INTRODUCTION
The South African Constitutions of both 1993 (Interim Constitution)Footnote 1 and 1996 (Final Constitution) made provision for the right to be free from torture and not to be treated or punished in a cruel, inhuman and degrading way. Even before the first democratic elections of 1994, the then National Party government of South African had signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1993. The new African National Congress government ratified it in 1998, thus signifying that a democratic South Africa would take its obligations under international human rights law seriously. In July 2013, South Africa incorporated UNCAT into national law by enacting the Prevention and Combating of Torture of Persons Act (PCTPA).Footnote 2 Until then, acts of torture were punishable under the common law as either common assault or assault with intent to commit grievous bodily harm. These types of assault attracted lesser punishments than the kind of punishment envisaged under UNCAT. Besides, where the police were charged with acts amounting to torture, it was the cabinet minister responsible who was held to account under civil law in his official capacity, and not the perpetrator himself, as provided under UNCAT.
This article is divided into three parts. The first deals with the history and politics related to the passing of the PCTPA. The second studies the differences between torture as a crime under international criminal law and as a crime under international human rights law. The final section analyses South African anti-torture law against the background of the benchmarks set by UNCAT.
THE HISTORICAL AND POLITICAL BACKGROUND TO SOUTH AFRICA'S ANTI-TORTURE LAW
The euphoria of freedom in the early 1990s soon faded when violent crime in South Africa rose to unprecedented levels. The public became frightened and demanded action from the government. The then President Mandela went so far as to resort to a metaphor of war to emphasize the urgent need to act, stating in his opening address to Parliament in 1995 that it was time “to take the war to the criminals” and not to permit a “situation in which we are mere sitting ducks”.Footnote 3 The public outcry against spiralling crime became increasingly provocative, exemplified by the refrain “criminals have more rights than victims”.Footnote 4 In general, political and public sentiment had become less than tolerant of the procedural rights that criminal suspects and prisoners had come to enjoy under the democratic constitution. Reports by oversight bodies about serious violations committed at the hands of the police and prison officials attracted scant public attention;Footnote 5 only exceptional accounts regarding the assault and torture of suspects and prisoners drew a measure of sympathy. The unrelenting prevalence of violent crime, coupled with the government's obsession with tougher law enforcement, made it a challenging environment in which to advocate for an anti-torture law.
With Parliament reluctant to take up the issue of torture, NGOs stepped into the breach. From 2002, when the Robben Island GuidelinesFootnote 6 were endorsed by the African Commission of Human and Peoples’ Rights,Footnote 7 NGOs started urging the government to criminalize torture. The issue of torture and other forms of inhuman and degrading treatment became the subject of a number of South African publicationsFootnote 8 and court cases. The need to criminalize torture also arose, against the background of the findings of the South African Truth and Reconciliation Commission, which recorded 4,800 incidents of torture under the apartheid regime, including the period during which the commission sat.Footnote 9 Criminalizing torture would not only fulfil the government's moral obligation owed to the freedom fighters who were murdered or mutilated at the hands of the apartheid police, but would also demonstrate a firm resolve to hold torturers legally and personally accountable for their conduct. Indeed, it was the death in police custody of the South African student leader Steve Biko in 1977 that prompted the UN General Assembly to commence work on what became UNCAT.Footnote 10
Emerging jurisprudence
In its 2008 decision in the case of Mthembu v S, the Supreme Court of Appeal refused to follow the tendency of the courts under the apartheid regime not to exclude evidence obtained under torture. The court pointed out that, in the pre-constitutional era, the courts readily admitted all relevant evidence, regardless of how it was obtained, subject only to the judge's discretion to disallow it if the strict rules of admissibility would have the effect of operating unfairly against the accused. Real evidence, meaning an object (such as a knife, document or photograph) that becomes evidence following proper identification, was more readily admitted because its admission was governed by statute. The reason for this “was that such evidence usually bore the hallmark of objective reality compared with narrative testimony that depends on the say-so of a witness”.Footnote 11 Citing the UNCAT definition of torture in full, the court emphasized that the absolute prohibition against torture, even in the event of a public emergency, is a peremptory norm of international law that the South African Constitution follows, and it extended the non-derogation principle to include cruel, inhuman and degrading treatment: “[t]he absolute prohibition on the use of torture in both our law and in international law therefore demands that ‘any evidence’ which is obtained as a result of torture must be excluded ‘in any proceedings’”.Footnote 12Mthembu was an important decision as it pointed the way for other courts regarding the admissibility of evidence obtained by improper means.
