Communication 386/10 - Dr. Farouk Mohamed Ibrahim (represented by
REDRESS) v. Sudan
Summary of facts:
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1. The Secretariat of the African Commission on Human and Peoples‘ Rights
(the Secretariat) received a Communication on 13 May 2010 from
REDRESS (the Complainant), representing Dr. Farouk Mohamed Ibrahim
(the Victim).
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2. The Communication is submitted against the Republic of Sudan, State
Party to the African Charter on Human and Peoples‘ Rights (the African
Charter) and hereafter referred to as the Respondent State or Sudan.1
3. The Complainant submits that, the Victim is a Sudanese national who
took up his position as Associate Professor at the Faculty of Science,
University of Khartoum in 1986. He was assigned to teach Microbiology,
Plant Pathology, Genetics, Systematics and Evolution.
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4. The Complainant submits that, on 30 June 1989, a group of Military
Officers seized power in Sudan, and in the following months, members of
the opposition movements were reportedly targeted by the National
Intelligence Security Service (NISS).
5. The Complainant alleges that on 30 November 1989, the Victim was
detained by members of the security forces, not informed of the reasons
for his arrest and no charges brought against him. The Victim was
detained with eighteen (18) other detainees, blindfolded and taken to
Ghost House No.1,2 where he was kept until 12 December 1989 without
any contact with his lawyer or family members.
6. The Complainant submits that, the Victim was subjected to interrogations
about courses he was teaching and about his colleagues by high-ranking
members of the security services, including General Bakri Hassan salih,3
and Dr. Nafie Ali Nafie.4
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2
3
4
Sudan ratified the African Charter on 18 February 1986
The Ghost House was located in the premises of the former Election Commission
The then Security President
The then Security Director
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7. The Complainant submits that on 2 December 1989, General Bakri told the
Victim that: the content of some of the courses he was teaching such as
Theory and Evolution were objectionable; he was carrying out activities
against the ruling regime, and was being justly punished for those crimes.
General Bakri also sought to know where certain opposition leaders were
presumed to be hiding.
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8. The Complainant alleges that, the Victim was subjected to repeated
kicking and beating; prolonged bath in ice water; threatened with rape,
death; and deprived of sleep for up to three days.
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9. The Complainant alleges that the Victim was detained in a small and dirty
1 metre by 1.6 metre toilet room flooded with water for three days before
being transferred to another bathroom where he was kept with five other
detainees for nine days.
10. The Complainant submits that the Victim was transferred to Kober prison
on 12 December 1989, where he was examined by a Doctor who wrote a
detailed report about his condition. The Doctor allegedly documented
bruises and other ailments consistent with the reported allegations of
torture.
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11. The Complainant submits that on 23 February 1990, the Victim was
released and continued staying in Sudan, however, he stopped lecturing
before leaving the country in June 1991 for fear of his safety, and the
University where he formerly lectured, failed to look into the matter.
12. The Complainant submits Affidavits of the Victim, Court Judgements and
other documents to support the Complaint.
Articles alleged to have been violated
13. The Complainant alleges that Articles 1, 5, 6, 7, 8 and 9 of the African
Charter have been violated by the Respondent State.
Procedure
14. The Communication was received by the Secretariat on 6 May 2010 and on
21 May 2010, the Secretariat acknowledged receipt of the Communication
to the Complainant.
15. At its 47th Ordinary Session, the African Commission on Human and
Peoples‘ Rights (the Commission) was seized of the Communication. Both
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Parties were informed on 23 June 2010 and requested to submit arguments
on Admissibility within three (3) months.
16. On 22 September 2010, the Secretariat received the Complainant‘s
submission on Admissibility, acknowledged receipt and forwarded the
submissions to the Respondent State on 5 October 2010.
17. The decision on Admissibility was deferred during the 48th and 49th
Ordinary Sessions pending submissions from the Respondent State.
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18. During the 50th Ordinary Session, the Respondent State made its
submissions which were sent for translation and forwarded to the
Complainant on 14 November 2011.
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19. The Complainant made additional submissions on 8 April 2012 which
were forwarded to the Respondent State on 18 May 2012. On 18 June 2012,
the Respondent State also made additional submissions which were
forwarded to the Complainant on 10 July 2012.
