My paper will focus on a control
mechanism which we propose is imperative in dealing with and preventing police torture,
this proposal is based on the unique experiences of the Independent Complaints
Directorate, the agency tasked with civilian oversight of the South African Police Service
and as far as I know the only independent such agency on the continent.
The ICD has since its inception, conducted
several torture investigations. The common form of torture has been:
We investigated a case in which the police arrested the
complainant on the basis that he could supply them with information about the identity of
a suspect. He was allegedly suffocated with a plastic bag and electrical shocks were also
applied to his private parts. The complainant was also dangled from a helicopter in flight
and threatened that he will be thrown out. He was subsequently thrown out of a moving
vehicle. The complainant spent more than sixty days in hospital and for the rest of his
life; he will not be able to manage his own affairs. He launched a civil claim against the
Minister for Safety and Security and as a result of the ICD investigation, the matter was
settled and he was awarded R 2,7 million in damages. The suspect police officers have been
charged criminally and the matter has not been finalized as yet.
In another case, the ICD investigated
complaints of alleged torture against members of the Barkley East police station in the
Eastern Cape. The members arrested six juveniles on separate occasions for alleged
housebreaking and theft. The complainants were ordered to remove their clothing, get into
a dam and keep their heads below the water. If one attempted to raise his head, he was
pointed at with a firearm; stones were also hurled at them. The boys were being tortured
because the police wanted information about a suspect in a housebreaking incident. Then,
two of the six juveniles were allegedly tied on either side of the police van with a rope
and the police drove off, while they had to run alongside the vehicle. Both juveniles fell
and one of them was caught under the wheels of the vehicle and was killed. The suspect
police officers have been charged with culpable homicide, pointing of a firearm and
assault. Their prosecution has not been finalized.
3.1 Definition of torture
The South African legal system does not
define torture nor does it distinguish it from other forms of assault. This is an
unfortunate state of affairs as it only limits torture to physical harm. It does not
recognize torture as a specific crime. It is covered by crimes of common assault and
assault with intent to cause grievous bodily harm, and perhaps to a lesser extent by the
crime of intimidation.
The policy of the SAPS (South African
Police Service) on torture and other treatment of persons in custody correctly encompasses
other forms of torture and the enlargement of this scope will enable ICD to deal with such
forms of torture by way of internal disciplinary measures. The ICD ‘s definition of
torture is similar to the one adopted by the South African Police Service. ["Any act
by which severe pain, suffering or humiliation, whether physical or mental, is
intentionally inflicted on a person for purpose of obtaining from him or her or a third
person information or a confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or intimidating him or her or a
third person, when such pain, suffering or humiliation is inflicted by or at the
investigation of or with the consent or acquiescence of a member or any other person
acting under authority or protection of the service"].
3.2 Independent police complaints
mechanism
In our view, the establishment of an
independent police complaints body with powers similar to those of the Independent
Complaints Directorate is a key control mechanism. Since its inception, the ICD has
investigated a variety of complaints of torture and other serious criminal offences
against the members of the SAPS. Our statistics indicate an increase in torture cases
reported to ourselves during 2001. We enjoy total independence and we operate without
interference from neither the National Police Commissioner nor the Minister for Safety and
Security. This ensures that investigations of allegations against members of the SAPS are
conducted without fear or favour.
The ICD has powers to conduct independent
investigation and we have the same powers e.g. the power to arrest, the power of search
and seizure. Unlike in other jurisdictions, on completion of our investigation, we make
recommendations to either the Director of Public Prosecutions or the Commissioner of the
South African Police Service for criminal and disciplinary prosecution respectively.
Police management is however not compelled to implement our recommendations in terms of
internal discipline.
The ICD ‘s power to itself investigate
any misconduct " on its own motion" makes it one of the more powerful models
internationally. However, the police are only obliged to report deaths in police custody
or as a result of police action. It is correctly argued in certain quarters that the
statute should include an obligation on the part of the police to report all criminal
offences, including torture to the ICD. In the absence of such a provision, the majority
of complaints, including torture, will continue to be investigated by the police
themselves, without any civilian oversight.
