PATTERNS OF HUMAN RIGHTS VIOLATIONS

The apartheid period was characterized by serious and pervasive human rights violations within the health sector. Some of these abuses were institutional in nature and others resulted from the behavior of individuals. Many of the violations reflected the institutionalized racism that was at the core of the apartheid system. Others were a by-product of an authoritarian political system that did not respect human rights. Some types of abuses appear to be a result of sheer neglect in instilling professional standards of conduct that incorporate fundamental ethical and human rights principles in health professionals.

Much of the available data about these infringements comes in the form of case studies. These are found in published documents and in various submissions to and testimonies at the Health Sector Hearings conducted by the Truth and Reconciliation Commission on 17 and 18 June 1997. This has complicated the process of assessing the patterns and extent of the human rights infractions. It has also prompted some health professionals to claim that the human rights violations documented represent aberrations and to argue that the majority of health professionals were well intentioned and acted morally.

To aid the process of understanding the systemic nature of the abuses in the health sector, this section integrates various data sources to show patterns of human rights violations. The data utilized come from a variety of sources: publications, submissions to the Truth and Reconciliation Commission,¹ testimonies at the Health Sector Hearings, and interview notes of members of the AAAS health sector team. The descriptions of violations are not meant to be comprehensive. Nor are the listings, many in the form of vignettes or brief descriptions, intended to be more than illustrative examples of the types of violations taking place in the health sector during apartheid. The next chapter of this study will provide a more in-depth analytical treatment of several of the topics.
International human rights standards are used to determine what constitutes a violation. Here, it should be noted that the apartheid regime did not ratify any of the major international human rights instruments. Ironically, just as the rest of the world was affirming the standards outlined in the Universal Declaration of Human Rights,² which was adopted without a dissenting vote by the member states represented in the United Nations General Assembly in 1948, South Africa was instituting a system that violated many of these fundamental rights.³ Because certain rights set forth in the Universal Declaration are now considered to be generally applicable under customary international law, it seems appropriate to judge the apartheid regime by these norms.⁴

The other major international human rights instruments discussed below are multilateral treaties which are based on the Universal Declaration and elaborate on its provisions. The post-apartheid regime has signed several of the them, including the International Covenant on Economic, Social and Cultural Rights,⁵ the International Covenant on Civil and Political Rights,⁶ the International Convention on the Elimination of All Forms of Racial Discrimination,⁷ and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.⁸ Two of these treaties have also been ratified by South Africa: the Convention on the Elimination of all Forms of Discrimination Against Women⁹ and the Convention on the Rights of the Child.¹⁰ When states ratify a specific treaty they become legally bound to abide by its requirements.¹¹

Moreover, the new South African constitution recognizes and provides protection for human rights based on international standards. It states that "[C]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament."¹² There is now an embedded deference to international law. "When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."¹³ As regards health care, provisions of the Constitution specify that "[E]veryone has the right to have access to health care services, including reproductive health care."¹⁴ Additionally, "[N]o one may be refused emergency medical treatment."¹⁵ Furthermore, "[E]veryone who is detained, including every sentenced prisoner, has the right…to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment."¹⁶

Following international human rights usage, the violations profile below distinguishes between three major types of violations: violations of commission (with a separate category for violations of commission related to discrimination), violations of the obligation to protect, and violations of omission. A separate category on the failure to respect women's reproductive rights is also included. Each of these five categories is further divided into a variety of subtopics.

A. Violations of Commission

A violation of commission is a human rights violation resulting from initiatives by a state actor. It includes laws, policies, and actions that constitute or result in abuses of human rights.

Human rights instruments pertinent to such abusive government initiatives in the health sector include the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and the International Convention on the Elimination of All Forms of Racial Discrimination. All of these international agreements mandate the norms of equality and nondiscrimination and the right to liberty and security of the person. The first two require that no one shall be arbitrarily deprived of life and that no one be subjected to torture or to cruel, inhuman or degrading treatment or punishment.¹⁷

Many of the violations noted in the compilation below caused serious physical harm and health impairment to victims.

1. Legislation and government policies that resulted in the torture and maltreatment of prisoners

The Convention Against Torture requires that each State Party "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."¹⁸ The Convention further states that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."¹⁹ Various of the apartheid-era governments' legislative enactments violated this international understanding of State responsibility and proved to be the cloak of government support that afforded political cover for the practice of torture.