20. The decision on Admissibility was deferred during the 51st and 52nd
Ordinary Sessions.
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21. During its 13th Extra-Ordinary Session held from 19 to 25 February 2013,
the Commission took a decision on the Admissibility of the
Communication and the Parties were duly notified.
The Law on
Admissibility
Submissions of the Complainant
22. The Complainant submits that the Communication complies with Article
56 of the African Charter. In relation to Article 56 (5), the Complainant
avers that local remedies have been exhausted. It outlines the following,
which includes measures taken by the Victim regarding his Complaint:
i.
While in prison, the Victim lodged a Complaint on 29 January
1990 to the Chairman of the Revolutionary Command Council,
Oumar Hassan El-Bashir with copies to the Attorney-General,
the Chief Justice, the Vice-Chancellor of the Khartoum
University (for attention of the University Senate) and other
concerned Government Officials. The Victim requested to be
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released, and asked the Government to carry out a full
investigation in order to hold the perpetrators accountable for
the crimes committed against him. No investigation was opened
despite medical evidences, and the Vice-Chancellor did not
submit the Victim‘s request to the Senate;
In June 1991, the Victim left Sudan to settle in Cairo for fear of
his safety and in the mid-nineties, he received advice from his
lawyer not to return to Khartoum in search of justice due to the
political situation;
iii.
In October 1998, the Victim and other opposition leaders were
invited by the Government of Sudan to take part in a
Conference on the Constitution of Sudan. In response, the
Victim demanded that the Government investigates the acts of
torture he was subjected to whilst in prison as a condition for
his participation;
iv.
The Victim could not approach the courts at the time because
his arrest and detention were based on Decree No. 2 of June
1989 which introduced a state of emergency in Sudan and
permitted the detention of anyone suspected of being a threat to
political or economic security. According to the said Decree, no
reasons of such arrest needed to be given; detainees have no
right to contact family members or access to a lawyer of their
choice, and no right to challenge the legality of the detention
before a judicial body or the validity of the Decree itself. The
Decree was subsequently replaced by a legislation governing
the security services and emergency regulations that equally
provide for broad powers of arrest and detention.5
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ii.
v.
Further, at the time of the Victim‘s Complaint, neither the
criminal offence of hurt,6 and extorting confessions under
5
The Complainant refers to, in particular, Articles 30 & 31 of the National Security Act of 1999
and Article 50 of the National Security Act of 2010.
6
Clarification from the Complainant on the ‘Criminal Offence of Hurt’: At the time the alleged
crimes were committed (from 30 November to 12 December 1989), Sudanese Criminal law did not provide
for the crime of torture. The applicable offences in lieu of a specific definition of torture were the Criminal
Offence of Hurt under Article 271 of the 1983 Criminal Act and the offence of extorting confessions under
Article 282 of the 1983 Criminal Act.
According to Article 142 (1) of the 1991 CPA, the Offence of Hurt is deemed to have been committed by
anyone who causes any pain or disease to another person and shall be punished with imprisonment for a
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Articles 271 and Article 282 of the 1983 Criminal Code, nor
other relevant criminal offences were subject to any statute of
limitations. Subsequently, with the adoption of the Criminal
Procedure Act (CPA) in 1991, the criminal offence of torture
retroactively became subject to a limitation period of two years,
and/or, the offence of hurt for a maximum period of five years.
This means, according to the Complainant, that the alleged
perpetrators could no longer be prosecuted since the statutory
limitation period expired in 1994 notwithstanding the fact that
the Victim‘s complaint was brought in 1990.
On 13 November 2000, the Victim sent an appeal to the
President of the Sudan requesting that steps be taken
concerning his Complaint which went unheeded. The appeal
requested for: Truth, apology, and mutual reconciliation;
prosecution before national courts; and resort to international
human rights courts. He also requested his lawyer in Khartoum
to file a petition to the courts on his behalf. However, on 28
January 2001, he received advice from his lawyer to the effect
that such measures were untimely. Following the political
relaxation associated with peace negotiations to end Sudan‘s
civil war, the Victim returned to Khartoum in August 2002.
vii.
