Document handed out: Committee Report on OPCAT [Tabled Committee Reports once available]
The Department of Justice and Constitutional Development briefed the Committee on the Optional Protocol Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The Department requested Parliament to ratify the Protocol. The Deputy Minister was in attendance.
The Department explained that South Africa signed the United Nations Convention Against Torture (UNCAT) in 1993 and ratified it in 1998.
The UNCAT aimed to prevent torture and other acts of cruel, inhuman or degrading treatment or punishment around the world and required member states to take effective measures to prevent torture in any territory under its jurisdiction. South Africa signed the OPCAT in 2006. At international level, the OPCAT came into force in June 2006. As at 21 February 2019, 89 states had signed and were yet to ratify. 11 reservations were registered. Eight of these were in terms of article
24 which provided an extension on the time allowed to establish a national prevention mechanism (NPM) in terms of the OPCAT. There were reservations from certain countries with regard to strengthening the provisions of articles 15 and 21 dealing with the treatment of whistle-blowers. In September 2017, at the UN Human Rights Council, South Africa confirmed that it would take necessary steps to ratify the OPCAT before the country’s next Universal Periodic Review which would take place in 2021.
The Department stated that the South Africa Human Rights Commission (the Commission) was identified as the appropriate institution to coordinate the NPM. The NPM model proposed by the Commission was to be funded by allocations by the Justice. The mechanism model would be comprised of existing oversight institutions such as Judicial Inspectorate of Correctional Services, Independent Police Investigative Directorate, Commission for Gender Equality, Military Ombudsman, Health Ombudsman, Compliance Inspectorate of the Office of Health Standards of Compliance and Mental Health Review Boards. These institutions already carried out many functions required by the NPM in their respective mandated areas.
The Department stated that the Cabinet approved the proposed ratification of the OPCAT.
Members welcomed the presentation and were in agreement to support the ratification of the OPCAT. Members sought clarity on why it took so long to table the ratifications and were concerned with powerful countries that were not signatory to the UNCAT and OPCAT and whether there were provisions of how to deal with non-signatory countries that might subject people to torture or inhuman treatment or punishment.
They also rose concerns about monitoring the implementation of the UNCAT and OPCAT as well as the financial implications involved.
The majority of the Committee approved the Protocol. However, the DA and ACDP reserved their support until their consult their colleagues.
Briefing by Department of Justice and Constitutional Development
Mr John Jeffery, Deputy Minister of Justice and Constitutional Development (DoJ&CD), said that he would like Parliament to ratify the Optional Protocol Against Torture. He said that the South African Human Rights Commission was present.
Adv Elizabeth Picarra, Chief Director, DoJ&CD, stated that South Africa signed the United Nations Convention Against Torture (UNCAT) in
1993 and ratified it in 1998. The UNCAT aimed to prevent torture and other acts of cruel, inhuman or degrading treatment or punishment around the world and required member states to take effective measures to prevent torture in any territory under its jurisdiction. South Africa signed the Optional Protocol to the UNCAT (the OPCAT) in 2006 and the OPCAT came into force in June 2006. As at 21 February 2019, 89 states had signed and were yet to ratify. 11 reservations were registered. 8 of these were in terms of article 24 which provided an extension on the time allowed to establish a national prevention mechanism (NPM) in terms of the OPCAT. There were reservations from certain countries with regards to strengthening the provisions of articles 15 and 21 dealing with the treatment of whistle-blowers. In September 2017, at the UN Human Rights Council, South Africa confirmed that it would take necessary steps to ratify the OPCAT before the country’s next Universal Periodic Review (UPR) which would take place in 2021.
Adv Picarra stated that the South Africa Human Rights Commission (SAHRC) was identified as the appropriate institution to coordinate the NPM. The NPM model proposed by the Commission was to be funded by allocations by the Department of Justice. The mechanism model would be comprised of existing oversight institutions such as Judicial Inspectorate of Correctional Services; Independent Police Investigative Directorate, Commission for Gender Equality, Military Ombudsman, Health Ombudsman, Compliance Inspectorate of the Office of Health Standards of Compliance and Mental Health Review Boards. These institutions already carried out many functions required by the NPM in their respective mandated areas.
Adv Picarra stated that the Cabinet approved the proposed ratification of the OPCAT and that such ratification should be considered and approved by Parliament, latest, in February 2019.
Mr S Tleane (ANC) welcomed the presentation. He asked for clarity. Was the country’s intention of to sign the Torture Convention in 1993 and to ratify it in 1998? He remarked that sometimes wonderful ideas were not supported by key countries and asked whether there was a member state of the United Nation who had not signed the Torture Convention.
Mr W Horn (DA) asked about the structure and role of the SAHRC with regard to the convention. How would the budget be made available? If the Commission had to coordinate and monitor the implementation of the Protocol, did it have required expertise and skills? Did the Commission have enough budgets?
Mr S Swart (ACDP) believed that everyone would support the ratification. However, he asked why there had been a delay to ratify the Optional Protocol. He felt that South Africa had an obligation to report to the UN Human Rights Committee with respect to torture.
Mr G Skosana (ANC) welcomed the presentation and asked what caused the delay to process the matter. Why did it take five to six years to table the Optional Protocol? He was also concerned about the question of training (those who would be responsible for the NPM and asked whether training was a part of enrolling the NPM.
