The debate around the deportation and whereabouts of Khalid Rashid has ignored an important issue. South African authorities may be complicit in the torture of those suspected of involvement in terrorist activities. South Africa has deported foreigners to countries that are known to systematically practice torture and where opponents of the government and terror suspects are known to have "disappeared". A glance at the most recent annual report of Amnesty International would show that Egypt, Jordan and Pakistan, countries to which foreigners have been deported from South Africa, are accused of practising systematic torture and of causing the "disappearance" of suspects arrested on allegations of involvement in terrorist activities.
Rashid seems to have "disappeared" as nothing is known of his whereabouts since his flight on a chartered plane out of Waterkloof Airforce Base in November last year. His lawyer suspects that he is being held as a terror detainee in an East European country where he may have been subjected to torture. Should this be the case, South African authorities would be in contravention of our Constitution's prohibition of torture, the right to security of person and the right to be treated with dignity and respect afforded to all those who find themselves in South Africa, including foreigners and undocumented migrants. South Africa would also be in violation of its international legal obligations, in particular under the UN Convention Against Torture, which prohibits the deportation or extradition of any person to a country where there are reasons to be believe that the person may be subjected to torture.
In the past, as far as is known, South Africa has not sought assurances from the authorities of the countries to which foreigners have been deported that they would not be tortured or would not "disappear". Such failure on the part of our authorities is in contravention of our government's constitutional and international obligations. The Constitutional Court decision in the case of Tanzanian national Khalfan Mohamed, declared by the Court to have been unlawfully deported to the US, requires South African authorities to obtain assurances when deporting or extraditing foreigners sought for capital offences such as murder that the death penalty would not be imposed upon conviction of the person. South Africa is under a similar legal obligation to seek assurances that foreigners being deported or extradited would not be tortured. If Rashid's removal from the country was tantamount to an extradition disguised as a deportation then this would fall foul of South African legislation and the decision of the Constitutional Court in the Mohamed case. Furthermore, if Rashid has been deported to any country other than Pakistan this would be in contravention of the Aliens Control Act, as already determined by the Constitutional Court. The extradition or deportation of foreigners to countries where they may face torture or other cruel, inhuman or degrading treatment is contrary to the underlying values of our constitution.
The issue of enforced disappearances is of considerable concern to the UN, which will be soon considering a draft treaty which would require States to prevent and prohibit "disappearances". South Africa, as an elected member of the newly formed UN Human Rights Council, is likely to support the adoption of this treaty. It should also act in accordance with its obligations under international law not to permit or be complicit in enforced disappearances. Until the whereabouts of Rashid are made known, he would be considered as having "disappeared", an act in which the South African authorities have been complicit.
There has been much media exposure in Europe about the practice by the United States of "extra-ordinary rendition", where terror suspects are flown to countries in eastern Europe that systematically practice torture and where the political and judicial authorities have condoned such practices. A recent report of the Council of Europe confirms the collusion of 14 European countries in the transfer of terror suspects to secret detention centres including in Romania and Poland. US authorities have also been accused by Amnesty International and the United Nations of torture of suspects held in Guantánamo, Iraq and Afghanistan. The United States is not beyond reproach in their treatment of terror suspects. Therefore South African authorities have no assurances that foreigners suspected of terrorism handed over to US authorities would be treated with dignity.
In its overt attempts to be seen to be engaged in the "war against terrorism" and to appease global powers such as the US, South African authorities are trampling upon the values enshrined in our Constitution. Values that are important in a nascent democracy. Let us recall the salient words of the Constitutional Court: "The legitimacy of the constitutional order is undermined rather than reinforced when the state acts unlawfully".
Ahmed C. Motala is Executive Director of the Centre for the Study of Violence and Reconciliation.
Originally published in The Star, 27 June 2006.