In 2006, when the UN Committee against Torture (CAT), which oversees the implementation of UNCAT, was assessing South Africa's initial report, it was informed of a particularly brutal assault that prison officials had carried out on prisoners in the St Albans prison in Port Elizabeth in July 2005, reportedly in retaliation for the fatal stabbing of a warder. In deliberations with CAT, the South African government evaded the allegations and stated that, as the matter was subject to a civil claim, it was sub judice.Footnote 13 The prisoners were denied access to medical treatment and legal representation until September 2005. One prisoner, McCallum, assisted by legal counsel, made numerous fruitless attempts to have the mass assault investigated and to seek relief. In 2008 he lodged an individual petition with the UN Human Rights Committee (HRC).Footnote 14 In its view, released in 2010, the HRC found that his right to be free from torture, protected by article 7 of the International Covenant on Civil and Political Rights (ICCPR), had been violated.Footnote 15 The HRC ordered the South African authorities to conduct a thorough and complete investigation and prosecution of those who were responsible, and to provide the victim with adequate compensation. The South African government did not respond to the decision until almost a year later, when the South African Human Rights Commission brought the matter before the Parliamentary Portfolio Committee on Correctional Services (now the Parliamentary Portfolio Committee on Justice and Correctional Services).Footnote 16 The Department of Correctional Services’ response was that had it been informed beforehand that the outcome would have been different. This was, of course, untrue, as the HRC had on five occasions invited the South African government to respond.Footnote 17 The Parliamentary Portfolio Committee on Correctional Services subsequently took up the broader issue of torture and held public hearings on the prevalence of torture in November 2011, which indicated a growing awareness of the absolute prohibition of torture.Footnote 18 The McCallum decision turned out to be extremely embarrassing, for it not only indicated multiple system failures on the part of the state to protect the rights of prisoners, but revealed the inept manner in which the government had interacted with the HRC. In December 2012, the World Organization against Torture (OMCT) called upon the South African authorities to implement the HRC's views by undertaking a prompt, thorough and complete investigation and prosecution of those who were responsible, and by providing McCallum and the other victims with full and adequate compensation.Footnote 19 A civil damages suit was subsequently brought against the minister of correctional services in the Port Elizabeth High Court, but at the time of writing the matter had not yet been concluded.
Other law reform
In 2011 the then existing police oversight body, the Independent Complaints Directorate, was replaced by the Independent Police Investigative Directorate (IPID) under a new law, the Independent Police Investigative Directorate Act 1 of 2011 (IPID Act), compelling the IPID to investigate allegations of torture. However, at the time, there was no statutory definition of torture. During the public hearings that were held on the IPID Bill, it was proposed that the IPID Act should define torture, even if only as an interim measure, as the definition of torture was key to the IPID discharging its mandate effectively. The Parliamentary Portfolio Committee on Police was concerned about the bill's lack of a definition of torture, as this would make it difficult to determine which acts constituted torture and on what grounds the IPID would conduct an investigation of torture. The committee evidently decided that it was not going to deal with the absence of a definition of torture, thereby implying that it was a task for the Portfolio Committee on Justice.Footnote 20 It can, however, be concluded that at least the Portfolio Committee on Police realised the importance of criminalizing torture and may thus have alerted the Portfolio Committee on Justice and Constitutional Development to the urgent need for such legislation.
South Africa's initial report to CAT became due in 1999. It appears to have prompted some response from the government at the time and the Department of Justice and Constitutional Development (as it then was) selectively circulated a draft act to criminalize torture in 2003. A few stakeholders submitted comments,Footnote 21 but the process was halted until a second version was circulated in 2005. Both versions exhibited notable shortcomings.Footnote 22 By the time CAT assessed South Africa in November 2006, no notable progress had been made towards tabling the draft legislation before Parliament. CAT requested detailed information within one year on progress made regarding the act,Footnote 23 but this information was never submitted to CAT.
In 2008, the Department of Justice circulated a third version of the proposed act for comment. Once again, there were notable shortcomings in the text, most importantly the fact that the definition of torture excluded the phrase “for such purposes as”, thus considerably narrowing the scope of the crime of torture. A number of civil society organizations made submissions on the act but, when the act was eventually tabled in May 2012, there was little evidence that these submissions, or the submissions on earlier versions of the act, had changed its substance. In September 2012 the Portfolio Committee on Justice and Constitutional Development held public hearings and nine civil society organizations made submissions.Footnote 24 The submissions, in general, encouraged the legislature to seize the opportunity to provide for as comprehensive legislation as possible in order to promote compliance with UNCAT. However, for reasons that are not clear, but possibly for the sake of expediency, the committee adopted a narrow focus and, with the exception of a few minor amendments, adopted the version that had been tabled in Parliament. One notable exception is that the act now includes provisions for adherence to the principle of non-refoulement (which forbids rendering a true victim of persecution to his or her persecutor), which had not been included in the tabled version. When the act was referred to the second house of Parliament, the National Council of Provinces, it was adopted without any requests for amendment.Footnote 25 On 25 July 2013, President Zuma assented to the act and four days later it was gazetted.Footnote 26
REGIONAL DEVELOPMENTS IN COMBATING TORTURE
South Africa's push to criminalize torture needs to be seen within the context of similar initiatives being undertaken in several other African countries. In 2008, also as a result of a UN Human Rights Committee review, Madagascar became the first country in the Southern African Development Community to criminalize torture in a law which also guarantees reparations to victims of torture.Footnote 27 In 2009 Uganda criminalized torture in accordance with UNCAT, as well as cruel, inhuman and degrading treatment or punishment at the hands of a public official.Footnote 28 In 2011 the Democratic Republic of the Congo recognized torture as a discrete crime in its Penal Code, with a definition in accordance with UNCAT;Footnote 29 since the law was passed, several public officials have been sentenced to up to life imprisonment for acts of torture.Footnote 30 Other African states that have passed anti-torture laws are Burundi (2009), Senegal (1996) and Cameroon (1997).Footnote 31 In 2011 the Kenyan government drafted the Prevention of Torture Act in collaboration with civil society groups. However, at the time of writing this act had not yet been tabled before Parliament.
