Johannesburg 21 – 23 August 2012Johannesburg 21 – 23 August 2012

Dr. Danny Titus - South African Human Rights Dr. Danny Titus - South African Human Rights CommissionCommission

Commemorative Seminar on the 10th Commemorative Seminar on the 10th Anniversary of the Robben Island Guidelines Anniversary of the Robben Island Guidelines

Enhancing Torture Prevention in AfricaEnhancing Torture Prevention in AfricaMilestone event at the occasion of the 10th Milestone event at the occasion of the 10th

Anniversary of the RIGAnniversary of the RIG

The RIG 10 years agoThe RIG 10 years ago ““The adoption of the RIG is an important step The adoption of the RIG is an important step

forward in the promotion of human rights and the forward in the promotion of human rights and the prevention of torture and ill-treatment in Africa. But prevention of torture and ill-treatment in Africa. But it is not an end in itself.it is not an end in itself.

The guidelines need to be promoted and The guidelines need to be promoted and implemented.implemented.

They have also to be understood as the collective They have also to be understood as the collective endeavour of the African community to deal with the endeavour of the African community to deal with the phenomena of torture and to look forward to every phenomena of torture and to look forward to every person enjoying the right to be free from torture and person enjoying the right to be free from torture and other forms of ill-treatment.other forms of ill-treatment.

Foreword to the RIG, Andrew R. Chigovera, Commissioner of the Foreword to the RIG, Andrew R. Chigovera, Commissioner of the African Commission on Human and Peoples RightsAfrican Commission on Human and Peoples Rights

The RIG todayThe RIG today Catherine Dupe Atoki, Chairperson of the Working Catherine Dupe Atoki, Chairperson of the Working

Group, CPTA in 2012:Group, CPTA in 2012: ““The status of the implementation of the RIG The status of the implementation of the RIG

on the continent did not evolve significantly on the continent did not evolve significantly during the session.during the session.

Torture persists because of ignorance and Torture persists because of ignorance and impunity for perpetrators of torture breeds impunity for perpetrators of torture breeds more torture. Poverty, corruption, lack of more torture. Poverty, corruption, lack of transparency in places of detention, blatant transparency in places of detention, blatant disregard for procedural safeguards, lack of disregard for procedural safeguards, lack of legislation …legislation …

The RIG todayThe RIG today

……criminalizing torture, lack of monitoring criminalizing torture, lack of monitoring mechanisms as well as difficulties mechanisms as well as difficulties occasioned by problems of the criminal occasioned by problems of the criminal justice systems in most African countries all justice systems in most African countries all consipire to make the fight against torture consipire to make the fight against torture an uphill task.an uphill task.

Of the 44 African countries that are party to Of the 44 African countries that are party to the Convention Against Torture and Other the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Cruel, Inhuman and Degrading Treatment or Punishment (CAT) and hence under the Punishment (CAT) and hence under the obligation to adopt specific legislation to …obligation to adopt specific legislation to …

The RIG todayThe RIG today

……criminalizing torture, only 8 have done so.criminalizing torture, only 8 have done so. Of these 44 only eleven have ratified the Of these 44 only eleven have ratified the

OPCAT and only 8 have signed the document.OPCAT and only 8 have signed the document. This bleak picture notwithstanding, the CPTA is This bleak picture notwithstanding, the CPTA is

encouraged that there are draft bills on the encouraged that there are draft bills on the criminalizing of torture that have been initiated criminalizing of torture that have been initiated by many States Parties and that the process of by many States Parties and that the process of OPCAT ratification in Cameroon, Mauretania OPCAT ratification in Cameroon, Mauretania and South Africa is at an advanced stage.”and South Africa is at an advanced stage.”

The bleak pictureThe bleak picture

The CTPA is also encouraged that a The CTPA is also encouraged that a momentum around issues of torture momentum around issues of torture prevention has been building up on prevention has been building up on the continent and that torture the continent and that torture prevention has now become an issue prevention has now become an issue of open debates in most countries.of open debates in most countries.

