Prevention and Combating of Torture of Persons Bill: Department of Justice, Centre for Study of Violence and Reconciliation, Trauma Centre & SANToC briefings

Meeting report

Prevention and Combating of Torture of Persons Bill [B21—2012]: Department of Justice and Constitutional Development briefing
Adv Alta Van der Walt, State Law Advisor, Department of Justice and Constitutional Development, presented the Prevention and Combating of Torture Bill (the Bill). She gave a short background (see attached document) and a breakdown of the arrangement of the clauses in the Bill.

Adv van der Walt noted that section 12(1)(d) of the Constitution of the Republic of South Africa guaranteed “the right to freedom and security of the person, which includes the right not to be tortured in any way”. South Africa, in the past, had a disgraceful history of human rights abuses against its citizens and inhabitants. However, as the new democracy became an integral and accepted member of the international community, it committed itself to preventing and combating torture of persons by apprehending those who carried out this crime, in compliance with its obligations in international law, since it had acceded to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the UN Convention), and must therefore take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

When South Africa ratified the Convention on 10 December 1998, it was then obliged to ensure that  the crime of torture was incorporated into its national law as a crime, to confer jurisdiction on the State to try citizens accused of this crime. The aim of the Bill was therefore to incorporate the Convention into the national law, to comply with the requirements of the Convention and give effect to Chapter 2 section 12(1)(d) of the Constitution.

When the Department of Justice and Constitutional Development (the Department) prepared drafts for the new legislation, it had consulted the legislation from various jurisdictions such as Australia, Ireland, Canada, New Zealand, United Kingdom, and other international instruments. In 2003, the first draft Bill was prepared and presented to various role players for comments. A second draft Bill was prepared in 2005, but was not considered at the time, due to other competing priorities in the Committees’ legislative programmes. The Department, however, continued to work on it and interact with role players and interested parties for their comments, all of which were incorporated into the latest draft.

That draft was presented to the Portfolio Committee on Justice and Constitutional Development in May 2012. Written comments were invited by the Committee, and on 4 September 2012 interested parties made oral presentations during public hearings. The Department’s response was presented on 19 September, and some amendments were requested by the Portfolio Committee. The second reading debate took place in the National Assembly (NA) on 14 November 2012.

Adv van der Walt noted the preamble, and briefly outlined the arrangement of the provisions of the Bill, from clauses 1 to 12, and the Schedule. She noted that the Schedule specifically provided for amendment of the Criminal Procedure Act (CPA) of 1977, by including the offences referred to in the Bill in the list of offences in the CPA. She highlighted the offences for which a peace officer or private person may arrest a suspect, without a warrant of arrest. She also highlighted Parts I and II of Schedule 2 to the Criminal Procedure Act, 1977, saying that bail may not be granted before a first appearance in court; and an accused may not be released on warning in lieu of bail. In addition,  Schedule I of the Prevention of Organised Crime Act of 1998 was being amended to include offences referred to in the Bill, in relation to preservation of property and forfeiture orders.

Discussion
Mr M Makhubela (COPE, Limpopo) asked for clarity on the category of people affected by the torture. He asked if this was limited to only those affected by torture after 1994, and whether this applied to their families. He also asked for more clarity on the definition of torture and public officials. He also asked when the Bill would be passed into law, commenting that various role players, such as NGOs, had been concerned about the slow implementation of this process, despite the fact that citizens were in need of being assisted by this legislation. There were many victims of torture who were still waiting for their cases to heard and redressed.

Adv Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, responded that there had been a perception that torture was officially authorised by the State. Some members of the public therefore thought of it as acceptable. He said there was in fact a guarantee against torture enshrined in the Constitution. There were definitions of the words “victims of torture”, “torture” and “public official” contained in clause 1, and covered also in the Schedule. He agreed that it would be critical to obtain statistics on the number of torture victims, if the redress was to include compensation, rehabilitation, restoration and other measures. The factual position on torture victims could still be given when the Bill became law.