The Chairperson wanted to know whether there were regulations that were made as required by the Optional Protocol. She said the Department should unpack the reasons for the delay. The question of capacity in terms of human and financial resources of the coordinating institution should be clarified. Was the cost related to set up or included operational cost?
Deputy Minister Jeffery stated that every country had to ratify the Convention and its Optional Protocol. Certain countries had not yet ratified them including the United States of America (USA). The USA did not want people to have access to the Guantanamo facility. The European and Latin American countries had ratified the Optional Protocol. Most of African countries had signed and ratified them. The issue of delay or why the ratification took so long related to the need of a designation of a committee by the President to take responsibility for education programme in terms of the OPCAT. That was in 2015. The Ministers of Police and Justice had to take the responsibility. In 2015, there were changes of administration. Under the new administration, the question was what kind of mechanism could have been put in place. There was a need to decide on the institution that would coordinate the implementation. The SAHRC was approached and agreed. Later, the SAHRC Commissioner left and all processes had to restart again. Yet, the Commission needed a time to go through the question of structuring the NPM, the process to be followed by it, and its budget. The budget had been reduced. There was a budget cut, which affected the rolling out of the programme. These were factors that led to the delay of the tabling of the Convention.
Mr Chris Nissen, Commissioner, SAHRC, said that the Constitutional Court gave the Commission the responsibility to monitor the Lindela Holding Facility. However the police cells were not monitored.
Deputy Minister Jeffery agreed that there was an obligation to report periodically to UN Human Rights Committee. There was a need to teach / train certain officials in order to adhere to the Convention and its Optional Protocol.
Mr Tleane stated that it was important for South Africans to understand all the details surrounding ratification, including information on countries which had not signed or ratified the Convention. He asked: how do you deal with these countries that exercise torture in their own territory? Were there no sanctions that could be imposed in order to prevent countries from acting as they wish? Does the Convention provide how the signatory countries could deal with those countries? Could the Convention deal with the big guys who did not sign and ratify the Convention, if they engaged in torture and inhuman treatment?
Mr Horn stated that the main aim of the Convention and its Optional Protocol was to prevent torture. The aim of the NMP was to ensure prisons or cells were visited. It was reported that prisoners and cells would be visited once in three years. Was this feasible or was this due to financial constraints? Was there expertise to put in place protocol and mechanism to prevent torture?
Deputy Minister Jeffery responded that six countries had signed but not ratified. These six countries included Sudan, Angola, and India. Some countries which did not ratify the Convention were mostly Caribbean countries like Jamaica. Irish did not ratify it. In Africa, they were Zimbabwe and Tanzania. In Asia, they were Oman, Iran, Indonesia, and North Korea. These were some of the countries that did not ratify the Convention. These countries bore a duty to report to the UN Human Rights Committee based in Geneva and could be asked questions about what was happening in their own countries with respect to torture. The Optional Protocol provides for the national mechanism to carry out monitoring. The USA had decided that it was not going to do that.
On the budget, the Deputy Minister stated that the better budget allocated the better mechanism one would have in place. Doing something was better than nothing (referring to a limited budget available).
Mr Nissen said that in order to realise the establishment of an NPM in South Africa, the SAHRC had envisaged the plan and its budget. The budget for 2019/20 was R1 683 000.
Mr Tleane remarked that it was important for him to indicate that the ratification of the Optional Protocol was an important step taken by the international community to prevent horrible things that take place around the world even though some countries were yet to sign. It was important to understand the comprehensive objective of the ratification of the Convention and its Optional Protocol.
Mr Swart said that he fully supported the Convention, but he was reserving his position until he discussed the convention with his colleagues.
Mr Skosana asked how Parliament would monitor the effectiveness of implementation of the NPM and whether the Committee would exercise an oversight over it.
Mr Nissen stated that the SAHRC would be reporting to Parliament on the effectiveness of the national mechanism and could be invited at any time to brief Parliament.
Deputy Minister Jeffery responded that once the Optional Protocol had been ratified, there would be a national legislation domesticating it.
This legislation would spell out certain obligations imposed on the implementing institutions. He reiterated the need for the Committee to ratify the Convention. If the Convention was not ratified, they would have to wait for the new Parliament to do so.
Mr V Smith (ANC) agreed with the recommendations of the Department and, suggested that members should move on and ratify it.
Committee Report on the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT)
The Chairperson said that Members should look at the Committee report. They should first read through, consider and adopt it as a part of procedure. She gave members five minutes to read.
The report was considered and adopted with minor amendment with respect to grammatical errors. Everywhere the word “inhumane” appeared in the report was changed to “inhuman.”
The report was considered page by page.
Mr Skosana seconded Mr Smith on the adoption.
Mr Horn remarked that he supported the Convention but he needed a mandate from his party first.
The Chairperson asked members to show off hands whether they were for or against the adoption of the report.
The report was adopted.
The Chairperson asked whether the Optional Protocol could be ratified.
Mr Horn and Mr Swart individually supported the adoption, but reserved their position until their parties were consulted.
The Chairperson provided the closing remarks stating that the report was duly adopted. She also spoke about the legacy report. She advised the Committee Secretary to make sure that the report was circulated among members for their perusal and discussion in the next meeting.
The meeting was adjourned.
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