On June 28, 2008, when Thapelo heard that his son had been stabbed, he rushed home from his job at the local airport in Port Elizabeth in South Africa’s Eastern Cape. It was a still, warm winter evening. When he got to his home in the township of Motherwell, his wife was already at the hospital and the house was locked. In his haste to leave work, Thapelo (who asked that his name be changed for his protection) had forgotten his phone, so he climbed through an unlocked first-story window to retrieve his daughter’s. He was calling his wife from their yard when a police car passed. The officers stopped to question him, and in his desperation to find out if his son was alive, he made the mistake of ignoring them.
Thapelo woke around midnight, his body aching and covered with bruises and cuts. He was in the back of a police truck at the Motherwell police station, soaking wet, bloody, and covered in mud. “My clothes were soaked up, my jacket was soaked up, I had scars all over my body,” he said. “There was no reason; I’m not a criminal.” Later, he would be charged with malicious damage to police property, which he denies vehemently: he was in his own yard when he was arrested and tortured by the police.
That night, Thapelo experienced firsthand the shoddy, often brutal state of the South African criminal justice system. The abuse was all the more galling given his family’s history. During the popular resistance to apartheid, his mother worked as a courier for the armed wing of the African National Congress (ANC). She disappeared when Thapelo was a child; he didn’t see her again for 28 years. Before she died, she told him about her abuse by the apartheid government, lifting her top to show him the scar where police had cut off her right breast. When the same ANC that his mother and so many other South Africans had sacrificed to fight for finally came to power in 1994, such abuses were supposed to stop. As Thapelo well knows, they did not.
CRIME AND PUNISHMENT
Torture is rampant in South Africa today, although the victims are different than they were under apartheid. The apartheid government was notorious for its widespread abuse of political prisoners. Now the victims are often low-level criminals, mostly in poor townships, suspected of petty theft or drug dealing. Much of the evidence is anecdotal. There are no statistics because, until last month, torture carried out by the government was not a crime in South Africa. Any accusations fell under other categories; torture was often recorded as police brutality or assault, or not recorded at all, and so any existing statistics are not comprehensive. As the Guardian recently reported from a crime conference in Johannesburg, over the past decade recorded cases of police brutality rose by 313 percent, from 416 cases in 2001-2002 to 1,722 in 2011-2012 -- though they are all tellingly not classified as torture.
That doesn’t mean torture doesn’t exist, though. Amanda Dissel, the South African delegate to a Geneva-based nongovernmental organization called the Association for the Prevention of Torture, and other anti-torture activists and lawyers point to case after case of systemic torture at the hands of police and government security forces in recent years. They all tell stories. There is the man, thought to have witnessed the murder of a police officer, who was tortured so the police could wring information out of him, regardless of his involvement. There is the child, accused of petty theft, who was beaten until he confessed to a crime he may not have committed. And the drug dealer, who openly admits to selling marijuana on street corners in the Johannesburg suburb of Brixton, who says he has been detained and tortured repeatedly as an act of retribution.
The torture is not random. Those who are most at risk are young men in townships suspected of breaking the law, regardless of their actual guilt or the seriousness of the charge. Crime so permeates society that in some cities it is rare to meet a South African who has not had a firsthand experience with being robbed. Daily life reflects this constant fear. One can drive through Johannesburg neighborhoods on a sunny afternoon and see no people -- just high gates and guard stations. Crime is so common that it is often only considered violent if the victim is injured; robbery at gunpoint is usually deemed petty if the trigger is not pulled.
Such is the environment in which the South African Police Service operates. The force has a history of corruption and violence extending back to apartheid, and the ANC has been slow to reform it. In June 2012, Mangwashi Phiyega replaced Bheki Cele as National Commissioner of the SAPS, following allegations of Cele’s corruption. Cele had replaced Jackie Selebi, who was removed from office for similar allegations. For many, hopes for reform were dashed when, last August -- two months after Phiyega’s appointment -- police opened fire on striking miners in Marikana, killing 34 in a now-infamous massacre that was the most lethal act of police violence since apartheid. Yet not a single police officer has been arrested for his involvement, which isn't surprising. As the South Africa-based Institute for Security Studies notes, only one percent of criminal cases brought against officers results in a conviction. The miners' deaths made international headlines, and were recently commemorated on their one-year anniversary.
