48/90-50/91-52/91-89/93 : Amnesty International, Comité Loosli
Bachelard, Lawyers' Committee for Human Rights, Association of
Members of the Episcopal Conference of East Africa / Sudan
Summary of Facts
1. Communication 48/90, submitted by Amnesty International, and communication 50/91, submitted
by Comité Loosli Bachelard, deal with the arbitrary arrests and detentions that took place following the
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coup of 30 July 1989, in Sudan. It is alleged therein that hundreds of prisoners were detained without
trial or charge.
2. Communication 50/91 alleges that since June 1990 members of opposition groups, among them
Abdal-Qadir, Mohammed Salman and Babiker Yahya, have been arrested, detained, and subjected to
torture. Other detainees include lawyers, members of opposition groups and human rights activists.
The allegations are based on information from a wide variety of sources including interviews with
eyewitnesses.
3. According to the plaintiff, Decree No. 2 of 1989 permits the detention of anyone "suspected of
being a threat to political or economic security" under a state of emergency; the right to personal
liberty and security was protected under Article 21 of the 1985 Transitional Constitution, but the
Constitution was suspended in 1989. The Complainant further claims that the President can order the
arrest of anyone without the need to give reasons for such detention. No judicial challenge of such
decisions is permissible. Decree No. 2 also provides for the creation of special courts to try those
arrested under the state of emergency legislation. Section 9 of the Decree ousts the jurisdiction of the
ordinary courts in cases arising from its enforcement. It is further alleged that the 1990 National
Security Act created a National Security Council and Bureau. Under this Act, the security forces have
powers of arrest, entry and search. Persons can be detained under this Act, without access to family,
or lawyers for up to 72 hours, renewable for up to one month. Detention can be for up to three months
if it is for the"maintenance of public security" and on approval of the Security Council and a magistrate.
Appeal to a magistrate is permitted. In 1994 this Act was amended, enabling the National Security
Council to renew a three-month order without reference to any persons. Further renewals require
approval by a judge. There is no right to challenge detention under this Act and no reasons need be
given for such detention.
4. The communications additionally allege that political prisoners are kept in secret detention centres
known as "ghost houses". One of these was closed in 1995, and the prisoners transferred to the main
civil prison in Khartoum.
5. The communications also allege widespread torture and ill treatment in the prisons and "ghost
houses" in Sudan. These allegations are supported by doctors’ testimonies, personal accounts of
alleged victims and a report by the UN Special Rapporteur. A number of individual victims are named.
Additionally, it is alleged that many individuals were tortured after being arrested at army checkpoints
or in military or war zones. Acts of torture include forcing detainees to lie on the floor and being soaked
with cold water; confining four groups of individuals in cells 1.8 metres wide and one metre deep,
deliberately flooding cells to prevent detainees from lying down, forcing individuals to face mock
executions, and prohibiting them from washing. Other accounts describe burning with cigarettes and
the deliberate banging of doors at frequent intervals throughout the night to prevent sleeping.
Individuals were bound with rope such that circulation was cut off to parts of their bodies, beaten
severely with sticks, and had battery acid poured onto open wounds.
6. The communications allege extra-judicial executions. Thousands of civilians have been killed in
southern Sudan in the course of the civil war, and the government is alleged to have executed
suspected members of the SPLA without trial and there has been no investigation into or prosecution
for such incidents. In the course of counter-insurgency attacks, civilians in the Nuba Mountains area
and northern Bahr al-Ghazal have been killed when their villages were destroyed. These occurred in
1987-1989 but events are still continuing to this day.
7. In addition, detainees suspected of being supporters of the SPLA were alleged to have been
arrested and immediately executed, in areas in southern Sudan.
8. Executions are also alleged to have been carried out by militia groups, which are believed to have
close connections with, and the support of the government. No independent inquiry has been
conducted into their activities nor have any persons been prosecuted in connection with such killings.
These allegations are supported by evidence collected by the UN Special Rapporteur.
