Remarks by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at South African Human Rights Commission’s High-Level Meeting on the Establishment of a National Preventive Mechanism (NPM) under the Optional Protocol to the Convention against Torture (OPCAT), held at the Protea Hotel Fire & Ice, Cape Town, 11 February 2019
Ladies and gentlemen,
Last year we celebrated the 70th anniversary of the Universal Declaration of Human Rights.
Torture has been expressly prohibited internationally since the birth of the UDHR in 1948 and since then more than 150 countries around the world have signed the UN Convention against Torture.
As you know, South Africa signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in January 1993 and ratified it in December 1998.
In September 2006 we signed the Optional Protocol to the Convention against Torture (OPCAT).
Torture undermines the basic democratic principles of human dignity. And our Bill of Rights places enormous value on the importance of human dignity.
The right to human dignity is a non-derogable right at both the levels of international law and at national level in terms of our Constitution, while section 12 of our Constitution entrenches the right to freedom and security. This right includes, among others, the right not to be tortured in any way, and the right not to be treated or punished in a cruel, inhuman or degrading way.
The Prevention and Combating of Torture of Persons Act, 2013 gives effect to South Africa’s international treaty obligations, provides for the offence of torture of persons, prevents and combats the torture of persons within or across the borders of South Africa, and imposes a maximum penalty of R100 million or life imprisonment or both being imposed in the case of a conviction.
Against the backdrop of all these existing measures and developments, there is only one thing which is still outstanding – and that is the ratification of OPCAT.
There has been mounting pressure on South Africa, both at the international and national levels, to ratify OPCAT and our government has affirmed its intention to do so.
During its review by the UN Human Rights Committee in March 2016 and the third UPR cycle in May 2017, South Africa again reaffirmed its intention to ratify the OPCAT, but we did indicate that we needed an agreement on the structure of the National Preventative Mechanism (NPM) before doing so.
In order to achieve this, our department has been consulting widely with other relevant government departments, with civil society and with Chapter 9 institutions.
Some of the concerns and considerations relating to a proposed NPM were the following:
Firstly, it was argued that due to existing financial restraints it would be better if the proposed NPM model were to be made up of existing institutions with zero financial implications.
Against this consideration it must, however, be noted that not a single model would have zero financial implications, because even the merging of existing institutions would mean added resources to ensure that the additional mandate is successfully carried out.
Secondly, the ratification could not proceed without a preferred model and costing plan for the NPM being in place.
Furthermore, it was noted that the option of extending the mandate of the SAHRC was the preferred option.
The Department and the SAHRC have been in consultation regarding the proposed business plan for some time, with our Department reverting to the SAHRC about our concerns with the proposed Business Plan for the NPM in 2017.
The SAHRC, under its new leadership, then undertook an extensive process of revising and re-conceptualising the proposed NPM model.
The model has to take into account certain factors, such as the fact that OPCAT is a preventive treaty which introduces a system of regular visits to places of detention, by means of the establishment of a mechanism, the NPM.
In addition, Article 3 of OPCAT requires that an NPM be established to carry out site visits, thus the NPM is a body specifically set up with a mandate to prevent torture in places of detention.
It is to be noted that OPCAT does not give a boundless mandate to the NPM to undertake visits to all places where people are detained. The OPCAT limits the visits of the NPM to places of detention where persons are deprived of their liberty by public authorities, or by court order or State sanction.
Even where the NPM is authorized to undertake visits to, for example, a psychiatric hospital they would only be undertaking the visit to oversee the conditions of detention of patients who are detained by virtue of a court order.
South Africa already has a number of institutions which have an oversight mandate over places of detention, and a few of these carry out visits to places of detention.
I will leave it to Advocate Thipanyane to further elaborate on the details of the proposed NPM and its envisaged activities.
From the side of government we acknowledge that for the NPM to be able to fulfill its mandate, the State is responsible for ensuring it has sufficient capacity and legislative protection.
In the case of South Africa, this could require legislative amendments and an undertaking to provide the SAHRC with the resources to commence the basic work of an NPM for the purpose of start-up and sustainability.
The Department of Justice and Constitutional Development, together with National Treasury has set aside the required financial resources and we are moving ahead with the ratification process.
The ratification process has begun. Presentations will be made to various structures of government, like the various clusters and Cabinet Committees, and then on to Cabinet for approval. Whilst every effort will be made to get it to Parliament before the end of this current administration, there might not be enough time before Parliament rises.
Government is fully committed to the ratification of OPCAT and the establishment of an NPM under the coordinating expertise of the SAHRC.
Torture, cruel or inhuman or degrading treatment or punishment not only flies in the face of our Constitutional values, but is a scourge that needs to be removed from our society. Particularly, as people are often at their most vulnerable when they are deprived of their liberty.
Given our history and the horrific incidents of torture that many had to endure during the struggle, it’s more than simply meeting the requirements of treaties or complying with laws in a legalistic way – it’s about doing the right thing.
As Barack Obama said:
“…we are engaged in a deadly global struggle for those who would intimidate, torture, and murder people for exercising the most basic freedoms.
If we are to win this struggle and spread those freedoms, we must keep our own moral compass pointed in a true direction.”