“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 a 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 or incidental to lawful sanctions.” 240. As indicated under paragraph 211, the definition of torture under UNCAT contains four (4) cumulative elements. 241. A comparison of Article 126 of the Penal Code and Article 1 of UNCAT shows that the former provision does not sufficiently capture the elements enshrined under the latter provision. In particular, Article 126 does not mention severe mental or physical suffering; it limits the purpose of torture to the attainment of forced confession while UNCAT is open-ended; and it limits responsibility for torture to those who order the act or those who carry out the act, whereas UNCAT includes public officials who consent or acquiesce to the act. 242. The Commission’s Robben Island Guidelines require States to ensure that acts, which fall within the definition of torture, based on Article 1 of UNCAT, are offences within their legal systems.61 The UN Committee against Torture, in its General Comment No. 2 requires State Parties to criminalise torture, in accordance, at a minimum, with the elements of torture as defined in Article 1 of UNCAT.62 The Committee further states that “[s]erious discrepancies between the [UNCAT’s] definition and that incorporated into domestic law create actual or potential loopholes for impunity.”63 The Committee adds that “[n]aming and defining [torture] will promote [UNCAT’s] aim […] by alerting everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture.”64 243. In addition to adopting a definition of torture which is in line with the above criteria, UNCAT also requires State Parties: to explicitly affirm the absolute prohibition of torture (Article 2); criminalise torture as a separate and specific crime (Article 4(1)); and ensure that the penalty for torture is commensurate to the grave nature of the crime (Article 4(2)).65 244. The Commission aligns itself with the position of the UN Committee against Torture, that, the definition of torture (at domestic levels) must at a minimum include all the elements enshrined under Article 1 of UNCAT, and that Robben Island Guidelines, Guideline 4. General Comment No. 2 (n 46 above), para 8. 63 As above, para 9. 64 As above, para 11. 65 See also, Association for the Prevention of Torture (APT) & the Convention against Torture Initiative (CTI), Guide on Anti-torture Legislation (2016), p. 22. 61 62 38