9. According to the complainant, an investigation was conducted in December 1987 by Abdel Latif
District magistrate, Osamn Suleiman, into executions. A provincial judge ordered the investigation and
the resulting report was believed to have been sent to the High Court in December 1988. No
conclusions were ever made public.
10. In 1987, Dr Abdel Nabi Ali Ahmed, the Governor of South Darfur, announced the creation of a
Commission of Enquiry into the massacres that occurred in the region in 1987. It was to be composed
of the District Prosecutor and police and security officials. A Second Commission was also said to
have been set up to look into the background of the disturbances. The Commission of Enquiry sent a
report to the Prime Minister in September 1987, but this was never made public. A National Committee
of Investigation was set up by the Prime Minister, but it is unclear whether it was ever convened.
11. The Complainant also claims that the 1983 Penal Code permits the use of the death penalty for a
number of offences: murder - where it is mandatory; mutiny by a member of the armed forces; political
offences-such as subversion, war against the state, treason, espionage, upsetting the national
economy. Death sentences for murder can be set aside if the victim's relatives agree and
compensation is paid to them by the accused. Section 47 creates an offence of attempt, abatement,
causing or conspiring with others to facilitate mutiny, with a maximum penalty of death. The penalty
also applies to those present at a mutiny without doing their utmost to suppress it; having knowledge
or information or intention to go on a mutiny and failure to report such state of affairs.
12. Communication 48/90 describes how calling and organising a strike, possession of undeclared
foreign currency, illegal production of and trading in drugs can also result in the death sentence.
Individuals sentenced to death were not allowed to appeal against their conviction to a high court, or
permitted to have legal representation at new trials.
13. Communication 48/90 alleges that the 28 army officers executed on 24th April 1990 were allowed
no legal representation. It adds that in July 1989, the Constitution of Special Tribunals Act was
passed, dealing exclusively with the establishment of such tribunals. Under Section 3 of that Act, the
President, his deputies or senior army officers may appoint 3 military officers or “any other competent
persons” as judges. All sentences were to be confirmed by the Head of State and appeal is only
allowed against the death penalty or imprisonment terms of more than one year.
14. In September 1989 these special tribunals were abolished and replaced by the so-called
Revolutionary Security Courts. The presiding judge and two others were to be chosen by the RCC for
their competence and expertise. Appeal was to a Revolutionary Security High Court but only against
sentences of death and (for those of) imprisonment for more than 30 years. The September Laws
were required to be applied in these courts from December 1989.
15. In December 1989 the government created more special courts in which lawyers, while being
permitted to consult the accused prior to trial, are not allowed to address the court. Appeal is to the
Chief Justice alone, not to any higher court.
16. Communication 52/91 provides evidence that over one hundred judges have been dismissed in
order to systematically dismantle the judiciary who were opposed to the formation of special courts
and military tribunals.
17. Information contained in communications 48/90 and 52/91, presented by the Lawyers Committee
for Human Rights, describes government efforts to undermine the independence of the judiciary and
the rule of law. It is alleged, in particular, that the government established special tribunals, which are
not independent. The ordinary courts are precluded from hearing cases that are of the exclusive
competence of the special tribunals. It is further alleged that the right to defence before these special
tribunals is restricted. The communications also indicate that people brought before these tribunals
were denied the right to contest the grounds for their detention under emergency legislation.
18. Communication 89/93, submitted by the Association of Members of the Episcopal Conference of
East Africa alleges oppression of Sudanese Christians and religious leaders, expulsion of all
missionaries from Juba, arbitrary arrests and detention of priests, the closure and destruction of
Church buildings, the constant harassment of religious figures, and prevention of non-Muslims from
receiving aid.
19. The people of the southern part of Sudan are predominantly Christian or of traditional beliefs,
whereas the religion in the north of the country and the regime imposed by the government
are Islamic. Shari'a is the national law.
20. The said communication alleges that non-Muslims are persecuted in order to ensure their
conversion to Islam. Non-Muslims are prevented from preaching or building churches, and the
freedom of expression of the national press is restricted. Members of Christian clergy are harassed,
and there are arbitrary arrests of Christians, expulsions and denial of access to work and food aid.
