Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery MP, at a Breakfast Seminar on the National Preventive Mechanism (NPM) in South Africa, hosted by the South African Human Rights Commission, held at Murray Guest House, Pretoria, 25 April 2019
Ladies and gentlemen, friends
As we celebrate 25 Years of Democracy this year, it allows us to look back and take stock of what we’ve achieved and what the remaining challenges are.
And there are, no doubt, many challenges that remain as one cannot completely eradicate the legacy of colonialism and apartheid in little over two decades.
But one fact is certain and indisputable and that is that we have succeeded in building a human rights-based culture in our country. From our courts with their ground-breaking human rights jurisprudence to justiciable socio-economic rights – our Bill of Rights and the constitutional values of freedom, human dignity and equality have become the bedrock of our democracy.
When it comes to torture and cruel, degrading and inhuman punishment, think back to what our country was like before the advent of democracy. Torture was the security forces’ modus operandi, it was all in a day’s work for them and one just has to read some of the TRC reports to see this.
So one could therefore easily think that torture ended with apartheid.
But it didn’t.
As you know, the South African government delegation will be appearing before the United Nations’ Committee against Torture in Geneva next week. In one of the shadow reports submitted to the Committee, the Centre for the Study of Violence and Reconciliation states that:
“Although torture (is) generally associated with apartheid in South Africa, the reality is that torture continues to be committed in post-apartheid South Africa and its victims comprise of a diverse group of society, including apartheid era victims, refugees and asylum seekers and current torture victims who are mostly young black South African men suspected of crime, sex workers and sometimes innocent bystanders at the wrong place at the wrong time.”
According to IPID’s latest Annual Report some 217 new cases of torture were reported to them in 2017/18 and this is a 25% increase in reported torture cases from the 173 cases the previous year. Of the 217 torture cases reported to IPID, the overwhelming majority (119) come from Kwazulu-Natal.
According to information from the NPA, for 2017/18, there were 17 convictions against persons for committing torture, attempting to commit torture and/or inciting, instigating, commanding or procuring any person to commit 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.
Our Prevention and Combating of Torture of Persons Act 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, in the case of a conviction.
In September 2006 we signed the Optional Protocol to the Convention against Torture (OPCAT) and there has been mounting pressure on South Africa, both at international and national levels, to ratify OPCAT.
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 and, at the time, we indicated that we needed an agreement on the structure of the National Preventive Mechanism (NPM) before doing so.
I am pleased to advise that the National Assembly and the National Council of Provinces approved the ratification of OPCAT on 19 March and 28 March 2019, respectively.
The DOJCD has prepared the necessary documentation to submit to DIRCO in order to deposit the instrument of accession with the Secretary- General of the UN as required by Article 27 of OPCAT.
In terms of Article 28, OPCAT shall enter into force on the 30th day after the date of deposit of its own instrument of ratification or accession. It is envisaged that the necessary documents will be submitted to DIRCO shortly.
I would also like to take the opportunity to extend my sincere appreciation to Commissioner Nissen for his assistance and contributions when OPCAT was presented to the Portfolio Committee and the Select Committee.
A lot of work has gone into the establishment of the NPM.
The SAHRC, under its new leadership, along with our Department, undertook an extensive process of revising and re-conceptualising the proposed NPM model.
The model had 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.
Article 3 of OPCAT requires that a 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.
OPCAT limits the visits of the NPM to places of detention where persons are deprived of their liberty by public authorities, or by a 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.
A significant consideration in setting up our NPM was the fact that South Africa already has a number of institutions which have an oversight mandate over places of detention and as such these institutions already carry out many of the functions required by the NPM in terms of their respective mandates.
Therefore the following institutions will all be able to contribute to the work of the NPM, subject to legislative amendments to their enabling legislation and/ or the conclusion of a memorandum of agreement:
- The Judicial Inspectorate for Correctional Services (JICS);
- The Independent Police Investigative Directorate (IPID);
- The Military Ombud;
- The Health Ombud;
- The Compliance Inspectorate of the Office of Health Standards Compliance (OHSC);
- The Department of Social Development’s secure care and Child and Youth Care Centres’ monitoring mechanism; and
- Mental Health Review Boards.
Civil society plays a critical role in monitoring and awareness.
I am advised that the South African Human Rights Commission Act already recognises the role, and permits the participation, of civil society organisations in the work of the SAHRC.
In this regard, it is envisaged that civil society will be an integral part of the NPM in providing support to the NPM.
From the side of government, I must stress the importance of civil society involvement.
Our Department has partnered with civil society on a number of projects over the years and civil society is ideally placed to assist with independent research, data verification, advocacy and public awareness and holding structures and bodies to account.
Civil society partnership is crucial. I am therefore very pleased that the African Policing Civilian Oversight Forum (APCOF) is here today, as I know that APCOF has established a system of independent custody monitoring of the South African Police Service’s detention facilities and that this pilot programme has been run with the support and assistance of the SAHRC.
From a human rights perspective, the NPM is vital, as the NPM is to regularly examine the treatment of the persons deprived of their liberty in places of detention, with a view to strengthening their protection against torture and other cruel, inhuman or degrading treatment or punishment.
The NPM is also to make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty. It has to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations and our Constitution, as well as submitting proposals and observations concerning existing or draft legislation.
As you are aware, OPCAT also provides for the establishment of a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “SPT”) which is comprised of up to 25 experts nominated from State Parties.
The SPT will also conduct visits to places of detention, as the NPM will do at domestic level.
It is therefore also important to look at the Subcommittee’s Guidelines on NPMs and how they are to function.
For its part, the SPT works with those bodies which it has been informed have been designated by the State as its NPM.
Whilst the SPT does not, nor does it intend to formally assess the extent to which NPMs conform to OPCAT requirements, it does consider it a vital part of its role to advise and assist States and NPMs fulfil their obligations under the Optional Protocol.
It will be important to ensure that our NPM meets following criteria: The NPM should complement, rather than replace, existing systems of oversight and its establishment should not preclude the creation or operation of other such complementary systems.
The mandate and powers of the NPM should be in accordance with the provisions of the Optional Protocol and these should be clearly set out in a legislative text.
The operational independence of the NPM should be guaranteed and the visiting mandate of the NPM should extend to all places of deprivation of liberty, as set out in Article 4 of the Optional Protocol.
Importantly, the necessary resources should be provided to permit the effective operation of the NPM in accordance with the requirements of the Optional Protocol and the NPM should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol.
In this regard, I can advise that the proposed NPM model is to be funded by allocations from the DOJCD, ring-fenced for the next three years. The amounts are R1.6 million for 2019/20; R2.3 million for 2020/21 and R2.4 million for 2021/22.
Going forward, it is also important to note that the Guidelines provide that the State authorities and the NPM should enter into a follow-up process with the NPM with a view to the implementation of any recommendations which the NPM may make and the effectiveness of the NPM should be subject to regular appraisal by both the State and the NPM itself.
The State is also obliged to publish and widely disseminate the Annual Reports of the NPM and to ensure that it is presented to, and discussed in, Parliament.
So, ladies and gentlemen, in a nutshell, there is still a lot of work that needs to be done.
I do believe that the success of the NPM will be largely dependent on the various oversight bodies working together with the SAHRC and civil society.
And I can assure you of our government’s continued support as we move forward.
I thank you.