Submission by the Civil Society Prison
Reform Initiative to the Portfolio Committee on Social Development in respect
of the Children’s Amendment Bill [b 19b-2006]
August 2007
Prepared
by L Muntingh and J Mujuzi
Introduction
2. This submission will focus on the
UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment
or Punishment (CAT) and the Optional Protocol to the Convention against Torture
(OPCAT), and their applicability to the Children’s Amendment Bill [B 19B 2006] (the Bill).
3. This submission is supportive of
the Bill and we welcome the measures to provide children with additional
protection, especially when they are deprived of their liberty. The submission
will therefore aim to strengthen the measures proposed in the Bill. It is
regrettable that torture, cruel, inhuman and degrading treatment of children
still take place in South African facilities where children are detained or
temporarily reside. Widespread abuse and what would amount to torture was
reported in 2005 at the
4. The Committee’s
attention is also drawn to the fact that despite
5. The right to freedom and security
of the person is described in five subsections in the Constitution, two of
which are non-derogable; the right not be tortured and the right not be treated
or punished in a cruel, inhuman or degrading way.[6]
The international ban on the use of torture also has the enhanced status of a
peremptory norm of general international law, [7] meaning that as a peremptory norm, it “enjoys
a higher rank in the international hierarchy than treaty law and even
‘ordinary’ customary rules. The most conspicuous consequence of this higher
rank is that the principle at issue cannot be derogated from by States through
international treaties or local or special customs or even general customary
rules not endowed with the same normative force.”[8]
6. The prohibition of torture
imposes on states obligations owed to all other members of the international
community, each of which has a correlative right.[9]
It signals to all states and people under their authority that “the prohibition
of torture is an absolute value from which nobody must deviate.”[10]
At national level it de-legitimates any law, or administrative or judicial act
authorising torture.[11]
[12]
No state may excuse itself from the application of the peremptory norm. The
absoluteness of the ban means that it applies regardless of the status of the
victim and the circumstances, be it a state of war, siege, emergency, or
whatever. The revulsion with which the torturer is regarded is demonstrated by
the very strong judicial rebuke, condemning the torturer as someone who has
become “like the pirate and slave trader before him – hostis humani generis, an
enemy of all mankind”,[13]
and torture itself as an act of barbarity which “no civilized society
condones,”[14] “one of
the most evil practices known to man”[15]
and “an unqualified evil”.[16]
[17]
Clause
104 of the Bill
7. Clause 104(1) of the Bill refers
to the strategy concerning child protection and mandates the Minister to
develop an inter-sectoral strategy aimed at securing a properly resourced,
co-ordinated and managed national child protection system. It is noted in the
draft that the Department of Correctional Services is not mentioned as a
specific department to be consulted as is the case with Education, Finance,
Health and Justice. Although the Department of Correctional Services is
responsible for a relatively small number of children, the Correctional
Services Act (111 of 1998) in Section 19 places a number of significant duties
on the Department.[18]
It is therefore important to ensure that the Department of Correctional
Services’ interventions with children are aligned to a supportive of the
inter-sectoral strategy aimed at securing a properly resourced, co-ordinated
and managed national child protection system.
Clauses 106 and 139
of the Bill
8. Clause 139 deals with the
discipline of children and Clause 139(2) attempts to protect children against punishment
that is cruel, inhumane and degrading. It further specifically prohibits the
use of corporal punishment.
9. Clause 139(5)(a) and (b) deals
with the training of staff in respect of the prohibition of corporal punishment
and the promotion of appropriate discipline.
10. While we are supportive of these
measures, the Bill raises a number of issues with reference to CAT. The focus
on discipline may not be of sufficient scope to provide adequate protection for
children against torture and other cruel, inhuman or degrading treatment or
punishment, as alluded to in Clause 139(1) of the Bill with reference to
Section 12(1)(c), (d) and (e) of the Constitution. Children may be subjected to
torture and other cruel, inhuman or degrading treatment outside the context of
discipline.
11. Clause 106 of the Bill in fact
makes reference to a child that has been ‘abused in a manner causing physical
injury, sexually abused or deliberately neglected’. This definition is in fact
limiting, as it does not include mental suffering.
