Under International Law, torture is a crime which cannot be justified under any circumstances. Accordingly and in terms of section 231 of the Constitution, international agreements bind South Africa – to the extent that it conforms to the Constitution – once signed and ratified by the national executive and Parliament respectively. It becomes law in South Africa when it has been enacted into law in terms of national legislation. As such, the Convention, which South Africa signed in 1993 and ratified in 1998, was incorporated into legislation in July 2013 by means of the Prevention and Combating of Torture of Persons Act (the Act), thus for the first time criminalising acts of torture as required by the Convention. Although the Constitution provides for freedom and security of the person, including the right not to be tortured or subjected to cruel and inhuman treatment, prior to the Act, there was no legislation specifically addressing torture.

The importance of having enacted legislation to prevent and punish acts of torture cannot be over-emphasised – even though the Act does not provide for the prevention of cruel, inhumane or degrading treatment or punishment, other than torture, as required by the Convention. The Act makes it possible for state officials to be held accountable for gross human rights violations, although, to date, no-one has been convicted in terms of its provisions. While nobly intentioned, the Act is yet to be effectively implemented. Currently, it appears as if it is failing to address or prevent some gross violations of human rights – especially in relation to well-reported incidents of brutality in the criminal justice system.

In 2005 prior to the Act’s promulgation, inmates from Port Elizabeth’s St Alban’s Prison referred incidents of mass beatings to the United Nations Human Rights Committee in Geneva (UNHRC), citing numerous violations of the Convention. Having ignored five requests by the UNHRC for South Africa to respond to the torture reports, the country was found guilty of human rights violations. The inmates have since launched civil proceedings against the then Minister of Correctional Services and the case is on-going.  A criminal case was also opened against the various state officials involved in the violent search for contraband, although no-one has been convicted. This prompted the South African Human Rights Commission (SAHRC) to issue a statement condemning the actions of the prison officials, while launching an investigation which is ongoing.  Nevertheless, in March this year, in spite of the Act and the ongoing SAHRC investigation, officials from the same institution allegedly embarked on mass beatings, electrical shock, torture and assaults of a great number of the inmates, ostensibly after contraband was discovered. Inmates reported bruises, fractures, broken bones and missing teeth after the two- hour ordeal. The matter is still under investigation.

The Independent Police Investigative Directorate (IPID) too shows a systematic pattern of violence committed by police officials against civilians. In 2013 alone, 431 cases involving 485 deaths as a result of police action were investigated by the IPID. Another 539 attempted murder cases involving police were also investigated. Experts state that hundreds of similar cases go unreported.

Torture and other acts of cruel, inhuman and degrading treatment or punishment can never be justified. However, the success of the Act in preventing, suppressing and punishing acts of torture will depend on its effective implementation. In principle, this means that it should be expected of all government officials to conduct themselves not only within the prescripts of the Act, but also within the human rights ethos as required by the Constitution. Incidents such as those at the St Alban’s Prison do not belong in – and may not be tolerated by – a government or a society subscribed to the values of human dignity, equality and the advancement of human rights and freedoms.

By Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

Photo credit: takomabibelot / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)