Bound by law: SA returns to the international legal stage

The Star Chamber was an infamous English court established in the late 15th Century. It was a court of “equity” in that the Star Chamber could punish litigants before it not only for violations of law, but also for conduct deemed morally reprehensible.

The Star Chamber was a court established to convict and punish wrongdoers without allowing them proper process. In other words, criminals could not utilise delaying tactics and technical objections to go free. Given that the Chamber’s judges were often closely connected to the incumbent royal family, the Star Chamber became a tool for monarchs to oppress and punish political dissidence.

The judges of the Star Chamber had unfettered discretion in meting out punishments for conduct they (and often the king) considered to be immoral. The judges often employed egregious forms of punishment.

For example, William Prynne was a Puritan English lawyer who spoke out against the church policy of the Archbishop of Canterbury (in particular, he objected to the decadence of Christmas feasts and the moral delinquency of stage plays). On 14 June 1637, he was sentenced by the Star Chamber to a fine of £5,000, to imprisonment for life, to lose the rest of his ears ( Prynne’s ears had previously been partially removed in a pillory for his earlier publications), and, at the proposal of the then Chief Justice, he was also to be branded on the cheeks with the letters “SL”, signifying “seditious libeller”.

The Star Chamber is one of many examples of how states can employ torture and inhuman punishment to suit their political ends. In stark contrast to the Star Chamber, most states today have unequivocally denounced torture as a means of punishing people. Torture is prohibited by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Torture is also specifically proscribed by the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). To date, 166 states have ratified CAT, including South Africa.

CAT creates a two-tiered system for ensuring the eradication of torture.

First, on the domestic tier, it obliges states to take effective legislative, administrative, judicial or other measures to prevent acts of torture. This includes criminalising torture, ensuring lawful punishment for those found guilty of torture, and establishing mechanisms for victims of torture to obtain redress. CAT prohibits states from ever sanctioning torture, even during times of war or states of emergency.

It also obliges states to either try or extradite persons accused of committing torture. This obligation to prosecute or extradite includes persons who have been accused of torture in another state, but who are physically present in the state party to the treaty.

Second, on the international plane, CAT establishes the Committee on Torture. This is a 10-person international monitoring body based in Geneva that oversees compliance with the treaty. States are obliged to report to the committee on how they are preventing torture and fulfilling their treaty duties. The committee must examine allegations of torture in a state. The committee can also receive communications from other states and from individuals concerning allegations of torture by a state. States are not obliged to recognise the competence of the committee to receive such complaints, but South Africa did accept the competence of the committee to do so.

On 18 December 2002, the UN General Assembly adopted the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Opcat). The General Assembly was convinced that further measures were necessary to achieve the purposes of CAT.

So a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty is now available. On the international plane, Opcat established a special sub-committee comprising international human rights experts. States must allow this sub-committee unrestricted access to inspect places where people are detained.

On the domestic plane, Opcat obliges states to maintain, designate or establish one or several independent national preventive mechanisms to prevent torture. This national preventive mechanism must be empowered to regularly examine the treatment of the persons deprived of their liberty in places of detention and make recommendations pursuant to its examination.

South Africa signed Opcat in 2006. Under Opcat, however, for a state to be bound internationally the state must both sign and ratify Opcat. On 28 March 2019, Parliament decided to ratify Opcat and deposited its ratification with the UN on 20 June 2019. This means that in two weeks’ time, on 20 July 2019, South Africa will be bound by Opcat and the duties it imposes. To this end, South Africa has already adopted a multiple-body national preventative mechanism, with the South African Human Rights Commission (SAHRC) in a lead role. The SAHRC will be assisted by other institutions with a monitoring mandate, such as the Judicial Inspectorate for Correctional Services (Jics).

South Africa’s ratification of Opcat is celebrated and welcomed.

First, South African prisons are notorious for being rife with torture and degrading treatment. For example, in 2008, Bradley McCallum, who was a prisoner in St Albans Maximum Correctional Facility in Port Elizabeth, approached the UN Human Rights Committee with allegations that he had been tortured and abused by prison officials. The committee found that South Africa had failed in its international legal duties and that prison officials had egregiously violated McCallum’s rights. The committee urged South Africa to address these violations and provide McCallum (and those who had similarly been tortured) with effective remedies.

Ratifying Opcat is a step towards ensuring that detainees are not subjected to torture such as McCallum suffered.

Second, the ratification of Opcat signals to South Africans and the international community that the current South African government respects its international legal duties and is willing to assume further international legal duties.

This is an important signal to send, especially in light of a recent Constitutional Court judgment finding that former president Jacob Zuma had caused South Africa to violate its international legal obligations under the Southern African Development Community Treaty.

Perhaps the current government will prioritise its international duties, ensure compliance with international law and be a key role-player in the international legal community. Most prominently, South Africa is under international duties to combat corruption and ensure transparent governance.

But, as with torture in South Africa, there is far more work to do before those duties are properly fulfilled. DM

Anton Katz SC is a practising senior advocate in Cape Town, with wide experience in international legal issues. He is a former member of the United Nations Working Group on mercenaries (2011–2018).

Eshed Cohen is an advocate of the High Court and was a clerk at the Constitutional Court in 2018-2019. He will be reading for the BCL at the University of Oxford in 2019-2020.

Katz and Cohen are finalising the publication of a handbook on extradition.