12. In view of this, it is proposed
that the Bill incorporates the definition of torture (Article 1 of CAT) and its
absolute prohibition as a general protective measure. The definition reads: Article
1. For the purposes of this Convention, the term "torture" means 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.
13. It is furthermore important to read
the definition in Article 1 together with Article 16 of CAT: Article 16(1) Each
State Party shall undertake to prevent in any territory under its jurisdiction
other acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture as defined in Article 1, when such acts are committed by or
at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. In particular, the obligations
contained in articles 10, 11, 12 and 13 shall apply with the substitution for
references to torture of references to other forms of cruel, inhuman or
degrading treatment or punishment.
14. With reference to Clause 139(5)
(a) and (b) providing for education and awareness raising as well as the
promotion of appropriate discipline, we draw the Committee’s attention to
Article 10 of CAT: 1. Each State Party
shall ensure that education and information regarding the prohibition against
torture are fully included in the training of law enforcement personnel, civil
or military, medical personnel, public officials and other persons who may be
involved in the custody, interrogation or treatment of any individual subjected
to any form of arrest, detention or imprisonment. 2. Each State Party shall
include this prohibition in the rules or instructions issued in regard to the
duties and functions of any
such person.
15. The prevention of torture remains
after all the most important objective of CAT and the Committee against Torture
has on numerous occasions reminded states parties that this starts with
ensuring that persons working with detained persons (including children) are
made aware of the absolute prohibition of torture.[19]
From the wording of Article 10 one can assume that the Department of Social
Development should at minimum have a policy in respect of the prevention of
torture or other cruel, inhuman and degrading treatment or punishment. Such a
policy, the regulations and operating procedures should form the basis for the
training of staff, ensuring that every official is familiar with the required
standards and what is considered as prohibited and a violation of CAT.
16. We therefore submit that Clause
139(4) and (5) be amended to incorporate the general prohibition of torture and
other cruel, inhuman and degrading treatment or punishment, and not be limited
to punishment and corporal punishment in particular.
Clauses 191-194 of the Bill
17. Clause 191 provides for the
establishment of child and youth care centres. These centres provide for a wide
range of services and various categories of children to be placed there. Some
of these may have more relaxed security than others. In view of this, we draw
the Committee’s attention to Article 11
of CAT: Each State Party
shall keep under systematic review interrogation rules, instructions, methods
and practices as well as arrangements for the custody and treatment of persons
subjected to any form of arrest, detention or imprisonment in any territory
under its jurisdiction, with a view to preventing any cases of torture. States
parties are required to regularly and systematically supervise (visit) places
of detention and in the opinion of the Committee against Torture, visits to
places of detention should be conducted unannounced.[20]
This Article places a further obligation on states parties to review, on a
systematic basis the rules, instructions, methods and practices regarding detained
persons. Systematic would in the first instance mean that such a review is
methodical, thorough and comprehensive; not only in scope but also in depth. It
would therefore cover all areas where people are deprived of their liberty and
all newly identified concerns, emanating from, for example, case law. There is
no requirement as to how regular such a review should be done but ‘keep under
systematic review’ implies that it should be done regularly, and that such
rules, instructions, methods and practices should not be left to gather
proverbial dust. The question on the regularity of a systematic review,
required by Article 11, should therefore
take its cue from Article 19(1) of CAT[21];
not necessarily implying that this should be done every four years but that
there should at minimum be a plan for systematic review coinciding with the
four-year cycle of reporting.
18. The norms and standards referred
to in Clause 194 would then fall under the rules and procedures referred to
Article 11 of CAT and we therefore submit that Clause 194 be amended to provide
for the regular review of these norms and standards. It is furthermore our
submission that such a review should be done every four years at least.
19. There is at present no
independent visiting mechanism in place to provide oversight over places where
children are detained and reside. In line with Article 11 it is thus submitted
that such a structure be provided for by law to conduct visits on a regular and
unannounced basis to youth care centres. The purpose of such visits will be to
inspect facilities and services rendered, to consult with children and record
complaints, to resolve complaints lodged by children, to address other concerns
with the management of the youth care centre, and if need be, report unresolved
complaints and/or rights violations to the appropriate authority.
