UN PANEL ON ARBITRARY DETENTION ENDS VISIT TO SOUTH AFRICA

19 September 2005


The Working Group on Arbitrary Detention of the United Nations Commission on Human Rights issued the following statement today at a news briefing held in Pretoria to mark the end of a two-week visit to South Africa:


Statement by Leila Zerrougui, Chairperson of the Working Group on Arbitrary Detention and Manuela Carmena Castrillo, Member of the Working Group

As many persons we have met during the last two weeks, you may ask yourselves why the Working Group on Arbitrary Detention has come to South Africa. The answer is simply that the Government has invited the Working Group for an official mission, as part of its standing invitation to the mechanisms of the Commission on Human Rights. This visit is of particular significance to the Working Group since it is the first in Africa, one we hope will be followed by many others to come in this continent.

Over the fourteen years of its existence, the Working Group has carried out official visits upon the invitation of the government to countries as diverse as Argentina, Australia, Bahrain, Iran, Mexico, Peru, and the United Kingdom, last year China, Latvia and Belarus and earlier this year Canada. This is in fact the 22nd country visit of the Working Group. Although, there are differences from country to country in the intensity of the phenomenon of arbitrary detention and in the forms it carries, no country is immune from it.

The Working Group delegation visiting South Africa was headed by Ms. Leila Zerrougui, Chairperson-Rapporteur of the Working Group, and was composed of one of its members, Ms. Manuela Carmena Catrillo, as well as two members of the United Nations Secretariat and two UN interpreters.

In the course of its fifteen working days in South Africa the delegation of the Working Group visited, in addition to the capital Pretoria, Johannesburg, Polokwane, Musina, Bloemfontein and Cape Town. The delegation was able to hold meetings with the Ministers of Foreign Affairs and of Correctional Services, Deputy Minister of justice, as well as with representatives of the Departments of Justice, Public Safety and Security, Correctional Services, Immigration, Social Development, mental health and with representatives of the South African Police Service, the Independent Complaints Directorate, the Legal Aid Board, the National Prosecution Office, the South African Human Rights Commission, the Law Reform Commission and the Inspecting Judge of Prisons. The delegation also met with representatives of the competent provincial authorities in the Provinces of Gauteng, Limpopo, Free State and Western Cape. The Working Group also met with representatives of the legislative Portfolio Committees on Safety and Security and Home Affairs. Moreover, the Working Group had the privilege of being invited to frank and highly informative discussions with members of the Constitutional Court and of the South Africa’s judiciary, from the Supreme Court of Appeals to the Regional and District Courts as well as the High Court. The Working Group delegation further held meetings with numerous representatives of the civil society, including in particular representatives of non-governmental organizations active in the fields of human rights, correctional system, refugees, children’s rights and with representatives of academia.

An essential part of the Working Group’s program were, as always during country visits, the visits to institutions where persons are deprived of their freedom: the Working Group visited the Pretoria Central Correctional Centre in Pretoria, the Leewkop Maximum, Medium and Juvenile Correctional Centres, the Lindela Repatriation Centre, the Gauteng Province Youth Place of Safety near Krugersdorpf, in Musina the Immigration Facilities at the border with Zimbabwe as well the police station, the Polokwane Central police station, in Bloemfontein the Grootvlei Prison as well as the Muangang Private Prison and the One Stop Child Centre, in the Cape Town area the Drakenstein Maximum Prison, the Stellenbosch Correctional Centre as well as the Pollsmoor Female Correctional Centre and the Lentegeur Psychiatric Hospital. In all these facilities the Working Group held private interviews with approximately 500 detainees. The delegation also attended a hearing before the High Court in Pretoria and saw border processing at the Immigration Border facility in Musina at the Zimbabwe border.

During the entire visit and in all respects, the Working Group has enjoyed full cooperation from the South African Government and from all the Provincial authorities it dealt with. The delegation was able to visit all the detention centers or other facilities that it requested. In all these facilities, the delegation has been able to meet and interview with whoever it wanted, police holds, pre-sentence detainees, convicted persons serving their sentence, immigration holds, women, minors, persons held in maximum security facilities and in psychiatric hospital, all detainees chosen at random by the delegation while touring the facilities. The representatives of the authorities met by the Working Group were willing to discuss all matters raised by the Working Group openly and strived to provide the delegation with all the information it requested. We reiterate our gratitude for their transparency and cooperation. We also wish to thank the civil society representatives we met for their generous assistance to the Working Group’s visit and fact finding.

This visit has allowed the Working Group to inform itself about the situation in South Africa with regard to two important aspects of its mandate: detention in the context of criminal justice and detention of asylum seekers and immigrants.