3.3 Independent medico-legal
experts
Torture cases require immediate
intervention if a proper and effective investigation is to be done. The law, therefore,
should not only oblige police to report torture but should oblige them to report
"immediately". Therefore, in the absence of such a clause, police would
correctly argue, to the disadvantage of effective investigation, that they would have
complied with the law if such cases were reported two or three days later. However, this
shortcoming in respect of deaths in police custody and as a result of police action cases
has been remedied by a statutory obligation imposed on the police and further refined by
administrative arrangements to ensure immediate reporting.
In our experience, in torture cases that
were brought to our attention immediately after the occurrence of the alleged incident, we
have been able to secure independent medical examinations and we have also been successful
in tracking down witnesses. Independent medical examinations have proved to be more
effective than medical examinations done by state agencies. Medical forensic experts have
been able to draw blood to examine electric deposits where electric shocks have allegedly
been applied to victims. Independent medical experts, by virtue of their non-attachment to
state structures have been courageous to make truthful findings without fear or favour. We
have been fortunate as the ICD to have the support of non-governmental organizations such
as the Independent Medico-Legal Unit (IMLU), which has funded an independent pathologist
to conduct medical-legal examinations in many of our cases.
3.4 Regular visits to police
holding cells
During the latter half of the year 2001,
the ICD embarked on ‘surprise" thematic visits to police stations targeting
police holding cells. What informed our visits was the high incidence of escapes from
police custody. In order for the visits to yield better results, we decided to go to the
stations unannounced as that ensures that conditions are found, as they exist on a daily
basis. During a surprise visit, cells are inspected and inmates are interviewed to
establish whether minimum conditions in respect of incarceration of prisoners are applied.
The police, including station commanders, were cooperative, however senior police
management met our visits with criticism. We were expected not to communicate our findings
to the public, but we argue that the nature of civilian oversight is to lift the stone and
roll it away, not to lift the stone, have a look and then place it again. Although the
visits were severely criticized, there was immediate reaction to address the problems
found to exist in those police stations, which were visited.
The Inspecting Judge who is responsible for
the visitation of prison cells also conducts visits without announcing them. There is
definitely no reason why police management should be concerned about these visits since we
are acting within our statutory mandate.
3.5 Research and development of
recommendations
In some jurisdictions, the oversight body
can monitor the policies, practices, trends and procedures of the police department. This
is done through research conducted by way of the visitation of police stations, collection
of statistical information, interviews, observations, etc. The ICD has a research and
development component tasked to undertake research. Our legislation makes mention of the
fact that we need to operate efficiently and effectively, in certain instances, to
undertake investigations on our own initiative. We therefore submit that we ought to act
proactively in order to comply with the intention of the legislature. Besides, torture and
other forms of ill – treatment can be prevented if the established oversight body
focuses on causes of such incidents as opposed to merely reacting to such incidents.
Therefore, an oversight body, which has powers to investigate torture on its own as well
as investigate causes, is likely to make an impact on the prevention of such ills. The
Canadian models, namely RCMP Public Complaints Commission, the Ontario Police Complaints
Commissioner and the Special Investigations Unit also fall in this category in certain
instances. While they do not largely investigate, they have however special roles or
jurisdictions such as the holding of public hearings.
In order to enable civilian oversight
bodies to effectively fight torture, the following powers are required:
At present the ICD can only exercise
important powers such as search and seizure through an application to a Magistrate.
Oversight bodies need these powers to search for torture instruments and immediately seize
them once found.
The investigation of torture cases alone is
not a complete solution. A culture of good ethical conduct needs to be inculcated in
individual police. The ICD, in its experience, shares in the belief that the following
ethics are important for the police:
The ICD submits that the essential
characteristics of an independent complaints mechanism are:
