentence should be imposed. More information would be provided on the retrospective application of the Bill. Police should be charged as the Domestic Violence Act did not work, ill treatment at the very least could be used to charge the police.

Presentation: Centre for Constitutional Rights
Mr Johan Kruger, Director at the Centre of Constitutional Rights (CRC) said that it was important to mention Section 12 of the Constitution insofar as torture was concerned. The Bill was long overdue and given the history of SA it was surprising that it has taken 14 years to have it on the statute book. It might be wise to include discrimination under clause 1 of the Bill. Other acts falling short of torture were not reflected in the objective of the Bill or under Clause 2(1)(a). The reference to ‘no exceptional circumstances whatsoever’ in terms of the Convention was not fully reflected in clause 4(4) of the Bill. This should also be included in the Bill. Clause 4(5) should be made a bit clearer as it was currently ambiguous. Clause 6(1)(c) had the words ‘lawfully present’ and this was problematic as it limited jurisdiction, this had to have been a drafting error.  Article 10(2) of the Convention placed a duty on governments to ensure that operational instructions and various directives were amended according to the Convention. Departmental directives and other operational procedures had to be amended so as to be aligned with the Bill. The Extradition Act and Immigration Acts should be read together with the Bill. No legislation should limit the right of a complainant alleging torture. It has been seen how in the United States (US) accused persons on allegations of terrorism have been prohibited from raising complaints regarding acts of torture committed against them because such activities were deemed to be trade craft and classified. The Bill should be clear that operational trade craft as well as operational security activities could never be used as justification to classify torture or other forms of inhumane treatment.  The Bill was silent on other acts of torture or inhumane treatment that fell short of torture and this was a concern. The Bill was also silent on forms of punishment for acts that fell short of the definition of torture. The rule of thumb in terms of international law was that treaties and conventions that were signed by member states were usually the bare minimum; such treaties did not limit member states from going beyond the provisions of a convention or treaty.

Discussion
Mr Jeffery asked what the CRC was proposing that the Committee do about other acts of cruel, inhumane and degrading punishment. Were other acts of cruel, inhumane and degrading punishment not criminalised already in terms of assault with intent to do grievous bodily harm?  If one widened the ambit of the Bill would it not be diluted? One could argue that corporal punishment in schools was cruel, inhumane and degrading punishment did this mean that teachers must now go to jail?

Ms Schäfer asked what Mr Kruger thought about the suggestion from CSPRI that the principle innocent until proven guilty should be done away with where acts of torture were concerned and also from the proposal from CALS that the Bill should apply retrospectively?

Mr Kruger replied that the Geneva and Hague Conventions were very clear on customary international law and issues that fell short of acts of torture. There was good guidance on specific activities that were deemed to be a crime in terms of international law. It was possible to narrow other acts of cruel, inhumane and degrading punishment to specific crimes under the Bill. There was international precedent for example trafficking, where if one committed one element of a crime then they were deemed to have committed the actual crime itself. The purpose of the Convention was to hold people responsible beyond those individuals who committed the act of torture.

Mr Jeffery said that not every element of trafficking was a crime for example labour trafficking was not a crime under the Combating and Prevention of Trafficking Bill. Mr Jeffery asked if it was the view of the presenter that corporal punishment which was cruel, inhumane and degrading punishment should be included in the Bill so that a teacher who administered it and the principal should be sent to jail. This was the implication of what the presenter was asking for.

Mr Kruger said that where such crimes were defined it had to be done within parameters set by Parliament, so it would not be open ended.  It was not advocated that it should not just be any other crime that constituted cruel, inhumane or degrading punishment that should be included but only those set within the parameters set by Parliament. The argument from CALS was a very good theoretical argument however there would be hesitation in advocating for such an approach within the ambit of constitutional law.  The same applied to the view that innocent until proven guilty should be done away with where acts of torture were concerned.

Ms Smuts said that the provision of the Constitution that provided for customary international law had the exception that it would only be part of SA law if it was consistent with the Constitution; surely Section 35 of the Constitution would exclude the retrospectivity argument made by CALS.

Mr Kruger agreed.

Presentation: South African Human Rights Commission
Ms Judith Cohan
, Head: Parliamentary Liaison, Legislation and Treaty Body Monitoring from the South African Human Rights Commission (SAHRC) said that SA had attracted a lot of attention for its failure to ratify the Convention. When SA presented its initial report to the CAT one of the recommendations were that there should be a definition of torture that was fully consistent with Article 1 of the Convention. SA came under the spotlight at a peer review conference in 2008 and one of the recommendations made were to enact legislation that was in line with Article 1. When SA appeared before the UN in May of this year numerous recommendations were made to SA once more. In September this year SA would be appearing before the UN again to indicate which of the recommendations it has implemented. At the regional level there have been repeated requests to state parties to the African Charter of which SA was a part, to pass legislation that criminalised torture. The definition of torture in the Bill did not conform with that found in the Convention. Why did SA want to be different and not have the same definition as that found in the Convention, surely it would assist courts if the two were aligned? It would be useful if the principle of non refoulument was stated upfront in the Bill.  It may be possible that the common law area of delict was sufficient to address the requirement for redress where persons have been tortured. One would have to ask where somebody has been tortured, what were their chances of getting to a lawyer and receiving compensation? This was an area of international law that was still developing therefore there might be a chance that SA might have to revisit this piece of legislation if it left redress to delictual claims only.

