After ratifying the optional protocol of the relevant UN convention, South Africa is now in the process establishing a national preventive mechanism for the prevention of torture.
Before the advent of constitutional democracy of 1994, torture, other cruel, inhuman or degrading treatment or punishment was employed as a matter of course by the repressive apartheid and colonial regimes, through police and military personnel. These brutal practices either formally formed part of the pre-1994 South African penal and judicial system formally, or were unofficially employed by state actors, with complete disregard for human rights.
Because South Africa is now a party to the optional protocol of the convention, the UN subcommittee for the prevention of torture’s mandate has been triggered. This mandate has two elements. The protocol gives the subcommittee the right to visit all places of detention in states that are party to the operational protocol and examine the treatment of people held there. The subcommittee may also choose to visit states in which people are deprived of their liberty.
Visits to these facilities on a regular basis are fundamental with a view to identifying conditions that could give rise to cruel, inhuman or degrading treatment or punishment. Places of detention need to be monitored to make sure the people living in them are safe and are treated with dignity. The optional protocol to the convention is about preventing any ill-treatment from occurring.
There are a number of issues that the state, through the Department of Justice and Constitutional Development and the national preventive mechanism itself, should address in the immediate future. Firstly, although the SAHRC enjoys constitutional independence and protection as a national human rights institution and a chapter 9 institution, the mandate of the NPM should be clearly articulated in legislation. This is largely because of the multi-body nature of the mechanism.
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