Monday, August 8, 2022

Did police torture armed robbery suspect?

For now, pay no mind to the rhyme scheme but listen to the sounds from inside an interrogation-room-cum-torture-chamber.

Mere seconds before would-be armed robbers caught with a stash of cash could snitch on “Stash” at the police station, one of them (off-frame in a now viral video) loudly and thrice expresses extreme pain with “Iyoo!” In the next breath, the “Iyoo!” (whose English equivalent is “Ouch!”) is accompanied by a sucking sound that is also used in some Bantu cultures to express pain. A short while later, he reappears in the frame and for the balance of his screen time, incorporates an “Iyee!” of indeterminate (but possibly Nguni) cultural origin into his pained-expressions repertoire. Nothing suggests he is yelping in pain because the handcuffs are not his favourite brand.

The would-be robber in question is one-quarter of a quartet (two Batswana, two South Africans) that was nabbed on Wednesday by a combined security force that was aided by an airborne police helicopter. “Stash”, the fifth suspect, separated from his accomplices, disappeared into thin air and is still at large. The name was provided by the detainees.

It would seem that the South Africans either don’t speak English or communicated such message to the police interrogators because the video opens with the voice of an off-frame cop asking someone (possibly a Setswana-isiNdebele interpreter) to ask the South Africans a question whose second part is inaudible because there follows animated bilingual cross-talk by both cops and robbers alike. The “Iyoo!” robber looks up to the cellphone camera with a pleading face and in a pleading voice appears to be making a plea that equates robbing a chain supermarket store with bumping into a reveller at a nightclub.

Sicela uxolo,” he appears to be saying in Mpumalanga Province isiNdebele, meaning “Please forgive us.”

A loud authoritative voice asks in Setswana about the whereabouts of the fifth suspect and before the answer comes, the pained expressions begin off-frame. The suspect emitting such expressions is clearly in pain but who was paining him and how? That question is going to be extremely difficult to answer but one thing is for sure: South Africa is going to demand answers. From the look of things and in terms of a theory that has gained currency on social media, an off-frame cop tightened the handcuffs beyond the legal limit – which is a point where a cop can fit his or her pinky finger between the cuff and the arrestee’s wrist. Applying the handcuffs too tightly is unlawful, self-indulgent and can cause permanent nerve damage. It is a legal requirement that arresting officers should not intentionallytighten the handcuffs. If that was indeed what happened, the officer in question may find himself in the stickiest situation of his life.

Given its history with torture, South Africa has a law that establishes torture as a crime. Called the Prevention and Combating of Torture of Persons Act, the law was passed in 2013, makes torture punishable by law and is more stringent than anything you will find in Botswana laws. In terms of this Act, torture carries a punishment of imprisonment – which can include life imprisonment – and when a person is guilty of torture, they cannot just pay a fine or be given a suspended sentence. In what will be relevant to the case in question, the law aims “to prevent and combat the torture of persons within and across the borders of the Republic.” In aid of the latter, Section 6 of the Act South Africa claims extra-territorial jurisdiction in respect of an act of torture committed outside its borders. South Africa’s Constitutional Court has ruled that the country “may, through universal jurisdiction, assert prescriptive and, to some degree, adjudicative jurisdiction by investigating the allegations of torture as a precursor to taking a possible next step against the alleged perpetrators such as a prosecution or an extradition request.” In consultation with the Chief Justice and after consulting with the National Director of Public Prosecutions, the minister responsible for justice designates a court in which the prosecution should take place.

South Africa may choose to not go down that route but the South African High Commission in Gaborone is, in terms of the Vienna Convention on Consular Relations, entitled to gain access to the two would-be robbers. On its website, the country’s Ministry of International Relations and Cooperation says that consular officials must ensure that South African citizens arrested abroad are “treated humanely” while in custody: “In this regard, issues such as torture, inhumane or degrading treatment or punishment will be reported and taken up with the local authorities.”

The latter means that when consular officials visits the two detainees, one will hold up his hands and say “Look what they did to me.” At this point, those officials would already have seen the video in question.

Another complication may lie farther down the road. Section 8 of the Prevention and Combating of Torture of Persons Act says that “no person shall be expelled, returned or extradited to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.” There are more than substantial grounds for believing that such people would be in danger of being subjected to torture – there is a video of an armed robbery suspect being tortured. Supposing he fled to South Africa, “Stash”, the fifth suspect that his accomplices snitched on, could use the video as evidence that he would be subjected to torture by Botswana police. A court might agree with him and many more suspects seeking to thwart attempts to extradite them to Botswana could also do the same thing. Then again, the provision in question has a caveat: the receiving state has to have a “consistent pattern of gross, flagrant or mass violations of human rights.” Botswana doesn’t fit the latter description but the video will nonetheless be forever used as evidence against the country.

Interestingly, torture happens all the time all over the world, including in South Africa itself. However, the video marks the very first time in Botswana’s policing history that what happens inside an interrogation room-cum-torture-chamber has been shared with members of the public. All along, it has been easy for the police to deny that suspects were tortured because there was no evidence but times they are a-changing. In a social media era, some – including police officers – feel a compulsive urge to record and publicise content that goes viral.

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