Last month was the 32nd anniversary of the death of celebrated South African struggle-hero Neil Aggett, who hanged himself in police custody after sixty-two hours of non-stop interrogation and torture on the tenth floor of Johannesburg’s John Vorster Square police station. Coincidentally, February was also the anniversary of the 1990 unbanning of the ANC, the organisation for whose ideals Aggett lived and died.
During the 1982 inquest into the then 28-year-old trade-unionist doctor’s death, testimonies by former detainees about torture at the hands of the police were heard for the first time in a South African court of law. Previously, political prisoners like Aggett and Steve Biko routinely endured torture at the hands of the police. Today, criminals suffer the same fate.
Twenty years after South Africa’s first democratic elections, legislative change and a new Constitution, torture and brutal assaults by police and prison officials continue. The “bad apple” paradigm - often employed to explain the excessive use of force - no longer suffices as allegations of torture become increasingly common place.
Take for example, the prison-wide orgy of violence at Port Elizabeth’s St Albans prison at the beginning of March in which 200 inmates claimed to have been subjected to mass-beatings and torture during a midnight search for cell-phones and other contraband. Inmates also said they were forced to lie naked on the floor in a long human chain with their noses in the anuses of the inmate in front of them.
Now, more than three decades after Aggett’s death, a long over-due official inquiry into his death has finally been opened. The investigation follows formal charges of culpable homicide laid by Brian Sandberg, co-ordinator of the Neil Aggett Support Group (NASG), against Aggett’s torturer-in-chief Lieutenant Stephen Whitehead, late last year along with a call for investigation and prosecution.
As a result, apartheid-era cop Whitehead looks set to become an unlikely poster-boy for combating the culture of impunity currently characterising South Africa’s prisons and police. “Neil’s story is bigger than him,” his old school-friend Sandberg explains. “It’s about police brutality and a State that acted with impunity and continues to do so … In re-igniting the memory of Neil, I’m trying to re-ignite the values he stood for. If he were alive today, these are the kind of issues he’d be fighting for.”
The torture never stopped
An entrenched culture of impunity with scant regard for consequence or culpability indicates that South Africa has learnt little from the lessons of the past: Not from the deaths of Aggett and Biko or Andries Tatane, Mido Macia, the 34 Marikana miners, the Groenpunt prison violence which left three inmates dead last year and the Mothutlung service delivery protests.
“Torture hasn’t suddenly reared its ugly head. It’s never stopped…,” Wits Law Clinic torture expert Professor Peter Jordi told the Wits Justice Project (WJP). “It was carried out at local police stations before and continues today…The police torture people all the time - in their homes, in police cells, in the veld, in cars…Torture is standard police investigation practice. These policemen are serial criminals. They have methods of investigation which are unlawful and for which they could be prosecuted but they never are…”
Whitehead, who never bothered to apply to the Truth and Reconciliation Commission (TRC) for amnesty from prosecution for his role in Aggett’s death, was no exception. Though the TRC report handed to government in 2003 held Whitehead directly responsible for the conditions that led to Aggett’s death, Whitehead has spent the intervening years as a successful businessman consulting to government on security issues.
As a result, following publication of Death of an Idealist: In Search of Neil Aggett by his cousin Beverley Naidoo late last year, Sandberg decided to form the NASG. A loose coalition of family, friends and members of the Food and Allied Workers Union, members of the Khulumani Support Group and other NGOs, its aim is to obtain closure for those closest to Aggett, to champion restorative justice and to develop legacy projects and awareness of Aggett’s life work.
Meanwhile, government lethargy in the face of repeated reports of violence, assault, excessive use of force and torture seems indicative of an unwillingness to hold perpetrators accountable. This month’s mass-beatings at St Albans are an almost direct replication of a 2005 brutal mass-torture and beatings episode in the same prison. Yet, nine years later, Department of Correctional Services (DCS) Ministerial spokesman Logan Maistry says “the investigation into this case by the relevant agencies is at an advanced stage.”
De facto impunity
In 2009, frustrated St Albans inmate Bradley McCallum, after exhaustng all domestic legal options, lodged a complaint with the United Nations Human Rights Committee (UNHRC) in Geneva alleging gross human rights abuses, torture and other ill treatment by South African State officials. McCallum told the UNHRC how he had been shocked, beaten and raped by a warder with a baton and also forced to lie naked in a long human chain with his nose in the anus of the inmate lying in front of him.
After ignoring five requests by the UNHRC to respond to McCallum’s allegations, South Africa was found guilty of human rights violations. This month’s St Albans mass-beatings are likely to lead to the first prosecutions under South Africa’s new torture legislation – 'The Prevention and Combating of Torture of Persons Act' promulgated last July.
The latest St Albans episode was probably not surprising - none of the 60 - 80 warders implicated in the 2005 McCallum case have been dismissed, according to McCallum’s lawyer Port Elizabeth-based Egon Oswald.
“A fish always rots from the head,” Sandberg notes tersely. “Torture and a lack of accountability are symptomatic of an arrogance that needs to be turned around. In ensuring that the interests of justice are served, we’re hoping this Government will demonstrate by its actions that it’s different to the Apartheid government.”