20. The value of visits to places
where people are deprived of their liberty to prevent torture has been
well-documented by the European Committee for the Prevention of Torture. Although
not all places designated as youth care centres are secure facilities, it
remains nonetheless important that an independent visiting mechanism is in
place for all places designated as youth care centres. The problems reported on
in para 3 above may well have been prevented if there was an independent
visiting mechanism in place to deal with complaints from children and inspect
facilities on a regular basis.
21. The Independent Prison Visitors,
created under Chapter 10 of the Correctional Services Act (111 of 1998) have
done much to promote transparency in the prison system and resolve complaints
lodged by prisoners.[22]
This may therefore be a possible model to consider in respect of oversight over
child and youth care centres. We therefore propose that the Committee seeks the
views of the Department of Social Development as with regard to the structure
and functions of such an independent visiting mechanism. We will however
propose that such visits be conducted regularly by suitably trained people drawn
from the local community and that there is a measure of judicial involvement in
such visits, possibly through local senior magistrates or a magistrate
designated by the senior magistrate to assist with such visits.
22. We support the norms and
standards set out under Clause 194 of the Bill. However, we wish to draw the
Committee’s attention to Article 13 of
the CAT: Each State Party shall
ensure that any individual who alleges he has been subjected to torture in any
territory under its jurisdiction has the right to complain to, and to have his
case promptly and impartially examined by its competent authorities. Steps
shall be taken to ensure that the complainant and witnesses are protected
against all ill-treatment or intimidation as a consequence of his complaint or
any evidence given.
23. Article 13 of CAT gives everyone
who claims to have been tortured the right to complain and to have the case
examined promptly and impartially by the competent authorities. Supported by
Article 12 (see below), these are the essential requirements of a complaints
and investigative regime envisaged by CAT. Any complaints mechanism should thus
be accessible to victims and furthermore, protect victims from secondary
victimisation. It should further be pointed out that the investigation of a
complaint of torture is not subject to the lodging of a complaint, and an
investigation should commence if there are reasonable grounds to believe that
torture had taken place.[23] A further duty imposed by Article 13 is that
such a complaints mechanism must be accessible in any territory and thus all
facilities under its jurisdiction. There are therefore no territories or
facilities that are excluded.
24. The findings of a study conducted
by The Redress Trust[24]
across many countries highlight a number of problems in connection with the
lodging of complaints.[25]
From the research, it is evident that even when survivors of torture know about
the existence of complaints procedures, they seldom know how to go about
lodging their complaints. Those survivors who do know how to go about lodging a
complaint tend to refrain from doing so because of the number of hurdles, both
physical and otherwise, that they are likely to encounter.[26]
Once victims lodge their complaints, they are often forced to endure
deliberately manufactured situations, the combined purpose of which is to
undermine, if not to sabotage, a complaint. Perpetrators often pressurise the
victim to withdraw the complaint, even to the point of offering them bribes.[27]
Very often, victims do not pursue their complaints out of fear of suffering
physical harm, threats to their lives, including those of their families,
witnesses and human rights lawyers.[28]
Where complaints are lodged in good time, cases tend to drag on endlessly,
resulting in proceedings being discontinued.[29]
In many countries that lack such legislation dealing specifically with torture,
the laws of prescription apply. This means that after a period of time a
complaint prescribes or expires, which disregards the fact that, like rape, one
of the traumatic effects of torture is that victims do not rush to lodge the
complaint immediately after they have been tortured. In countries without
clear-cut rules governing the reporting and recording of complaints, the
authorities who are entitled to receive complaints tend to enjoy wide
discretionary power in dealing with complaints. In such countries, complaints
may be dismissed at the reporting stage simply because the complainant, for
want of evidence, is unable to name the alleged torturer.[30]
Such complaints are then considered incomplete. It also is not unusual in the
case of an unregulated procedure for the complaints officer to take down the
complaint, only to deny afterwards that it was ever lodged. And because the
complainant is not given a copy of the complaint, the matter simply peters out.[31]
But, even where complaints procedures exist, officials in some countries are
known not only to refuse to receive complaints, but also to suppress or destroy
whatever evidence there is that implicates alleged perpetrators.[32]
25. Given the complexities outlined
above and the vulnerability of children, we submit that Clause 194(2) be
amended to make specific reference to the development of norms and standards
that will apply to all child and youth care centres in respect of complaints
mechanisms and procedures.