The government’s contention
21. The government confirms the situation claimed by the Complainants in respect of the composition
of the Special Courts. National legislation indeed permits the President, his deputies and senior
military officers to constitute these courts to consist of "three military officers or any other persons or
integrity and competence".
22. The government states in its submission of 1st January 1991 that the military courts are not
extraordinary because trial is preceded by enquiry; evidence is taken on oath; information obtained
during inquiry is not considered as evidence; decisions are taken after listening to the prosecution and
defence; the right of appeal is ensured as provision is made for a Military Court of Appeal to be
constituted by the assent of the head of state. It consists of three army officers whose ranks are not
less than that of Colonel, and shall include an officer from the Judicial Branch of the military; the
accused may be accompanied by an advocate or friend. The government further states that the law
establishing these tribunals permits the accused to be assisted by an advocate or any other person of
his choice, and that the accused has the right to be defended before the special tribunals by a friend
agreed to by the court. As regards the military tribunals, the national legislation allows the accused to
be accompanied by a friend or lawyer.
23. In the remarks on these communications submitted to the Commission by the Sudanese Ministry
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of External Relations, dated 25 April 1999, the Sudanese government attributes a number of the
alleged facts to the existence of a rebellion in the southern part of the country and claims that over 90
per cent of the alleged violations took place in areas currently under the control of the Sudanese
People’s Liberation Army (SPLA), led by rebel John Garang. It also refers to significant progress
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achieved in the eradication of the harmful effects of the war since the signing on 10 April 1996 of the
Peace Charter and of the Khartoum peace agreement of 21st April 1997. The Sudanese government
indicates that all persons cited in communication 50/91 have been released. As regards the
allegations in communication 89/93, the government reiterates its adherence to Article 24 of the
Sudanese constitution, which guarantees freedom of faith and worship, and recalls Pope John Paul
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II’s pastoral visit to Sudan on 10 February 1993, as well as the conduct in Khartoum of the
International Conference on Religions in October 1994.
Procedure
24. The Commission undertook an antipodal [sic] examination of the four communications.
communication 48/90, filed by Amnesty International, was received by the Secretariat in October 1990.
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On 20 October 1990, at its 8 Ordinary Session, the Commission was seized of the communication,
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and the decision on admissibility was passed on 12 October 1991 at the 10 Ordinary Session.
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Communication 50/91 was received on 30 November 1991. The Commission was seized of it at its
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12 Session, held in October 1992. At the 13 Session, held in March 1993, the Commission (after
declaring it admissible) decided to combine its procedure with that of communication 48/90.
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Communication 52/91, was received on 19 March 1991, and the Commission was seized of it on
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22 October 1991. At the 13 Session held in March 1993, the communication was declared
admissible and its procedure combined with that of communication 48/90. Communication 89/93 was
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received on 27 August 1992. The Commission was seized of it at the 13 Ordinary Session in March
1993, and its procedure was combined with that of the three preceding communications.
25. The parties were regularly notified of all the submissions and had the opportunity to present their
conclusions and material evidence at all stages of the procedure.
26. The Commission deployed a mission to Sudan, comprising three Commissioners (E.V.O.
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Dankwa, Robert H. Kisanga and Mohamed Kamel Rezag-Bara) from 1st – 7 December 1996. The
mission was able to verify on the ground, elements of the four communications under consideration.
The mission report was presented to the Commission, which adopted it and decided to publish it.
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27. The Commission ruled on the merits of the four communications at its 26 Ordinary Session.
