The death of Black Consciousness leader Steve Biko this month 35 years ago shocked the world. It was the cruel manner in which he died that highlighted the undesirable effects of torture by law enforcers. Biko was tortured to death while held at Pretoria Central Prison in 1977. Apartheid security policy allegedly tried to get a confession out of him.
Recently we saw how miners died at the hands of those meant to protect them in Marikana. This episode reminded us of our painful past – in the way it was conducted and the subsequent reaction by the justice system. The miners were charged for the death of their fellow workers in what we now know as the “common purpose doctrine”. But I’m not here to talk about this legal doctrine, it’s been debated many times in recent days.
I’m more interested in the torture that allegedly took place during and after the riots, mostly in police custody. In recent days we have seen torture meted out mercilessly on protesters during service-delivery protests. I cannot talk about whether it did indeed happen in Marikana because I wasn’t there. A commission has been put together by the president that will tell us that.
There’s also Independent Police Investigative Directorate investigations. The South African Human Rights Commission is also investigating a complaint by a Cape Town-based NGO on the conduct of the police. We are all waiting with baited breath on what all of these investigations will reveal.
The issue of torture came under the spotlight again this past week. The Prevention and Combating of Torture Bill, approved by Cabinet a few months ago, was opened for public submissions. The Bill is looking at criminalising torture as it is treated as mere assault. By definition, torture is the physical and mental pain intentionally inflicted to obtain information or a confession, punishing a person for a crime they are suspected of having committed. Assault? I have my doubts.
The UN classifies the most common forms of physical and psychological torture as beating, electric shocks, stretching, submersion, water boarding, suffocation, burns, rape, isolation, humiliation, mock executions etc. All of these sound too familiar, whether in SA, Africa or elsewhere. Apart from the allegations made in Marikana, we saw on 3rd Degree recently how the amaberete cops (tactical response team) went around kicking and beating taverners in the townships. And they’re allowed to get away because the law protects them from prosecution.
The Sunday Times recently reported on “predator” police officers in Cato Manor who push “the boundaries leaving hordes of physically and mentally tortured victims in their wake”. Most, if not all, were arrested and the Cato Manor “hit squad” disbanded. What we saw there was the tip of what has become endemic in the police service.
The Independent Police Investigative Directorate stated recently that more allegations of torture are being reported against the police and the Hawks. Human-rights organisations that made submissions in parliament recently called for the speedy finalisation of proper legislation in the wake of the Marikana massacre. It’s sad that 35 years after Biko’s death and 18 years after new dispensation, torture is still taken lightly by the ruling authorities.
SA has no law aimed specifically at combating torture even though the country is a signatory to the UN Convention against Torture. Article 4 of the convention states that “each state party shall ensure that all acts of torture are offences under its criminal law”. Many regional countries look up to SA and if we don’t take the lead we can forget our neighbours up north from moving on this anytime soon.
It’s not enough that the country has created a number of oversight mechanisms to combat torture such as the Independent Police Investigative Directorate, the Judicial Inspectorate of Prisons and the human rights commission. More needs to be done.
Political leaders need to speak against this and ensure the bill is finalised. If the bill goes through the penalty provided is imprisonment only, with no option of a fine. Our government makes promises, in the form of these laws, but develops no implementation mechanisms.
“Legislation is only as effective as the ability to implement it.” The Democratic Alliance cautioned against celebrating early victories a few months ago. Perhaps our leaders should have listened to the chairperson of the African Commission on Human and People’s Rights, Dupe Atoki, last month during the 10th anniversary of the Robben Island Guidelines in Johannesburg. She said: “Torture is inherently evil, morally outrageous and legally impermissible under international law. It’s the assertion that others are less than human and are simply things to be manipulated without regard to any sense of morality. And because it’s cowardly and cruel, torture degrades those who do it as well as those on whom it’s perpetuated. Torture remains a grotesque evil and a crime and it is precisely for this reason that the ban against the practice remains unconditional.”
There’s hope. Let’s see.
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