The Working Group’s mandate is confined to considering the legal process that leads to persons being deprived of their liberty and being maintained in detention, and to the legal guarantees they enjoy. These have to be compared to the international norms South Africa has subscribed to, in particular the Covenant on Civil and Political Rights. The Working Group has no competence to express itself concerning the conditions of detention, with one important exception: where the conditions of detention are such that they impair a detainee’s ability to effectively defend himself, thus significantly affecting her or his right to a fair trial, they become of concern to the Working Group’s mandate.

But what does the term “arbitrary detention” exactly mean? Because not every form of deprivation of liberty is arbitrary, the Working Group has developed three categories of situations in which deprivation of liberty amounts to arbitrary detention.

-The first category refers to persons detained without any basis in law, for example persons that continue to be detained after having served the totality of the sentence imposed on them.

-The second category relates to persons detained because they have exercised peacefully a right or freedom guaranteed in the Universal Declaration of Human Rights or in the Covenant, such as for instance the freedom of expression or religion, the right to peacefully demonstrate, or to organize freely in trade unions and associations.

-The third category applies when the total or partial non-observance of international norms relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an arbitrary character.

In the coming three months the members of the delegation will prepare a draft report on the visit, which they will submit to the whole Working Group at its next session, taking place in Geneva at the end of November. Subsequently, the Working Group will present its Report to the Commission on Human Rights at its 62nd session, which will take place in Geneva next spring.

The following observations therefore constitute only the first impressions of the members of the Working Group delegation and do not prejudge what the Working Group will find in its Report.

Positive aspects

1. In setting forth our first impressions arising from the visit to South Africa, we must start by stressing the context in which South Africa has evolved over the last decade, in completing an exemplary pacific transition from a racist regime in which arbitrary deprivation of liberty was widespread and institutionalized to the democratic regime established since 1994. The Working Group was impressed by the continuing efforts made by the Government and the civil society to change not only the legal framework and the practices but also the mentalities.

2. The Working Group would like to stress the acknowledgment of the problems from the Government and its goodwill effort to meet the great challenges lying ahead and addressing human rights issues. This has not only been shown through the official invitation before the Commission of Human Rights to all the thematic mechanisms of this Commission, through which this visit was specially programmed, but also through various signs of clear and decisive progress for a better protection of human rights in the internal policy.

3. The Working Group can only commend the Government and the South African institutions when looking at the Constitution which is one of the most progressive in the world and contains all the necessary provisions to protect and safeguard human rights, including the guarantees against arbitrary detention and the right to a fair trial. As well, the Criminal Procedure Act and other laws that regulate detention of juveniles and the mentally ill have been modified or re-enacted so as to guarantee conformity with the international instruments for the protection of human rights, to which South Africa is a party.

4. In this context, it is worth highlighting the efforts made by the Constitutional Court and other State institutions such as, the Law Reform Commission, or the South African Human Rights Commission which ensure that the applicable laws and the newly enacted bills and acts of Parliament are in conformity with the principles set forth in the Constitution and respect South Africa’s international obligations, in particular with international human rights instruments. We have also noticed a great variety of institutions of the different executive, legislative and judicial powers like the Public Protector, the Legislative Portfolio Committees, the Independent Complaints Directorate, the Investigating Judge of Prisons and other checks and balances dedicated to the protection of human rights which also act as factors of changes in the greater context of the longer transition and evolution of mentalities from an authoritarian regime to a mature democracy, a process in constant continuity.

5. As part of this constant evolution, the Working Group supports the orientation of the actual correctional policy geared towards rehabilitation and reinsertion that is taking place in the Correctional System where education and vocational programs being offered to sentenced detainees. This evolution has taken place also towards young offenders with the One-Stop Child Centres and Places of Safety, as to protect children and juveniles and as far as possible avoid placing them in the judicial process and the correctional system, an effort applauded by the Working Group.

6. The Working Group is well aware that all these changes that the country is facing require exceptional efforts and resources, not only political but particularly economical and financial and that the constraints that the country is facing are numerous in these spheres. The Working Group takes into account the difficulties faced by the Government and civil society and the numerous challenges lying ahead in expressing the concerns noticed throughout its visit.

Issues of Concern

1. The high rate of incarceration

In the context of economic difficulties and persistent inequalities rooted centuries ago, the alarming high rate of criminality, ranging from minor offences against property to the most violent crimes against persons, has lead to a very high rate of incarceration. According to statistics given to the Working Group, South Africa has the highest rate of incarceration in Africa, and the 5th or 6th in the world. The harsh and long sentences given by the courts are caused not only in the particular context of each trial, but also in the mandatory minimum sentences that are applicable to a range of offenses, amongst them the most common being murder, aggravated rape and aggravated armed assault. Not only this situation has led to a preoccupying number of persons in detention serving long sentences compared to the gravity of the crime committed, but it has lead to an alarming rate of overcrowding in detention facilities, affecting not only convicted persons but also pre-trial detainees awaiting their sentence.