· Detention, arrest and incarceration without formal charges or trial, was a common mechanism of repression utilized in South Africa and the so-called independent homelands to isolate, silence, and intimidate suspected enemies of the state during apartheid. A network of laws was enacted to broaden the power of detentions, among them the antiterrorist acts, that defined terrorism very broadly and allowed for the arrest of anyone in South Africa suspected of terrorist activity or of having information about terrorist activity. Under Section 29 of the Internal Security Act 74, an individual could be detained indefinitely, explicitly outside the jurisdiction of the court, without access to a lawyer, family members, religious advisors, or a personal physician. Section 29 also allowed for a detainee to be held incommunicado and in solitary confinement.²⁰ The lack of protections for detainees made them more vulnerable to torture and maltreatment.

· Between 1960 and 1990, it is estimated that some 73,000 detentions took place. It is now common knowledge that severe torture was commonplace; many people were temporarily or permanently injured (physically and psychologically) and a number of people died in detention.²¹

· A study conducted by doctors affiliated with NAMDA (National Medical and Dental Association) practicing at a clinic near the center of Durban on detainees released between September 1987 and March 1990 indicated that 94 percent claimed either physical or mental abuse. The beating of detainees was widespread. Of the ex-detainees who alleged physical abuse, half showed evidence on physical examination. When their psychological status was assessed, 48 percent were found to have some degree of psychosocial dysfunction.²²

· In December 1982, the Minister of Law and Order issued a set of directives as safeguards for those detained under Section 29 of the Terrorist Act. Paragraph 15 states, " A detainee shall at all times be treated in a humane manner with proper regard to the rules of decency and shall not in any way be assaulted or otherwise ill-treated or subjected to any form of torture or inhuman or degrading treatment." However, there is little evidence of the safeguarding of detainees' human rights.²³

· While the courts were denied jurisdiction in cases of detainees, they indirectly "augmented and sanctioned the practice of interrogation and torture of detainees by accepting as evidence testimony obtained from detainees while in detention."²⁴

· The May 1983 report of the Ad Hoc Committee of MASA (Medical Association of South Africa) published as a supplement to the South African Medical Journal stated that "[T]here are insufficient safeguards in the existing legislation to ensure that maltreatment of detainees does not occur. Persuasive evidence has been put before the Committee that where harsh methods are employed in the detention and interrogation of detainees, this may have extremely serious and possibly permanent effects on the physical and mental health of the detainee…The Committee has concluded that the circumstances relating to the detention of security law detainees in South Africa present potential hazards to their physical and mental health."²⁵

· The Department of Health did not conduct its own investigations into the health care of detainees by district surgeons despite the number of complaints about torture that were being reported in the media and in court cases.²⁶

· Corporal punishment was sanctioned until 1994. In 1987 there were 35,000 whippings, in 1988 41,000. Doctors were required to be present to qualify victims for punishment and observe its effects.²⁷

· Many children were detained under the security and emergency regulations, which did not require that they be formally charged, rather than under the Criminal Procedure Act, where they would have to be charged and brought before a court of law. Up to 10,000 children, some very young, were arrested during 1986 and 1987 as the government attempted to crush widespread school boycotts. Many were placed in solitary confinement. Parents and/or relatives were generally not informed of the child's detention or given visitation rights. Nor were there protections in place, such as the inspection of juvenile cells by persons independent of the system. Prisons were found to be very unsuitable places for detaining children; they were overcrowded, had inappropriate feeding schedules, and little stimulation for growth and development. In a 1986 study conducted by the National Medical and Dental Association of 600 persons who had been recently released from detention, 40 percent were children. One third of these children were suffering from post-traumatic stress disorder.²⁸

· A representative of MASA cited the case where "a district
surgeon...was allegedly requested by the security police to advise them whether a detainee was fit to undergo further electric shock torture."²⁹

2. Government policies that resulted in the failure to provide appropriate health care to detainees

Contrary to international standards, the apartheid government interfered with the health care provided to detainees through the Department of Health. Under UN Standard Minimum Rules for the Treatment of Prisoners, a qualified medical officer "shall have the care of the physical and mental health of prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed."³⁰ According to UN principles, "A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge."³¹

· The submission of the Department of Health to the TRC acknowledges that "[T]he Health Department was in fact collaborating with the police services against the health interests of their patients. The Department was in fact allowing the professional integrity of its employees to be violated."³²