THE DIFFERENCES BETWEEN TORTURE AS A CRIME UNDER INTERNATIONAL HUMAN RIGHTS LAW AND TORTURE AS A CRIME UNDER INTERNATIONAL CRIMINAL LAW
Although international human rights law, under which UNCAT resorts, and international criminal law, of which torture is a constituent international crime, are two distinct bodies of international law, they are intimately linked and reinforce each other as regards protection of the right to human dignity.Footnote 32 Human rights law has imbued international criminal law with a greater sensitivity to the need to protect human dignity and to “safeguard life and limb as far as possible”.Footnote 33 Given the fact that UNCAT is the only human rights treaty obliging states to criminalize torture as a discrete crime, it is instructive to discuss briefly how international criminal law and international human rights law deal with torture.
The definition of torture under UNCAT
Article 1 of UNCAT defines torture as
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
The UNCAT definition of torture is now widely accepted as reflecting customary international law.Footnote 34 It has been used as a tool by national courts,Footnote 35 regional human rights courtsFootnote 36 and UN ad hoc criminal tribunals.Footnote 37 The objective elements of the crime of torture under UNCAT are: the conduct must result in severe physical or mental suffering; the harm must be inflicted intentionally; the conduct must have a certain purpose; the perpetrator must be a public official or someone acting in an official capacity; and the torture excludes pain and suffering arising only from or inherent in acts which are lawfully sanctioned. The mens rea requirement is criminal intent. This means that negligent conduct can never be considered to be torture, although it can constitute cruel and inhuman conduct.Footnote 38
Torture as a crime against humanity under the ICC Statute
The International Criminal Court (ICC) Statute defines the crime against humanity of torture as the “intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”.Footnote 39
The mens rea requirement is that the perpetrator knew that the conduct was or was intended to be part of a widespread or systematic attack against a civilian population by a government or an organization.Footnote 40 This definition draws on the element of “severe pain or suffering” contained in the UNCAT definition, except that the definition under the ICC Statute does not require that the conduct have a specific purpose. It is not clear why the purposive element is absent, although several speculations have been put forward, one of which is that the list of purposes would have to be an exclusive list of purposes. The former UN special rapporteur on torture, Sir Nigel Rodley, criticized this reasoning as “not wholly satisfying”, leaving us “with an outcome that remains unsatisfactory”.Footnote 41 Instead of the specific purpose requirement, article 7(2)(e) of the ICC Statute imposes a new requirement which is not contained in earlier instruments defining torture, namely that the victim of torture be “in the custody or under the control of the accused”. Compared to the UNCAT definition, this restriction does not seem to take account of the factual situation where the perpetrator does not have custody or control of the victims, but causes them severe mental pain by informing them of the severe pain being inflicted on their family members elsewhere. What is unclear is whether the perpetrator must control or have custody of the victim before inflicting the pain, or whether the pain and suffering must be inflicted beforehand in order to exercise custody and control.
Torture as a war crime under the ICC Statute
The ICC Statute regulates the war crime of torture for international armed conflictsFootnote 42 and for non-international armed conflicts.Footnote 43 The statute includes torture or inhuman treatment as constituting a grave breach of the 1949 Geneva Conventions, thus making each a war crime.Footnote 44 The crime of torture as a crime against humanity and the war crime of torture do not, as UNCAT does, require the perpetrator to act in an official capacity. However, as under UNCAT, the war crime of torture requires that the pain or suffering inflicted must serve specific purposes. There is a dispute among the chambers of the international tribunals about whether the list of purposes is exhaustive. Whereas some trial chambers have preferred the open phrasing used in the UNCAT definition of torture,Footnote 45 others have favoured an exhaustive list.Footnote 46 The elements of crime in the ICC Statute, which carry over the UNCAT list of purposes, introducing it with the words “such as” speak in favour of a non-exhaustive list.Footnote 47
The differences between the definition of torture under international human rights law and international criminal law are unavoidable, for the contexts within which the crime is perpetrated differ. The essential difference between UNCAT and torture under international criminal law is twofold. First, under UNCAT the discrete crime of torture is punishable as such, irrespective of whether it is committed in war or peacetime, or in the context of widespread and systematic violence against civilians. Secondly, under UNCAT there must be direct or indirect involvement of a state official, an “implicit approval or condonation by the authorities”,Footnote 48 to avoid a single act of torture committed by a private person against another private person being considered criminal under international law. Under UNCAT, criminal liability arises where state agents, who enjoy special coercive powers vested in them by the state, abuse such powers with impunity.Footnote 49
To sum up, UNCAT has been very useful in breathing meaning into the definition of torture in the fields of both international criminal law and international human rights law. The UNCAT definition of torture has guided both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda, which have no definition of torture in their enabling statutes. As one writer states, UNCAT “must be considered the standard, to the extent that its guiding considerations can be transferred to international criminal law”.Footnote 50
THE STATE OBLIGATION TO CRIMINALIZE TORTURE UNDER UNCAT
UNCAT distinguishes itself from other human rights treaties in that it compels states to criminalize torture, including attempts to commit it, as well as complicity or participation in torture.Footnote 51 States parties are required to make these offences punishable by penalties that reflect the gravity of the crime.Footnote 52 While UNCAT does not prescribe a minimum penalty, one author considers a term of imprisonment of between six and 20 years appropriate, a conclusion reached on the basis of views expressed by individual members of CAT.Footnote 53
Whereas in earlier years some commentators on UNCAT held the view that criminalizing torture at the domestic level did not necessarily mean that states parties enact a specific crime corresponding to UNCAT's definition of torture, CAT has over the years shifted from urging states to enact a separate and distinct crime of torture to the point of requiring them to do so,Footnote 54 even where national law criminalizes the physical abuse of a person by a public official.Footnote 55 In its July 2012 decision in Belgium v Senegal, the International Court of Justice stated that that the obligation to criminalize torture has to be implemented as soon as the state is bound by UNCAT. In the words of the court: “[t]his obligation … has in particular a preventive and deterrent character, since by equipping themselves with the necessary legal tools to prosecute this type of offence, the States parties ensure that their legal systems will operate to that effect and commit themselves to co-ordinating their efforts to eliminate any risk of impunity”.Footnote 56
Had the present Sudanese president, Omar Al Bashir, for whom the ICC issued an arrest warrant in March 2009,Footnote 57 attended the inauguration of President Zuma in May 2009 or the football World Cup which South Africa hosted in 2010, South Africa would have been obliged to ensure that he was arrested and prosecuted for, amongst other international crimes, the crime of torture as a crime against humanity. Bashir chose to avoid such a situation by not attending these events.
