Monitoring places of deprivation of liberty in South Africa: Is South Africa in breach of its OPCAT obligations to establish and maintain an effective national preventative mechanism?

Gossar, Abdirahman

Monitoring places of deprivation of liberty in South Africa: Is South Africa in breach of its OPCAT obligations to establish and maintain an effective national preventative mechanism?

Thesis / Dissertation

2024

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

The adoption of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is globally viewed as a watershed in the existing global efforts to prevent and combat torture and other forms of abuse and illtreatment. Although the practice of monitoring places of detention, and independent oversight and accountability systems over the management of detention facilities, have long existed in many jurisdictions across the world, the OPCAT has introduced a unique, preventive system of regular and sustained visits to all places of deprivation of liberty. It requires state parties to designate and maintain a National Preventive Mechanism (NPM), mandated to, inter alia, conduct regularly and independently monitoring all places of deprivation of liberty, alongside the Subcommittee on Prevention of Torture (SPT). South Africa ratified the OPCAT in 2019. Following the ratification, the South African Human Rights Commission, which launched the NPM in July 2019, was designated to perform a coordinating and functional role, alongside other four existing oversight bodies. This study argues that existing conditions such as the absence of an independent statutory instrument applicable to the NPM, coupled with the designation of a multi body model consisting of five pre-existing oversight bodies that are not all fully compliant with the requirements of the OPCAT, as well as non-compliance with the NPM's recommendations, have vitiated the effectiveness of South Africa's NPM. It also observes that, more than three years since the NPM was launched, many issues remain unresolved, and that state intervention, including legislative intervention, and commitment to strengthen the mandate of the NPM is required to enhance the effectiveness of the NPM, and benefit from its transformative potential.

Keywords

Public Law

Reference:

Collections

Masters

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