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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Launch of South Africa’s National Torture Preventive Mechanism of the Optional Protocol to the Convention against Torture (OPCAT), held at the Castle of Good Hope, Cape Town, 19 July 2019

Programme Director,
Chairperson and Commissioners of the SAHRC
Distinguished guests,
Ladies and gentlemen, friends

Let me, at the outset, acknowledge the very valuable role played by the SAHRC and in particular, Commissioner Nissen, in this process of ratifying the Optional Protocol to the Convention against Torture (OPCAT) and establishing the National Preventive Mechanism (NPM).

It is particularly fitting that OPCAT comes into operation in our country in the same week that we celebrate Mandela Day.

We all know the incidents of torture and the cruel, inhuman and degrading treatment that Nelson Mandela and others had to endure on Robben Island.

Inmates were subjected to regular beatings and torture and Black prisoners were subjected to the worst treatment.   Prisoners working in the limestone quarry did hard labour and they had a daily quota to fill - three large rubbish bins full. They did this in the harsh African sun and many, like Madiba, had permanent damage to their eyesight, because of the glare of the sun reflecting on the limestone. Prisoners who injured themselves in the quarry did not receive medical treatment, so often wounds would become infected.

Madiba has written about how each prisoner was required to have the three buttons of his jacket properly buttoned. If the buttons were undone or their cells untidy, they would punished with either solitary confinement or the loss of meals. Many spent months in solitary confinement.

A former prisoner, Sipho Msomi, writes that it was also the mental and emotional torture that took its toll. He tells of how prison guards would cut out sentences or paragraphs from letters addressed to inmates from loved ones. Inmates referred to them as “window letters”. The only time prisoners were given their letters in full was when they received bad news, such as a death in the family because, he writes, “they knew that it was going to hurt them.”

When we look at what the inmates on Robben Island had endure, one can see why the world needed – and still needs today – instruments such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) with its Optional Protocol, the Standard Minimum Rules on the Treatment of Prisoners, better known as the Nelson Mandela Rules and others.

But torture does not take place in prisons only.

Incidents of torture and cruel, inhuman or degrading punishment can take place anywhere – particularly where people are deprived of their liberty and where they are particularly vulnerable.

For those wondering whether OPCAT and the NPM will have any direct impact on their lives, imagine having to spend a weekend in a police cell, or having a loved one who is mentally ill and has been placed in a mental health care institution, or imagine having a child in a child and youth care centre.

These are all places where torture and abuse could happen and we have a duty to protect the most vulnerable in our society, those who are unable to defend themselves, against the abuse of power and torture.

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 had been mounting pressure on South Africa, both at international and national levels, to ratify OPCAT.

The National Assembly and the National Council of Provinces approved the ratification of OPCAT on 19 March and 28 March 2019, respectively, and thereafter we deposited the instrument of accession with the Secretary- General of the UN as required by Article 27 of OPCAT.

In terms of Article 28, OPCAT enters into force on the 30th day after the date of deposit of its own instrument of ratification or accession – which is tomorrow, the 20th of July.

Of course, OPCAT can only work if we have a strong and independent National Preventive Mechanism (NPM). As a judge of the Inter-American Court of Human Rights, Judge Elizabeth Odio Benito, correctly remarked:

“The National Preventive Mechanisms are those who give the OPCAT strength, direction, momentum and hope to achieve its objectives."

A lot of work has gone into the establishment of the NPM.

The SAHRC 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.

Internationally, 90 State Parties have ratified the OPCAT and of these, 71 have designated NPMs.

As we launch our NPM today, South Africa will bring the total number up to 72, and our NPM will be the 10th one in Africa – along with Burkina Faso, Cape Verde, Mali, Mauritius, Mozambique, Nigeria, Rwanda, Senegal and Togo. 

Torture prevention is a global strategy that intends to reduce the risk of torture and to create an environment where torture and ill-treatment are less likely to occur.
So where does the NPM fit in with regards to torture prevention?
The Association for the Prevention of Torture states that torture prevention requires a three-stage approach:
Firstly, an effective legal framework must be in place that both prohibits and prevents torture and ill-treatment, as well as legal safeguards.
Secondly, these laws and regulations need to be applied in practice. Implementation is achieved through training, the development of procedural safeguards, as well as sanctions in case of non-compliance with the law.

Finally, control mechanisms should be in place in order to check both whether the legal framework exists and whether it is implemented. This requires regular visits to places of detention by independent bodies, such as a country’s NPM and also recommendations by international human rights bodies, such as the Subcommittee on Torture Prevention (SPT). As domestic bodies, NPMs are best placed to propose concrete preventive measures which are adapted to the specific challenges of a country.

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.

Ladies and gentlemen,
As we launch our NPM today, we take cognizance of the OPCAT Implementation Manual where it states that –

“NPMs do not spring into being, ready to take on their role with full capabilities.
Few NPMs begin work as a multi-disciplinary team with the range of expertise, skills and diversity of background required by the OPCAT; few have the resources and strong legal mandate required by the OPCAT.

Each NPM will face continual challenges as it strives to fulfil the complex preventive mandate, including (i) visiting all places of deprivation of liberty in its country, (ii) relating to other preventive bodies within the international framework of the OPCAT, (iii) commenting on draft or existing domestic legislation, (iv) and making recommendations to domestic authorities about the ways in which systems need to change in order to ensure the full protection of persons deprived of liberty.
The development of NPMs must be viewed as an on-going process.

Programme Director,
It is indeed an on-going process – not only as the NPM goes about its work, but also as we continue to promote and protect human rights in general.
Incidents of torture and abuse do not exist in a vacuum. As the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment mentions in one of its reports:

“The prevalence of torture and ill-treatment is influenced by a broad range of factors, including the general level of enjoyment of human rights and the rule of law, levels of poverty, social exclusion, corruption, discrimination, etc.
Whilst a generally high level of respect for human rights and the rule of law within a society or community does not provide a guarantee against torture and ill-treatment occurring, it offers the best prospects for effective prevention.”

We must therefore continue our efforts to build respect for human rights, to raise constitutional and human rights awareness, to fight against all forms of discrimination and prejudice, and to ensure that we leave no one behind.

I thank you.

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Jointly published in 2010 by the Association for the Prevention of Torture (APT) and the Inter-American Institute for Human Rights (IIHR)