· The Department of Health submission to the TRC states that "[I]t appears that medical negligence was a factor in the deaths of a number of people in detention." It goes on to acknowledge that "[A]s the employer of District Surgeons, it is incumbent on the Department of Health to bear some responsibility."³³

· Psychiatrists had to treat patients in detention, knowing that continued detention or solitary confinement was exacerbating the illness of their patients. When psychiatrists recommended release from detention as a way to prevent further deterioration of mental health, detainees were transferred to areas without such sympathetic psychiatrists.³⁴
· "The current Premier of the North West, Popo Molefe, is reported to have been kept in leg irons while being treated for a lung infection."³⁵

· In a 1987 study by the National Medical and Dental Association, 75 percent of the detainees interviewed had been assaulted, but less than half had received medical care.³⁶

· Mass detentions increased the workload of district surgeons making it difficult to provide adequate care to all their patients.³⁷

· Detainees were not told that under a 1985 policy they had access to independent doctors who were members of special panels. The detainees were thus limited to the health care provided by district surgeons.³⁸

· In a study of the medical care provided to 123 individuals who were in detention between 1986 and 1990, only 8 percent were informed that they had the right to see a doctor while in detention.³⁹

· In 1985, when district surgeon Wendy Orr reported evidence to the Department of Health that her patients were being tortured, the Department obstructed her efforts to protect those detainees. After she took the matter to the Supreme Court for the Eastern Cape, she was barred from seeing detainees. "Dr. Orr was in effect `pushed out' of the district surgeon's role." ⁴⁰

· The Department of Health instructed district surgeons not to testify to a MASA committee that was formed in May 1982 to investigate the reported medical controversy over the poor treatment of detainees and prisoners. Minister of Health and Welfare Dr. C. V. van der Merwe stated that "it is not practical for any civil servant to give evidence before a committee that makes inquiries about the activities of civil servants."⁴¹

3. Failure of district surgeons and other health professionals to protect the health of detainees

Virtually all medical codes of ethics emphasize that a medical professional's primary responsibility is to his/her patient. Apartheid imposed a system of dual loyalties that compromised many medical professionals who allowed political considerations to override their professional obligations.
· The Department of Health acknowledges that district surgeons failed in their duty to report, treat and inquire about the torture of detainees. This is particularly unfortunate because they were "the only lawful source of access to medical care and a potential safeguard against abuse by the detaining authority." With only minor exceptions, they were not prepared to take the necessary actions to protect patients.⁴²

· Many district surgeons and other physicians filed false or misleading reports regarding injuries to detainees. In a case from the 1970s, a man was found comatose in police headquarters. He was examined by a district surgeon and then transferred to police headquarters in Pretoria. The Chief Pathologist filed a false affidavit saying there were no injuries.⁴³ In 1985, Amos Dyanti received a diagnosis of epilepsy without a careful examination to exclude the possibility of head injury or inquiring from the detainee whether he had been assaulted or tortured.⁴⁴ Mr. Dyanti further alleged that while he was being tortured, a doctor advised police to smear porridge around his nose, "so that in the event that he died during interrogation they could attribute his death to aspiration of food during an epileptic seizure."⁴⁵

· Some psychiatrists worked extensively with the security police providing expert testimony that denied that there was evidence of damage to, and abuse of, political detainees.⁴⁶

· Doctors may have helped police modify electric shock torture to hide evidence of it. At first, electric shock was applied using clips and wires, but because of its detectability upon histological examination, the torture was changed to broaden the surface area of the charge, thus making evidence of torture less detectable.⁴⁷

· Some psychiatrists prescribed drugs so detainees would be fit for torture, or to cover up evidence of torture.⁴⁸

· According to the Department of Health, "many District Surgeons failed to put their medical and health obligations as their primary responsibility, and allowed themselves either by commission or omission to become accomplices to actions resulting in unnecessary illness, sufficiency and death." ⁴⁹

· There were district surgeons who performed "perfunctory examinations or who did not inquire into the cause of injuries suffered by detainees."⁵⁰
· Psychologists, when called upon to examine a prisoner, would ask more questions of the guard in order to determine the condition of the prisoner than of the prisoner. Psychologists acted as "spy-chologists," seeking to obtain information from prisoners useful to the state.⁵¹

4. Results of coercive population policies

The apartheid-era government sought to control the location and limit the growth of the black population. These policies had devastating effects on the unity and health of black families because it forced many black men to leave their families in search of work and hindered a black family's access to quality health care. The right to move around freely and have a family life are inherent in the International Covenant on Civil and Political Rights. With regard to migration, Article 12 provides that, "[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." Article 23 of the Covenant covers family planning to some extent when it states that, "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State. . . The right of men and women of marriageable age to marry and to found a family shall be recognized."

