DOJCD INTERNATIONAL LEGAL RELATIONS 1 2 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 wor ID: 1015786
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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 RELATIONS1
2. 2INTRODUCTIONSouth 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
3. 311 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
4. 4The 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.
5. 5DISCUSSIONThe 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.
6. 6Rather 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.
7. 7The 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 VisitsUnlimited accessPrivate interviews and confidentialityProfessional teamProtection against reprisals
8. 8The 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)
9. 9The NPM Model will comprise of existing oversight institutions such as:Judge Inspector for Correctional Services (“JICS”)Independent Police Investigative Directorate (“IPID”)Commission for Gender EqualityMilitary OmbudsmanHealth Ombudsman
10. 10Compliance Inspectorate of the Office of Health Standards of Compliance (“OHSC”)Mental Health Review BoardsThese 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.
11. 11The 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.
12. 12CONSULTATIONSLegal 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
13. 13In 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.