The Commission was concerned with what Parliament would do as part of its oversight function to ensure that victims had access to justice. Clause 5 could be tightened up for example ‘complainant’ could be changed to ‘victim’ so that there was a victim oriented perspective. Victims would also include family members of a victim of torture. The words ‘harm or threaten or intimidate the victim’ should be inserted in Clause5(f) because very often such acts may have a major psychological impact on a victim. The words ‘and degree of serious physical harm’ should be inserted in clause 5(g). There were sentencing guidelines in terms of international tribunals that SA courts could follow. The Commission did not support minimum sentences. 

Discussion
Mr Swart asked to what degree the legislature would be required to provide for compensation for victims of torture given that there were high levels of crime in SA? One may look at perhaps extending Section 300 of the Criminal Procedure Act.

Mr Jeffery said that one of the difficulties was that it would be the state paying for compensation due to the provisions of the definition. In addition in a criminal case it would be the state that was prosecuting an accused and it could not also be asking that compensation should be provided to the victim, this would be a clear conflict of interest. Could the Committee get a copy of the recommendations that have been received by SA? If one considered the definition of torture in the Convention, it was difficult to determine what the difference was between cruel, inhumane and degrading treatment. The definition was incredibly broad. A clearer definition of torture would be preferable however that would not be in line with the definition contained in the Article and this would not be a problem.  

Ms Smuts said that it was a laudable goal to provide full redress, rehabilitation, reparation and restitution to a victim, however it was sad that this has not been done for victims of the Truth and Reconciliation Commission (TRC). Once laws that had a transversal nature requiring departments to work together in terms of implementation then the time factor was usually a problem where implementation was concerned. From which countries did persons who sat on the CAT come from?

Ms Schäfer said that if SA was going to be required to prosecute a person suspected of torture, why should it pay compensation for acts of torture committed elsewhere?

The Chairperson said that he understood that compensation would apply to person tortured in SA.

Ms Cohan replied that there was a separation between the criminal and civil process. The torture would be for acts committed in SA. The difficulty with the compensation issue was that if delict was left to be the applicable area of law, yet international law continued to develop, would the scope of damages that could be claimed not be limited by this? Could one therefore have a situation where a victim ended up with less than what they would be entitled to internationally? Institutions such as Legal Aid South Africa (LASSA) should be enabled to assist victims for purposes of receiving compensation.

Ms Fadla Adams, Senior Researcher at the SAHRC said that there was a host of guidelines and international jurisprudence that provided clarity on what constituted acts of inhumane, cruel and degrading punishment. The challenge was that once this was defined there would be a closed list and one would have to look at each case on its own merits. Where public officials were concerned, it was the lack of training and raising awareness that was a problem. SA has so far received an unprecedented 13 recommendations from various state parties. The Commission was pleased that at least there was some development and progress on the Bill as it was quite embarrassing at an international level that SA kept receiving recommendations.   


Presentation: Amnesty International
Ms Mary Rayner, Researcher at Amnesty International (AI) said that the organisation remained concerned about the torture and ill treatment in SA since the advent of democracy in 1994.AI has documented torture in SA for three decades and there were concerns that SA’s pattern was beginning to fit the language used by the CAT and this mean that the torture in this country was systematic, habitual and widespread. It was hoped that the Bill would reverse this aspect. The AI supported the following: the extension of the Bill beyond the criminalisation of the act of torture; the full extent of SA’s obligations under the Convention and the wide ranging commendable objectives of clause 2(1) that had to be implemented. The AI was strongly in favour of the principle of non refoulument. The AI supported the reparations aspect of the Bill, this should also be extended to families and dependents as well as those directly affected. The definition for torture should include the words ‘the instigation or with the consent or acquiescence of public officials or other persons acting in an official capacity’. The term ‘complainant’ should be replaced with ‘victim’ because many people in these situations were unable to raise a compliant because of a lack of legal assistance. Clause 4(2) should also add that complicity in the act of torture was also an offence. Complicity in torture included the failure to intervene, to prevent or punish torture. Clause 4(4) of the Bill did not fully reflect the extent of the absolute and non-derogable prohibition of torture prohibition of torture as set out in Article 2(2) of the Convention. There should be a positive legal duty on the state to promote awareness. AI has found that there was a gap between the civil litigation remedy and the disciplinary action within SAPS that was carried out. The inspectorate of the police has become very dysfunctional. There was a problem that the very same police officers would remain in place. 

