Amnesty International Report 2008 - South Africa

REPUBLIC OF SOUTH AFRICA

Head of state and government: Thabo Mbeki
Death penalty: abolitionist for all crimes
Population: 47.7 million
Life expectancy: 50.8 years
Under-5 mortality (m/f): 77/70 per 1,000
Adult literacy: 82.4 per cent

In a context of widespread poverty and unemployment, police responded to a number of public protests with excessive force and arbitrary arrests. Torture of criminal suspects in police custody and poor prison conditions continued to be reported. The failure of the authorities to respect the principle of non-refoulement was criticized by the UN. Violence against women, including rape, was prevalent and barriers to access to protection and justice persisted. A new strategic plan on HIV/AIDS was adopted, but less than half of those needing antiretroviral treatment had access to it.

Background

Growing criticism within the ruling African National Congress (ANC) of government economic policies and President Mbeki's leadership style culminated in the election in December of Jacob Zuma as ANC president. His supporters gained all senior ANC positions. Political tensions grew when, days after, Jacob Zuma was indicted in the Pietermaritzburg High Court on 16 charges of fraud and other offences. The trial was due to start in 2008.

In September, President Mbeki suspended the National Director of Public Prosecutions (NDPP), Vusi Pikoli, who was investigating alleged corrupt activities by the National Commissioner of the South African Police Service, Jackie Selebi. The suspension, shortly after the NDPP had obtained a court warrant for the arrest of Jackie Selebi was widely criticized, including by the Law Society of South Africa. The Police Commissioner remained under investigation at the end of the year.

More than 43 per cent of South Africans were living below a poverty line of R3,000 (US$440) per year and unemployment was at least 25 per cent. Over 11 million people were receiving state-provided social assistance grants. While delivery of essential services to communities was improving, access to adequate housing remained a serious challenge and a cause of social conflict as well as human rights litigation in the courts.

High levels of violent crime continued to cause widespread public concern, with increased pressure on government and police for effective responses. Government bodies and civil society made progress in developing a service charter for victims of crime.

In July, a parliamentary committee recommended the establishment of an umbrella human rights body incorporating the South African Human Rights Commission (SAHRC) and other bodies, including the Commission on Gender Equality, to improve their effectiveness, reduce costs and promote the indivisibility of human rights.

Refugees, asylum-seekers and migrants

The rights of non-nationals held in police and immigration detention continued to be abused and asylum-seekers faced barriers in accessing asylum determination procedures.

The UN Special Rapporteur on human rights and counter-terrorism expressed concern at the administrative detention for 30 days or more of immigrants without mandatory judicial review, and at the failure of the authorities to respect the principle of non-refoulement.

In February, the Pretoria High Court dismissed an application to declare unlawful the handing over of a Pakistani national, Khalid Mehmood Rashid, to Pakistan in November 2005 without proper safeguards. The court also refused to order the government to investigate his subsequent 18-month disappearance. In October 2007, the court refused a second application for leave to appeal against its February ruling. A further application for leave to appeal was lodged before the Supreme Court of Appeal.

In a case involving a Libyan asylum-seeker, the Pretoria High Court in September declared unlawful the decisions of asylum determination bodies to deny refugee status to Ibrahim Ali Abubakar Tantoush, and declared him a refugee entitled to asylum.

Use of excessive force by police

Police responded to a number of public protests over socio-economic grievances with excessive force and arbitrary arrests.

• In September, unarmed demonstrators in the Durban area protested at the lack of adequate housing. The rally organizers, the Shackdwellers Association, had complied with the requirements of the Gatherings Act. Participants were peacefully waiting to present a petition when the police dispersed them without warning, using water cannon, stun grenades, baton charges and rubber bullets. They pursued fleeing marchers, beating them indiscriminately. Fourteen activists were arrested, including one of the organizers, Mnikelo Ndabankulu, who had gone to the police station to check on the welfare of others. They were charged with public violence. Court proceedings were postponed in November until 2008. Some of those arrested suffered injuries from beatings and rubber bullets, including Mariet Nkikine, who was shot five times in the back at close range.
• In Limpopo province, villagers denied access to their lands, subjected to the effects of mine blasting and facing large-scale relocations protested against Anglo-Platinum and other mining companies.
• In January, 15 protesters, mainly women from Ga-Puka village who were trying to stop the mining company from fencing off their fields, were punched, pushed and kicked by police officers. One physically disabled woman said that she was beaten by police and had pepper spray sprayed into her eyes at close range, although she was already in their custody. The protesters were all subsequently released uncharged.
• In May, in Maandagshoek, police arrested 18 protesters, including a pregnant woman and a woman with a breastfeeding baby, and detained them unlawfully for 12 days. They were released on bail after being charged with public violence. Earlier, in March, the regional magistrate's court dismissed charges against other residents of Maandagshoek whose demonstration in June 2006 had been dispersed by police using excessive force.

Torture and other ill-treatment

Torture and other ill-treatment by police as part of criminal investigations continued to be reported. Corroborated cases included the use of police dogs to attack shackled crime suspects, suffocation torture, hitting with gun butts, and kicking and beating of suspects all over the body. The assaults took place in a variety of locations including in or near the suspects' homes. In some cases injured detainees were denied urgently needed medical care.

• Z. S. was attacked by police dogs while handcuffed and held prone on the ground by police in September. His wounds turned septic before he received any medical care while detained at a Durban area police station.
• The police oversight body, the Independent Complaints Directorate (ICD), reported that between April 2006 and March 2007, it received 23 complaints of torture and 530 complaints of assault with intent to cause grievous bodily harm. In the same 12-month period it received 279 new reports of deaths in custody and 419 deaths as a result of police action, including 141 suspects fatally shot during arrest. Nearly 50 per cent of these 698 deaths occurred in two provinces, Gauteng and KwaZulu Natal.

