Prosecuting and Punishing Torture in South Africa as a Discrete Crime and as a Crime Against Humanity
| DOI | 10.3366/ajicl.2015.0124 |
| Author | Jamil Ddamulira Mujuzi |
| Pages | 339-355 |
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
Section 12 of the Constitution of the Republic of South Africa, 1996, provides: ‘(1) Everyone has the right to freedom and security of the person, which includes the right … (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way.’ There are different mechanisms aimed at preventing and combating torture in South Africa. South Africa has ratified international and regional human rights instruments, such as, the Convention Against Torture, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the African Charter on Human and Peoples’ Rights and the African Charter on the Rights and Welfare of the Child, which expressly prohibit torture; South African courts have held that evidence obtained through torture is inadmissible;
See
See section 28(1)(f) of the Independent Police Investigative Directorate Act 2010.
In its 2011/2012 Annual Report, the Judicial Inspectorate for Correctional Services reported that it had investigated ‘allegations of rape and torture of inmates by officials’. The Inspectorate also noted that some of its investigations had found that some prison officials had tortured inmates. See
Act 13 of 2013.
Section 3 of the Prevention and Combating of Torture of Persons Act, the Act, defines torture as follows:
For the purposes of this Act, “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person – (a) for such purposes as to – (i) obtain information or a confession from him or her or any other person;(ii) punish him or her for an act he or she or any other person has committed, is suspected of having committed or is planning to commit; or (iii) intimidate or coerce him or her or any other person to do, or to refrain from doing, anything; or (b) for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity, but does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The definition of torture in the Act substantially complies with the definition of torture under article 1 of the Convention. However, the following differences should be noted: first, the Convention uses the words ‘a third person’ whereas the Act uses the words ‘any other person’; secondly, unlike the Convention, the Act adds the ground of planning to commit an act – the Convention is limited to punishing the person or a third person for an act he or she has committed or is suspected of having committed; and finally, unlike the Convention, which does not stipulate the circumstances under which intimidation or coercion may amount to torture, the Act provides that for intimidation or coercion to amount to torture it has to be aimed at the person in question to do or to refrain from doing anything. In the author's opinion the above subtle differences do not render the definition in the Act inconsistent with the one under the Convention. It should also be noted that the Committee Against Torture has expressly stated that:Serious discrepancies between the Convention's definition and that incorporated into domestic law create actual or potential loopholes for impunity. In some cases, although similar language may be used, its meaning may be qualified by domestic law or by judicial interpretation and thus the Committee calls upon each State party to ensure that all parts of its Government adhere to the definition set forth in the Convention for the purpose of defining the obligations of the State. At the same time, the Committee recognizes that broader domestic definitions also advance the object and purpose of this Convention so long as they contain and are applied in accordance with the standards of the Convention, at a minimum. In particular, the Committee emphasizes that elements of intent and purpose in article 1 do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances. It is essential to investigate and establish the responsibility of persons in the chain of command as well as that of the direct perpetrator(s).
UN Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, paragraph 9.
The fact that the definition of torture in the Act complies with that under the Convention is a positive development in at least ways: first, it ensures that South Africa has complied with its obligation under the Convention;
The Committee against Torture called upon South Africa to ‘enact legislation with a specific offence of torture under its criminal law, with a definition fully consistent with article 1 of the Convention, which should include appropriate penalties that take into account the grave nature of the offence, in order to fulfil its obligations under the Convention to prevent and eliminate torture and combat impunity’. See Conclusions and recommendations of the Committee against Torture on the initial report of South Africa CAT/C/ZAF/CO/1 7 December 2006, paragraph 13.
and, secondly, it is consistent with the jurisprudence from courts in South Africa that had adopted the Convention definition before the Act was enacted.See
(1) Any person who – (a) commits torture; (b) attempts to commit torture; or (c) incites, instigates, commands or procures any person to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life. (2) Any person who participates in torture, or who conspires with a public official to aid or procure the commission of or to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life. (3) Despite any other law to the contrary, including customary international law, the fact that an accused person – (a) is or was a head of state or government, a member of a government or parliament, an elected representative or a government official; or (b) was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence. (4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture. (5) No one shall be punished for disobeying an order to commit torture.
A person convicted of torture is ‘liable to imprisonment, including imprisonment for life’. This means that courts have a wide discretion to impose an appropriate sentence on a person convicted of torture. In imposing a sentence, nothing prevents courts from considering the usual factors they have considered in imposing sentences for other crimes. Such factors include the seriousness of the offence, and the impact the sentence will have on the offender and on society.
S. S. Terblanche,
Terblanche,
The Supreme Court of Appeal held that ‘[w]ithout attempting to lay down a general rule I feel obliged to caution seriously against the use of restorative justice as a sentence for serious offences which evoke profound feelings of outrage and revulsion amongst law-abiding and right-thinking...
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