Law
Admissibility
28. Admissibility of communications under the African Charter is governed by Article 56, which sets
out conditions that all communications must meet before they can be decided upon. These criteria
must be applied bearing in mind the character of each communication. The case at hand is a
combination of four different communications, which the Commission decided to consider together, in
accordance with its jurisprudence. (Cf. communications 16/88, 17/88, 18/88, 25/89, 47/90, 56/91,
100/93) (Free) Legal Assistance Group/Zaire and 27/89, 46/91, 49/91, 99/93 Organisation mondiale
contre la torture and Association internationale des juristes démocrates, Commission internationale
des juristes (C.I.J), Union Interafricaine des Droits de l'Homme/Rwanda). This decision was based on
the similarity of the allegations presented, on the one hand, and the human rights situation prevailing
in Sudan during the period covered by these allegations of violations, on the other. The
communications were submitted by NGOs and allege many overlapping and inter-related details.
29. Article 56.5 of the African Charter requires, as a condition for admissibility, that communications
must be:
submitted after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged.
30. In applying this provision, the Commission has elaborated through its jurisprudence, criteria on
which to base its conviction as to the exhaustion of internal remedies, if any. The Commission has
drawn a distinction between cases in which the complaint deals with violations against victims
identified or named and those cases of serious and massive violations in which it may be impossible
for the Complainants to identify all the victims.
31. In a case of violations against identified victims, the Commission demands the exhaustion of all
internal remedies, if any, if they are of a judicial nature, are effective, and are not subordinated to the
discretionary power of public authorities. The Commission is of the view that this provision must be
applied concomitantly with Article 7, which establishes and protects the right to fair trial.
32. The Commission has stated that one of the justifications for this requirement is that a government
should be aware of a human rights violation in order to have the chance to remedy such violation, thus
protecting its reputation which would inevitably be tarnished by being called to plead its case before an
international body. This condition also precludes the African Commission from becoming a tribunal of
first instance, a function that it cannot, either as a legal or practical matter, fulfil (See ACHPR/25/89,
47/90, 56/91, 100/93: 53-54)
33. In the cases under consideration, the Government of Sudan has not been unaware of the serious
human rights situation existing in that country. For nearly a decade the domestic situation has focused
national and international attention on Sudan. Many of the alleged violations are directly connected to
the new national laws in force in the country in the period covered by these communications. Even
where no legal action has been brought by the alleged victims at the domestic level, the government
has been sufficiently aware to the extent that it can be presumed to know the situation prevailing within
its own territory as well as the content of its international obligations.
34. Furthermore, the Commission is of the view that the internal remedies that could have been
available to the Complainants do not fulfil its conditions or are simply non-existent. In these
communications, Section 9 of Decree No. 2, promulgated in 1989, suspends the jurisdiction of the
regular courts in favour of the special tribunals as regards any action undertaken in the application of
the said decree. In addition, it outlaws any legal action taken in relation to anything done under the
same decree. Further, the remedies provided for under the 1990 national security law do not conform
to the demands of protection of the right to a good administration of justice, to the extent that the
appeals provided for in this law cannot be brought before a judge. It is evident that this appeal
procedure, as provided for in the 1990 national security law, cannot be considered as fulfilling the
criteria of effectiveness.
35. The 1994 law, which repeals and replaces that of 1990, brings up the principle of the inexistence
of remedies, as well as the retroactivity of its provisions. Indeed, under the 1990 law, accused persons
could always file an appeal before a judge. This new law stipulates: “no legal action, no appeal is
provided for against any decision issued under this law”. This manifestly makes the procedure less
protective of the accused and is tantamount to inexistence of an appeal procedure.
36. The Commission also holds the view that the appeal before the High Court (as provided for),
against verdicts passed by the revolutionary security courts (which replaced the special tribunals) does
not fulfil the demands of effectiveness and existence contained in the African Charter. Indeed, appeals
to this court are only permissible in the event of a death penalty or prison terms over thirty years. This
implies that no other sentence can be appealed before the High Court, which consequently renders
the appeal procedure inexistent for the Complainants.
37. In the Commission’s view, the right to an appeal, being a general and non-derogable principle of
international law must, where it exists, satisfy the conditions of effectiveness. An effective appeal is
one that, subsequent to the hearing by the competent tribunal of first instance, may reasonably lead to
a reconsideration of the case by a superior jurisdiction, which requires that the latter should, in this
regard, provide all necessary guarantees of good administration of justice.
