LHR Submission on the Prevention and Combatting of Torture Persons Bill [B21- 2012]

LAWYERS FOR HUMAN RIGHTS SUBMISSIONS ON

THE PREVENTION AND COMBATING OF TORTURE OF PERSONS BILL

SUBMITTED ON   31 JULY 2012

 

This submission has been endorsed by the following organisations:

The Consortium for Refugees and Migrants in South Africa

Nelson Mandela Metropolitan University Refugee Rights Centre

Centre for the Study of Violence and Reconciliation

University of Cape Town Refugee Rights Unit

Scalabrini Centre of Cape Town

Refugee Social Services
 

1. Introduction

We extend our thanks to the Department of Justice and Constitutional Development for affording us the opportunity to make a submission on this Bill. We recall South Africa’s colonial and apartheid history where state sponsored violence and torture was commonplace. We also remind the Department of Justice and the Justice Portfolio Committee that it was the torture of Steve Biko which gave the impetus for the drafting of the Convention Against Torture. We must emphasise that the fact that South Africa is a constitutional democracy is no guarantee against torture and other cruel and inhuman or degrading treatment.  We recall recent reports which suggest that the practise of torture and other cruel and inhuman or degrading treatment by the South African Police Services and other agencies are widespread.

 

2. Re  Section 3: Acts Constituting Torture

The definition of torture outlined in the Bill departs from the definition outlined in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The Bill seeks to limit the definition as applicable to state parties and those acting on behalf of state parties. There appears to be no reasonable grounds for this limitation and the definition should be applicable to all persons.

The Bills seeks to limit the definition to include only torture committed by a public official or persons acting on behalf of a public official. The UNCAT definition is much wider and includes any persons irrespective of whether they are state officials or not. There is no justification for the limitation of the applicability of this bill to public officials only. Non-state actors can and must be accountable for their actions in the same way as state officials.  We recommend that the bill follows the convention definition more closely especially with regard to the inclusion of non-state actors.

 

3. Re Section 4: Offences and Penalties

The section on offences and penalties in contrast applies equally to public officials and non-state actors but the definition as outlined above does not. We would recommend a redrafting of this section to clarify that these offences and penalties are applicable to public officials and non-state actors alike in the following way:

LHR recommends that the Bill removes “public official” and to replace it with “person” to extend the scope of the Bill to all persons and not only to state actors.

 

We would also recommend the addition of the following section to Section 4:

 

4. Extra –territorial jurisdiction

We find Section 6 to be problematic in that the Bill states that a South African court may only have jurisdiction over these categories of persons:  a citizen, person who is ordinarily resident, person who is lawfully present, or  person who has committed an act against a citizen or ordinary resident. This section also contradicts two recent court judgments on extra-territorial jurisdiction which need to be considered and incorporated into this Bill.  We would recommend the addition of “illegal foreigners or any other persons who are within the territory of the state” to Section 6(1) (b).

 

Under the UNCAT  (Article 7(1)), States are required to submit cases of torture to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. If the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to that request. So while extradition is an option offered to the State by the Convention, prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.

Section 6 of the Bill gives South African courts the jurisdiction to try suspects. According to section 6 of the Bill, South Africa will have jurisdiction over persons who have committed torture even if the torture was committed outside of the Republic, against non-citizens and the perpetrator is himself /herself not a citizen or lawfully resident in the country. The only requirement for jurisdiction should be that the perpetrator be present on South African territory (according to section 6(1)(c)) and that the prosecution of the perpetrator be endorsed by the written authority of the National Director of Public Prosecutions (according to section 6(2)).

However, the Bill does not expressly acknowledge the international obligation that it has to try or extradite. The establishment of jurisdiction does not necessarily establish the obligation to make use of such jurisdiction to try all suspects should no request for extradition be made or should no request for extradition be accepted. Where a person suspected of torture is present in the territory, South Africa has only the discretion to accept an extradition request. The state’s discretionary powers stretch no further under international law; if extradition is impossible there is an obligation to investigate and prosecute locally.  