However, South Africa's obligations under the ICC Statute did not absolve it from the duty to enact a separate crime of torture, in line with its obligations under UNCAT, which it had ratified. In 2013 South Africa enacted an anti-torture law which criminalizes torture as a discreet crime. The next section discusses this law.
THE SOUTH AFRICAN PREVENTION AND COMBATING OF TORTURE OF PERSONS ACTFootnote 58
The PCTPA defines torture as:
“any act or omission, by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as to (i) obtain information or a confession from him or her or any other person; or (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 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”.Footnote 59
Critique of the key elements of the act
The PCTPA gives effect to UNCAT by requiring that a public official or someone acting in an official capacity be involved in the torture. Rodley expressed the rationale for state involvement as follows: “[t]he fundamental idea is that, as is conceptually appropriate in the context of giving legal norms to human rights principles, the state violates the right through its agents, human rights being the normative articulation of the fundamental rules mediating the relationship of the organs of society - typically the state - and the individual members of society”.Footnote 60
Accordingly, neither the worst form of abuse nor the most inhuman treatment of a person will be regarded as constituting torture under UNCAT unless the state participates in it.Footnote 61 The drafters of UNCAT excluded private acts of torture from the definition on the assumption that these could be dealt with under ordinary, domestic criminal law.Footnote 62 This raises problems, discussed below, when private persons are contracted by public officials to carry out the torture. A private person can commit torture if the private person's act is carried out with the acquiescence or consent of a public official. As Rodley puts it: “[i]t may also be someone with no official status acting in collusion with, and to advance the purposes of officialdom, often to shroud the responsibility of members of that officialdom”.Footnote 63
Whereas UNCAT does not define a “public official”, PCTPA specifies that a public official “means any person holding public office and exercising or purporting to exercise a public power or a public function in terms of any legislation”.Footnote 64 The phrase “to exercise a public power or a public function” could be interpreted to have a more expansive meaning, beyond the conventional understanding of “official capacity”. It suggests someone who is exposed to the public and who is regarded as an authoritative public figure, exercising authority publicly. This could, by implication, include persons who, by virtue of their authority, position and influence, do in fact or are likely to exercise power over people. For example, African traditional chiefs and headmen, who wield considerable public authority, have no clearly defined legal status,Footnote 65 although they are recognized by the constitution as “traditional authorities”.Footnote 66 They, too, are bound by any international agreements which South Africa has ratified,Footnote 67 including those relating to human rights.
A loophole in UNCAT's definition of the perpetrator is that it does not provide for torture by persons who are not acting in an official capacity but who, because of their public authority, are within the compass of those who are likely to commit torture. Examples include private security police who are contracted to the government, and off-duty policemen. A recent case is F v Minister of Safety and Security and Another Footnote 68 which involved the use of brutal force by an off-duty policeman. The facts were as follows. An off-duty policeman on standby and clad in civilian clothes was driving an unmarked police vehicle in the early hours of the morning. He stopped to give a lift to a 13 year old girl, who accepted the lift, feeling that it would be safe to do so. Along the way, the policeman stopped the vehicle, assaulted the girl and then raped her. The girl laid criminal charges for assault and rape against the policeman, who was found guilty on both charges and sentenced to 12 years’ imprisonment, five of which were suspended. Thereafter she brought a damages suit against the minister of police and the policeman in the Cape Town High Court, which found the minister vicariously liable for the damages suffered as a result of the policeman's delictual conduct. The minister appealed to the Supreme Court of Appeal, which overturned the High Court decision on the grounds that the police officer was off-duty at the time and that the minister was, therefore, not liable. The girl appealed to the Constitutional Court which, in a precedent-setting judgment, unanimously set aside the order of the Supreme Court of Appeal on the basis that the connection between the conduct of the policeman and his employment was sufficiently close to make the minister vicariously liable for the policeman's unlawful acts.Footnote 69 Amongst the factors that the court considered was that the girl looked to the policeman because of his employment as a policeman (a deduction she made from the visible dockets and police radio in the vehicle), “which placed him in a position of trust”, a trust which he abused in view of her vulnerability and helplessness.Footnote 70
Other institutions contracted to the state or that are privately owned or run could include children's homes, youth hostels and rehabilitation centres. Although they are private institutions, they still fulfil a state function, and their personnel are for all intents and purposes acting in an official capacity, carrying out a state-sanctioned function, even though they are not paid by the state. The definition in the PCTPA of a public official, therefore, needs to include employees of such private institutions.