Mr V Manzini (DA, Mpumalanga) said that there were gross occurrences of torture prior to 1994, and that it was said that state actors still tortured citizens and inhabitants widely, as if they were still governed by the apartheid-style legislation. There was particularly concern about the role of the police.

Mr De Lange responded that the Department and government were aware of and concerned about the fact that the police did tend to torture extensively and also arrested citizens unlawfully. The Department had read an annual independent report of the South African Police Service (SAPS), which acknowledged police torture. He said that there were cases in which the State had taken disciplinary and legal action against public officers.

Mr Manzini asked why victims of torture took legal action against the Minister of Police instead of the alleged torturers themselves.

Mr de Lange responded that in practice, the employer (the State’s public representative) would be held liable for the acts and omissions of employees – this was called vicarious liability – although the actual police officer who committed torture was ultimately personally liable. In practice, also, it made little sense to sue “a man of straw” (a person of limited means) because inadequate legal redress would be ordered, whereas if legal action was taken against the Minister o Police, adequate legal redress, including monetary and other forms of compensation would be awarded.

Mr J Gunda (ID, Northern Cape) said that the Bill should include more on the rights of redress for victims of violence, and there was, in his view, a need to widen the scope of affected persons. Victims of violence and torture had been permanently damaged, especially those tortured during the apartheid era. He asked what the Bill would effectively do to help them. He added that it was not only the victims themselves who were affected, but those around them, such as family, friends and colleagues. He believed that it would be necessary to take the Bill to the people and communities, to educate them on what it contained.

Mr de Lange responded that the Bill did address issues around promoting awareness of the prohibition against torture, which were aimed at prevention and combating of torture. This was apparent in clause 9 of the Bill. There was a duty on Cabinet Ministers to commence programmes of education and information campaigns regarding the seriousness of torture. These programmes should include assistance, advice, and training to victims of torture. Public officials should also be made aware of the prohibition, prevention and combating of torture.

The drafters made further reference also to clause 10 of the Bill. This clause provided for the making of regulations to achieve the objects of the Act. It could therefore introduce other remedies or revisions through programmes to achieve the object of the Act. This was a good safeguard to cover any flaws and meant that it would not constantly be necessary to draft new legislation.

Mr Gunda said that when the Bill was taken to the public, it must be presented in simple language, preferable using the local languages of those communities. He emphasised that the Committee would have to go to the extent of employing translation services to ensure that everyone understood the weight and impact of the Bill.

Mr Manzini said he himself had been tortured whilst in detention. Others had suffered, in addition to the torture, economic, social and emotional loss. He asked if such people could really be compensated properly by the provisions of the Bill.

Centre for the Study of Violence and Reconciliation (CSVR) Oral submission
Ms Annah Moyo, Advocacy Officer, Centre for the Study of Violence and Reconciliation, noted that the Centre (CSVR) had been active in campaigning for this Bill, and to ensure torture was criminalised in South Africa and that legislation addressed the needs of victims. The Bill currently did not address adequately the responsibility of the state to provide and ensure full redress for victims and survivors of torture. Torture was prevalent, and could not be regarded simply as something that happened only in the past. It persisted, particularly by the SAPS, against people, and by prison warders against inmates of correctional centres.

CSVR’s main concern was redress. The Convention was ratified in 1997. In CSVR’s view, the Bill still did not sufficiently address survivors of torture, especially their psycho emotional issues. The results of research by CSVR demonstrated that the impact of torture was complex. The civil and legal processes further aggravated the trauma to victims and survivors. The Bill must address how the State could recompense torture survivors without going through the normal civil claim, because this process recreated the very experience the survivors had already been through. CSVR research had shown that there was a decline in emotional and psychological state of torture victims if they had to follow these processes. Currently, there was no guarantee that the victims would receive adequate treatment and compensation. She said that the Bill also did not state who would be responsible for responding to psycho-emotional and physical effects of their abuse, and who would ensure that these victims became able to function in a normal life and service in their own community.