26. We also wish to draw the
Committee’s Attention to Article 12 of the CAT: Each State Party shall ensure that its competent authorities proceed to
a prompt and impartial investigation, wherever there is reasonable ground to
believe that an act of torture has been committed in any territory under its
jurisdiction.
27. Article 12 obliges states parties
to investigate cases of alleged torture in a prompt and impartial
manner and this duty is not qualified by the discretion of the authorities. The
Article does not require a formal complaint to have been lodged but ‘wherever there is reasonable ground to
believe that an act of torture has been committed.’ [33]
There are no international guidelines as to what ‘prompt’ means.[34]
Perhaps the most concrete meaning was given by the European Court of Human
Rights in its decision in Assenov and
Others vs
28. In view of the requirement of Article
12 of CAT, we submit that Clause 194(2) be amended to provide for norms and
standards applicable to all youth care centres in respect of the investigation
of allegations of torture and other forms of cruel, inhuman and degrading
treatment or punishment.
OPCAT
30. Article 4 of OPCAT sets out the
places that may be visited by the international Sub-Committee on the Prevention
of Torture and the National Preventive Mechanism: 1. Each State Party shall
allow visits, in accordance with the present Protocol, by the mechanisms
referred to in articles 2 and 3 to any place under its jurisdiction and control
where persons are or may be deprived of their liberty, either by virtue of an
order given by a public authority or at its instigation or with its consent or
acquiescence (hereinafter referred to as places of detention). These visits
shall be undertaken with a view to strengthening, if necessary, the protection
of these persons against torture and other cruel, inhuman or degrading
treatment or punishment. 2. For the purposes of the present Protocol,
deprivation of liberty means any form of detention or imprisonment or the
placement of a person in a public or private custodial setting which that
person is not permitted to leave at will by order of any judicial,
administrative or other authority.
31. It therefore follows that all
places where children are detained and/or reside from which they cannot leave
freely fall under the Protocol. OPCAT would have particular application to child
and youth care centres. We therefore submit that the Bill needs to be amended
to provide for the full cooperation of child and youth care centre management as
well as the Department of Social Development when the international
Sub-Committee on the Prevention of Torture and/or National Preventive Mechanism
visits such a facility. Full cooperation will in this regard refer at least to
unrestricted access to facilities, children, staff and documentation.
32. Article 20 describes this in more
detail and we draw the Committee’s attention to this: In order to enable
the national preventive mechanisms to fulfil their mandate, the States Parties
to the present Protocol undertake to grant them: (a) Access to all information concerning the number of persons
deprived of their liberty in places of detention as defined in article 4, as
well as the number of places and their location; (b) Access to all information referring to the treatment of those
persons as well as their conditions of detention; (c) Access to all places of detention and their installations and
facilities; (d) The opportunity
to have private interviews with the persons deprived of their liberty without
witnesses, either personally or with a translator if deemed necessary, as well
as with any other person who the national preventive mechanism believes may
supply relevant information; (e)
The liberty to choose the places they want to visit and the persons they want
to interview; (f) The right to
have contacts with the Subcommittee on Prevention, to send it information and
to meet with it.
33. We submit that such an amendment
will give effect to Article 19 of OPCAT: The national preventive mechanisms shall be
granted at a minimum the power: (a)
To regularly examine the treatment of the persons deprived of their liberty in places
of detention as defined in article 4, with a view to strengthening, if
necessary, their protection against torture and other cruel, inhuman or
degrading treatment or punishment; (b)
To make recommendations to the relevant authorities with the aim of improving
the treatment and the conditions of the persons deprived of their liberty and
to prevent torture and other cruel, inhuman or degrading treatment or
punishment, taking into consideration the relevant norms of the United Nations;
(c) To submit proposals and
observations concerning existing or draft legislation.
End
[1]The following are some of the ma
[2] Founding affidavit in Centre for Child Law v MEC for Education
[3] Die Burger
‘Kindersentrum stink na riool’ 26 July 2007 http://www.dieburger.com/Stories/News/14.0.2883080320.aspx
[4] Article 4: 1. Each State Party shall ensure that all acts
of torture are offences under its criminal law. The same shall apply to an
attempt to commit torture and to an act by any person which constitutes
complicity or participation in torture.