2. The situation of pre-trial detention

The Working Group is particularly concerned by the situation of persons deprived of their liberty awaiting their trial. It should be stressed that these persons, under international law but also in the South African domestic laws, are presumed innocent until the courts find them guilty of the charges pending against them. The Working Group is at first concerned about the conditions of detention affecting these persons, either when placed in police cells or at regular prison facilities. Not only are the conditions much worse than the ones affecting sentenced detainees, but the lack of adequate facilities are so blatant that they fall short of international guarantees and even affect the right to defense as found by the Working Group in other visits.

The situation of persons awaiting trial in police station is of particular concern since the duration of detention there should not exceed 48 hours, covering only the time between initial apprehension and the first appearance in Court. However, the Working Group noticed that persons were returned to the police station after the first appearance before the court and detained for months in police stations in totally inadequate facilities. The Working Group is preoccupied by the violation of the principle of equality of arms between prosecution and defense in the detention in police cells, especially when the investigation is not complete, which can lead these detainee to self-incrimination.

Even for persons awaiting trial in prisons, the conditions are much more stringent than the ones for sentenced detainees. No activities whatsoever are offered, and detainees have very limited access to medical facilities and treatment for the ones suffering from illnesses, which results in the aggravation of health or even death of some persons, presumed innocent.

The Working Group has also noticed that, despite the overcrowding problems in pre-trial facilities, bail is seldom granted even for minor offenses, or when it is, the amount exceeds what the accused or his family can afford to pay.

The Working Group is also concerned of juvenile detained awaiting their trial, in police cells or in maximum security prisons and would like to stress that no minor should be detained at this stage of the procedure, even for the most serious charges.

The Working Group has also noted that there is no clear stipulation in the law or directive that takes into account time spent in pre-trial detention in the final sentence. Although many Magistrates and Judges have been reassuring in explaining that they personally do take into account the period spent in pre-trial detention and deduct this time from the final sentence, all have agreed that in law and in practice it is the discretion of the sentencing Magistrate or Judge to decide. Many detainees have confirmed that the months and even years in some instances spent in pre-trial detention have not been accounted for in their sentence. The Working Group would like to stress that this practice is not in conformity with international law.

3. Legal Aid

The Working Group would like to recognize the efforts of the Government for having offered the right to a public defender to every person accused of a criminal offense who cannot afford a private attorney. While in principle a very fair principle, we have noticed that legal aid is in most cases only available to detainees at the trial stage, and not in the initial arrest when placed in a police station or at the bail hearing.

Although we have met with very committed lawyers working at the legal aid offices, we have been given the impression that legal aid lawyers are understaffed and have to deal with a very high number of cases for each lawyer. As well, the negative perception of legal aid lawyers amongst the detainees but also in the Courts account for the fact that some detainees, even juveniles have waived their right to a public defender and decided to defend themselves alone, not knowing the inevitable complexities of criminal procedure.

4. The Police

The Working Group has been made aware that the behaviour of some police officers has lead to a negative perception on police activities. The Working Group is concerned about the high number of death in police custody. The Working Group is also concerned about the numerous cases of police arresting legally established foreigners (from other African countries), throwing out their residence papers and putting them in custody or even handling them to immigration authorities for forced deportation.

Although the Working Group commends the mandate and the activities of the Independent Complaints Directorates which oversees the behaviour of police officers and receives complaints from the public, we regret that the scope of its mandate which allows for automatic review and inspection covers only for the most serious cases of police brutality (death in police custody or aggravated assault), although other types of complaints are also investigated.

5. Detention under immigration law

Finally, the Working Group has noticed in its visit to Lindela Repatriation Centre that many foreigners are deprived of their liberty, some with legal residence papers, some claiming asylum, who pretend having been arrested arbitrarily and not being able to contest the validity of their detention. According to the Constitution, section 35.2 d) stipulates that every person detained has the right to challenge the lawfulness of the detention in person before a Court. The Working Group understands and respects the immigration policy of the Government and is also aware of the important migration flows which hinder the respect of the legal procedure. However, the Working Group considers that this practice cannot be justified.

As we have pointed out to many of our interlocutors, South Africa has come a long way from the apartheid regime it was under only 15 years ago and the Working Group is fully aware that democracy has only been implemented 11 years ago. As we have said earlier, the evolution of society and mentalities is a much longer process and it is in this context, helping South Africa to improve and to become a model for the rest of Africa that we are expressing the above concerns, taking into account the situation the country is facing, where it has come from and also the positive aspect that need to be commended.

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