Although the PCTPA does not specifically use the term “private person”, one may infer from a reading of section 3 that a private person may incur liability for torture where such a person acts “at the instigation of, or with the consent or acquiescence of a public official”. This necessarily excludes private persons acting on their own. Several writers have criticized the failure of states to enact a separate crime of torture which covers acts of brutality that occur in the private sphere.Footnote 71 At the public hearings preceding the passing of the PCTPA, several human rights groups submitted that torture be extended to cover sex workers, rape against women and other acts of violence against women and children.Footnote 72 In its submission, Amnesty International argued that the bill (as it then was) should criminalize torture without the need to show a nexus to the involvement of public officials.Footnote 73 What is often overlooked here is that article 1(2) of UNCAT leaves it open to states to enact separate legislation “which does or may contain provisions of wider application” than those contained in article 1 of UNCAT.
The purposive element
UNCAT's definition of torture requires that the severe physical or mental pain inflicted on the person must be “for such purposes as”: to obtain information or a confession from the victim or another person; to punish, intimidate, intimidate or coerce the victim or another; or to discriminate against the victim or another person on any ground.Footnote 74 All these purposes apply to situations where the victim is at least under the effective power or control of the person who administers the pain and suffering, using his advantageous situation to achieve a certain effect. The purpose requirement is the main distinguishing feature between torture and cruel or inhuman treatment.Footnote 75 The purposes listed in the UNCAT definition are now recognized as having attained the status of customary international law,Footnote 76 and most writers are of the view that they are merely illustrative and do not constitute an exhaustive list.Footnote 77 This interpretation is inferred from the phrase “such purposes as”, which precedes the purposes listed, connoting that other, similar purposes may be included as long they resemble the purposes listed expressly.Footnote 78 It is not required that the conduct must be perpetrated solely for a prohibited purpose, as it suffices where the prohibited purpose is part of the motivation underlying the conduct and need not necessarily be the predominate or only purpose.Footnote 79 For example, there is nothing illegitimate in obtaining information or a confession from someone, so long as this is within the law and not through torture. A common characteristic of these purposes is that they are all in some way connected “precisely to state purposes or, at any rate, the purposes of an organized political entity exercising effective power”.Footnote 80
The PCTPA replicates the purposes listed in the UNCAT definition and introduces them, like UNCAT, with the words “for such purposes as”. This is an improvement on the original wording of the PCTPA in which no such prefix was used, which meant that the enumerated list of purposes was exhaustive. The departure from the original wording is in part attributable to the strong criticism by human rights groups during the public hearings that were held before the law was enacted. Adherence to the UNCAT wording is important in two ways. First, it shows a preparedness to commit unvaryingly to the efforts to make the struggle against torture more uniform internationally. Secondly, the open list of purposes will enable the courts to expand the list of prohibited purposes. Indeed, the UN ad hoc tribunals, which have adopted a definition of torture similar to that of UNCAT, have expanded the list of prohibited purposes. In Prosecutor v Furundžija the court added the “humiliation” of the victim to the possible purposes of torture.Footnote 81 In Kunarac and Others the ICTY Appeals Chamber confirmed that, if one prohibited purpose is fulfilled by the conduct, “the fact that such conduct was also intended to achieve a non-listed purpose (even one of a sexual nature) is immaterial”.Footnote 82
Defences
The aim of UNCAT is to prevent states from resorting to torture, no matter what the circumstances.Footnote 83 In line with UNCAT,Footnote 84 the PCTPA upholds the absolute, non-derogable character of the prohibition against torture. Section 4(3) of the PCTPA states that the fact that the person charged with the torture is a “head of State or government, a member of a government or parliament, an elected representative or a government official; or was under a legal obligation to obey a manifestly unlawful order of a government or superior” is neither a defence nor a ground for reducing the sentence once the person has been convicted. Section 4(4) reinforces the absoluteness and non-derogability of the prohibition by stating that even “a state of war, threat of war, internal political instability or any other public emergency may not be invoked as a justification for torture”. Furthermore, the act absolves from punishment anyone who disobeys an order to commit torture.
