n South African Law Journal - The regulation of detention in the 'age of terror' - lessons from the apartheid experience
|Article Title||The regulation of detention in the 'age of terror' - lessons from the apartheid experience|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Author||Mia Swart and James Fowkes|
|Publication Date||Jan 2009|
|Pages||780 - 805|
When facing threats to its national security from 'terrorist' organisations, apartheid South Africa responded in an all-too-familiar fashion. Between the early 1960s and the mid 1980s the practice of peace-time detention without trial became an integral and accepted part of the South African apartheid regime. During this period the South African Police routinely tortured and ill-treated 'enemies of the state' in detention. In 1984 Foster estimated that 83% of all detainees in South Africa were subjected to physical torture. If mechanisms existed to combat torture, they were clearly not working.
Yet, some theoretically credible mechanisms to combat torture did exist. This was particularly so in the courts, where common law rules governing the admissibility of evidence and imposing onuses on the state to rebut torture allegations were ostensibly in force. In their failure lies the special relevance and resonance that the apartheid security experience has for the so-called 'war on terror'. Much of the current concern regarding the impact of security legislation on human rights is directed to the treatment of detainees in places of detention. The checks that can be afforded by an independent judiciary are a key part of the response. This article examines why and how judicial checks failed to respond to the prevalence of torture during apartheid, to see what lessons can be learned. We frame these lessons as a critique of select aspects of the Robben Island Guidelines (hereafter 'RIG'). The RIG, which were drawn up by the African Commission in 2002, aim to assist African countries to design systems that will be effective in combating torture.
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