Speech delivered by Mr Luwellyn Landers (ANC MP)during the National Assembly`s debate on the prevention & combatting of torture of Persons Bill

14 November 2012

Speaker / Chairperson

I must bring to your attention the fact that the Bill agreed to unanimously by the Justice and Constitutional Development Portfolio Committee is not the Bill that is before us.

The Bill agreed to by the Portfolio Committee has the words at the end of the preamble:

"Parliament of the Republic of South Africa enacts as follows";

Whereas the Bill found in the ATC has the words:

"Be it therefore enacted by the Parliament of the Republic of South Africa as follows".

The latter draft was rejected by the Portfolio Committee. Given the Speaker’s admonition that Members of Parliament must ensure that our legislation must meet the requirements of our Constitution and that it must be of a high standard, we ask that Parliament’s officials be reminded that it is the draft agreed to by the relevant committee that must appear on our ATC. Any proposed changes must first be taken back to the relevant Committee for its approval. I am informed that this was a mistake. If so, it can be easily remedied.

The Prevention and Combating of Torture of Persons Bill was unanimously agreed to at the end of deliberations by the Portfolio Committee.

The Preamble to the Bill reminds us that South Africa has a shameful history of gross human rights violations that included the torture of many of its citizens and inhabitants dare I say many of whom sit in this honourable House.

Section 12 of our Constitution provides:

"Everyone has the right to freedom and security of the person, which includes the right –

(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way."

It is also common cause that the prohibition against torture in international law is absolute; that torture is impermissible under any circumstances, including war, public emergencies (including state of emergencies) and terrorist threats. This prohibition is so strong and universally accepted that it is now a fundamental principle of law.

Hence, we find the provision in clause 4 (4):

"no exceptional circumstances whatsoever, including but not limited to a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture".

To further strengthen the latter provision clause 4(5) provides:

"no one shall be punished for disobeying an order to commit torture".

Even at this late stage, it is appropriate for our constitutional democracy to have this law on our statute books given our shameful history. In terms of this law torture is an offence punishable by imprisonment for up to life.

Its implications are that police officers who assault people held in their cells can now be charged and prosecuted for torture. It means that prison warders who allow inmates in their care to be abused, raped or sodomized could be charged and prosecuted for the crime of torture. It also means that Home Affairs officials at Lindela who abused illegal immigrants by assaulting them may be charged and prosecuted for the crime of torture.

It is somewhat ironic that we should be debating this legal instrument after this week-end’s media reports about a certain Stephan "Steve" Whitehead who has been exposed as allegedly being instrumental in the late Neil Aggett’s suicide.