The effect of this absolute prohibition is that no defence whatsoever can be invoked against a charge of torture.Footnote 85 And no substantive ground for excluding criminal liability, such as self-defence or a state of necessity, is admissible as a defence. A more contentious issue is whether the crime of torture, as a crime under international human rights law, is subject to prescription. Article 6 of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law (2005) provides that prescription “shall not apply for prosecuting violations of international human rights and humanitarian law norms that constitute crimes under international law”, but makes this subject to the proviso “where so provided for in an applicable treaty or contained in other international obligations”. In the case of Barrios Altos (Chumbipuma and Others v Peru) the Inter-American Court of Human Rights asserted that “it is unacceptable to use … statutes of limitations … as a means of preventing the investigation and punishment of those responsible for gross human rights violations such as torture … which are prohibited as breaches of non-derogable rights recognized under international human rights law”.Footnote 86 However, because there is scant evidence of state practice in this area, it cannot be conclusively established whether the inapplicability of prescription is now part of customary international law.Footnote 87
In recent times, particularly in the wake of the 9/11 attacks in the United States, the categorical non-derogable ban of torture by international law has been put into question by many government officials, including those in democratic states. The use of torture is being justified on the grounds that it is a necessary tool to deal with “the global war on terror”, “exceptional circumstances”, “unique situations” or an “unrivalled and critical security challenge”.Footnote 88 Such justifications conveniently brush aside the fact that the human right to dignity is not only the foundation for human rights law, but as also stated in the preamble to the Universal Declaration of Human Rights, the foundation of “freedom justice and peace in the world”. The need to protect the inviolability of human dignity is non-negotiable, and cannot be balanced against any opposing interests, including the right to life of a hostage. As Jessberger argues: “[a]ny exception to this position would implicate the risk of abuse and open the door to a dangerously slippery slope. Only a clear position that establishes criminal liability for all acts of torture without exception can guarantee that torture is not routinely applied in difficult cases”.Footnote 89
The non-inclusion of cruel, inhuman or degrading treatment or punishment
What is regrettable is that the South African act does not criminalize cruel, inhuman and degrading treatment or punishment in accordance with article 16 of UNCAT. This shortcoming has been rightly criticized by NGOs.Footnote 90 The omission reflects a narrow understanding of UNCAT, the drafters of which clearly intended liability for torture to attach not only to the torturer, but also to any other person whose conduct might well exclude the cumulative elements of the crime of torture, but whose acts or omissions still amount to cruel, inhuman or degrading treatment or punishment. It is precisely for this reason that UNCAT has been fortified with the Optional Protocol to the Torture Convention (OPCAT), which provides for a system of regular visits by independent bodies to places where people are involuntarily deprived of their liberty, to prevent torture and other cruel, inhuman or degrading treatment or punishment,Footnote 91 an instrument which South Africa has promised to ratify although it has not yet done so. Whether ratification will follow now that the law has been enacted remains to be seen. According to the Association for the Prevention of Torture, South Africa has stated that its ratification of OPCAT will be subject to a declaration that will delay the designation of a national independent visiting body for three years.Footnote 92
The PCTPA is also deliberately silent on what procedure an alleged victim of torture should follow to have the matter investigated. UNCAT explicitly spells out the procedure that should be adhered to once an allegation of torture is made. States parties must ensure that the complaint is investigated promptly and impartially;Footnote 93 that the complainant has the right to have his complaint lodged with and examined promptly and impartially by competent authorities, and that both the complainant and witnesses be protected against ill-treatment or intimidation;Footnote 94 and that the victim of torture obtains redress within the law and has an enforceable right to fair compensation, including the means for rehabilitation.Footnote 95 The PCTPA provides none of these assurances; all it says is that the cabinet minister concerned must develop programmes to assist and advise “any person who wants to lodge a complaint of torture”.Footnote 96
At the public hearings on the bill, most of the human rights groups emphasized the need to provide victims of torture with effective remedies. The submissions highlighted how state inaction against police abuse of power has come to shape perceptions of torture amongst victims. The Department of Justice and Constitutional Development acknowledged that some people believe that torture is authorized by the state and is therefore acceptable. In a joint submission, the Trauma Centre for Survivors of Violence and the South African No Torture Consortium pointed to the fact that victims who had been tortured for political reasons under apartheid are usually still not ready to report past incidents of torture and receive counselling, because they rationalized torture as part of the struggle against oppression.Footnote 97 These victims sought to address this trauma in a practical way, such as personal ideological preparation and as a promise of a better life. In its submission, the Centre for the Study of Violence elaborated on the need for the state to compensate survivors of torture without their having to go through the emotional and psychological strain that pursuing a civil claim entails.Footnote 98 Several submissions underlined the need for the act to contain a definition of “victim” to include dependants or family of the actual victim, and others who may have been tortured for intervening on behalf of victims in distress. The act is unfortunately silent on all these matters. The fact that the act does not mention the word “victim” in its preamble or in its “objects” in section 2 is regrettable.