38. In cases of serious and massive violations, the Commission reads Article 56.5 in the light of its
duty to protect human and peoples' rights as provided for by the Charter. Consequently, the
Commission does not hold the requirement of exhaustion of local remedies to apply literally, especially
in cases where it is "impractical or undesirable" for the Complainants or victims to seize the domestic
courts.
39. The seriousness of the human rights situation in Sudan and the great numbers of people involved
renders such remedies unavailable in fact, or, in the words of the Charter, their procedure would
probably be “unduly prolonged”.
For these reasons, the Commission declared the communications admissible.
Merits
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40. Sudan ratified the African Charter on Human and Peoples' Rights on 18 February 1986. Prior to
that, though Sudan had other obligations under international law, it was not bound by the African
Charter, since the Charter only came into force there on 21st October 1986. It follows that the
Commission can only take up violations that occurred after 21st October 1986. Continuing violations,
as in the case of a law adopted prior to 1986, but that remains in force, fall within the competence of
the Commission. This is because the effect of such laws extends beyond that date. Furthermore,
ratification obliges a State to diligently undertake the harmonisation of its legislation with the provisions
of the ratified instrument.
41. This decision does not encompass all human rights violations that may have occurred in Sudan
after the period covered by the communications. In general, the Commission takes up only violations
that are brought before it by complainants. Other violations can be discussed in the Commission's
report on its mission to Sudan, which is not confined to the subjects of the communications.
42. Article 1 of the Charter confirms that the government has bound itself legally to respect the rights
and freedoms enshrined in the Charter and to adopt legislation to give effect to them. Whilst the
Commission is aware that states may face difficult situations the Charter does not contain a general
provision permitting states to derogate from their responsibilities in times of emergency, especially for
what is generally referred to as non-derogable rights.
43. The Commission is faced with the difficulty of deciding upon multifaceted allegations, some
involving legal provisions that have changed over time. Since the communications were submitted, the
situation in Sudan has not been static. And, as the government states, it has evolved in a direction that
is more protective of human rights.
44. Confirming its willingness to cooperate with the Commission, the government replied in writing to
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the communications on 1st January 1991, 10 July 1997, 14 September 1997 and 25 April 1999,
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and received a mission of the Commission from 1st-7 December 1996.
45. The Commission would like to commend and encourage the Sudanese government for its efforts
to improve the domestic human rights situation, with the adoption of a new constitution and the repeal
of the emergency laws, which seriously jeopardised the rights guaranteed in the Charter. It however
maintains that these new changes have no effect on the past violations, which it is required, by virtue
of its mandate to protect and promote human rights, to rule upon.
46. The Commission indeed undertook a mission to Sudan; but this mission must be considered as
part of its human-rights promotion activities and does not constitute a part of the procedure of the
communications, even if it did enable the Commission to obtain information on the human rights
situation in that country. Consequently, this decision is essentially based on the allegations presented
in the communications and analysed by the African Commission.
47. Article 4 of the Charter reads:
Every human being shall be entitled to respect for his life … No one may be arbitrarily deprived of this
right.
48. It is alleged that prisoners were executed after summary and arbitrary trials and that unarmed
civilians were also victims of extra-judicial executions. These allegations are upheld by evidence taken
from the report of the United Nations Special Rapporteur.
49. The government provides copies of the laws governing the executions alleged in the
communications, but provides no specific information on the said executions. The Commission’s
delegation was unable to obtain this information either.
50. In addition to the individuals named in the communications, there are thousands of other
executions in Sudan. Even if these are not all the work of forces of the government, the government
has a responsibility to protect all people residing under its jurisdiction (See ACHPR/74/91: 93, Union
des Jeunes Avocats vs/Chad ). Even if Sudan is going through a civil war, civilians in areas of strife
are especially vulnerable and the State must take all possible measures to ensure that they are
treated in accordance with international humanitarian law.