Due to lack of response to the Victim‘s repeated Complaints,
and following the peace negotiations to end the civil war as well
as the reestablishment of the Constitutional Court in 2005, the
Victim‘s lawyer made a direct appeal to the Constitutional
Court in 2006. The appeal challenged the legality of the
immunity of members of the NISS and the statutes of limitation
by which cases are dropped, hindering investigations and
prosecutions in the Victim‘s case. This is to the effect that NISS
members enjoy immunity on account of their official position.
Under Sudanese law, a criminal offence committed by an
official can only be investigated and prosecuted if the head of
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vi.
term not exceeding six months, fine or both. Article 142 (2) of the same Act provides: “Where hurt has
occurred by dangerous means, such as poison, or intoxicating drugs, or where hurt is caused with the
intention of drawing a confession from another, or compelling that other to do an act contrary to the law,
the offender shall be punished, with imprisonment, for a term, not exceeding two years, and may also be
punished with fine.”
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the relevant authority grants approval and lifts immunity,7
which has not happened in the present case;
As part of the process of filing a constitutional petition in 2006,
the Victim‘s lawyer wrote to the Minister of Justice, requesting
him to undertake a criminal investigation and provide
compensation.
ix.
The Constitutional Court dismissed the Victim‘s case on 6
November 2008, holding that the provisions in the Sudanese
law pertaining to statutory limitations and to immunities were
not unconstitutional. This final decision was communicated to
the Victim on 8 January 2009.
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viii.
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23. From the above, the Complainant states that the remedies were ineffective
and there were no other remedies available to the Victim which could
compel a full investigation of his case without the approval of the police
and/or to seek other forms of reparation.
The Respondent State’s submissions on Admissibility
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24. The Respondent State submits that the Communication should be
declared inadmissible because it does not meet the requirements
stipulated in Article 56(4), 56(5) and 56(6) of the African Charter.
25. With respect to Article 56(4), the Respondent State submits that the
Communication is based on information from the media.
26. Regarding Article 56(5), the Respondent State submits that all local
remedies have not been exhausted in light of the fact that amongst all the
remedies provided by the Complainant, there is no mention of any legal
action that the Victim or his lawyer took to bring the perpetrators of the
allegations to justice.
27. The Respondent State further submits that the action through the
Constitutional Court centered on challenging the constitutionality of the
articles on immunity in the National Security Act and those relating to the
statute of limitation, even though remedies and justice are enshrined in
the Sudanese legal system and are effective when it comes to
7
The Complainant mentions the Sudanese National Security Acts of 1990 (Article 41), 1994
(Article 38), 1999 (Article 33) and 2010 (Article 52).
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accountability and redress. The Respondent State specifically underlines
the following:
Article 34(1) of the 1991 CPA stipulates that ―A complaint
could be lodged by the person against whom a crime was
committed or within the scope of his responsibility or
whoever represents him.‖ In this regard, the Victim or his
legal representative has the right to resort to the Prosecution
for taking action against those who violated his rights.
ii.
The National Security Act of 2010 permits a person arrested
or detained to be treated in a manner that ensures respect for
his human dignity and requires that such a person should
not be subjected to any physical or mental harm.
iii.
Article 51(8) of the National Security Act of 2010 provides
that ―The Prosecution is responsible for monitoring the
prison guards constantly to ensure that rules governing
detention and receiving complaints from prisoners, are
respected‖
iv.
Article 54(1) (2) of the National Security Act of 2010
stipulates that:
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i.
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If any member of the security service commits any crime in
violation of the provisions of the law and this crime
happens to be an offence in view of the provisions of the
Criminal Act in force, he/she shall be penalized according
to the provisions of the said Act. The Director, for
objective reasons, shall produce him/her for trial by a
competent court.
v.
Concerning immunity of members of the NISS, Article 35 of
the CPA stipulates that ―Any person against whom criminal
proceedings are directed and he/she enjoys immunity, a
petition should be addressed to the Prosecutor for the
Director of Security Service to waive his/her immunity”. It
is the Respondent State‘s contention that these are
procedural immunities and are not absolute, noting that
there are many examples of members of the security service
who have been held accountable after committing crimes in
the Respondent State.
