REPUBLIC OF SOUTH AFRICA

 

 

CRIMINALISATION OF TORTURE BILL, 2003

 

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(DRAFT)

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B - 03]

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BILL

To provide for the crime of torture, in compliance with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; to provide for the prosecution in South African courts of persons accused of having committed the crime of torture in South Africa and beyond the borders of South Africa in certain circumstances; and to provide for matters connected therewith.

PREAMBLE

MINDFUL that the Republic of South Africa –

* has a sad history of gross human rights abuses, including the torture of many of its citizens/inhabitants;

* has, since 1994, become an integral and accepted member of the community of nations;

* is committed to bringing persons who carry out torture in any form to justice;

* is committed to carrying out its obligations in terms of international instruments, including the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

Definitions

1. In this Act, unless the context indicates otherwise-

"Director of Public Prosecutions" means a Director of Public Prosecutions appointed in terms of section 13 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

"National Director" means the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"public official" means any person exercising a public power or performing a public function in terms of any law/legislation;

"torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

(a) for such purposes as-

(i) obtaining information or a confession from him or her or a third person;

(ii) punishing him or her for an act he or she or a third person has committed or is suspected of having committed;

(iii) intimidating or coercing him or her or a third person; or

(b) for any reason based on discrimination of any kind,

when such pain or suffering is 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, but torture does not include pain or suffering arising from, inherent in or incidental to, lawful actions.

Crime of torture

2. (1) Any person who commits any act which constitutes torture as defined in section 1 is guilty of an offence and is liable on conviction to the penalties prescribed by law for assault or attempted murder.

(2) Despite any other law to the contrary, including customary and conventional international law, the fact that a person –

(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official; or

(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior,

is neither –

(i) a defence to the crime of torture; nor

(ii) a ground for any possible reduction of sentence once a person has been convicted of torture.

Jurisdiction of courts

3. In order to secure the jurisdiction of a South African court for purposes of this Act, any person who commits any act which constitutes torture as defined in section 1 outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if –

(a) that person is a South African citizen;

(b) that person is not a South African citizen but is ordinarily resident in the Republic;

(c) that person, after the commission of the act in question, is present in the territory of the Republic; or

(d) that person has committed the act in question against a South African citizen or against a person who is ordinarily resident in the Republic.

Institution of prosecutions

4. (1) If a person is alleged to have committed the crime of torture -

(a) in the territory of the Republic, no prosecution may be instituted against such person without the consent of the Director of Public Prosecutions having jurisdiction; or

(b) outside the territory of the Republic as contemplated in section 3, no prosecution may be instituted against such person without the consent of the National Director, who must, if he or she decides to prosecute, give directions in which court the prosecution is to be conducted.

(2) No prosecution may be instituted against a person accused of having committed a crime of torture if the crime is alleged to have been committed before the commencement of the Convention.

Short title

5. This Act is called the Criminalisation of Torture Act, 2003.