South Africa and the RIGSouth Africa and the RIG SA has signed and ratified the CAT. It appeared SA has signed and ratified the CAT. It appeared

before the CAT Committee in 2006, its follow-up before the CAT Committee in 2006, its follow-up report is overdue, its 2report is overdue, its 2ndnd and 3 and 3rdrd combined report combined report is also overdue.is also overdue.

SA has signed the OPCAT in 2006 but is yet to SA has signed the OPCAT in 2006 but is yet to ratify it.ratify it.

Torture in South AfricaTorture in South Africa

Torture occurs frequently in South Africa Torture occurs frequently in South Africa and usually within the framework of lawand usually within the framework of law

enforcement responses;enforcement responses; While torture previously was associated While torture previously was associated

with political repression and with political repression and discrimination, itdiscrimination, it

now most often occurs in crime now most often occurs in crime investigation processes and in the investigation processes and in the handling, treatmenthandling, treatment

Torture in South AfricaTorture in South Africa

and punishment of suspected and punishment of suspected offenders;offenders;

The public view towards torture is The public view towards torture is lenient in relation to the use of quite lenient in relation to the use of quite excessiveexcessive

violence on criminal suspects;violence on criminal suspects; The use and abuse of force has The use and abuse of force has

permeated the culture of the law and permeated the culture of the law and filters through tofilters through to

Torture in South AfricaTorture in South Africa

relationships with family members relationships with family members and friends;and friends;

looking at the problem of torture or looking at the problem of torture or ill‐treatment; andill‐treatment; and

High profile cases are the ones High profile cases are the ones usually reported.usually reported.

Dissel, Jensen, Roberts (2009).Dissel, Jensen, Roberts (2009).

The SA Human Rights The SA Human Rights CommissionCommission

The HRC has a very wide mandate to The HRC has a very wide mandate to promote and protect human rights.promote and protect human rights.

CEO Kayum Ahmed 2012 Annual Report:CEO Kayum Ahmed 2012 Annual Report: ““……we have been forced to ask some difficult we have been forced to ask some difficult

questions, not only of ourselves, but also of questions, not only of ourselves, but also of the society within which we live:the society within which we live:

In a country with sufficient resources and one In a country with sufficient resources and one of the most progressive constitutions in the of the most progressive constitutions in the world, why does our government continue to world, why does our government continue to build …build …

The SA Human Rights The SA Human Rights CommissionCommission

……toilets without enclosures, fail to provide toilets without enclosures, fail to provide quality education, and remain quality education, and remain unsuccessful in reducing the infant unsuccessful in reducing the infant mortality rate?mortality rate?

SA appears to have all the ingredients for SA appears to have all the ingredients for a successful, vibrant democracy built on a successful, vibrant democracy built on principles of human rights and justice, but principles of human rights and justice, but we seem to continuously fall short.we seem to continuously fall short.

What has gone wrong and how can the What has gone wrong and how can the Commission contribute to fixing things?Commission contribute to fixing things?””

The SA Human Rights The SA Human Rights CommissionCommission

And may we add from the perspective of the RIG: And may we add from the perspective of the RIG: why must democratic SA continue to live in the why must democratic SA continue to live in the fear of torture, cruel, unusual, degrading treatment fear of torture, cruel, unusual, degrading treatment or punishment? or punishment?

Why did 34 miners have to be shot and killed by Why did 34 miners have to be shot and killed by police? Why were police being shot at?police? Why were police being shot at?

We will have to have a commission of enquiry, says We will have to have a commission of enquiry, says our President. We have to get to the bottom of this.our President. We have to get to the bottom of this.

““We are not sorry,We are not sorry,”” says National Police says National Police Commissioner, Riah Phiyega. Commissioner, Riah Phiyega. ““It was all in the line It was all in the line of duty. Safety of the public is not negotiable.of duty. Safety of the public is not negotiable.””