Civil Society Prison Reform Initiative (CSPRI) director Lukas Muntingh says that dismissal of DCS officials is a very rare sanction: “In 2010/11, there wasn’t a single prosecution of a DCS official - despite thousands of complaints and a body of evidence telling us there is a serious problem. Dismissal is an extremely rare occurrence within DCS and occurs in less than 1% of cases.”
According to Maistry, DCS does not keep records of the numbers of officials prosecuted in criminal cases and only records the number of officials who have been disciplined internally: “More than 3,000 correctional officials were charged with misconduct and corruption in the 2013/14 financial year. 250 were dismissed and demoted while 2,850 were subjected to misconduct and disciplinary proceedings.”
Muntingh says there has not been a single prosecution of a correctional official implicated in the death of a detainee in the last three years – though thousands of complaints have been recorded by DCS, the Independent Police Investigative Directorate (IPID), Judicial Inspectorate for Correctional Services (JICS) and the South African Human Rights Commission.
“Though the legislative framework presents no major obstacles to holding state officials accountable for gross rights violations, officials are rarely prosecuted and convicted for assault, torture and actions resulting in the death of criminal suspects and prisoners. Prosecution is so rare that a situation of de facto impunity results.”
In May this year, the case of the first four 2005 St Albans’ plaintiffs - McCallum, Bafo Dhuru, Xolani Siko and Simphiwe Mbena – who are suing the Minister of Correctional Services for torture-related damages, will be heard in Port Elizabeth. “The department believes they did nothing wrong,” says Oswald, who is representing 231 survivors of the 2005 St Albans assaults.
“This case is more than just a simple damages claim which would only serve to put funds in the hands of the individual victim at the taxpayer’s expense,” Oswald says. “I want the St Albans human rights abuses to be brought to light, for individual perpetrators to be held accountable and for the system to be reformed so this type of atrocity will never happen again…
“I handle cases like this on an on-going basis. I’ve issued numerous demands against the Minister on behalf of alleged victims of torture. In addition to more than 100 St Albans’ inmates I’m representing as a result of this month’s episode, I’m also involved in other mass beatings cases like the one involving 15 St Albans claimants that occurred as recently as June last year. Torture, assaults and beatings continue unabated as organised searches often degenerate into beating slug-fests.”
Given recent events at St Albans, it appears that neither the Torture Act, nor the Constitutional obligation to promote and protect the human dignity of all prisoners, appear to have made a tad of difference to those entrusted with their care.
A legacy of apartheid?
To what extent is the legacy of apartheid to blame? During the apartheid-era, a culture of impunity prevailed and was essential to the functioning of both prisons and the police. As Muntingh points out, “both institutions were closed, secretive, conservative, resistant to change and unfamiliar with accounting for human rights violations. Impunity was necessary for their functioning.”
Not much appears to have changed in the intervening years. South Africa’s increasingly dubious human rights record seems indicative of an equal disregard by the former “darling” of the international human rights community for its venerated Constitution, its domestic law, and its international treaty obligations.
Though South Africa ratified the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1998, which required the criminalisation of torture domestically, until July last year torture was not a crime in South Africa. In addition, South Africa signed the Optional Protocol to the UNCAT in 2006 but has not yet ratified the treaty.
Ratification would necessitate the establishment of a national preventive mechanism and oversight body authorised to conduct unannounced, and announced, visits to places of detention by independent national and international bodies. According to Muntingh, independent oversight has proved to be the most effective means of preventing torture and promoting transparency and accountability.
“The McCallum case is an example of a complete breakdown of internal and external oversight mechanisms,” he added. At present, the Judicial Inspectorate for Correctional Services (JICS), South Africa’s under-staffed, under-resourced prison oversight body - viewed by many inmates as a “toothless dog”- has limited oversight powers.
“How can the organisation be truly independent if JICS salaries are paid by DCS whom their job is to oversee?” ponders one JICS source. “JICS doesn’t have the financial resources, capacity or investigative skills to carry out its mandate effectively."
“Last year 93 inspections and 39 investigations were conducted by a small team of just five investigators who investigated complaints from 242 correctional centres with about 150,000 inmates. By definition, this means investigations have to be hit-and-run...”
As for the Independent Police Investigative Directorate (IPID), the watchdog which has a legal duty to investigate crime and torture allegations involving the police, few allegations are thoroughly investigated and prosecutions and convictions of implicated officials are rare. Only one conviction was obtained in 217 deaths allegedly at the hands of the police, or in police custody investigated by IPID in Gauteng Province alone in 2011/12, notes Muntingh.
The recent appointment of Robert McBride as IPID head has done little to allay public concerns. McBride’s controversial history includes the 1986 bombing of a Durban restaurant in which three people were killed and 69 injured for which he received the death sentence, as well as more recent arrests for crimes involving gun-running, violence and drunken driving.
Though all prisoners have a Constitutional right to conditions of detention consistent with human dignity, there appears to be a vast difference between the Constitutional promise and the reality. “We can’t let this continue,” says Sandberg. “Torture is never acceptable. Perpetrators must be called to account. To combat impunity and heal apartheid’s deep wounds, government must be accountable and be seen to be accountable.” Neil Aggett’s family, friends, and all those who have endured torture at the hands of the South African state, deserve no less.
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