CHAPTER 3 THE IMPACT OF INTERNATIONAL INSTRUMENTS IN COMBATTING
3.5 CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR
This Convention was adopted by the United Nations General Assembly on 10 December 1984.446 The Convention obliges signatory states to implement laws that prohibit torture and other acts of cruel, inhumane and degrading treatment or punishment.447 Article 1448 of the Convention defines torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or the third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.449
From this Article, it is clear that only torture committed by public officials or anyone acting in their capacity, is contemplated.450 In other words, PLWA cannot rely on this Convention for protection. This has raised a number of concerns from PLWA. In Tanzania, in the case of X v United Republic of Tanzania,451 this argument was raised.
In this case, the complainant (Mr. X) was living with albinism.452 He was attacked by
445 Ibid.
446 J Herman Burgers and H Danelius ‘A handbook on the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment’ available at
https://books.google.co.za/books?hl=en&lr=&id=hMcR-
TxS9BIC&oi=fnd&pg=PA1&dq=cruel+inhuman+or+degrading+treatment&ots=YlQIrd-
tyE&sig=YlAf 4ZFuwF27CsKngjTTZBhcbU#v=onepage&q=cruel%20inhuman%20or%20degrading%
20treatment&f=false , accessed on 3 October 2018.
447 Ibid.
448 Ibid.
449 Ibid.
450 Ibid.
451 Ibid.
452 Ibid.
59
two men, and his arm was cut off.453 The police were informed of the incident.454 In one of the complainant’s arguments, he referred to the article 1 definition of torture.
However, the CRPD committee found that the act against Mr. X was not caused by public officials, nor anyone acting in such capacity, as stipulated by the Convention.455 The CRPD committee did emphasize that the State bears a duty to combat and punish the acts in article 15 of the CPRD, which applies both to public officials, and to those who do not work in state departments.456 Generally this means that this Convention also protects PLWA when they are trafficked/ attacked.
Words such as “cruel”, “inhuman”, “degrading punishment” and “punishment”, have not been defined by the general assembly.457 According to the Human Rights Committee, the whole idea of these words:
Goes far beyond torture as normally understood, it may not be necessary to make a sharp distinctions between various forms of treatment and punishment. These distinctions depends on the kind, purpose and severity of the particular treatment . . . the prohibition must extend to corporal punishment, including excessive chastisement as educational and disciplinary measures.458
This does not give a proper meaning to these words. In any event, the article seems to provide protection from all ill-treatment, and inhumane and cruel conduct, directed against all human beings, including PLWA. In 2013, the United Nations High Commissioner for Human Rights459 published a preliminary report on discrimination against PLWA. According to this report:
States would adopt specific measures to protect and preserve the rights to life and security of persons with albinism, as well as their right not to be subjected to torture
453 Ibid.
454 Ibid.
455 Ibid.
456 Ibid.
457 Ibid.
458 M Goodale Human Rights an Anthropological Reader (2009) 77.
459 B Johnas and M Jeddy ‘The predicament facing people with albinism: turning on the truly sight in Tanzania’ available at
http://repository.out.ac.tz/1516/1/THE PREDICAMENT FACING PEOPLE WITH ALBINISM.pdf, accessed on 19 April 2019.
60
and ill-treatment, and ensure their access to adequate health care, employment, education and justice.460
From this report it is clear that this article protects PLWA. Trafficking in their body parts is regarded as exploitation. All the signatories to this protocol should ensure that any cruel and inhuman acts against PLWA are prevented, and the victims of such acts should be protected.
There are cases where PLWA end up leaving their countries of birth in fear that they will be attacked. These attacks and inhuman acts do not only occur in their communities,461 but spread to schools and to their working environment. It becomes very hard for them to trust people, since they sometimes work together with perpetrators.462 As a result, they flee their beloved countries in search of a better life.
Article 3463 of this Convention clearly protects all PLWA who leave their countries in fear that they will become victims. Article 3464 states that:
1. No states party shall expel, return (“refouler”) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights.465
Instead of chasing the refugees living with albinism to their home countries, this article requires all signatory states to ensure that they work together in ensuring that PLWA are protected wherever there are.
460 Ibid.
461 A Franklin ‘Children with albinism in African regions: their rights to being and doing’ (2018) 18 2 BMC International Health and Human Rights 3.
462 C Baker ‘The myth surrounding people with albinism in South Africa and Zimbabwe’ (2010) 22 2 Journal of African Cultural Studies 175.
463 Article 3 of Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
464 Ibid.
465 Ibid.
61
3.6 INTERNATIONAL COVENANT ON SOCIAL AND ECONOMIC