Milestone Event: 10th Anniversary of the Robben Island Guidelines

Commemorative Seminar on the 10th Anniversary of the Robben Island Guidelines Enhancing Torture Prevention in AfricaMilestone event at the occasion of the 10th Anniversary of the RIG Johannesburg 21 – 23 August 2012 Dr. Danny Titus - South African Human Rights Commission

The RIG 10 years ago • “The adoption of the RIG is an important step forward in the promotion of human rights and the prevention of torture and ill-treatment in Africa. But it is not an end in itself. • The guidelines need to be promoted and implemented. • They have also to be understood as the collective endeavour of the African community to deal with the phenomena of torture and to look forward to every person enjoying the right to be free from torture and other forms of ill-treatment. Foreword to the RIG, Andrew R. Chigovera, Commissioner of the African Commission on Human and Peoples Rights

The RIG today • Catherine Dupe Atoki, Chairperson of the Working Group, CPTA in 2012: • “The status of the implementation of the RIG on the continent did not evolve significantly during the session. • Torture persists because of ignorance and impunity for perpetrators of torture breeds more torture. Poverty, corruption, lack of transparency in places of detention, blatant disregard for procedural safeguards, lack of legislation …

The RIG today • …criminalizing torture, lack of monitoring mechanisms as well as difficulties occasioned by problems of the criminal justice systems in most African countries all consipire to make the fight against torture an uphill task. • Of the 44 African countries that are party to the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) and hence under the obligation to adopt specific legislation to …

The RIG today • …criminalizing torture, only 8 have done so. • Of these 44 only eleven have ratified the OPCAT and only 8 have signed the document. • This bleak picture notwithstanding, the CPTA is encouraged that there are draft bills on the criminalizing of torture that have been initiated by many States Parties and that the process of OPCAT ratification in Cameroon, Mauretania and South Africa is at an advanced stage.”

The bleak picture • The CTPA is also encouragedthata momentum aroundissues of torturepreventionhas been buildingupon the continent and thattorturepreventionhasnowbecomeanissue of open debates in mostcountries.

South Africa and the RIG • SA has signed and ratified the CAT. It appeared before the CAT Committee in 2006, its follow-up report is overdue, its 2nd and 3rd combined report is also overdue. • SA has signed the OPCAT in 2006 but is yet to ratify it.

Torture in South Africa • Torture occurs frequently in South Africa and usually within the framework of law • enforcement responses; • While torture previously was associated with political repression and discrimination, it • now most often occurs in crime investigation processes and in the handling, treatment

Torture in South Africa • and punishment of suspected offenders; • The public view towards torture is lenient in relation to the use of quite excessive • violence on criminal suspects; • The use and abuse of force has permeated the culture of the law and filters through to

Torture in South Africa • relationships with family members and friends; • looking at the problem of torture or ill‐treatment; and • High profile cases are the ones usually reported. Dissel, Jensen, Roberts (2009).

The SA Human Rights Commission • The HRC has a very wide mandate to promote and protect human rights. • CEO Kayum Ahmed 2012 Annual Report: • “…we have been forced to ask some difficult questions, not only of ourselves, but also of the society within which we live: • In a country with sufficient resources and one of the most progressive constitutions in the world, why does our government continue to build …

The SA Human Rights Commission • …toilets without enclosures, fail to provide quality education, and remain unsuccessful in reducing the infant mortality rate? • SA appears to have all the ingredients for a successful, vibrant democracy built on principles of human rights and justice, but we seem to continuously fall short. • What has gone wrong and how can the Commission contribute to fixing things?”

The SA Human Rights Commission • And may we add from the perspective of the RIG: why must democratic SA continue to live in the fear of torture, cruel, unusual, degrading treatment or punishment? • Why did 34 miners have to be shot and killed by police? Why were police being shot at? • We will have to have a commission of enquiry, says our President. We have to get to the bottom of this. • “We are not sorry,” says National Police Commissioner, Riah Phiyega. “It was all in the line of duty. Safety of the public is not negotiable.”