Prison conditions

In September, warders and security officers at Durban Medium B prison allegedly assaulted unarmed prisoners who refused to vacate their cells, using guard dogs, electric shock shields and batons. Human rights monitors reported four weeks later that some prisoners still had visible injuries, but were unable to obtain timely agreement for them to be examined by an independent forensic doctor.

Criminal proceedings against prison officers from Ncome prison in KwaZulu Natal province were postponed for further investigation into the assault on some 50 prisoners in 2003. The Jali Commission of Inquiry in 2006 had recommended criminal charges and criticized prison authorities for inaction.

The oversight body, the Judicial Inspectorate of Prisons, conducted a national inspection of 235 prisons and concluded that overcrowding, lack of rehabilitation programmes and staffing shortages were "systemic" problems, and that the state of health care provision was "in crisis".

Impunity

In July, relatives of victims of apartheid-era human rights violations, the Khulumani Support Group and two other NGOs launched proceedings in the Pretoria High Court to declare invalid amendments in 2005 to the National Prosecution Policy which would have the effect of allowing impunity for perpetrators who had not cooperated with the Truth and Reconciliation Commission or had been refused amnesty by it. Proceedings were continuing at the end of 2007.

In August, the Pretoria High Court imposed suspended sentences on former apartheid-era Minister of Law and Order, Adriaan Vlok, and four others after accepting a plea bargain. They had expressed "remorse" for the attempted murder of an anti-apartheid leader, Frank Chikane, in 1989 and agreed to cooperate in other investigations. All five accused had pleaded guilty to the attempted murder charge.

In October, the Ministry of Justice and Constitutional Development issued a statement reiterating the government's opposition to a lawsuit brought in the USA by victims of human rights violations. The group are seeking damages from 50 US, European and Canadian corporations for alleged complicity in abuses during the apartheid era. The statement was made in response to the decision of the New York Circuit Court of Appeal to reverse the decision of a lower court to dismiss the suit. The Minister stated that the responsibility for rehabilitation and redress lay with the South African government and not foreign courts.

Violence against women

High levels of sexual and other forms of violence against women continued to be reported.

According to police statistics, reported incidents of rape had decreased by 4.2 per cent over the previous six years. However, between April 2006 and March 2007, 52,617 rapes were reported. There were also 9,327 reported cases of "indecent assault" – including anal rape and other types of sexual assault which did not then fall within the definition of rape. In December new crime statistics for the period April to September 2007 included 22,887 reported rapes.

Police officials reported to Parliament that between July 2006 and June 2007, police recorded 88,784 incidents of "domestic violence" in terms of the 1998 Domestic Violence Act (DVA). The Department of Justice reported that over 63,000 protection orders were issued by the courts between April 2006 and March 2007. However, the ICD reported in November that of 245 police stations audited in 2006, only 23 per cent were compliant with their obligations under the DVA, ranging from none in Mpumalanga and Limpopo provinces to all of those audited in the Western Cape.

Women experiencing violence and service-providing organizations told Amnesty International that while some police facilitated women's access to protection orders, others referred complainants back to their families, or failed to seize dangerous weapons, or refused to take any steps unless the complainant laid criminal charges first.

The effectiveness of the police response to cases of gender-based violence reportedly deteriorated as a consequence of the disbandment of the Family Violence, Child Protection and Sexual Offences specialized units and the relocation of staff to local police stations. The Department of Justice suspended further development of specialized sexual offences courts despite their higher conviction rates in rape trials.

In December, President Mbeki signed into law the Criminal Law (Sexual Offences and Related Matters) Amendment Act, ending a nearly 10-year legislative reform process. The Act defines rape in gender-neutral terms, applicable to all forms of "sexual penetration" without consent. It obliges the authorities to develop a national policy framework and national instructions to ensure training and coordination in implementation of its provisions. However, the Act's protective measures and services for complainants and witnesses are more limited than originally sought by advocacy organizations. Provisions allowing for compulsory HIV testing of arrested suspects were criticized with respect to the interests of the complainant and the rights of the accused.

Health – people living with HIV

An estimated 5.5 million people were living with HIV. In May a new National Strategic Plan on HIV/AIDS for 2007 to 2011 (NSP) was adopted by Cabinet, following six months of consultations involving government departments, civil society organizations and healthcare providers. The NSP aimed to expand access to treatment, care and support to 80 per cent of people living with HIV and to tackle systemic barriers to prevention, treatment and care. President Mbeki's dismissal in August of the Deputy Minister of Health, Nozizwe Madlala-Routledge, who had played a key role in the development of the NSP, raised concern that the government was not fully committed to the plan.

According to government figures released in May, a total of 303,788 patients were on antiretroviral treatment (ART) programmes in the public health sector. However, organizations monitoring health rights expressed concern that this represented less than half of those needing ART. In rural areas, access to health services and women's ability to adhere to treatment were impeded by physical inaccessibility of health services, costs of transport, shortage of health personnel, delays in the "accreditation" of facilities to provide ART, lack of daily access to adequate food and socio-economic inequalities.

In May, the SAHRC held public hearings on the right to access healthcare services, as a result of receiving complaints and observing poor service delivery in many provinces. It had not published its findings by the end of the year.

Amnesty International visits/reports

• Amnesty International delegates visited South Africa in March and May.
• Pakistan/South Africa: Khalid Mehmood Rashid appears after 18 months of secret detention (AFR 53/003/2007)
• South Africa: Submission to the UN Universal Periodic Review First Session of the UPR Working Group 7-11 April 2008 (AFR 53/005/2007)