The mandate for an NPM comes from the OPCAT, a human rights treaty drafted by States who wanted to ensure stronger protection for people deprived of their liberty.

Central to the OPCAT is the idea that a system of regular, independent visits to places of deprivation of liberty can serve as an important safeguard against abuses, and prevent torture and other cruel, inhuman or degrading treatment or punishment in places that by their very nature fall outside the public scrutiny.

An NPM aims to prevent torture and other cruel, inhuman or degrading treatment or punishment from taking place through regular monitoring of places of deprivation of liberty with or without prior notice. The OPCAT is not prescriptive on the structure for the NPM, however, there are minimum requirements for NPMs, which include the following:

 

The following institutions have been proposed as members of the NPM, subject to legislative review and amendments to their enabling legislation regulating independence, powers and functions:

Civil society plays a critical role in the success of monitoring and awareness. The NPM can tap on the existing civil society expertise to strengthen its work. As such, the role of civil society will need to be outlined. The SAHRC Act already recognises the role and permits the participation of civil society organisations in the work of the SAHRC in terms of section 13 (1)(b)(iii) of the SAHRC Act. In this regard, it is envisaged that civil society will play a significant role, for instance, by providing support to the NPM, including research and data verification.

The SAHRC will perform a coordinating and functional role. As coordinator, the SAHRC would collate and produce an aggregated report on places of deprivation of liberty, coordinate research on addressing gaps in monitoring, policy deficits, develop a guide for monitoring by the other institutions for consistency and reporting to Parliament as well as the SPT. The SAHRC will be responsible for coordination, including in the following areas:

• Develop an effective NPM that meets the requisite provisions of the OPCAT;
• Ensuring cohesion of methodology and coordination of work; 

• Promoting collaboration, information sharing, cohesion and good practice between 
NPM bodies; 

• Convening regular meetings of NPM bodies; 

• Facilitating joint activities between NPM bodies; 

• Liaising and facilitating engagement with international human rights bodies (e.g. 
the SPT and other NPMs); 

• Making joint submissions to international treaty bodies; 

• Representing the NPM with Government and other national actors; 

• Representing the NPM at the international level; and 

• Preparing the NPM annual report and other NPM joint publications.

The NPM is further required to consult regularly with the SPT; make recommendations to applicable authorities to strengthen the prevention of torture; and comment on proposed legislation or policies regarding places of deprivation of liberty.

The NPM must regularly examine the treatment of persons deprived of their liberty in places of deprivation of liberty as defined in article 4 of the OPCAT, to strengthen, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment.

Make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations, the Constitution of the Republic of South Africa; and to submit proposals and observations concerning existing or draft legislation.

Through the NPM’s systemic analysis before, during and after monitoring visits (as well as follow-up visits), the NPM is able to identify trends, improvement or deterioration of the conditions of detention and provide recommendations to reinforce/implement protective measures as underscored by international and domestic human rights law. This creates credibility regionally and internationally as well as legitimacy in respect of independence – envisaged in respect of persons deprived of their liberty.

From a business case point of view, the NPM will be able to ensure a reduced consequence costs to the State in respect of litigation in civil claim matters against the State arising out of places of deprivation of liberty or through conduct or omissions of those employed in such places. The NPM will be able to reduce the potential cost of litigation / reduce the risk of possible litigation. It also attempts to create an environment for improved opportunities for rehabilitation and less dependency on the State.

It ensures compliance with the constitution and creates consensus on strengthened mechanisms, policies, procedures and protections for persons deprived of their liberty.

The NPM will be working on identifying ways of strengthening its work over the next three (3) years. This will include training both policymakers on its mandate and practitioners on preventing torture and ill-treatment through monitoring. Ultimately, it will strive to ensure that all places of deprivation of liberty in South Africa are subject to independent oversight. As a way of popularising its identity and mandate, the NPM will work towards building awareness of its existence nationally and internationally.

The current position in respect of the bodies that will participate in the NPM may, therefore, need to be reconsidered in light of these requirements. The above requirements indicate a need to consider how the legal foundation of the different NPM institutions may potentially be amended to ensure that they each have the full powers, resources and mandates necessary to fulfil their OPCAT functions. In this regard, the NPM will be working on draft legislation to strengthen and protect its mandate.

A strong system of cooperation and coordination is also essential to the success of this kind of system. In this regard memoranda of understanding, clear focal points, and regular discussions at different levels of the institutions will be essential.

It will also be desirable to conduct joint training of staff; participate regularly in each other’s visits to places of deprivation of liberty; make joint submissions on relevant policy and legislation and do joint work on thematic and cross-cutting issues through inter-institutional working groups and the publication of joint thematic reports.