The uphill battle and the SA Human Rights Commission • The SAHRC has section 5 committees where it has the opportunity to engage with all stakeholders on human rights matters. • The Section 5 Committee on the prevention of torture provides the Commission to provide a platform for civil society, the different government departments and the HRC to advance the process on the prevention of torture. IPID to investigate incidents of torture. • The HRC has been going through an intense restructuring period and can play a more intense role in eliminating torture.

Do we torture in the ANC? • Former Constitutional Court judge Albie Sachs in his book “The Strange Alchemy of Life and Law” 2009, relates the story of a Lusaka meeting between him and the then leader of the ANC, Oliver Tambo. • “We’ve captured a number of people whom we believe were sent by Pretoria to try and destroy the organisation. But we don’t have regulations …how captives should be dealt with.” • Sachs:”It’s not too difficult… the international conventions make it very clear, no torture, inhuman or degrading treatment.”

Torture in the ANC? • He looked at me and quietly said: “We use torture.” He spoke with a bleak face. I couldn’t believe it. The ANC, … fighting for freedom, using torture? • He went to draw up a Code of Conduct and it was put to all the members in exile and some members of the underground in South Africa. • But should there be ‘special allowance in extremely grave circumstances’ for what were called “intensive methods of interrogation”?

Intensive methods of interrogation? • One by one the young soldiers of Umkhonto We Sizwe came up to the platform and gave their answer: an emphatic no. • They declared that the minute you allow any exceptions or exemptions, elements of ANC security would use them to undermine the principle of not employing torture. • The young soldiers… were making unambiguous statements about the kind of people we were, what we were fighting for, and what our morality and core values were about.

Tales of Terrorism and Torture • In the chapter with the above name, Justice Albie Sachs relates how he had to grapple with this challenge to remain true to human rights. • “Anybody sitting on a high court in any land must feel the pressures of the threatening and disturbing events of our times. It would be odd if each one of us were not sensitive to these realities as a judge, as a human being and as a person. Yet we live in a period when I have felt myself proud not only to be a judge in South Africa, …but to belong to a world-wide community of judges who believe that basic rights and freedoms matter.”

And yet, we have forgotten • The case that has singularly laid bare SA’s commitment to the prevention of torture is the UN Human Rights Committee’s McCullum decision against SA. • At the UNHRC’s 100th sitting, SA was found to have violated its international obligations in terms of the ICCPR and the UNCAT. SA had also flouted the provisions of its own constitution, violated the African Charter on Human and Peoples Rights, and the Robben Island Guidelines. • Judith Cohen from the HRC: “SA is not notching up a good reporting record at international level. For example, the CAT report is outstanding since 2006. The fact that SA has been asked to respond to the UN and …

SA and its international obligations • ..repeatedly ignored the requests is indicative of how seriously SA regards its international obligations. • The RIG states: • Preamble: Recalling, the universal condemnation and prohibition of torture, cruel and inhuman, degrading and treatment and punishment, Deeply concerned about the continued prevalence of such acts, Convinced of the urgency of addressing the problem in all its dimensions. I am asking myself if we have not turned our back to the RIG, to the Convention Against Torture, to the victims of torture and we have given a free hand to the tortures.

The urgency from the RIG • The ratification of regional and international intstruments: • States should ensure that they are party to relevant regional international instruments and ensure that these instruments are fully implemented in domestice legislation and accord individuals the maximum scope for accessing the human rights machinery that they establish. • Promote and support cooperation with international mechanisms • Criminalization of torture.

Conclusion • We cannot continue to have a tick-box approach to the prevention of torture. • International human rights instruments are not there to make us look good or bad at international sponsored meetings. • It is there first and foremost to establish the fundamental human rights of people beyond their national jurisdictions. Then we speak about the interrelationship between international law and domestic law; the domestication of the international norms of human rights. • Torture stands in our way to the full realisation of human rights. We have removed it under apartheid, we can do so in post-colonial and post-apartheid SA.

Milestone Event: 10th Anniversary of the Robben Island Guidelines