The Bill also does not provide for anticipated arrival of the perpetrators as a ground to found jurisdiction of South African courts.  Experience has shown that when knowledge of the arrival of a torture suspect has been obtained by South African authorities, it is important to begin the process of investigation and preparation of court documents in order to begin the court process upon their arrival.  This ground for jurisdiction provides a vital tool for South African authorities tasked with the responsibilities in terms of the Bill.

As such we recommend the following:

1.       The Bill must expressly acknowledge the obligation to try or extradite suspects;

2.       The National Director of Public Prosecutions should not have the discretion to try or not in circumstances where a suspect cannot be extradited.

3.       Further, in order for the convention obligation to have meaning/force, it would perhaps be wise to place a temporal limit on the obligation to try or extradite. In other words, if an extradition request is made, we must either accept it or undertake to try domestically within a defined time period eg. Within two years of the request being refused.

4.       Where the state is unwilling to pursue or prosecute a perpetrator that the state issue a nolle prosequi certificate to allow for a private prosecution as appropriate.

5.       Inclusion of the ground of anticipated presence of a suspect within South African territory as described in section 6 to found jurisdiction and begin the process upon his or her arrival.  

 

4.1 Botswana Extradition case of Emmanuel Tsebe and Jerry Phale

We refer to the case of Minister of Home Affairs v Emmanuel Tsebe and others, CCT 110/11 (2012)

In this case which dealt with the extradition or deportation of accused persons to countries where they may face the death penalty, the Constitutional court held that South Africa may not send a person back to a country if that country has not given the requisite assurance that this individual would not face the death penalty.

The court went to say that the SADC Extradition Protocol contemplates that a State that is a party to that Protocol may refuse to extradite a person in that situation.

The court considered the need to bring someone to justice with the protection that the Constitution affords against the death penalty. The court stated that under international law, until Botswana (who supports the death penalty for serious crimes) is able to give the requisite assurance that a person sought by them will not receive the death penalty South Africa is entitled to decline to surrender this wanted person.

The court added that there is a power which the Justice Minister has in terms of Section 9 of the Extradition Amendment Act 77 of 1996.

The court also pronounced upon the obligation to deport an illegal foreigner in terms of the Immigration Act and stated that these obligations must be read consistently with the Constitution and cannot require the deportation of a person in circumstances where that deportation would be a breach of the Constitution.

In the interests of fugitives evading punishment for committing serious crimes, the court recommended the passing of legislation to give South African court’s jurisdiction to try certain specified offences despite the fact that they were committed outside South Africa.  The court listed two pieces of legislation which have been passed in this regard, namely, The Prevention and Combating of Corrupt Activities Act 12 of 2004 and the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

The court’s reasoning was that if South Africa could pass legislation to give its court’s jurisdiction to try crimes which have been committed outside South Africa, there is no reason why similar legislation cannot or should not be put in place to ensure that persons who have committed crimes serious enough to attract the death penalty in other countries can be tried by the South African courts when countries in which they allegedly committed these crimes are not prepared to give the requisite assurance. Such legislation would prevent a situation where South Africa became a safe haven for persons alleged to have committed serious crimes like murder. South Africa would in this way also be discharging its obligations under the SADC Extradition Protocol.

 

4.2 Zimbabwe Torture Docket case and the obligation on South African authorities to investigate claims of torture which took place in Zimbabwe

We also refer to the Southern African Litigation Centre and another v National Director of Public Prosecutions and others [2012] 3 All SA 198 Case no 77150/09 (North Gauteng High Court)

The situation of extra territorial jurisdiction has been developed in the above case where the High court held that the South African authorities have a duty to investigate Zimbabwean officials implicated in acts of torture in that country.

The judgment makes it clear that the SA government cannot turn a blind eye to systematic torture in a neighbouring country, where the victims could not be protected. “The court emphasised that there is a clear obligation on South Africa to, in terms of the Rome Statute, investigate and prosecute these human rights abuses.” He said this judgment made it possible for not only the prosecution of Zimbabwean torture perpetrators, but also for the SA government to investigate any other human rights abuses outside SA, where it was possible that the offenders may reach SA borders.

The case sets a much broader precedent by ruling that South African authorities have a duty to investigate international crimes wherever they take place.