Universal jurisdiction and immunities
The act confers jurisdiction on South African courts to try a torture case if the suspect is a South African citizen, is ordinarily resident in South Africa, is “lawfully” in the country, or has allegedly committed the crime of torture against a South African citizen or against a person who is ordinarily resident in the country.Footnote 99 It contains a general provision which grants universal jurisdiction to South African courts if the suspect has allegedly committed the crime of torture outside South Africa, but only if the National Director of Public Prosecutions (NDPP) consents to the prosecution in writing.Footnote 100 Article 6(2) of UNCAT would still require a preliminary inquiry, from the time the suspect arrives in the country, before the case is submitted to the NDPP. If the NDPP finds that there is sufficient evidence to prosecute, but another state party to UNCAT requests that the suspect be extradited, South Africa could dispense with the need to prosecute by acceding to the request. On this point, the International Court of Justice held in Belgium v Senegal that “the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State”.Footnote 101
The question is whether foreign heads of state and diplomats may be prosecuted for torture. Under international law, state officials enjoy functional immunity (ratione materiae or subject-matter immunity) from the jurisdiction of foreign courts for conduct carried out in their official capacity on behalf of their home state. This immunity does not lapse when the official no longer holds office, for their acts are ascribed to the state.Footnote 102 A few classes of senior international officials, such as incumbent heads of stateFootnote 103 or government, diplomats, as well as ministers of foreign affairs, enjoy personal immunity (ratione personae or procedural immunity). The rationale for the immunity here is the “functional necessity”,Footnote 104 meaning that, given the need for such officials to conduct state affairs internationally, it is important to the functioning of their home state that they should have freedom of action. However, this immunity is valid only for prosecution by states and does not survive when the official ceases to hold office.Footnote 105 Furthermore, international tribunals may indict high officials, such as heads of state and senior foreign affairs officials, who are suspected of having committed international crimes, even if they are still in office.Footnote 106
By virtue of having domesticated the ICC Statute, South Africa, too, expressly excludes immunity for heads of state or government as well as government ministers and officials and members of Parliament.Footnote 107 The contradiction here is that the Diplomatic Immunities and Privileges Act of 2001 exempts a head of state from the jurisdiction of South African civil and criminal courts.Footnote 108 Dugard is of the view that this suggests that heads of state would not be entitled to plead immunity for crimes under the ICC Statute.Footnote 109 This point of view was given currency in an historic decision of the North Gauteng High Court, Pretoria in May 2012 in the case of Southern African Litigation Centre and Another v The National Director of Public Prosecutions and Others.Footnote 110 This case dealt with whether, under the principle of universal jurisdiction, criminal investigations relating to allegations of the commission of torture as a crime against humanity may be instituted at the domestic level against persons who acted outside South Africa. In a widely celebrated judgment, the court held that the decision of the National Prosecuting Authority and the Priority Crimes litigation Unit not to initiate an investigation into acts of torture as a crime against humanity under the national law implementing the ICC Statute was “unlawful, inconsistent with the Constitution and therefore invalid”.Footnote 111 This decision was upheld by both the Supreme Court of Appeal and Constitutional Court. The latter court highlighted that torture as a crime against humanity is proscribed under South Africa's national law under section 238 of the constitution and section 4(1) of the ICC Statute, that the South African police have the authority and obligation under international law to investigate, “in particular, high priority crimes like torture as a crime against humanity”, and that “the customary international law nature of the crime of torture underscores the duty to investigate this type of crime”.Footnote 112 The Constitutional Court went on to add that the universal jurisdiction to investigate international crimes is not absolute, but is subject to the country with jurisdiction being unwilling or unable to prosecute, and to the investigation being confined to the territory of the investigating state.
There remains the issue of immunity from prosecution regarding a crime committed in violation of international human rights law, such as the crime of torture under UNCAT. This question arose in the Pinochet Footnote 113 trial, in which a majority of the House of Lords held that personal immunity does not apply in the case of a criminal prosecution for torture, in view of the fact that torture is a violation of a peremptory norm of international law. Most of the Lords stated that allowing personal immunity would have been inconsistent with UNCAT's provisions granting universal jurisdiction.Footnote 114 However, scholars differ on whether incumbent heads of state and senior state officials may assert personal immunity from prosecution before national courts of other jurisdictions.Footnote 115 It is submitted that South African courts, when confronted with this question, would need to be guided by two crucial principles, namely that: “the prohibition of torture is part of customary international law and it has become a peremptory norm”;Footnote 116 and UNCAT requires that the perpetrator be a public official or someone acting in an official capacity. In the authors’ view, if a critical element of the crime of torture is that it is associated with the conduct of the state, it would make no sense to allow immunity to prevail. Akande and Shah articulate this argument more forcefully in the following words: “[s]ince the Torture Convention limits the offence of torture to acts committed in an official capacity, extra-territorial prosecution can occur only in cases where immunity ratione materiae [because of the nature of the matter] would ordinarily be applicable. However, application of immunity ratione materiae would deprive the jurisdiction provisions of the Convention of practically all meaning. Such a result would be contrary to the object and purpose of the treaty … ”Footnote 117
Lawful sanctions
UNCAT's definition of torture specifically excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions”. This exception remains the most controversial and problematic element in the definition of torture.Footnote 118 Miller describes it as “the exception that swallowed the rule - allowing a state to avoid the prohibition on torture simply by sanctioning methods of punishment that involve extremely harsh treatment”.Footnote 119 The controversy centres on the fact that what may be regarded as a lawful sanction in one country could be unlawful in another. This results in an uneven and diverse implementation of UNCAT's definition of torture internationally.