Although the everyday use of torture to deal with crime does not grab such headlines, it is another item on the long list of grievances that South Africans have with their police force. Still, given crime’s prevalence and the fact that many South Africans see aggressive police tactics -- even torture -- as a necessary response, there is deep public ambivalence about police brutality. “Communities have a level of intolerance towards crime,” Dissel says, “so there is a level of support for harsh action.”
In late July, South African President Jacob Zuma finally signed into law the Prevention and Combating of Torture of Persons Act, a long-proposed measure designed to address systemic police abuse. After over a decade of pressure from activists, and nearly two years of active campaigning by legal and human rights groups, South Africa’s parliament approved the bill. For those ten years, the bill had been repeatedly tabled in parliament to deal with what was considered “more pressing” legislation -- despite the fact that South Africa both signed (in 1993) and ratified (in 1998) the United Nations Convention Against Torture, and that the country’s constitution is widely considered one of the world’s most progressive.
The law, whose preamble includes the acknowledgement of South Africa’s “shameful history of gross human rights abuses, including the torture of many of its citizens and inhabitants,” outlines definitions of torture, factors to be considered in sentencing of perpetrators, and the responsibility of the state to raise awareness. It attempts to curb torture by mandating better training for public officials and police officers who may be involved in arrests and interrogations, although it doesn’t offer specific suggestions for what that training might entail. For Dissel, the problem is not police and other officials’ ill-preparedness but the relative ease with which they decide to use excessive force against crime. “I think they know very clearly what the options are,” she said of a police force that often eschews the slow process of gathering evidence and going through the legal system.
Although torture survivors and anti-torture activists generally consider the act a positive step, others believe it is only cosmetic. Peter Jordi, a Johannesburg-based lawyer and professor at the University of Witwatersrand, who has worked on numerous torture-related legal cases, doesn’t think it drastically changes either the reality on the ground or in the courtroom, since assault (though not torture explicitly) is already illegal. “If the South African police are prepared to torture a child in connection with a petty theft allegation, then I know that torture is rife,” Jordi said. “There are no limits on it.”
Clare Ballard, an attorney and researcher with the University of the Western Cape, disagrees. As a coordinator for the campaign to draft the anti-torture legislation, Ballard is cautiously optimistic about the South African government’s ability under the new law to reform police ranks, rein in brutality, and begin to actually eliminate torture. “On the one hand, we need the legislation to even begin the process,” she said. “On the other hand, we need a sort of efficient and non-corrupt, clean public service to be able to deal with people deprived of liberty in a way that respects their dignity.”
LIMITS OF THE LAW
Although he is now a leading lawyer in his field, in 1986 Jordi was a political detainee tortured by the apartheid government, an experience that spurred his career to aid other victims of torture. Like Jordi, Sipho (who asked not to be identified by his real name) uses his experience as a survivor to try to help others, but has seen many cases where victims have instead become perpetrators. He works for Khulumani, an NGO whose name is Zulu for Speaking Out. It formed immediately before South Africa’s Truth and Reconciliation Commission, with the goal of talking about the atrocities committed during apartheid in order to prevent them from happening again. “We may pass on that pain, even to our own family members,” he said. “As torture survivors, in turn, we become the worst torturers to innocent souls.”
Such sentiments are part of a broader public disappointment with the ANC. Under the leadership of Nelson Mandela, the party was seen as South Africa’s savior. But since coming to power in 1994, the ANC has struggled to transfer that legacy into competent governance, and has been riddled with corruption at all levels. Little oversight of all branches of government, including the police, has undermined any ability to curb police excesses such as torture. As Jordi said, “Torture will only diminish if the perpetrators find that they are being punished, whether through criminal law or because the senior police officers in control of the police force actually wish to put a stop to it.”
For Thapelo, the new law comes too late, and its details are irrelevant. Since that June assault five years ago, he has submitted complaints to the Independent Police Investigative Directorate, which nominally oversees the police. He still hasn’t received a response, or any acknowledgment of the pain that the police inflicted on him. As he waits for years on South African officials, he searches for his own answers.
At best, the new law will provide victims with recourse and deter potential perpetrators. And it certainly addresses a growing awareness of the size and scope of torture by the police. But for Jordi, beyond fulfilling international obligations, the legislation leaves much to be done. “It’s not what happens in Geneva or New York,” he said. “It’s what happens to some powerless person, who’s now in the custody of the police in an impoverished township in Johannesburg, or somewhere else in South Africa.”