The population policies are also contrary to provisions of the International Covenant on Economic, Social and Cultural Rights. Article 12 requires States Parties to recognize "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." Achieving the full realization of this right involves "the creation of conditions which would assure to all medical service and medical attention in the event of sickness."

· The results of "confining more than 72 percent of the people [blacks] to 13 percent of the country in Bantustans and ghettoes; the serious underdevelopment of rural black areas; the migration of work seekers to the cities; the strict control of those searching for employment by migrant labor laws; the illegal squatter camps; the forced removals of upwards of three and one-half million Africans from settled communities to poorly served resettlement villages; the lack of sufficient and good quality housing and sewage disposal and sanitation in settled townships...all create circumstances which lead to frequent and
infectious diseases and rampant malnutrition."⁵²

· Because of apartheid policies that sought to contain and relocate blacks to distant homelands...Smith Mitchell facilities (psychiatric institutions now called Life Care) were located far from many black patients' homes. This made it difficult for patients' relatives to visit and maintain contact with them, thus contributing to the social isolation and "chronicity" of black patients.⁵³

· The migrant labor system required men to live apart from their families for much of the year, often in overcrowded single-sex hostels with dormitory accommodation. Without the potentially stabilizing influence of family support, there was a high incidence of violence and widespread abuse of alcohol and drugs.⁵⁴

5. Interference with the privacy and confidentiality of medical information

Article 17 of the International Covenant on Civil and Political Rights states that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation." Hand in hand with the right to privacy is the expectation that there is confidentiality of medical information. Confidentiality is considered an essential component in the practice of medicine that helps to define the relationship between a doctor and her patient. It allows for a measure of trust that facilitates proper treatment. Threats to confidentiality are thus symptoms of a suspect medical system.

· From 1978 to 1994 district surgeons were required to tell the police "about the medical condition of detainees, thereby creating a situation in which doctors handed their clinical files over to the very interrogators and torturers who would misuse such information."⁵⁵

· "The Department of Health did little to protect professional confidentiality and in fact collaborated with the police in producing information. There are numerous reported incidents in which doctors, nurses and administrative staff were forced to give information_often with threats against the health worker or their family."⁵⁶
· In 1986 at the Alexandria Clinic in Johannesburg, following a clash between the police and township residents, police requested patient files of patients with gunshot wounds. When doctors refused, the files were taken by force. The files were returned when the director of the clinic informed the police that they were obstructing proper medical care.⁵⁷

· "The District Surgeons were particularly vulnerable to having to provide medical and other confidential information provided to them.
S/he has a legal obligation to give confidential information upon court order. Moreover a full medical record had to accompany a detainee when being transferred."⁵⁸

· In 1982, one district surgeon stated, "the [district surgeon] is obliged by law to hand over his notes to the security police." Another stated, "if district surgeons wished to have a detainee put in hospital it was first necessary to divulge all medical information to the security police."⁵⁹

· Ambulance workers would bring patients with gunshot wounds to state hospitals where security police had easier access to records, rather than bring them to clinics where doctors may have tried to protect the patients from the police.⁶⁰

NOTES

¹ We would like particularly to acknowledge the comprehensiveness of one submission, the Health and Human Rights Projects document, "Professional Accountability in South Africa," June 1997. [Hereinafter "HHRP" ]

² U.N. General Assembly. Universal Declaration of Human Rights. Pursuant to Resolution 217, III, December 10, 1948.

³ The declaration was adopted by the UN General Assembly on December 10, 1948. Forty-eight states voted in favor, none against, and eight abstained (including Saudi Arabia, South Africa, the U.S.S.R and Yugoslavia).

⁴ Joyner. "UN General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation", 11 Cal. W. Intl. L.J. 445, 1981. Although votes do not necessarily represent state practice, they may "crystallize . . . customary behavior and general principles into law."

⁵ CESCR.

⁶ CCPR. Signed by South Africa on October 3, 1994.

⁷ Convention Against Racial Discrimination. Signed by South Africa on October 3, 1994.

⁸ Convention Against Torture.

⁹ CEDAW.