Discussion
Ms Schäfer said that the AI has correctly pointed out that the structures were there however they were not working properly; this could not be corrected by legislation however. The real issue was that if the penalties were not properly implemented by the structures that were responsible then there was a problem. Why did the AI want to extend the compensation to the victim’s family members?

Mr Jeffery asked for a report that AI has done on torture in SA. The quantum of proof in a civil case was much lighter in a civil case as opposed to a criminal case. Some kind of onus on the state could be imposed where: if claims were either lost or settled on matters relating to torture, there should be some sort of reporting mechanism to Parliament.  Parliament should monitor the disciplinary action taken on civil servants

Mr Swart added that vicarious liability was a major issue within the civil service. One found that the state would pay for compensation and in all likelihood the particular civil servant would get off scot free.
Ms Rayner said that the points raised by the Members were identified in AI’s monitoring of SA. SAPS may want to further consider the issue of damages paid out by the Minister of Police as opposed to holding members personally responsible. In the IPID Act there was a requirement that if one was a police officer and they witnessed or became aware of torture then they were responsible. In the AI’s experience police members who were aware either did not know about the IPID Act or if they were aware, they did not take up any complaints.  It was the international standards that held that family members were affected in some way and should also have access to compensation.

Presentation: South African No Torture Consortium
Ms Valdi Van Leeuen, Director at the South African No Torture Consortium (SANTOC) said that the organisation dealt with the redress and rehabilitation of persons who suffered from torture. The Bill has been presented to community members in provinces where the organisation had constituencies. The Bill was vague on the redress and not in line with the provisions of the Convention. One of the victims of torture and clients of the organisation was present, Mr Brian Mphahlele who was tortured by the special branch of the apartheid government. Brian was tortured in 1973 and was still receiving counselling. He had sought counselling and treatment in 1996. His story speaks to the complex process that victims faced.  Brian was here to warn that the scars received from torture were hard to heal. Dealing with a victim was complex, compensation was one thing and rehabilitation was another. Brian would then tell his story to the Committee.

Mr Brian Mphahlele said that he was a sentenced to five years imprisonment. In 1973 I was introduced to the Black People’s Convention and Mr Steve Biko was amongst them. I joined the liberation movement and dropped out of school because I felt that Bantu education was inferior. During the period of incarceration I was beaten, stripped naked, blindfolded and electrocuted until I wet myself. Captain Swartz then said to me that I should dry the carpet with my mouth and I did this.  As I was on the ground Captain Coetzee kicked me in the mouth and I was once again I was electrocuted. I was put in solitary confinement for a year.

Ms Van Leeuen asked how the torture has affected Mr Mphahlele.

Mr Mphahlele replied that not only his life was affected but that of his family as well.

Ms Van Leeuen asked what effects Mr Mphahlele still experienced.

Mr Mphahlele said that he found it hard to sleep; he was still very angry and experienced flashbacks. The effects were permanent.

Ms Van Leeuen said that the Bill had to balance between dealing with perpetrators and affording reparation to victims. The Bill also had to ensure that experiences such as those that Mr Mphahlele has undergone do not happen again. There had to be a victim sensitive complaints procedure in the Bill. The Bill did not state clearly what structures and institutions were available where victims could lay their complaints. Article 7 should be expanded in the Bill. Victims should be eligible for psychosocial and psychological remedies. There were different models of rehabilitation. The Bill had to recognise the opportunity for restorative justice.

Ms Nomfundo Mogapi, Programme Manager from the Centre for the Study of Violence and Reconciliation said that the reason why Mr Mphahlele was brought to the Committee to share his story was for there to be input from a victim and the Committee to take cognisance of those affected by torture. There has been a lot of focus on compensation but not redress. The Philippines and Uganda have incorporated redress in their legislations.

Discussion
Ms Schäfer asked if SANTOC worked with recent victims.

Ms Mogapi said that the organisation worked with apartheid victims, refugees and with those tortured by the police.

Ms Schäfer said that it would be useful to have the details of current victims who had acts of torture committed against them so that follow ups could be made with the Portfolio Committee on police.

Mr Swart thanked Mr Mphahlele for sharing his experiences and said that the Committee should seriously consider looking at the expansion of Article 7.


 Ms Pilane-Makaje said that the Committee was aware that apartheid was declared as a crime against humanity by the UN. However it could be argued that anybody that was black in SA was a victim of apartheid.

Mr J Skosana (ANC) said that the work done by SANTOC was laudable.

The Chairperson thanked Members and adjourned the meeting.


 


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