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28. The Respondent State submits that there are other modes of litigation
which were not used by the Victim or his lawyer: The Supreme Court;
Court of Appeal; General Criminal Court; Criminal Court of the First
Instance; Criminal Court of the Second Instance; Common Criminal Court;
and any Special Criminal Court that the Chief Justice may establish under
the 1986 Judiciary Act or any other Act.
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29. The Respondent State also provides other mechanisms for redress and
justice in Sudan as follows: The Civic Judiciary System; Complaints within
the National Security Services; The Grievances Committee within the
National Advisory Council; The National Commission on Human Rights;
and Office of the Ombudsman. It states that these mechanisms play a
pivotal role as mechanisms to which Complainants could resort for local
remedy without forfeiting the right to resort to the Courts. The
Respondent State submits that these mechanisms have played a
remarkable role in complaints dealing with violations of human rights.
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30. Furthermore, the Respondent State cites Rafaat Makawi v. Sudan,8 a
Constitutional Court case in relation to the death sentence passed on Najm
El-Deen Gassam El-Seed for committing the crime of cold blood murder
when he was below the age of eighteen (18). A petition was submitted to
the Constitutional Court which issued a verdict supporting Najm El-Deen
Gassam El-Seed‘s conviction, but at the same time imposed an alternative
punishment because the accused was below the age of eighteen (18). The
Respondent State submits that this case confirms the existence of an
effective judiciary.
31. The Respondent State stresses that the rule of law prevails in Sudan and
applicable to all, including members of the NISS.9 The Respondent State
submits that when the Victim‘s lawyer advised him not to go back to
Sudan to file a Complaint, he could have filed on behalf of the Victim
without the latter‘s physical presence in the Sudan in accordance with
Article 34 (2) of the CPA which stipulates that a ―Complaint is lodged by
the person against whom a crime is committed or by his representative.‖
32. The Respondent State submits that resort by the Complainant to the
Constitutional Court cannot be considered an act of exhausting all local
8
Communication 311/2005- Rafaat Makawi v. Sudan.
The Respondent makes reference to two cases where perpetrators of murder were convicted by the
Khartoum North Court of Criminal Justice in 1998 and sentenced to death under the relevant provision of
Article 130 of the 1991 Criminal Act. The State notes that these sentences were passed at the time when the
Complainant claimed that there was no justice mechanisms to which one could resort for redress.
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remedies or a final decision from the highest judicial body, for the
following reasons:
Constitutional appeal is about the unconstitutionality of
Articles relating to immunity as stipulated in the National
Security Act and statute of limitation by virtue of which a
criminal suit is dropped under the CPA and Article 58 on the
Powers of the Minister of Justice for stopping a criminal law
suit. The Respondent State submits that all these have nothing
to do with the subject of the Victim‘s Complaint.
Even though the Complainant has raised the question of being
denied the right to litigation for the fact that his claim was
dropped due to the statute of limitation, this text did not
deprive him of his right to litigation. It only limited the
period of its validity.
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33. The Respondent State submits further that the Communication does not
comply with the requirement under Article 56(6) because it was not
submitted within a reasonable period of time, since it mentions allegations
dating back to 1989.
Complainant’s supplementary submissions on Admissibility
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34. In the Complainant‘s additional submissions, it submits that all available
remedies have been exhausted, and that the remedies referred to by the
Respondent State are not effective. The Complainant cites Sir Dawda
Jawara v The Gambia (the Jawara case) where the Commission held that a
remedy is deemed effective “If it offers a prospect of success, and it is
capable of redressing the complaint.‖10
35. The Complainant avers that the Respondent State does not identify any
remedies that offer a prospect of success that would redress the wrong
alleged. According to the Complainant, this would require a procedure
that will compel the Respondent State to carry out an effective
investigation into the alleged torture and other violations so as to establish
the facts, hold the perpetrators accountable, and provide adequate
compensation to the Victim.
36. The Complainant highlights measures taken by the Victim regarding his
Complaint when legal avenues were not available to him and subsequent
10
Communication 147/95 and 149/96 Sir Dawda Jawara v The Gambia (ACHPR 2000) para 32.