¹⁰ Convention on the Rights of the Child. November 20, 1989, 28 I.L.M. 1448. Signed by South Africa on January 9, 1993 and ratified June 16, 1995.

¹¹ Barry E. Carter & Phillip R. Trimble. International Law 109. 2nd ed., 1995.

¹² Constitution of the Republic of South Africa, 1996, Chapter 14, § 232.

¹³ Ibid, Chapter 14, § 233.

¹⁴ Ibid, Chapter 2, § 27(1)(a).

¹⁵ Ibid, Chapter 2, § 27(3).

¹⁶ Ibid, Chapter 2, § 35(2)(e).

¹⁷ CCPR. Article 7. Convention Against Torture, Article 2, 16.

¹⁸ Convention Against Torture. Article 2(1).

¹⁹ Id. Article 2(2).

²⁰ AAAS, p. 62.

²¹ Department of Health. Submission to the Truth and Reconciliation Commission, May 1997, p. 7. Hereinafter "Department of Health".

²² "Experience of Persons in Detention in Natal. September 1987-March 1990." Submission to the Truth and Reconciliation Commission, June 1997, p. 13-14.

²³ Ibid, p. 3-5.

²⁴ Ibid, p. 5.

²⁵ "Third Draft of the Submission by MASA to the TRC." June 1997, p.51.

²⁶ Id., p. 10.

²⁷ Damster, Gavin (physician with MASA). Interview by Vincent Iacopino, March 24, 1997.

²⁸ UNICEF, Children on the Front Line. New York, 1989, p. 98-99.

²⁹ Id. at 8.

³⁰ United Nations. Standard Minimum Rules for the Treatment of Prisoners, Rule 25. 1955, 1977, 1984.

³¹ United Nations. Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, Principle 24. December 9, 1988.

³² Department of Health, p. 13.

³³ Department of Health, p. 7.

³⁴ Society of Psychiatrists of South Africa, p. 9.

³⁵ Department of Health, p.15.

³⁶ Id. p. 11.

³⁷ AAAS, p. 18.

³⁸ Department of Health, p. 12.

³⁹ van Heerden, Judith. Submission to the Truth and Reconciliation Commission of Dr. J. van Heerden of the Department of Primary Health Care at the University of Cape Town, p. 4, May 1997.

⁴⁰ Department of Health, p. 10-11.

⁴¹ HHRP, "HHRP: Professional Accountability in South Africa. A Submission to the Truth and Reconciliation Commission, for Consideration at the Hearings on the Health Sector", June 1997, p. 22. Quoting Cape Argus, May, 23, 1983.

⁴² Id., p. 7-8.

⁴³ Bizos, George (lawyer with Legal Resource Center). Interview by Len Rubenstein, June 1997, p. 2.

⁴⁴ London, Leslie. Submission to the Truth and Reconciliation Commission, May 1997, p. 3.

⁴⁵ HHRP, p. 29.

⁴⁶ Simpson, Michael A. "Executive Summary of the Evidence…to the Truth and Reconciliation Commission's Health Sector Hearings," June 1997, p. 4.

⁴⁷ Id., p. 7.

⁴⁸ Organization for Appropriate Social Services for South Africa. Submission to the Truth and Reconciliation Commission, May 1997, p. 12.

⁴⁹ Department of Health, p. 7.

⁵⁰ Progressive Doctors' Group. Submission to the Truth and Reconciliation Commission, p. 8-9.

⁵¹ Psychological Society of South Africa. Submission to the Truth and Reconciliation Commission. June 1997, Sections 3.2.4 _ 3.2.5.

⁵² HHRP. "Socio-Medical Indicators of Health in South Africa," p. 172.

⁵³ Society of Psychiatrists of South Africa. Appendix 2, "Am J Psychiatry `Report of the Committee to Visit South Africa,'" p. 1505.

⁵⁴ Id., Appendix 25, "The Report to the President on the Preliminary Visit to South Africa of a Team on Behalf of the Royal College of Psychiatrists," p. 26.

⁵⁵ HHRP, p. 41.

⁵⁶ Department of Health, p. 14.

⁵⁷ Id.

⁵⁸ Id.

⁵⁹ HHRP, p. 19.

⁶⁰ University of Witwatersrand Faculty of Health Sciences. Preliminary Submission to the Truth and Reconciliation Commission, p. 33-34, May 1997. Hereinafter "University of Witwatersrand".