The Star: How to stop police torture

By Nobuntu Mbelle and Amanda Dissel

On November 23 Tefo Kgame collapsed and died at the Diepkloof Police Station of “unnatural causes” after allegedly being beaten by the police.

The day before, 17-year-old Kgomotso Tsele alleges he was beaten by six police officers in the toilet of the same police station. Tsele says he was kicked, punched, held down and suffocated with a wet tyre tube.

On October 14, 10 police officers from the Vosloorus Tracing Unit allegedly tortured two brothers suspected of theft.

Upon arrest, the brothers were allegedly handcuffed, beaten, choked and shocked with a stun-gun.

The two were subsequently taken to the Vosloorus police station where they were tortured further. A black plastic bag was allegedly placed over their heads and filled with water as though to drown them.

These are just three examples of alleged torture in police custody, reminiscent of apartheid-era crimes by the police.

The Independent Complaints Directorate (ICD), an oversight body on police misconduct investigating these cases, noted in its 2007/2008 annual report that there was a 13 percent increase in deaths in police custody from the previous year.

Also, the report found police brutality accounted for 50 percent of criminal offences against the police. Because torture is not yet recognised as a criminal offence, a police officer can be charged only with the lesser offence of assault.

Torture is defined as an intentional act committed by a person acting in an official capacity, or with the consent of a public official or person acting in an official capacity, which results in severe mental and or physical suffering.

The intentional act is committed in order to extract information or a confession; as a form of punishment or intimidation or coercion; or for any other reason based on discrimination.

Typically, torture and cruel, inhuman and degrading punishment occur mostly upon arrest, in detention at police cells, prisons and holding facilities for illegal immigrants.

Conditions at the Musina holding facility – mainly for alleged illegal immigrants of Zimbabwean origin – were reported by Lawyers for Human Rights to be so poor that they constitute cruel, inhuman and degrading punishment.

In a move welcomed by human rights activists who have called for an end to ill-treatment there, the Department of Home Affairs pledged in November to shut down the facility

Torture and police brutality are a violation of SA’s international and constitutional obligations.

Ten years ago, on December 10 1998, SA ratified the United Nations Convention against Torture, which prohibits torture and other cruel and inhuman and degrading treatment or punishment.

The convention requires SA to make torture a criminal offence, as well as to put in place measures to prevent torture and other cruel, inhuman or degrading treatment or punishment.

The local courts take a dim view of torture by the police. The Supreme Court of Appeal, in condemning the use of torture, also found in a decision in April that the use of torture to extract an admission or confession by a suspect or accomplice renders that information inadmissible in court.

The SA Police Service has adopted a policy that explicitly prohibits torture and ill-treatment of persons in its custody, and tries to put in place measures to prevent it.

Yet these laws and policies are clearly not enough.

Without effective monitoring mechanisms, torture and ill-treatment in detention will persist – particularly in places under state control, cautions the Centre for the Study of Violence and Reconciliation’s (CSVR) December report, titled “Review of Existing Mechanism for the Prevention and Investigation of Torture, Cruel and Inhuman and Degrading Punishment in South Africa”.

The Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Opcat), which SA signed in September 2006, aims to prevent torture and improve conditions of detention and treatment of detainees, through regular visits to places of detention.

The Protocol establishes two mechanisms: an international body with power to conduct unannounced visits in member countries; and through independent national bodies which must conduct unannounced and regular visits on all places where people are detained.

This protocol complements the Convention against Torture.

Government must take concrete steps towards eradicating torture. The protocols and conventions demand it. The constitution demands it.

These steps include the ratification of the Opcat; the passage of the Combating of Torture Bill; ensuring that police adhere to their own anti-torture policy; and acting on the recommendations of the monitoring institutions such as the Independent Complaints Directorate, and the Judicial Inspectorate of Correctional Centres.

Ratification and implementation of these protocols will demonstrate SA’s firm commitment to the respect and promotion of human rights. Given its history of arbitrary deprivation of liberty and torture, SA must take seriously its national and international human rights commitments.

# Nobuntu Mbelle is consultant researcher and Amanda Dissel is programme manager at the Centre for the Study of Violence and Reconciliation.