One would think that the issue of lawful sanctions would not arise in South Africa, as penalties such as the death penalty, corporal punishment and forced hard labour are unlawful. However, practice shows that, despite the constitutional safeguards against the physical and psychological abuse of persons who are deprived of their liberty, conduct which would otherwise amount to torture or to cruel, inhuman or degrading treatment or punishment continues to occur, especially in police stations and prisons.Footnote 120 The prison authorities recently admitted that assaults by officials which cause “severe pain over a period of time, also mental pain and suffering” would qualify as torture.Footnote 121 However, prison authorities are at times lax in reporting such cases to the Parliamentary Portfolio Committee on Correctional Services (as it then was).Footnote 122 The Judicial Inspectorate for Correctional Services is of the view that one of the consequences of torture only being prohibited by the Bill of Rights and not by any law governing correctional services is that “it is probable that torture loses its hierarchical importance in the genre of conduct of officials … ”Footnote 123
Returning to the PCTPA, in its definition of torture, the act replicates the “lawful sanctions” exception in UNCAT's definition word for word, without any reference to an international benchmark, which would have been helpful. Here one may quote Sir Nigel Rodley, UN special rapporteur on torture in 1997, when he argued that:
“The lawful exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to all penal systems. Deprivation of liberty, however unpleasant, as long as it comports with basic internationally accepted standards, such as those set forth in the United Nations Standard Minimum Rules for the Treatment of Prisoners, is no doubt a lawful sanction.”Footnote 124
A similar view to that of Rodley was taken by the African Commission on Human and Peoples’ Rights when it rejected Sudan's defence of its criminal law under which five girls were sentenced to a public lashing with a wire and a plastic whip on their bare backs. It held that “[t]here is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning state sponsored torture under the Charter and contrary to the very nature of this human rights treaty”.Footnote 125
While some countries have done away with the exception clause altogether in their implementing laws, thus tightening the definition of torture, others have either resisted such amendmentsFootnote 126 or have clarified the meaning of “lawful sanctions” in their national laws. For example, Australia and New Zealand have qualified the “lawful sanctions” clause by adding after the word “sanctions” the words “that are not inconsistent with the Articles of the [ICCPR]”.Footnote 127 It is submitted that South Africa, too, should add this wording to the qualifying clause. A reference to the ICCPR would constitute a more extensive range of international norms, covering a wider category of vulnerable persons than, say, a reference to the Standard Minimum Rules for the Treatment of Prisoners would. An even better solution would be to apply the test according to which the enquiry would be whether the “lawful sanctions” limit the rights of the arrested or detained person under section 35 of the South African Constitution. If yes, the next stage of the enquiry would be whether the “lawful sanctions” can be justified “in an open and democratic society based on human dignity, equality and freedom” as stipulated in the limitations clause in section 36(1) of the constitution. The Constitutional Court has held that “[a]t the very least a law or action limiting the right to freedom must have a reasonable goal and the means for achieving that goal must also be reasonable.”Footnote 128
Punishment
Under the PCTPA, any public official who commits torture, attempts to commit torture, or “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”.Footnote 129 By prescribing a penalty of up to life imprisonment, the act reflects the gravity of the crime, thus giving effect to CAT's recommendation to South Africa that the penalty for torture should aim “to prevent and eliminate torture and combat impunity”.Footnote 130 The stiff tariff of punishment is aimed at ensuring that conduct which would otherwise be classed as a form of assault would attract a harsher punishment than has many times been the case until now.Footnote 131
Unfortunately, the PCTPA does not categorize torture as one of the serious crimes that attract a discretionary minimum sentence,Footnote 132 despite the fact that torture is regarded as an utterly abhorrent crime, “the most severe violation of human dignity”,Footnote 133 “a crime of the highest order”,Footnote 134 the prohibition of which is widely considered to be ius cogens [a peremptory norm]. The discretionary minimum provisions are meant to ensure that the courts impose a standardized, severe and consistent punishment for serious, listed crimes unless there are weighty grounds for imposing a lesser sentence.Footnote 135 Subjecting someone found guilty of torture to a discretionary minimum sentence would show the universal condemnation of the torturer, the hostis humani generis Footnote 136 [an enemy of all mankind], and would serve as a strong deterrent to any would-be torturer. By not stipulating a minimum sentence, the act creates the possibility that torturers are given a suspended sentence, which is clearly not in line with the spirit of UNCAT.
The PCTPA lists a number of factorsFootnote 137 to be taken into account when imposing sentence, but is vague on how the courts should interpret them. It is submitted that these need to be substituted with concrete aggravating factors such as the duration of the torture, its frequency, the nature of the detention, the victim's accessibility to medical and legal assistance, the severity of the mental and physical injuries suffered, and the number of persons who perpetrated the torture.
CONCLUSION
The PCTPA represents a significant and progressive development in the South African criminal justice system. It is the product of concerted efforts on the part of national and international human rights groups to bring the South African government to accept the need to prohibit torture and end the impunity with which it has been committed. More than this, it reinforces the only international human rights treaty that defines and criminalizes torture and which describes the manner in which its prohibition should be enforced at both the national and international level. The act represents a commitment to complying with the standards of UNCAT. However, in order to give fuller effect to the range and reach of the prohibition set out in UNCAT, the act needs to be amended to provide for the criminalization of cruel, inhuman or degrading treatment or punishment. As regards the perpetrator element, the PCTPA needs to include persons in the employ of private institutions or organizations that are contracted to carry out work on behalf of the state. A separate law would be necessary to provide for torture in the private sphere as provided by article 1(2) of UNCAT. In order to ensure that torture does not take place under the guise of lawful sanctions, “lawful sanctions” need either to be qualified by a concluding clause referring to the relevant provisions in the ICCPR, or be tested by using the limitations clause in the constitution as a yardstick. The penalties for torture need to be categorized as under the discretionary minimum sentencing provisions, with clear guidelines as to how the aggravating factors should be interpreted.
Finally, the PCTPA has now prompted the Parliamentary Portfolio Committee on Justice and Correctional Services to propose changes in the current law that will limit the ability of someone charged with torture to obtain police bail and to be released with a warning in lieu of bail.Footnote 138 Furthermore, it is expected that the Criminal Matters Amendment Bill [20 of 2015] will remove the current 20 year statute of limitation on the crime of torture.
