Listeners to a popular radio station in South Africa were shocked recently when they were subjected to the screams of an awaiting trial prisoner who was allegedly being tortured at the Pretoria Central prison. The audio recording had been leaked to the radio station by another prisoner who claimed that six correctional service officials had drenched the man in water before using a ‘stun’ devise to electrically shock him in an effort to get a confession for concealing a cellphone.

The National Commissioner Tom Moyane later stated that an internal investigation would take place and that police had opened case of assault against the six officials. Systemic corruption and various abuses in South African correctional facilities were revealed by the Jali Commission of Inquiry, which ran from 2001 to 2006. This incident raises questions about whether sufficient steps were taken to stop prison abuse. How pervasive is torture in prisons, who is most at risk and what can be done about it?

The Department of Correctional Services Act (No. 111 of 1998) allows for a ‘minimum degree of force’ including the use of ‘non-lethal incapacitating devices’ which, may be used to subdue prisoners in specific instances such as during an attempted escape. However, the Act clearly states that force may not be used for disciplinary or any other purposes.

The extent of torture in prisons is unknown. The South African Judicial Inspectorate of Correctional Services (JICS), mandated to monitor the safe custody of inmates, noted in its 2009/10 annual report, it does not have the resources and capacity to monitor the extent of the problem. Given shortcomings in the monitoring and reporting systems, it is not clear to know how widespread violations of this nature are.

A particular shortcoming is that because torture is not legally defined in South Africa, cases of torture are often classified as ‘assault’ or ‘attempted murder.’ It is therefore not possible to know the extent of torture occurring in our prisons. In the recent 2011/12 Annual Performance Plan the Department of Correctional Services (DCS) noted that a total of 2 240 cases of assault of people in their custody were reported in 2009/10. The document fails to state whether the perpetrators of these assaults were prison officials or other inmates.

Given that the JICS has inadequate capacity it should focus its attention on those who are most at risk of being tortured. Recent research highlights that people awaiting trial are at a greater risk than those who have been sentenced. A paper published by the Open Society Foundation in June 2011 titled, Pretrial Detention and Torture: Why Pretrial Detainees face the Greatest Risk explains the reasons as follows:

* The incentives and opportunities for torture are most prevalent during the investigation stage of the criminal justice process.
* Pre-trial detainees are entirely in the power of detaining authorities who often perceive torture and other forms of ill-treatment as the easiest and fastest way to obtain information or extract a confession.

In South Africa, prison inmates who are awaiting trial and have not yet been sentenced by a court are referred to as ‘remand detainees.’ Currently there are approximately 50 000 remand detainees in South African prisons making up approximately 31% of the total prison population.

A crucial issue that this incident has raised is the lack of adherence by the South African Government to fully implement the United Nations Convention against Torture and other Cruel and Degrading, Inhumane or Degrading Punishment (UNCAT), which was signed in 1993 and ratified in 1998. An important part of complying with this protocol is that South Africa passes legislation that defines and criminalises incidents of torture. The UNCAT defines torture as ‘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…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.’

In 2007, The Committee Against Torture, a coalition of ten international experts on Human Rights, argued that it is important to clearly define the offence of torture as a crime that is distinct from common assault or other crimes. The Committee, which is responsible for monitoring the implementation of the UNCAT, argued that once this step has been taken, it will alert ‘everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture’, ‘emphasise the need for appropriate punishment, and empower the state and public to monitor the incidences of torture and take appropriate steps to ensure that it is effectively dealt with’.

Some headway was made when in 2005, the Department of Justice and Constitutional Development drafted the ‘Prevention and Combating of Torture Bill.’ However, to date this legislation has not been passed.

Fortunately, indications are that progress may be made on this front. According to the 2011 Legislative Programme of the Department of Justice and Constitutional Development, the Bill will be given to Parliament for public commentary in September 2011.

Currently, the legislation and monitoring capacity that is in place is insufficient to effectively deal with acts of torture against those that are most vulnerable to it. Passing the legislation however, will only be the first step towards ending the heinous crime of torture. Once this happens, the government must then take steps to fully implement the remaining provisions and ensure that the required mechanisms for addressing torture are in place.

Tizina Ramagaga, Junior Researcher, Crime and Justice Programme, ISS Pretoria Office