The right to various forms of redress such as reparation, treatments, and so on were well established principles under international law. In order to exercise these rights in a useful manner, survivors and victims of torture and other violations of human rights should be understood clearly. Redress for torture had to be placed in the right context, which could be emotional (psychological), physical and social. Treatment should be geared towards restitution, rehabilitation, restoration, satisfaction, and guarantees of non-repetition.

Ms Moyo summarised the possible treatments. Restitution was intended to re-establish the circumstances which would have subsisted, had the wrongful act not happened. It may include restoring dignity and restoring the person to the state s/he was in prior to the torture – either in respect of liberty, family life, nationality, return of property, re-instatement in employment or residence.

Rehabilitation recognised that torture incidents could cause physical, emotional, and psychological harm. Any of these were a crime against humanity. The torture could mean that the person was not able to survive or function properly in a normal world or society. Rehabilitation may be medical, psychological or offer other care and services, with measures to restore dignity and reputation. This need not be a state sponsored initiative but it could be shared, to a limited extent, by partnering with non state actors. The Bill was silent on what the State must do on the rehabilitation side.

Compensation must be offered for any economically measurable damage that resulted from the physical act or mental harm. It could include pain, suffering, potential loss, loss of earnings, medical and other expenses of rehabilitation, and legal fees.

If the victim was satisfied with the redress offered, this would minimise anger and speed up recovery of the person tortured. Therefore, survivors and society must be informed of what happened during the torture, and how it is intended to redress it.

There must be guarantees of non repetition of torture by the state, which could take the form of fully disclosing certain information, facts proven, acknowledging the illegality of the actions, apology, judicial or administrative condemnation against the perpetrator, commemoration for the victim, and active steps, through legal and administrative measures, taken to prevent recurrence. All of this should be geared towards ensuring that torture would not be repeated.

Ms Moyo stressed that as long as torture was not criminalised, these remedies would have no effect because they would be difficult to implement. If, on the other hand, torture was criminalised, victims would be able to access the remedies and at least feel that the state was addressing their needs.

Trauma Centre for Survivors of Violence, and the South African No Torture Consortium (SANToC) submission
Ms Valdi Van Reenen-Le Roux, Executive Director, Trauma Centre for Survivors of Violence,  and Torture and Chair of SANToC, said that in July, 2012 her organisation had made a submission to the Portfolio Committee, but said that in practice the Bill was not yet being implemented.

When dealing with survivors and victims of torture, SANToC and the Trauma Centre spoke of “contemporary victims”. Half of them had suffered torture under the apartheid era, and were not usually ready to report incidents of past torture, therefore were unable to access counselling. When they were unable to live with the trauma of their torture any longer, it was usually the relatives, friends, colleagues or other members of their communities who had reported the incidents, often after becoming victims of anger from the tortured person themselves. The trauma of torture often manifested itself in violence expressed against spouses, family members or partners, or the disappearance of the victims. Only when counselling was started would the underlying causes become apparent.

It was recognised that victims of torture were sometimes political and at other times non-political survivors. This was an important distinction. Victims of political torture perceived the torture as part of the struggle, and were therefore often slow to claim redress. They had a practical way of addressing past trauma, such as personal ideological preparation, promise of better life and group support. Overall it took longer for the political violence victims to be recognised. There were also indirect victims of torture, which included dependants or family of the actual victim, and others who nay have experienced torture when they intervened to support victims in distress or to prevent victimisation. Ms van Reenen-le Roux said that her organisation was concerned that the Bill did not adequately cover all these victims.

She noted that when torture was committed by state actors, such as the police, there were high levels of harassment and intimidation. Children, families, and spouses needed to be included in the category of victims. There were instances of entire communities in South Africa coming to a trauma centre for attention, although they may later not pursue this, preferring to try to forget their suffering rather than re-live it during the treatment.

