HOLDING THE CONSTITUTION IN CONTEMPT : POLICE TORTURE IN A CONSTITUTIONAL DEMOCRACY

On 8 May 2016 South Africa celebrated the twentieth anniversary of the Constitutional Court’s endorsement of the country’s constitution, the cornerstone of which is human dignity and human rights. The imperative to safeguard these rights was illustrated with a timely reminder of the gross abuses of the apartheid past with the reopening of investigations into the 1987 death of struggle hero Ashley Kriel. Security policeman Jeffrey Benzien who was granted TRC amnesty for Kriel’s death attained notoriety by demonstrating the ‘wet bag’ torture method he and his colleagues routinely used. Shamefully, despite the Constitution, torture and abuse at the hands of the police has continued and is again becoming routine. ‘Tubing’, in which the plastic bag (not necessarily wet) is used to induce near asphyxiation, remains a favoured method – probably because it leaves fewer traces – though it is often combined with other abuse. The consequences of tubing are extremely serious, ranging from death by suffocation to severe and lasting physical and psychological problems. SAPS management and their political bosses appear to hold the Prevention and Combating of the Torture of Persons Act of 2013 in contempt. Not only do they not take steps to stop abuse and punish abusers, but they may even obstruct efforts to take action against them. IPID seems not to treat torture with the seriousness the Constitution demands. It fails to act swiftly against perpetrators, and its investigative work is frequently shoddy, so the lives of victims are further jeopardised. By way of illustration, the following cases are drawn from the files of the KZN Monitor.
The abuse suffered by Mr M in a rural area near Mandeni one night in 2010 is typical of the modus operandi of the perpetrators. A large group of men in police uniforms lacking identification kicked open his house door, assaulted him badly and tubed him, causing him to lose consciousness. When he came round Mr M, who had taken early retirement from the SAPS, immediately reported the incident to his former colleagues and sought medical assistance. Some of his neighbours suffered similar abuse that night. Mr M was assisted by a former colleague and the unit responsible was traced through their vehicles. The colleague worked hard to obtain information from the unit commander (POP) about the members on duty at the time so that an ID parade could be held. No cooperation from the commanding officer of the unit was forthcoming. Almost a year later Mr M heard that those responsible were planning to kill him for pursuing the matter and took additional precautions about his safety. No one was ever charged.
In some cases reported to IPID, such as abuses in the Umzimkhulu area in 2012, investigators have also been stonewalled by management of the unit concerned (TRT), resulting in ID parades not being arranged, or members not turning up for them when they were. In those cases, IPID recommended disciplinary action against two members but the recommendation was ignored by provincial management, despite IPID legislation making it compulsory for it to implement recommendations.
More recently, Mr V, a resident of one of the many shack areas in Durban, was viciously assaulted and tubed by a policeman sitting astride him in the manner demonstrated by Benzien after police kicked his door open in the middle of the night. Available evidence points to complicity between the police and a councillor widely accused of corruption seeking to evict Mr V from the area. At least one other neighbour had been similarly abused. Mr V was warned his life would be in danger if he returned to his home. The IPID investigation drags on with little in the way of progress.
Torture by police members – especially tubing – has been a conspicuous feature of the violence which has wracked Glebelands hostel for the past two years, with the first victim, Mr Fica, dying while being tortured. Of at least eleven incidents reported, only three cases were opened, one by a man who was murdered months later. Other victims, including a woman who was tubed, are too terrified to do so. Among those implicated in this torture are members of Umlazi SAPS, including CIS (crime intelligence), and POP members.
Glebelands resident Richard Nzama* has suffered extreme abuse at the hands of the police, compounded by his treatment by Umlazi prosecutorial services and IPID. Having been injured in one attempt on his life, and further traumatised by the murders of close hostel associates, fears for his safety led human rights defenders to ask SAPS management to ensure his safety. Shortly thereafter, in July 2015, he was arrested and subject to particularly brutal torture – including tubing – which damaged his sight, hearing, and teeth. Monitors who had been alerted contacted IPID and arranged emergency medical treatment. Nzama was charged with attempted murder but when he appeared in court, a visibly broken man with his neck in a brace, the prosecutor not only denied he had been tortured, but behaved in an aggressive manner towards him. He thus violated the Torture Act since any public official who is aware of torture and does not report it acquiesces and can be found guilty of it. Bail was initially denied and the magistrate’s court order that Nzama receive appropriate medical attention was ignored by the police. When he was given bail he faced further threats from armed men and the cousin who assisted him with the bail address was assassinated in the hostel. Another cousin was assaulted and tubed by the police. Despite charges having been withdrawn against Nzama police implicated in his torture were looking for him during a recent Glebelands raid, apparently unlawfully.
Given what has happened to Nzama and other Glebelands residents who have been tortured and assaulted by the police in the past 26 months, many residents living in fear of their lives from thugs are now terrified of the police, believing that they will be tortured if their rooms are raided, or if they are arrested or questioned.
Nzama provided the name of the unit and one of the members responsible for his torture to IPID shortly after his detention, and subsequently provided far more detail to them. Almost ten months later no ID parade has been held and, to Nzama’s knowledge, no one has been arrested. IPID’s failure to take prompt action is further endangering Mr Nzama’s life and wellbeing.
Torture is not permitted under any circumstances. The Constitution commands the State to ‘respect, protect, promote and fulfil’ the Bill of Rights (Sec 7.2). By acquiescing to the use of torture by the organ of state charged with providing safety and security the State is holding the Constitution (and the United Nations Treaty to which it is a signatory) in contempt. Is this the liberation for which Ashley Kriel and countless thousands of his comrades died at the hands of apartheid killers?
*Richard Nzama has given permission for his name to be used because he thinks public exposure may provide a measure of protection from death linked to police who tortured him.