Transcript National Human Rights and Business Conference 2008

Commemorative Seminar on the 10th Anniversary of
the Robben Island Guidelines
Enhancing Torture Prevention in Africa
Milestone event at the occasion of the 10th Anniversary
of the RIG
Johannesburg 21 – 23 August 2012
Dr. Danny Titus - South African Human Rights
Commission
The RIG 10 years ago
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“The adoption of the RIG is an important step forward
in the promotion of human rights and the prevention
of torture and ill-treatment in Africa. But it is not an
end in itself.
The guidelines need to be promoted and implemented.
They have also to be understood as the collective
endeavour of the African community to deal with the
phenomena of torture and to look forward to every
person enjoying the right to be free from torture and
other forms of ill-treatment.
Foreword to the RIG, Andrew R. Chigovera, Commissioner of the
African Commission on Human and Peoples Rights
The RIG today
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Catherine Dupe Atoki, Chairperson of the Working
Group, CPTA in 2012:
“The status of the implementation of the RIG on
the continent did not evolve significantly during
the session.
 Torture persists because of ignorance and
impunity for perpetrators of torture breeds more
torture. Poverty, corruption, lack of transparency
in places of detention, blatant disregard for
procedural safeguards, lack of legislation …
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The RIG today
…criminalizing torture, lack of monitoring
mechanisms as well as difficulties occasioned by
problems of the criminal justice systems in most
African countries all consipire to make the fight
against torture an uphill task.
 Of the 44 African countries that are party to the
Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or
Punishment (CAT) and hence under the
obligation to adopt specific legislation to …
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The RIG today
…criminalizing torture, only 8 have done so.
 Of these 44 only eleven have ratified the OPCAT
and only 8 have signed the document.
 This bleak picture notwithstanding, the CPTA is
encouraged that there are draft bills on the
criminalizing of torture that have been initiated
by many States Parties and that the process of
OPCAT ratification in Cameroon, Mauretania and
South Africa is at an advanced stage.”
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The bleak picture
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The CTPA is also encouraged that a
momentum around issues of torture
prevention has been building up on the
continent and that torture prevention has
now become an issue of open debates in
most countries.
South Africa and the RIG
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SA has signed and ratified the CAT. It appeared before
the CAT Committee in 2006, its follow-up report is
overdue, its 2nd and 3rd combined report is also overdue.
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SA has signed the OPCAT in 2006 but is yet to ratify it.
Torture in South Africa
Torture occurs frequently in South Africa
and usually within the framework of law
 enforcement responses;
 While torture previously was associated
with political repression and
discrimination, it
 now most often occurs in crime
investigation processes and in the
handling, treatment
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Torture in South Africa
and punishment of suspected offenders;
 The public view towards torture is lenient
in relation to the use of quite excessive
 violence on criminal suspects;
 The use and abuse of force has
permeated the culture of the law and
filters through to
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Torture in South Africa
relationships with family members and
friends;
 looking at the problem of torture or
ill‐treatment; and
 High profile cases are the ones usually
reported.
Dissel, Jensen, Roberts (2009).
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The SA Human Rights
Commission
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The HRC has a very wide mandate to
promote and protect human rights.
CEO Kayum Ahmed 2012 Annual Report:
 “…we have been forced to ask some difficult
questions, not only of ourselves, but also of the
society within which we live:
 In a country with sufficient resources and one of
the most progressive constitutions in the world,
why does our government continue to build …
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The SA Human Rights
Commission
…toilets without enclosures, fail to provide
quality education, and remain unsuccessful in
reducing the infant mortality rate?
 SA appears to have all the ingredients for a
successful, vibrant democracy built on principles
of human rights and justice, but we seem to
continuously fall short.
 What has gone wrong and how can the
Commission contribute to fixing things?”
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The SA Human Rights Commission
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And may we add from the perspective of the RIG: why
must democratic SA continue to live in the fear of
torture, cruel, unusual, degrading treatment or
punishment?
Why did 34 miners have to be shot and killed by police?
Why were police being shot at?
We will have to have a commission of enquiry, says our
President. We have to get to the bottom of this.
“We are not sorry,” says National Police Commissioner,
Riah Phiyega. “It was all in the line of duty. Safety of the
public is not negotiable.”