51. The investigations undertaken by the Government are a positive step, but their scope and depth
fall short of what is required to prevent and punish extra-judicial executions. Investigations must be
carried out by entirely independent individuals, provided with the necessary resources, and their
findings should be made public and prosecutions initiated in accordance with the information
uncovered. Constituting a commission of the District Prosecutor and police and security officials, as
was the case in the 1987 Commission of Enquiry set up by the Governor of South Darfur, overlooks
the possibility that police and security forces may be implicated in the very massacres they are
charged to investigate. This commission of enquiry, in the Commission’s view, by its very composition,
does not provide the required guarantees of impartiality and independence.
52. According to the Commission's long-standing practice, in cases of human rights violations, the
burden of proof rests on the government (See, ACHPR/59/91, ACHPR/60/91, ACHPR/64/92, 68/92,
78/92, ACHPR/87/93, ACHPR/101/93). If the government provides no evidence to contradict an
allegation of human rights violation made against it, the Commission will take it as proven, or at the
least probable or plausible. On the information available, the Commission considers that there was a
violation of Article 4 of the African Charter on Human and Peoples' Rights.
53. Article 5 of the Charter reads:
“Every individual shall have the right to the respect of the dignity inherent in a human being...All forms
of...degradation of man particularly...torture, cruel, inhuman or degrading treatment and punishment
shall be prohibited”.
54. There is substantial evidence produced by the Complainants to the effect that torture is
practised. All of the alleged acts of physical abuses, if they occurred, constitute violations of Article 5.
Additionally, holding an individual without permitting him or her to have any contact with his or her
family, and refusing to inform the family whether the individual is being held and his whereabouts is
inhuman treatment of both the detainee and the family concerned.
55. The Sudanese Penal Code prohibits torture and perpetrators are punishable with up to 3 months
imprisonment or a fine.
56. The government does not deal with these allegations in its report. The Commission appreciates
the fact that the government’s has brought some officials to trial for torture, but the scale of the
government's measures is not commensurate with the magnitude of the abuses. Punishment of
torturers is important, but so also are preventive measures such as halting of incommunicado
detention, effective remedies under a transparent, independent and efficient legal system, and
ongoing investigations into allegations of torture.
57. Since the acts of torture alleged have not been refuted or explained by the government, the
Commission finds that such acts illustrate, jointly and severally, government responsibility for
violations of the provisions of Article 5 of the African Charter.
58. Article 6 of the Charter reads:
“Every individual shall have the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid down by law. In particular,
no one may be arbitrarily arrested or detained”.
59. In its written submission to the Commission on 1st January 1991, in reply to the allegations of
arbitrary arrests made by the Complainants, the government described the powers given to the
President of the Revolutionary Command Council to issue orders and take measures in a state of
emergency. Simply because an arrest is carried out under a written provision in force does not amount
to a violation of Article 6. This article must be interpreted in such a way as to permit arrests only in the
exercise of powers normally granted to the security forces in a democratic society. In these cases, the
wording of this decree allows for individuals to be arrested for vague reasons, and upon suspicion, not
proven acts, which conditions are not in conformity with the spirit of the African Charter.
60. Furthermore, appeal in the case of arrest lies to the body whose president orders the arrests.
Such a remedy provides no guarantee of good administration of justice and is more akin to an appeal
for clemency than a judicial appeal. Additionally, numerous arrests have been effected in disregard of
this decree. The Commission is constrained to find that in Sudan there have been serious and
continuing violations of Article 6 during the period under consideration.
61. Article 7.1 of the Charter reads:
Every individual shall have the right to have his cause heard. This comprises:
1.
the right to an appeal to competent national organs against acts violating his fundamental
rights as recognised and guaranteed by conventions, laws, regulations and customs in force;
2.
the right to be presumed innocent until proved guilty by a competent court of tribunal;
3.
the right to defence, including the right to be defended by counsel of his choice;
4.
the right to be tried within a reasonable time by an impartial court or tribunal”.
62. All of these provisions are mutually dependent, and where the right to be heard is infringed, other
violations may occur, such as detentions being rendered arbitrary. Especially sensitive is the definition
of "competent," which encompasses facets such as the expertise of the judges and the inherent justice
of the laws under which they operate.