Refugees, asylum seekers and victims of xenophobia often had been tortured in the country from which they were fleeing. There was concern about the exclusion of certain victims’ rights. Some victims would not bear physical scars, but certainly had psychological or emotional signs. There was a high level of ignorance of torture in state hospitals and health facilities, and the way in which these victims were treated left a lot to be desired.

Ms van Reenen-le Roux cited one case, where fourteen members of the public were tortured, yet authorities and service providers were reluctant to offer details, and the victims could not get counselling. The Bill did not adequately address issues such as what was done during the complaints process, what was understood by the state of victims, and what would happen to a victim who could not, because of the psychological trauma, remember exactly what happened. The failure to address all aspects led to consistent relapses.

She stressed that the Bill did not adequately recognise the role of  non state actors, such as NGOs, gangs, and organised crime perpetrators.

Discussion
The Chairperson thanked the presenters, noting that their presentations had been well articulated and informative, and would assist Members on the Bill.

Mr Makhubela asked what was the deadline for completing discussion on the Bill. He asked CSVR if it could cite communities where torture was currently taking place.

Ms Moyo replied that CSVR had received information in relation to various communities in Gauteng. Youth in those communities were shunned, treated as outcasts and suspected of engaging in criminal activity, and it was common for SAPS to brutalise and beat young people whenever a crime was reported, and they were also victims of random searches, arrest and brutality. Many confessed to crimes they had not committed, because they were taken into custody unlawfully. In most instances, the accusations went no further because there was lack of evidence or corroboration.

Mr Mokgobi asked if police brutality was escalating. He also asked what the status was of incidents of abuse in correctional centres.

Ms Moyo replied that police brutality happened on the street, from the time of apprehension, when suspects were constrained roughly into police vehicles and could also be subsequently mistreated at the holding cells. The procedure of arrest and handling was not humane. Experience had shown that there was evidence of police brutality during various disturbances, such as Marikana. In addition, in three correctional centres, in January 2013, it had been reported that warders beat up inmates thoroughly. She added that torture was likely to take place also in economically impoverished places where there was gang violence. In such places, police raids took place before dawn, and it was common that innocent people who did not respond immediately to demands were also searched, with violence, often in the presence of their children, spouses and other community members.

Mr Mokgobi thought that the concerns of the organisations were valid and a proper definition for “torture” must be found. He asked if the Bill would be retrospective and consider torture incidents committed prior to its commencement. He said that the role of history, the cut off date and how retribution would be sought, and the role of the Truth and Reconciliation Commission were also matters for debate by the Committee.

The Chairperson said the definition in the UN Convention against Torture was the definition carried forward to the Bill. He wondered if the South African context had not been fully reflected.

Mr Mokgobi said he was not sure how the interests of the police and other connected departments were dealt with, as no representatives were present. He was aware that the SAPS held themselves out as having a high standard of responsibility to ensure that the Constitution was complied with. This Bill should be seen as unbiased and not affecting the needs of the security Cluster. However, their views must also be heard.

Mr D Bloem (COPE, Free State) said that there was a need to process the Bill as speedily as possible, and there should not be endless delays and amendments. This was an important Bill that would heal the wounds of suffering of the victims, families and community at large.

Mr Gunda noted that lives of mankind were beyond price and government must employ every possible resource to restore the dignity of the victims and survivors of torture. He wondered if government had given a firm commitment to follow through on counselling, guarantees of satisfaction, rehabilitation and so on, and said that every role player must be actively involved.

Mr Mokgobi asked how the Committee could ensure that its work was productive, and that the victims’ safety, security and well being was satisfied, by enacting the Bill timely.

The Chairperson replied whilst there was no set deadline, it was clear that the Bill could not be discussed indefinitely.

The meeting was closed to the public at this point.