1. SOUTH AFRICA’S
RATIFICATION OF THE OPTIONAL PROTOCOL TO THE
UNITED NATIONS CONVENTION AGAINST TORTURE AND
OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT (OPCAT)
DOJCD: INTERNATIONAL LEGAL RELATIONS
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INTRODUCTION
South Africa signed and ratified the United Nations Convention
Against Torture (UNCAT) in 1993 and ratified it in 1998. The UNCAT
aims to prevent torture and other acts of cruel, inhuman or
degrading treatment or punishment around the world and requires
member states to take effective measures to prevent torture in any
territory under its jurisdiction.
South Africa signed the Optional Protocol to the UNCAT, the OPCAT,
in 2006 and the OPCAT came into force in June of the same year. As
at 21 February, 2019, 89 States have signed and ratified the OPCAT
and 14 have signed and are yet to ratify.
CONSULTATION
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11 Reservations were registered by Australia, Azerbaijan, Belgium,
Bosnia and Herzegovina, France, Germany, Hungary, Kazakhstan,
Montenegro, Philippines and Romania. 8 of these were in terms of
Article 24 which provides an extension on the time allowed to
establish a National Preventive Mechanism (“NPM”) in terms of the
OPCAT.
The remaining reservations were from: Azerbaijan (inability to
enforce OPCAT in territories occupied by Armenia); Belgium
(language of different communities); and , France (strengthening the
provisions of Articles 15 and 21 re treatment of whistleblowers).
CONSULTATION
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The commencement on 29 July 2013 of the Prevention and
Combatting of Torture of Persons Act of 2013, paved the way
for South Africa to take the necessary steps towards the
ratification of OPCAT.
In September, 2017, at the United Nations Human Rights
Council in Geneva, South Africa confirmed, at its Universal
Periodic Review (“UPR”) presentation, that it will take the
necessary steps to ratify the OPCAT before South Africa’s next
UPR review which will take place in 2021.
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DISCUSSION
The UNCAT provides for the prohibition of torture, cruel and
inhuman treatment and punishment in situations where
individuals are deprived of their liberty and thus rendered
vulnerable to such abuses. The OPCAT breaks new ground
within the United Nations Human rights system as it
emphasizes prevention rather than reaction, and
cooperation with national authorities rather than
condemnation.
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Rather than reacting once violations have occurred, the
OPCAT bodies are proactive: they can visit any place of
detention at any time, without any allegation of abuse.
Article 3 of the OPCAT requires that an NPM be established
to carry out site visits and clearly defines the NPM as a body
specifically set up with a mandate to prevent torture in
places of detention.
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The OPCAT limits the visits of the NPM to places of
detention where persons are deprived of their liberty by
public authorities, or by court order/ State sanction.
The NPM, in terms of the OPCAT must have the following
characteristics:
• Independence
• Mandate
• Visits
• Unlimited access
• Private interviews and confidentiality
• Professional team
• Protection against reprisals
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The South African Human Rights Commission (SAHRC) was
identified by the Ministry as the appropriate institution to
coordinate the NPM.
The proposed NPM model is to be funded by allocations by
the DOJCD (ring-fenced for the next three years- R1. 683
million for 2019/20; R2.308 million for 20120/21 and R2
410 million for 2021/22)
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The NPM Model will comprise of existing oversight
institutions such as:
• Judge Inspector for Correctional Services (“JICS”)
• Independent Police Investigative Directorate (“IPID”)
• Commission for Gender Equality
• Military Ombudsman
• Health Ombudsman
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• Compliance Inspectorate of the Office of Health
Standards of Compliance (“OHSC”)
• Mental Health Review Boards
These institutions already carry out many of the functions
required by the NPM in their respective mandated areas.
For example the African Policing Civilian Oversight Forum
(“APCOF) has established a system of independent custody
monitoring of the South African Police Service (SAPS)
detention facilities. This pilot programme has been run with
the support and assistance of the SAHRC.
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The OPCAT also provides for the establishment of a
Subcommittee on Prevention (“SPT”) which is comprised of
up to 25 experts nominated from State Parties. The SPT will
also conduct visits to places of detention, as the NPM will do
at the domestic level, but these visits will be programmed
and the programme shared with the State Party to be visited.
Visits may be refused on the grounds of national defence,
public safety, natural disaster or serious disorder in the place
to be visited.
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CONSULTATIONS
• Legal opinions have been obtained from the state law advisors of
both the Department of Justice and Constitutional Development
and the Department of International Relations and Cooperation.
• The Department for Performance Monitoring and Evaluation has
issued a Socio-Economic Impact Assessment Study Exemption.
• On 27 February 2019 Cabinet approved the proposed ratification
of the OPCAT and for it to be tabled in Parliament for
consideration and approval by resolution.
RECOMMENDATION
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In conclusion, South Africa will be presenting its combined 2nd and 3rd
Periodic Reports as required by UNCAT to the UN Committee Against
Torture at the end of April 2019 in Geneva, Switzerland.
Thank you.
