DEPARTMENT OF JUSTICE AND DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENTCONSTITUTIONAL DEVELOPMENT

PREVENTION AND COMBATING OF TORTURE OF PREVENTION AND COMBATING OF TORTURE OF PERSONS BILL, 2012PERSONS BILL, 2012

BACKGROUNDBACKGROUND South Africa ratified the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (The Convention) on 10 December 1998.

A draft Bill was prepared during 2003.

In preparing the Bill legislation from the United Kingdom, Australia, Ireland, Canada and New Zealand as well as national legislation and international instruments were considered.

It was submitted to numerous role-players for comments during 2004.

Comments were received and evaluated.

BACKGROUND CONTINUEBACKGROUND CONTINUE A further draft bill was prepared during 2005, but was not

included in the Department’s legislative programs for the following years due to competing priorities.

The Department has, from time to time, interacted with interested parties on further developments, which has resulted in further inputs which were evaluated and included in an updated version of the Bill.

The Bill was introduced into Parliament during May 2012. The Portfolio Committee on Justice and Constitutional Development (the Portfolio Committee) was briefed on the contents of the Bill and the Portfolio Committee invited written comments.

A public hearing took place on 4 September 2012

BACKGROUND CONTINUEBACKGROUND CONTINUE The oral representations and written

comments were summarised and evaluated.

The Department gave responses on on 19 September 2012.

The Portfolio Committee then requested certain amendments to the Bill, which was also done.

The Portfolio Committee voted on the Bill

and it was submitted to the National Assembly for the second reading debate which took place on 14 November 2012.

PURPOSE OF BILLPURPOSE OF BILL

The purpose of the Bill is to incorporate the Convention into our domestic law, to—

(a)ensure that South Africa conforms to the obligations as set out in the Convention; and

(b) to enhance the provisions of Chapter 2 of the Constitution.

CONTENTS OF BILLCONTENTS OF BILLThe Bill comprises of a Preamble, 12 clauses and a Schedule. The Preamble is mindful—

(a) of the shameful history of gross human rights abuses, including the torture of many of the citizens and inhabitants of South Africa;

(b) that South Africa has, since 1994, become a integral and accepted member of the community of nations;

(c) that South Africa is committed to bringing persons who carry out acts of torture in any form to justice; and

(d) that South Africa is committed to carrying out its obligations in terms of the Convention.

CLAUSE 1CLAUSE 1

Clause 1 contains various definitions.

CLAUSE 2CLAUSE 2Clause 2 outlines the objects and interpretation of the Bill.

The objects are to give effect to the Republic’s obligations in terms of the Convention;

Provide for the prosecution of persons who commits offences referred to in the Bill;

Provide for measures aimed at the prevention and combating of torture;

Provide for the training of persons.

When interpreting the Bill, the court must promote the values of Chapter 2 of the Constitution.

CLAUSE 3CLAUSE 3Clause 3 deals with acts that constitute torture.

For purposes of this Bill, ‘‘torture’’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

(a) In order to—(i) obtain information or a confession from him or her or any other person;(ii) punish him or her for an act he or she or any other person has committed, is suspected of having committed or is planning to commit; or(iii) intimidate or coerce him or her or a third person to do, or to refrain from doing, anything; or

(b) 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, but does not include pain or suffering arising from only inherent in or incidental to lawful sanctions.

NOTE ON CLAUSE 3NOTE ON CLAUSE 3This definition is identical to the

definition of torture in the Convention.

The opinion is held that it is the most appropriate course of action not to deviate from that definition.

CLAUSE 4CLAUSE 4The prohibition of torture is dealt with in clause 4 and provides that any public official who commits torture, attempts to commit torture, or incites, instigates, commands or procures any person to commit torture, or any person who participates in torture, conspires with a public official to aid or procure the commission of or to commit torture, will be guilty of an offence and will on conviction be liable to a sentence of imprisonment, including imprisonment for life.

CLAUSE 4 CONTINUESCLAUSE 4 CONTINUESThe fact that an accused person is or was a head of State or government, a member of a government or parliament, an elected representative or a government official, or was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence.

A state of war, threat of war, internal political instability or any other public emergency may not be invoked as a justification for torture.

No one shall be punished for disobeying an order to commit an act amounting to torture.

NOTES ON CLAUSE 4NOTES ON CLAUSE 4The Geneva Conventions of 1949 are

aimed at codifying international principles that govern the conduct of war and the treatment of civilians and non-combatants during a situation of war.

The basic principle being that persons who are not actively engaged in hostilities should be treated humanely.

The treaties of 1949 were ratified, in whole or with reservations, by 194 countries, including South Africa.

NOTES CONTINUENOTES CONTINUE Torture and other ill-treatment by the agents of

states that are party to the Geneva Conventions of any person covered by the four Conventions are expressly prohibited by Article 3 of the Geneva Conventions.

Article 8 of the Rome Statute on the International Criminal Court which defines war crimes also criminalises torture and inhuman treatment.

Article 7 criminalises torture as a crime against humanity when it is committed as part of a widespread or systemic attack directed against any civilian population.

South Africa has incorporated these definitions and consequently criminalised torture perpetrated in terms of these definitions in the Implementation of the Rome Statute of the International Criminal Court Act, 2002.