The uphill battle and the SA The uphill battle and the SA Human Rights CommissionHuman Rights Commission

The SAHRC has section 5 committees where it The SAHRC has section 5 committees where it has the opportunity to engage with all has the opportunity to engage with all stakeholders on human rights matters.stakeholders on human rights matters.

The Section 5 Committee on the prevention of The Section 5 Committee on the prevention of torture provides the Commission to provide a torture provides the Commission to provide a platform for civil society, the different platform for civil society, the different government departments and the HRC to government departments and the HRC to advance the process on the prevention of torture. advance the process on the prevention of torture. IPID to investigate incidents of torture.IPID to investigate incidents of torture.

The HRC has been going through an intense The HRC has been going through an intense restructuring period and can play a more intense restructuring period and can play a more intense role in eliminating torture. role in eliminating torture.

Do we torture in the ANC?Do we torture in the ANC?

Former Constitutional Court judge Albie Sachs in Former Constitutional Court judge Albie Sachs in his book his book ““The Strange Alchemy of Life and LawThe Strange Alchemy of Life and Law”” 2009, relates the story of a Lusaka meeting 2009, relates the story of a Lusaka meeting between him and the then leader of the ANC, between him and the then leader of the ANC, Oliver Tambo.Oliver Tambo.

““WeWe’’ve captured a number of people whom we ve captured a number of people whom we believe were sent by Pretoria to try and destroy believe were sent by Pretoria to try and destroy the organisation. But we donthe organisation. But we don’’t have regulations …t have regulations …how captives should be dealt with.how captives should be dealt with.””

Sachs:Sachs:””ItIt’’s not too difficult… the international s not too difficult… the international conventions make it very clear, no torture, conventions make it very clear, no torture, inhuman or degrading treatment.inhuman or degrading treatment.””

Torture in the ANC?Torture in the ANC? He looked at me and quietly said: He looked at me and quietly said: ““We use We use

torture.torture.”” He spoke with a bleak face. I could He spoke with a bleak face. I couldnn ’’t believe it. The ANC, … fighting for t believe it. The ANC, … fighting for freedom, using torture?freedom, using torture?

He went to draw up a Code of Conduct and it He went to draw up a Code of Conduct and it was put to all the members in exile and was put to all the members in exile and some members of the underground in South some members of the underground in South Africa.Africa.

But should there be But should there be ‘‘special allowance in special allowance in extremely grave circumstancesextremely grave circumstances’’ for what for what were called were called ““intensive methods of intensive methods of interrogationinterrogation””??

Intensive methods of Intensive methods of interrogation?interrogation?

One by one the young soldiers of Umkhonto We One by one the young soldiers of Umkhonto We Sizwe came up to the platform and gave their Sizwe came up to the platform and gave their answer: an emphatic no. answer: an emphatic no.

They declared that the minute you allow any They declared that the minute you allow any exceptions or exemptions, elements of ANC exceptions or exemptions, elements of ANC security would use them to undermine the security would use them to undermine the principle of not employing torture.principle of not employing torture.

The young soldiers… were making unambiguous The young soldiers… were making unambiguous statements about the kind of people we were, statements about the kind of people we were, what we were fighting for, and what our morality what we were fighting for, and what our morality and core values were about.and core values were about.

Tales of Terrorism and Tales of Terrorism and TortureTorture

In the chapter with the above name, Justice In the chapter with the above name, Justice Albie Sachs relates how he had to grapple Albie Sachs relates how he had to grapple with this challenge to remain true to human with this challenge to remain true to human rights.rights.