2. Each State Party shall make
these offences punishable by appropriate penalties which take into account
their grave nature.
[5] Committee against Torture Consideration of
reports submitted by states parties under article 19 of the Convention -
Conclusions And Recommendations of the Committee Against Torture – South Africa
(Advanced Unedited Version) CAT/C/ZAF/CO/1, 37th Session, 6 – 24 November 2006,
23 November 2006, Geneva.
[6] Section 12(1)(d)-(e)
[7] See the House of Lords decision
in A (FC) and others (FC) v.Secretary of
State for the Home Department (2004); A
and others (FC) and others vs Secretary of State for the Home Department
[2005] UKHL 71 para 33. See also R v.
[8] Prosecutor v. Furundzija ICTY (Trial Chamber) Judgment of 10
December 1998 at para 153.
[9] Prosecutor v. Furundz Para 151.
[10] Prosecutor v. Furundz Para 154.
[11] Prosecutor v. Furundz Para 155.
[12] See Fernandez and Muntingh
(forthcoming) The Criminalisation of
Torture in South Africa, CSPRI Research Report.
[13] Filartiga v. Pena-Irala [1980] 630 F (2nd Series) 876 US
Court of Appeals 2nd Circuit 890.
[14] A (FC) and others v. Secretary of State for the Home Department
para 67.
[15]
[16] Ibid at
[17]
See Fernandez and Muntingh (forthcoming) The Criminalisation of Torture in South Africa, CSPRI Research
Report.
[18] S 19(1) (a) Every
prisoner who is a child and is subject to compulsory education must attend and
have access to such educational programmes.
(b) Where practicable,
all children who are prisoners not subject to compulsory education must be
allowed access to educational programmes.
(2) The Commissioner
must provide every prisoner who is a child with social work services, religious
care, recreational programmes and psychological services.
(3) The Commissioner
must, if practicable, ensure that prisoners who are children remain in contact
with their families through additional visits and by other means.
[19] C Ingelse The UN Committee against Torture – An
Assessment (2001) p. 271.
[20] C Ingelse The UN Committee against Torture – An
Assessment (2001) p.272.
[21] Art 19 (1) The States Parties shall submit to
the Committee, through the Secretary-General of the United Nations, reports on
the measures they have taken to give effect to their undertakings under this
Convention, within one year after the entry into force of the Convention for
the State Party concerned. Thereafter the States Parties shall submit
supplementary reports every four years on any new measures taken and such other
reports as the Committee may request.
[22] Gallinetti, J (2004) Report of the
evaluation of the Independent Prison Visitors (IPV) System, CSPRI Research
Paper No. 5 available at http://www.communitylawcentre.org.za/cspri/publications/EVALUATION_OF_THE_IPV_SYSTEM.pdf
[23] Ingelse (note 7 above) 336.
[24] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006.
[25] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006.
[26] These impediments are known to
be the following:
[27] A UN Working Group on Pre-trial
Detention reported in 2005 that in
[28] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 36.
[29] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 34.
[30] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 37.
[31] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 37.
[32] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 37-38.
[33] The European Committee for the
Prevention of Torture’s (ECPT) view is that even if there has been no formal
complaint but that ‘credible information’ has come to light regarding the-ill
treatment of people deprived of their liberty ‘such authorities should be
under legal obligation to undertake an investigation’ .(The ECPT Standards:
“Substantive sections of the ECPT’s General Reports”,(2004) Council of Europe.
75.)
[34] For an overview of international
statements, declarations, reports, and case law on the elusive meaning of
‘prompt’, see Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006 pp. 15-17.
[35] Assenov and Others vs
[36] Halimi-Nedzibi v
Austria, complaint 8/1991, A/49/44, Annex V, p. 40, § 15, Reported in Ingelse
(note 7 above) 356.
[37] Redress Trust Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities (2004) The Redress Trust,
[38] Finucane vs
[39] Assenov and Others v
[40] For a more detailed description see Long D and
Boeglin Naumovic N (2004) Optional Protocol to the
Convention against Torture, Cruel, Inhuman and Degrading Treatment or
Punishment, APT
and Inter-American institute for Human Rights, San Jose and Geneva.