NOTES CONTINUENOTES CONTINUERegarding the question whether the

Convention with its mandate to protect human rights will also apply, it should be noted that while it was originally thought that international humanitarian law applies during periods of armed conflict to the exclusion of human rights law, the modern trend is that human rights law can also apply during armed conflicts.

It is argued that the Geneva Conventions will not override the Torture Convention during times of armed conflict and that the Torture Convention will still be applicable to the extent possible in the circumstances.

CLAUSE 5 CLAUSE 5 Clause 5 deals with factors to be considered in sentencing. Aggravating factors for the purpose of sentencing are:

(a) Any discrimination against the victim;(b) the state of the victim’s mental or

physical health;(c) whether the victim had any mental or

physical disability;(d) whether the complainant was under

the age of 18 years;(e) whether the victim was also the victim

of a sexual act as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007);

CLAUSE 5 CONTINUESCLAUSE 5 CONTINUES(f) the use of any kind of weapon to

harm, threaten or intimidate the victim;

(g) the infliction of serious mental or physical harm to the victim;

(h) the conditions in which the victim was detained;

(i) the role of the convicted person in the offence;

(j) previous convictions relating to the offence of torture or related offences; and

(k) the physical and psychological effects the torture had on the victim.

CLAUSE 6CLAUSE 6Clause 6 deals with the jurisdiction of a South African court. Any person who commits an offence contemplated in the Bill outside the territory of the Republic, is deemed to have committed that offence in the territory of the Republic if—

(a) that person is a South African citizen;(b) that person is not a South African citizen but is

ordinarily resident in the Republic;(c) that person is, after the commission of the act

of torture, present in the territory of the Republic or in its territorial waters or on board a ship, vessel, off-shore installation, a fixed platform or aircraft registered or required to be registered in the Republic and that person is not extradited pursuant to Article 8 of the Convention; or

.

CLAUSE 6 CONTINUESCLAUSE 6 CONTINUES(d) that person has committed the

offence against a South African citizen or against a person who is ordinarily resident in the Republic.

 If a person is alleged to have committed such an offence outside the territory of the Republic, no prosecution may be instituted without the consent of the National Director of Public Prosecutions, who must, if he or she decides to prosecute, designate the court in which the prosecution must be conducted

NOTES ON CLAUSE 6NOTES ON CLAUSE 6Article 5 of the Convention deals with

extra-territorial jurisdiction. Paragraph 1 of Article 5 provides that each “State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 (the offences of torture).

States are bound by the Convention as being part of customary international law. Clause 6 of the Bill therefore does nothing more than give effect to what is required by State Parties to the Convention.

CLAUSE 7CLAUSE 7

In terms of clause 7 nothing contained in this Act affects any liability which a person may incur under the common law or any other law.

NOTES ON CLAUSE 7NOTES ON CLAUSE 7 A study of legislation in countries such as the United

Kingdom, Australia and Canada reveals that no specific provision is made for redress and rehabilitation of victims of torture. The only specific mention of compensation could be found in section 5 of the New Zealand Crimes of Torture Act, 1989, where it is provided that the Attorney-General can consider the question of compensation.

Damages and compensation for damages in South Africa are regulated largely by the common law.

Section 300 of the Criminal Procedure Act, 1977, is the only relevant statutory provision which provides for the payment of compensation to a victim of crime.

In our common law damages for any loss caused by bodily injury and death are usually classified as general damages and special damages.

One of the points of criticism raised previously was that the Bill does not make any specific provision for redress or create a mechanism for this purpose. The proposed clause 6 is deemed to be sufficient to address the matter and give effect to what the Convention requires.

CLAUSE 8CLAUSE 8Article 3 provides that no State Party shall

expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Clause 8 follows the wording of the Convention almost verbatim.

CLAUSE 9CLAUSE 9Clause 9 places a duty on the State to promote awareness of the prohibition against torture aimed at the prevention and combating of torture. One or more cabinet ministers, designated by the President, must cause programmes to be developed in order to conduct education and information campaigns regarding the gravity of torture, and to provide assistance and advice to victims of torture and to train public officials on the prohibition, prevention and combating of torture.

CLAUSE 10CLAUSE 10Clause 10 provides that

regulations may be made to achieve the objects of the Act and such regulations must be tabled before promulgation.

Clause 11Clause 11Clause 11 provides for the

amendment of laws specified in the Schedule

CLAUSE 12CLAUSE 12

Clause 12 contains the short title of the Bill.

ScheduleScheduleThe Schedule provides for the amendment of —(a) Schedule 1 to the Criminal Procedure Act,

1977 by including the offences referred to in the Bill in the list of offences for which a peace officer or private person may arrest a suspect without a warrant of arrest;

(b) Parts II and III of Schedule 2 to the Criminal Procedure Act, 1977, by listing the offences referred to in the Bill as offences in respect of which—

(i) bail may not be granted before a first appearance in court; and

(ii) an accused may not be released on warning in lieu of bail.

(c) Schedule 1 to the Prevention of Organised Crime Act, 1998, to include the offences referred to in the Bill as offences in respect of which—

(i) preservation of property orders; and(ii) forfeiture orders,may be made.