Prevention of Torture

The right not to be subject to torture and other ill-treatment is non-derogable; no one may be subjected to torture and other ill-treatment under any circumstance, including during times of war or public emergency. Pre-trial detainees are highly at risk of torture and ill-treatment.

Torture and other ill-treatment are prohibited under the Convention against Torture. This right is non-derogable; no one may be subjected to torture and other ill-treatment under any circumstance, including during times of war or public emergency.

The prohibition of torture and other ill-treatment is also a rule of international customary law: it is regarded as so absolute and universally accepted that even states which have not ratified any of the international treaties that explicitly prohibit torture and other ill-treatment may not use torture. The African Charter for Human and Peoples’ Rights prohibits torture in Article 5 of the Charter.

It is believed that the vast majority of torture and other ill-treatment that occurs around the world takes place in pre-trial detention.

Torture is defined in Article 1 of the Convention against Torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity".

Despite the absolute ban on torture and other forms of cruel, inhuman or degrading treatment or punishment under international law, forms of physical torture such as beatings, electroshock, asphyxiation, stress positions, and psychological forms of torture continue to be practiced throughout Africa and the world.

Pre-trial detainees are at risk of torture because the incentives and opportunities for torture are most prevalent during the investigation stage of the criminal justice process.

Pretrial detainees are entirely in the power of detaining authorities, who often perceive torture and other forms of ill-treatment as the  easiest and fastest way to obtain information or extract a confession.

The practice of torture during pretrial detention is supported by systemic factors, such as:

  • arbitrary arrests
  • the popularisation of a “tough on crime” approach to
    criminal justice.
  • prosecutions which rely on confessions for success
  • poorly trained and paid law enforcement officials
  • criminal justice systems undermined by bribery and corruption
  • lack of access to legal assistance for detainees
  • lack of oversight mechanisms over places of detention
  • patterns of minority discrimination within countries
  • political conflict
  • notions of "revenge".

Examples of these systemic factors abound across Africa. In Libya, supporters of the former regime are being held in detention and are frequently tortured as a form of revenge. In Zimbabwe, political opposition are frequently held on spurious charges and subject to torture. In Ghana, as yet unpublished evidence suggests a link between torture and bribery among pre-trial detainees. In Mauritania, torture is the only means of investigation. In Guinea, illegal detention and associated maltreatment is widespread.

Measure to prevent and address torture include:

  • Promoting awareness among officials, particularly of judges and magistrates, on how to detect and deal with torture among detainees
  • Expanding and empowering national oversight bodies such as Prison Visitors, Human Rights Commissions, as well as the empowerment of Civil Society organisations to report torture of which they become aware 
  • Adoption by countries of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) which provides for the establishment of "a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment" to be overseen by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. OPCAT entered into force on 22 June 2006 and as of October 2011 has 71 signatories and 63 state parties.  Some African signatories, such as South Africa, have not yet ratified OPCAT in domestic legislation.
© 2016 Dullah Omar Institute
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