““Anybody sitting on a high court in any land Anybody sitting on a high court in any land must feel the pressures of the threatening must feel the pressures of the threatening and disturbing events of our times. It would and disturbing events of our times. It would be odd if each one of us were not sensitive to be odd if each one of us were not sensitive to these realities as a judge, as a human being these realities as a judge, as a human being and as a person. Yet we live in a period when I and as a person. Yet we live in a period when I have felt myself proud not only to be a judge have felt myself proud not only to be a judge in South Africa, …but to belong to a world-in South Africa, …but to belong to a world-wide community of judges who believe that wide community of judges who believe that basic rights and freedoms matter.basic rights and freedoms matter.””

And yet, we have forgottenAnd yet, we have forgotten The case that has singularly laid bare SAThe case that has singularly laid bare SA’’s commitment s commitment

to the prevention of torture is the UN Human Rights to the prevention of torture is the UN Human Rights CommitteeCommittee’’s McCullum decision against SA.s McCullum decision against SA.

At the UNHRCAt the UNHRC’’s 100s 100thth sitting, SA was found to have sitting, SA was found to have violated its international obligations in terms of the violated its international obligations in terms of the ICCPR and the UNCAT. SA had also flouted the ICCPR and the UNCAT. SA had also flouted the provisions of its own constitution, violated the African provisions of its own constitution, violated the African Charter on Human and Peoples Rights, and the Robben Charter on Human and Peoples Rights, and the Robben Island Guidelines.Island Guidelines.

Judith Cohen from the HRC: Judith Cohen from the HRC: ““SA is not notching up a SA is not notching up a good reporting record at international level. For good reporting record at international level. For example, the CAT report is outstanding since 2006. The example, the CAT report is outstanding since 2006. The fact that SA has been asked to respond to the UN and fact that SA has been asked to respond to the UN and ……

SA and its international SA and its international obligationsobligations

..repeatedly ignored the requests is indicative of how ..repeatedly ignored the requests is indicative of how seriously SA regards its international obligations.seriously SA regards its international obligations.

The RIG states:The RIG states: Preamble: Preamble: Recalling, the universal condemnation and prohibition of Recalling, the universal condemnation and prohibition of

torture, cruel and inhuman, degrading and treatment and torture, cruel and inhuman, degrading and treatment and punishment,punishment,

Deeply concerned about the continued prevalence of such acts,Deeply concerned about the continued prevalence of such acts,Convinced of the urgency of addressing the problem in all its Convinced of the urgency of addressing the problem in all its

dimensions.dimensions.

I am asking myself if we have not turned our back to the RIG, to 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 the Convention Against Torture, to the victims of torture and we have given a free hand to the tortures. we have given a free hand to the tortures.

The urgency from the RIGThe urgency from the RIG

The ratification of regional and international The ratification of regional and international intstruments:intstruments:– States should ensure that they are party to States should ensure that they are party to

relevant regional international instruments and relevant regional international instruments and ensure that these instruments are fully ensure that these instruments are fully implemented in domestice legislation and implemented in domestice legislation and accord individuals the maximum scope for accord individuals the maximum scope for accessing the human rights machinery that they accessing the human rights machinery that they establish.establish.

– Promote and support cooperation with Promote and support cooperation with international mechanismsinternational mechanisms

– Criminalization of torture.Criminalization of torture.

ConclusionConclusion We cannot continue to have a tick-box approach to We cannot continue to have a tick-box approach to

the prevention of torture.the prevention of torture. International human rights instruments are not there International human rights instruments are not there

to make us look good or bad at international to make us look good or bad at international sponsored meetings.sponsored meetings.

It is there first and foremost to establish the It is there first and foremost to establish the fundamental human rights of people beyond their fundamental human rights of people beyond their national jurisdictions. Then we speak about the national jurisdictions. Then we speak about the interrelationship between international law and interrelationship between international law and domestic law; the domestication of the international domestic law; the domestication of the international norms of human rights.norms of human rights.

Torture stands in our way to the full realisation of Torture stands in our way to the full realisation of human rights. We have removed it under apartheid, human rights. We have removed it under apartheid, we can do so in post-colonial and post-apartheid SA.we can do so in post-colonial and post-apartheid SA.