The uphill battle and the SA Human
Rights Commission
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The SAHRC has section 5 committees where it has the
opportunity to engage with all stakeholders on human
rights matters.
The Section 5 Committee on the prevention of torture
provides the Commission to provide a platform for civil
society, the different government departments and the
HRC to advance the process on the prevention of
torture. IPID to investigate incidents of torture.
The HRC has been going through an intense
restructuring period and can play a more intense role in
eliminating torture.
Do we torture in the ANC?
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Former Constitutional Court judge Albie Sachs in his
book “The Strange Alchemy of Life and Law” 2009,
relates the story of a Lusaka meeting between him and
the then leader of the ANC, Oliver Tambo.
“We’ve captured a number of people whom we believe
were sent by Pretoria to try and destroy the organisation.
But we don’t have regulations …how captives should be
dealt with.”
Sachs:”It’s not too difficult… the international
conventions make it very clear, no torture, inhuman or
degrading treatment.”
Torture in the ANC?
He looked at me and quietly said: “We use
torture.” He spoke with a bleak face. I couldn’t
believe it. The ANC, … fighting for freedom,
using torture?
 He went to draw up a Code of Conduct and it
was put to all the members in exile and some
members of the underground in South Africa.
 But should there be ‘special allowance in
extremely grave circumstances’ for what were
called “intensive methods of interrogation”?
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Intensive methods of interrogation?
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One by one the young soldiers of Umkhonto We Sizwe
came up to the platform and gave their answer: an
emphatic no.
They declared that the minute you allow any exceptions
or exemptions, elements of ANC security would use
them to undermine the principle of not employing
torture.
The young soldiers… were making unambiguous
statements about the kind of people we were, what we
were fighting for, and what our morality and core values
were about.
Tales of Terrorism and Torture
In the chapter with the above name, Justice
Albie Sachs relates how he had to grapple with
this challenge to remain true to human rights.
 “Anybody sitting on a high court in any land
must feel the pressures of the threatening and
disturbing events of our times. It would be odd
if each one of us were not sensitive to these
realities as a judge, as a human being and as a
person. Yet we live in a period when I have felt
myself proud not only to be a judge in South
Africa, …but to belong to a world-wide
community of judges who believe that basic
rights and freedoms matter.”
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And yet, we have forgotten
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The case that has singularly laid bare SA’s commitment
to the prevention of torture is the UN Human Rights
Committee’s McCullum decision against SA.
At the UNHRC’s 100th sitting, SA was found to have
violated its international obligations in terms of the
ICCPR and the UNCAT. SA had also flouted the
provisions of its own constitution, violated the African
Charter on Human and Peoples Rights, and the Robben
Island Guidelines.
Judith Cohen from the HRC: “SA is not notching up a
good reporting record at international level. For example,
the CAT report is outstanding since 2006. The fact that
SA has been asked to respond to the UN and …
SA and its international obligations
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..repeatedly ignored the requests is indicative of how
seriously SA regards its international obligations.
The RIG states:
Preamble:
Recalling, the universal condemnation and prohibition of torture,
cruel and inhuman, degrading and treatment and punishment,
Deeply concerned about the continued prevalence of such acts,
Convinced of the urgency of addressing the problem in all its
dimensions.
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I am asking myself if we have not turned our back to the RIG, to
the Convention Against Torture, to the victims of torture and we
have given a free hand to the tortures.
The urgency from the RIG
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The ratification of regional and international
intstruments:
– States should ensure that they are party to relevant
regional international instruments and ensure that
these instruments are fully implemented in domestice
legislation and accord individuals the maximum scope
for accessing the human rights machinery that they
establish.
– Promote and support cooperation with international
mechanisms
– Criminalization of torture.
Conclusion
We cannot continue to have a tick-box approach to the
prevention of torture.
 International human rights instruments are not there to
make us look good or bad at international sponsored
meetings.
 It is there first and foremost to establish the
fundamental human rights of people beyond their
national jurisdictions. Then we speak about the
interrelationship between international law and domestic
law; the domestication of the international norms of
human rights.
 Torture stands in our way to the full realisation of
human rights. We have removed it under apartheid, we
can do so in post-colonial and post-apartheid SA.
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