63. At the level of procedure, the complaints allege extensive interference with due process, including
the institution of numerous special courts and trial of individuals who were denied the assistance of
counsel. Some individuals were denied the right to challenge the legal grounds for their detention.
64. The government's submission is only in respect of Decree No. 2, which establishes the right of
individuals to appeal to the Revolutionary Command Council. However, the government does not
present evidence that this right was afforded to the persons in these cases. It is also unclear if
accused persons have in all cases been permitted to select their own advocates without interference,
or if the tribunal reserves the right to bar certain advocates from court. The right to freely choose one’s
counsel is essential to the assurance of a fair trial. To give the tribunal the power to veto the choice of
counsel of defendants is an unacceptable infringement of this right. There should be an objective
system for licensing advocates, so that qualified advocates cannot be barred from appearing in
particular cases. It is essential that the national bar be an independent body which regulates legal
practitioners, and that the tribunals themselves not adopt this role, which will infringe the right to
defence.
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65. The communications allege that the 28 army officers executed on 24 April 1990 were allowed no
legal representation. The government states that its national legislation permits the accused to be
assisted in his defence during the trial by a legal advisor or any other person of his choice. While
before the Special Courts, the accused has the right to be defended by a friend to be approved by the
Court. The government argues that the court procedures were strictly followed in the case of these
officers.
66. While there is a simple contradiction of testimony between the government and the Complainant,
the Commission must admit that in the case of the 28 executed army officers basic standards of fair
trial have not been met. Indeed, the Sudanese government has not given the Commission any
convincing reply as to the fair nature of the cases that resulted in the execution of the 28 officers. It is
not sufficient for the government to state that these executions were carried out in conformity with its
legislation. The government should provide proof that its laws are in accordance with the provisions of
the African Charter, and that in the conduct of the trials the accused’s right to defence was
scrupulously respected. In this case, the very fact that the accused’s choice is subject to the assent of
the Court before which he is to appear constitutes a violation of the right to be represented by counsel
of one’s choice, as provided for in Article 7 of the African Charter, cited above.
67. Article 7 is closely related to Article 26 of the Charter, which provides that:
States parties to the present Charter shall have the duty to guarantee the independence of the
courts...
68. The government confirms the situation alleged by the Complainants in respect of the composition
of the Special Courts. National legislation permits the President, his deputies and senior military
officers to appoint these courts to consist of "three military officers or any other persons of integrity
and competence". The composition alone creates the impression, or indicates the reality, of lack of
impartiality, and as a consequence, violates Article 7.1.d The government has a duty to provide the
structures necessary for the exercise of this right. By providing for courts whose impartiality is not
guaranteed, it has violated Article 26.
69. The government does not contest the allegation of dismissal of over one hundred judges who
were opposed to the formation of special courts and military tribunals. To deprive courts of the
personnel qualified to ensure that they operate impartially thus denies the right to individuals to have
their case heard by such bodies. Such actions by the government against the judiciary constitute
violations of Articles 7(1)(d) and 26 of the Charter.
70. The government provided no contrary element in refutation of the allegations made against it,
and the laws that it cites are deficient. Accordingly the Commission holds a violation of Article 7.1.c.
71. Article 8 of the Charter reads:
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may,
subject to law and order, be submitted to measures restricting the exercise of these freedoms.
72. These issues should be considered in relation to Article 2 of the Charter, which provides for equal
protection under the laws, and Article 8, on religious freedom, which will be treated below. While fully
respecting the religious freedom of Muslims in Sudan, the Commission cannot countenance the
application of law in such a way as to cause discrimination and distress to others.
73. Another matter is the application of Shari'a law. There is no controversy as to Shari'a being based
upon the interpretation of Islam, the Muslim religion. When Sudanese tribunals apply Shari'a, they
must do so in accordance with the other obligations undertaken by the State of Sudan. Trials must
always accord with international fair-trial standards. Also, it is fundamentally unjust that religious laws
should be applied against non-adherents of the religion. Tribunals that apply onlyShari'a are thus not
competent to judge non-Muslims, and everyone should have the right to be tried by a secular court if
they so wish.
