Preventing Torture and Abuse through Oversight: notes from the Institute for Security Studies Conference

KYLA HERRMANNSEN

The last session on day one of the Institute for Security Studies 4th International Conference featured a panel presentation on ‘Preventing Torture and Abuse through Oversight’. This is particularly relevant at present, with the long awaited Prevention and Combating of Torture of Persons Act having recently been passed into South African law. South Africa signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment (OPCAT) in 2006 but it has yet to be ratified. The four panelists included: Berber Hettinga (University of the Western Cape), Joan van Niekerk (Childline), Amanda Dissel (Association for the Prevention of Torture) and Roni Amit (African Centre for Migration and Society). In their various fields of expertise, they examined existing preventative measures against torture – highlighting flaws in the system, as well as praising the strengths and progress South Africa has made in this area. Hereafter is a brief summary of their presentations.

behind-bars

Berber Hettinga started off by highlighting that the state is obliged to provide independent oversight, in alignment with the recently signed Convention against Torture protocol. The legislation calls for a National Preventative Mechanism (NPM), an “independent body with a mandate to regularly visit all places of detention with a view to preventing torture and ill-treatment”. So far, existing bodies that offer some degree of oversight are the South African Human Rights Commission (SAHRC) and the Judicial Inspectorate for Correctional Services (JICS). Hettinga noted the SAHRC has a wide mandate but no legal power to enforce its findings and recommendations. JICS has a mandate to inspect all prisons and report on the treatment of prisoners. Though Hettinga praised JICS for the work they are undertaking, she pointed to key weaknesses that hinder its functional independence. Most notably, JICS is established through the Correctional Services Act and relies on the Department of Correctional Services (DCS) for its budget. DCS is also tasked with appointment of key positions within JICS.

Joan van Niekerk of Childline noted that according to United Nations rules for children, “every child has the right not to be detained – unless as a last resort.” She pointed to a complicated and costly disjuncture with regard to Child law in South Africa, notably that two separate laws facilitated by two separate government departments are simultaneously at play. The Children’s Act falls under the Department of Social Development while the Child Justice Act falls under the Department of Justice and Constitutional Development. She noted that “provision for oversight is good on paper but is it happening in practice?” Niekerk voiced her concern over a lack of training regarding Child law and a lack of implementation of protective provisions, particularly by the police.

Amanda Dissel of the Association for the Prevention of Torture (APT) presented her findings with regard to monitoring police detention. She revealed that “The UN Special Rapporteur on Torture has indicated that people are usually more vulnerable to torture and ill-treatment within first few hours of arrest and detention”. 1.6 million people were arrested in the 2011/2012 period in South Africa. Within this period, the Independent Police Investigative Directorate (IPID) received 232 notifications of deaths in police custody. Of the 232 deaths, 34% were due to injuries sustained in custody. Rights enshrined in Section 35 of the Constitution as well as the SAPS Policy on Prevention of Torture and Treatment of Persons in Custody (1999) govern the treatment of those detained in police custody. However, there is currently little oversight. IPID’s mandate changed in 2011 (when it transformed from the Independent Complaints Directorate into IPID) and it no longer has the legislative mandate to conduct visits to police stations. There is progress being made though, the recently established Western Cape Community Safety Act of 2013 aims to provide for policing oversight of the Province in terms of constitutional provisions.

Finally, Roni Amit of the African Centre for Migration and Society spoke on the invisibility of immigration detention in South Africa. Amit noted “Individuals detained as illegal foreigners often fall into an extra-legal abyss that effectively nullifies their legal identity. In this space they are unable to exercise their legal rights of review and appeal and they are removed from judicial oversight or legal assistance”. Amit said there has been a marked shift of securitization in the Department of Home Affairs’ approach to foreigners, notably a tendency to view asylum seekers as illegal immigrants. “An individual arrested as an illegal foreigner retains this status after applying for asylum”, said Amit. She also highlighted that verifications are not taking place and, as a result, there’s a presumption of illegality. Lindela Detention Centre is currently the only designated facility for the imprisonment of illegal detainees. Pointing to a lack of oversight, Amit said the Department of Home Affairs does not grant permission for monitoring visits.

Wits Justice Project and the Wits School of Public and Development Management recently held a Justice For Breakfast event on strengthening oversight bodies in the criminal justice sector. A summary of the event can be found here. Slides from this ISS presentation as well as others presented over the course of the conference will be placed on the ISS website over the next few days.

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About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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