 

In line with these two cases it would be prudent for the Bill to also incorporate the Article 3 from UNCAT:

5.       Prevention mechanism

Section 2 (c) Prevention and Combating of Torture and CIDT – One of the objects of the Bill is to prevent and combat torture. However, the bill doesn’t provide for clear pro- active mechanisms to prevent torture and CIDT.

The prevention of torture forms an important part of the objects of the bill, contained in section 2(1)(a)(ii). This section mirrors a similar provision in the Convention that requires South Africa to take “effective legislative, administrative, judicial and other measures to prevent torture…”. It is therefore clear that the scope of the bill should go beyond just the criminalisation of torture.

Much has been written about the effectiveness of independent monitoring of places of detention in preventing torture and ill-treatment. A good example of such a preventative mechanism is the Judicial Inspectorate of Correctional Services which was established in terms of the Correctional Service Act and operates through a network of independent prison visitors around the country. Unfortunately, the JICS’s mandate is limited to prisons and does not include police cells, youth care centres, military detention and places of administrative detention such as immigration holding facilities (e.g. Lindela) and psychiatric hospitals.

The Optional Protocol to the Torture Convention, which SA has signed but not ratified, contains provisions for the establishment of a national preventative mechanism, which gives effect to the  obligation in section [D1] 2 to take effective preventative measures.

Accordingly, we urge parliament to consider the inclusion of a statutory framework for the establishment of such a preventative or detention monitoring mechanism.

In addition to the domestic mechanism it is also important for the bill to emphasize government’s duty to cooperate with the various relevant UN and AU treaty monitoring bodies, e.g. the UN Committee Against Torture, Special Rapporteurs, African Commission on Human and Peoples’ Rights.

Therefore we propose that the Bill creates a National Preventative Mechanism (NPM), as described in OPCAT, which South Africa has signed but not ratified. The need for an NPM is apparent with situations like the Lindela Repatriation Facility and other military detention facilities where there are virtually no oversight mechanisms (similar to the Judicial Inspectorate of Prisons) and no redress for victims of torture and CIDT.

 

6. Non-refoulement

The Extradition Act 67 of 1962 regulates extradition and extradition agreements. The detention and deportation of foreign nationals is governed by the Immigration Act 13 of 2002 and, in part, by the Refugees Act 130 of 1998. These pieces of legislation do not provide for non-refoulement “were there are substantial grounds for believing that [the person to be deported/extradited] would be in danger of being subjected to torture” as does UNCAT in Article 3. The courts, including the Constitutional Court have adjudicated such claims on the Bill of Rights, specifically the rights to life, dignity and liberty. The Bill should incorporate Article 3 so as to adequately reflect the requirements laid down in the case law.

 

Article 3:

3.1 No State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

 

3.2 For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

 

7.       Redress, Compensation and Rehabilitation

The Bill is silent on this point and needs to outline clear measures of redress available. We recommend that the Bill incorporate both Article 13 and 14 from the Convention. We refer to Article 13 and 14 of UNCAT which deals with these issues:

 

7.1 Reparations for victims and family members

Adequate and appropriate forms of reparations for victims and survivors of torture and their families must include:

• Restitution – restoration of liberties and employment. In the event that a victim is (or family members are) unable to find employment because of the physical, mental and emotional effect of torture, victims must have access to state support grants;
• Compensation – for damages equal to the gravity of the offence (inclusive of medical care, loss of employment and lost education opportunities);
• Rehabilitation – medical, psychological and legal forms for victims of torture.
• These rehabilitation services need not be solely provided by the state, the victim’s right to choose a service provider should be upheld;
• Psychotherapeutic services need not be confined to clinical counselling alone;
• Psychological services should include families of victims of torture as the impacts extend beyond the victim;
• Counselling services should be holistic and include the services of inter-disciplinary professionals such as counsellors, psychologists and psychiatrists. Said services should be available over a long period of time as healing is a long journey;
• Satisfaction – right to the truth and full disclosure, apology and public accountability for families of victims and survivors; and
• Guarantees of non-repetition and the rehabilitation of perpetrators