74. It is alleged that non-Muslims were persecuted in order to cause their conversion to Islam. They
do not have the right to preach or build their churches; there are restrictions on freedom of expression
in the national press. Members of the Christian clergy are harassed; Christians are subjected to
arbitrary arrests, expulsions and denial of access to work and food aid.
75. In its various oral and written submissions to the African Commission, the government has not
responded in any convincing manner to all the allegations of human rights violations made against it.
The Commission reiterates the principle that in such cases where the government does not respect its
obligation to provide the Commission with a response on the allegations of which it is notified, it shall
consider the facts as probable.
76. Other allegations refer to the oppression of Christian civilians and religious leaders and the
expulsion of missionaries. It is alleged that non-Muslims suffer persecution in the form of denial of
work, food aid and education. A serious allegation is that of unequal food distribution in prisons,
subjecting Christian prisoners to blackmail in order obtain food. These attacks on individuals on
account of their religious persuasion considerably restrict their ability to practice freely the religion to
which they subscribe. The government provides no evidence or justifications that would mitigate this
conclusion. Accordingly, the Commission holds a violation of Article 8.
77. Article 9 of the Charter reads:
(2) Every individual shall have the right to express and disseminate his opinions within the law”.
78. The communications under consideration allege that persons were detained for belonging to
opposition parties or trade unions. The government confirmed that the “Decree on Process and
th
Transitional Powers Act 1989”, promulgated on 30 June 1989, stipulates in Section 7 that during a
state of emergency, any form of political opposition by any means to the regime of the Revolution for
National Salvation is prohibited, where there is “imminent and grave threat to the security of the
country, public safety, independence of the State or territorial integrity and economic stability”.
79. As stated above, the Charter contains no derogation clause, which can be seen as an expression
of the principle that the restriction of human rights is not a solution to national difficulties: the legitimate
exercise of human rights does not pose dangers to a democratic state governed by the rule of law.
80. The Commission has established the principle that where it is necessary to restrict rights, the
restriction should be as minimal as possible and should not undermine fundamental rights guaranteed
under international law ( ACHPR/101/93:25, Civil Liberties Organisation/Nigeria). Any restrictions on
rights should be the exception. The government concerned has imposed a blanket restriction on the
freedom of expression. This constitutes a violation of the spirit of Article 9.2.
81. Article 10 of the Charter reads: “Every individual shall have the right to free association provided
he abides by the law”.
82. Section 7 of The Process and Transitional Powers Act, 1989 prohibits effecting without special
permission, any assembly for a political purpose in a public or private place. This general prohibition
on the right to associate in all places is disproportionate to the measures required by the government
to maintain public order, security and safety. In addition, there is evidence from the Complainants,
which is not contested by the government, that the powers were abused. In the absence of information
from the government the Commission must give weight to the facts submitted by the Complainant.
Accordingly, the Commission holds a violation of Article 10.1.
83. The Commission is cognisant of the fact that it has found many violations of the Charter on the
part of the Government. In concrete terms, this shows that the citizens of Sudan have endured a lot of
suffering. To change so many laws, policies and practices will of course not be a simple matter.
However, the Commission must emphasise that the people of Sudan deserve no less. The
government is bound by its international obligations and the Commission's findings are specific
enough to permit their implementation. This decision does not constitute the Commission’s viewpoint
on the overall human rights situation in Sudan. It is based on the allegations of violations committed by
Sudan after its ratification of the African Charter on Human and Peoples' Rights and on verifications
carried out in this regard, while not failing to note that the situation has improved significantly.
Holding
For the above reasons, the Commission
Holds a violation of Articles 2, 4, 5, 6, 7(1)(a), (c), (d), 8, 9, 10 and 26;
Recommends strongly to the Government of Sudan to put an end to these violations in order to abide
by its obligations under the African Charter on Human and Peoples’ Rights.