ISS Conference, 21 August 2013 1ISS Conference August 2013

ISS Conference August 2013 1

Prevention of torture through independent

oversight in South Africa Berber Hettinga, UWC, RSA

ISS Conference, 21 August 2013


Introduction The obligation to prevent torture The obligation to establish independent oversight under

UNCAT, OPCAT and RIG South Africa’s path to ratification of OPCAT Existing mechanisms of independent oversight in South

Africa ◦ SAHRC◦ JICS◦ Police, immigration, children and youth care/detention◦ Psychiatric hospitals, drug treatment centres, etc

South African Human Rights Commission Judicial Inspectorate for Correctional Services Possible ways of setting up a National Preventive Mechanism Conclusion

Paper outline


Article 2(1) UNCAT obliges States Parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. The UN Committee against Torture (CAT) has interpreted ‘effective measures’ as meaning ‘all measures, as appropriate, required to protect all members of society from acts of torture.’

Article 16(1) UNCAT further places an obligation on States Parties to prohibit and prevent cruel, inhuman or degrading treatment or punishment. CAT has recognised that the ‘measures required to prevent torture must be applied to prevent ill-treatment.’

Robben Island Guidelines, Part II

The obligation to prevent torture


Obligation to establish independent oversight UNCAT: arts 2(1),11 and 16 and CAT Article 4(1) of OPCAT places an obligation on States

Parties to allow visits in accordance with the Protocol, by the SPT and the designated National Preventive Mechanism (NPM) to ‘any place under its jurisdiction and control where persons are or may be deprived of their liberty.’

RIG 38-44, in particular:RIGs 41 & 42 call on States to establish, support and strengthen independent national institutions ... with the mandate to conduct visits to all places of detention and to encourage and facilitate visits by non-governmental organisations.

Prevention of torture and other ill-treatment through independent oversight


It must be independent. It must have a mandate to conduct visits to all places where

people are or may be deprived of their liberty. It must have a mandate to conduct regular and unannounced

visits to all places of detention and their installations and facilities.

It must have access to all information concerning the number of persons deprived of their liberty as well as their location.

It must have access to all information about the treatment of persons deprived of their liberty and their conditions of detention.

It must be able to choose to interview persons and to conduct interviews in private.

It must make recommendations aimed at improving the treatment and conditions of detention.

National Preventive Mechanism requirements


South Africa signed OPCAT on 20 Sep 2006, but has not yet ratified it.

Civil Society, the South African Human Rights Commission and Parliament have urged Government to ratify on several occasions.

Government has expressed intention to ratify on a number of occasions, but also stressed it prefers to have a plan for an NPM in place before doing so.

Some civil society consultation has taken place on the development of an NPM.

Particularly, the Association for the Prevention of Torture (APT) works with relevant government officials in preparing for ratification.

South Africa and OPCAT


Two existing bodies with a comprehensive oversight mandate:◦ SAHRC◦ JICS

Other forms of detention in need of oversight:◦ Police, immigration, children and youth

care/detention◦ Psychiatric hospitals, drug treatment centres, etc

Existing oversight mechanisms


Human rights oversight body with wide mandate:◦ investigate human rights violations;◦ perform research on a wide range of human rights issues;◦ make recommendations to all levels of government.

However:◦ no legal power to enforce findings and recommendations;◦ serious lack of resources;◦ although visits to prisons and other places of detention

have occurred, currently no practice of doing this regularly;

◦ SAHRC does not consider itself suitable to take up full role of NPM.

SA Human Rights Commission


Mandate:◦ Inspect all prisons;◦ Report on treatment of prisoners;◦ Report on conditions and practices in prisons;◦ May receive and deal with complaints;◦ May make any enquiry and hold hearings for the

purpose of conducting an investigation;◦ Receive mandatory reports from heads of

correctional centres on deaths, segregation, use of force and use of mechanical restraints.

Judicial Inspectorate for Correctional Services


Strengths:◦ Relatively wide mandate;◦ Independent Visitors regularly inspect all prisons;◦ Independent Visitors play important role in

assisting prisoners to bring and solve complaints;◦ Annual and quarterly reports bring important

information on prisons in the public domain, therefore ensuring greater transparency and accountability;

◦ Engagement with civil society.



Weaknesses:◦ Lack of functional independence:

Established through Correctional Services Act; Dependent on DCS for budget and administrative

services; DCS involvement in appointment of key positions; Conflicts of interest.

◦ Inefficiency◦ Vacancies, particularly ICCVs◦ Inmate perceptions◦ Lack of public engagement



One institution, such as SAHRC or JICS, to expand mandate/resources;

Committee consisting of different experts; Representatives of several institutions

responsible for oversight form a committee to lead NPM;

One institution (perhaps SAHRC) in charge of coordinating a range of specialised sector-specific institutions;

Civil society alone, in any case as partner.

NPM options


THANK YOU!

Documents

ISS Conference, 21 August 2013 1ISS Conference August 2013