Invisible and detained: the gendered face of torture in South Africa’s immigration system

26 June marked the International Day in Support of Victims of Torture, reaffirming the absolute prohibition of torture under international law. In South Africa, this day rings with a bitter irony considering our past with arbitrary detention and violations of human rights within carceral settings during apartheid. South Africa ratified the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (OPCAT) in 2019, committing to independent oversight of places of detention, five years later, South Africa has a functional National Preventive Mechanism (NPM) that is mandated by the OPCAT to regularly examine and investigate the treatment of persons deprived of their liberty.  The NPM consists of the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, Military Ombud and the Health Ombud, with coordinating and functional powers vested within the South African Human Rights Commission. 

While this is a positive step towards protection and promotion of human rights in places of deprivation of liberty, in practice, there is little doubt from Lawyers for Human Rights that torture, cruel, inhuman and degrading incidents still occur in our carceral settings. Whether it is denial of access to gender-affirming healthcare, arbitrary detention, detention of children or abuse of authority by solicitation of bribes in exchange for safety or release from arbitrary detention. The 2023/2024 Department of Correctional Services Annual Report revealed that 66 officials were charged with misconduct, with 32 dismissed and 17 resigning before disciplinary hearings for charges including assaulting inmates, smuggling contraband, bribery, dereliction of duty, and violating departmental security protocols. These transgressions point to deeply entrenched patterns of abuse and arbitrary conduct within detention settings.

These abuses are much more prevalent in the context of immigration detention where legal ambiguity and lack of transparency foster an environment ripe for unchecked power. Migrants and asylum seekers, often detained without trial or adequate legal representation, face heightened vulnerability to abuse due to language barriers, precarious legal status, and fear of deportation. In this context, the risk of arbitrary detention and extortion increases significantly because unlike sentenced criminal persons, immigration detainees are hardly ever held as punishment but are subjected to carceral conditions without the procedural safeguards typical of the criminal justice system. This structural inequality enables impunity and perpetuates a system where rights violations are not anomalies but systemic features.

It is in this context that women, children, sexual and gender minority asylum seekers and migrants find themselves in carceral settings that resemble persecution which they fled. Although  immigration detention in its legislative form is not supposed to be punitive. Yet, the South African authorities have routinely used administrative detention as a tool for immigration control and enforcement.  This has resulted in the de facto criminalisation of migration status, without meaningful alternatives to detention or developing a protection-based approach for those in need of international protection. 

In Lindela for instance, South Africa’s main immigration detention facility, credible reports of abuse, extortion, overcrowding, denial of medical care, and gender-based violence continue to surface. Lawyers for Human Rights and other civil society organisations have, for years, documented these conditions, which sometimes amount to torture or cruel, inhuman or degrading treatment, as defined under Article 1 of the UN Convention Against Torture.

For many asylum seeking and migrant women who flee their countries of origin based on gender-persecution in particular are prone to these realities. From the moment of arrest, often in pre-dawn police raids on homes or during random street checks, migrant and asylum-seeking women are subjected to degrading treatment. Many of the detention clients at the Lawyers for Human Rights detention monitoring hotline report being held in police cells for days without access courts, legal representative, basic hygiene, food, or communication with the outside world before being transferred to Lindela Repatriation Centre, where abuses deepen. Worse still, LGBTQI+ migrants detained at Lindela often endure harassment and abuse from both staff and fellow detainees, without any protective protocols in place. This reflects a broader failure by the Department of Home Affairs and the Department of Justice to incorporate a gender and sexual diversity lens into detention oversight, despite repeated calls by organisations to do so. 

OPCAT and the NPM on Tortue was ratified with the promise of transparency and to end the culture of silence that shields abuse in carceral settings. Yet, in practice, the absence of a legally designated and fully functional NPM that places the intersectional vulnerabilities of women and sexual and gender minorities at the heart of monitoring abuses in immigration detention fails at this promise. While the attempt itself is admirable, it is important that the functional NPM and the SAHRC commits to a monitoring tool that is frequent and operates with the independence and diligence that is required by OPCAT. 

At present, torture persists, silently, invisibly, with impunity and in the shadows where migrants, refugees, and especially women and LGBTQI+ persons are locked away and forgotten. In places like Lindela, where oversight is weak and political will is even weaker, pain is hidden behind walls built not just of concrete but of bureaucratic indifference. If South Africa is to honour its constitutional and international human rights obligations, it must do more than pay lip service, it must act decisively. That means inclusion of gender-sensitive protocols in the day-to-day operations of the National Preventive Mechanism with the authority to monitor transition of migrants within police cells, conduct unannounced visits to all places of detention and the power to recommend alternatives to immigration detention where necessary. It means including civil society and the voices of those who have endured detention in the oversight process. It means ending the arbitrary and prolonged incarceration of migrants,  particularly women, children, and LGBTQI individuals, and ensuring that every act of abuse is met with accountability and justice. 

Torture thrives in the dark. The walls of Lindela must no longer shield South Africa from the truth or from its duty. On this International Day in Support of Victims of Torture, we are reminded that every person behind bars , regardless of where they come from or who they are, is owed their dignity. 

Zekhethelo Cele, Attorney at Lawyers for Human Rights & ISLA Feminist Network Lawyer