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resort to the Constitutional Court after it was established in 2005. The
Complainant further reiterates that the Victim had to leave the country
out of fear for his safety in 1991, but pursued his Complaint as soon as the
circumstances appeared to be more conducive.
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37. The Complainant states that taking the matter to the Constitutional Court
was the last domestic opportunity for the Victim as it constituted an
adequate remedy given that the Court has the power, under Article 15(1)
(d) of the Constitutional Court Act of 2005, to declare a legislation
unconstitutional, and to compel the authorities to take action to protect
fundamental rights. According to the Complainant, domestic remedies
were exhausted in 2009 when the Constitutional Court‘s ruling was
communicated to the Victim.
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38. Concerning Article 56(6), the Complainant states that the Communication
was submitted within a reasonable period and that the material date for
the exhaustion of local remedies was 2009, not 1989 as argued by the
Respondent State. It submits that the Victim‘s initial Complaint of
February 1990 had been pending for several years during which no
remedies were available to challenge the failure of the authorities to
investigate. This situation only changed in 2005 with the adoption of a
new Constitution which enabled the Victim to raise the legal issues
surrounding the lack of effective remedies by way of a constitutional
challenge in 2006.
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The Commission’s Analysis on Admissibility
39. The Admissibility of Communications within the Commission is governed
by the requirements of Article 56 of the African Charter which provides
for seven requirements to be met before a Communication can be declared
Admissible. If any of the requirements set out in this Article are not met,
the Commission declares the Communication Inadmissible.
40. The Complainant argues that all the requirements under Article 56 have
been met. The Respondent State on the other hand, contends that the
Complainant has not fulfilled the requirements under sub-Articles 4, 5
and 6, and as such, the Commission should declare the Communication
Inadmissible.
41. The Commission is convinced that the other sub-articles which are not
disputed have been complied with and would thus proceed to analyze the
contended sub-articles based on the submissions of both Parties.
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42. Article 56(4) of the African Charter states that “Communications relating to
human and Peoples’ Rights… shall be considered if they are not based exclusively
on news disseminated through the mass media.” The Complainant does not
respond to the Respondent State‘s contention that the Communication is
based on information from the media. However, based on the facts before
the Commission, there is no evidence indicating that the allegations
contained in the Communication are based exclusively on news
disseminated through the mass media as argued by the Respondent State.
Furthermore, the Victim‘s affidavit and Court judgments are attached to
the Communication. For these reasons, the Commission holds that the
requirements of Article 56(4) have been fulfilled.
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43. Article 56(5) of the African Charter states that ―Communications relating to
human and Peoples’ Rights… shall be considered if they are sent after exhausting
local remedies, if any, unless it is obvious that this procedure is unduly
prolonged.‖ The jurisprudence of the Commission affirms that
Complainants are required to exhaust local remedies only if they are
available, effective and sufficient. A local remedy is considered available
“If the petitioner can pursue it without impediment, it is deemed effective
if it offers a prospect of success, and it is found sufficient if it is capable of
redressing the complaint.‖11 Exhausting local remedies gives the State
notice of events occurring within its territory, with an opportunity to deal
with the allegations using its own judicial and administrative procedures,
before being called before an international body.12
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44. The Commission will now analyze the arguments of both Parties to
ascertain whether the Respondent State was aware of the allegations made
by the Victim and whether it took steps to investigate them. Particularly
because allegations of torture against public officials impose an immediate
duty on the State to initiate a prompt, impartial and effective investigation
and bring the perpetrators to justice if the allegations are founded.13 The
Commission will also ascertain whether local remedies were indeed
available and effective to the Victim and whether the Victim exhausted
them.
n above.
See Communication 25/89,47/90,56/91,100/93 World Organization Against Torture v Zaire
(ACHPR 1996) para 36; Communication 25/89, 47/90, 56/91, 100/93- Free Legal Assistance Group
and Others v Zaire (ACHPR 1995) para 36; Communication 71/92 – Recontre Africaine pour la
Defense des Droits de l’Homme v Zambia (ACHPR 1997) para 10.
13
See Articles 17 – 19 of the Resolution and Guidelines and Measures for the Prohibition and
Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, adopted by the
African Commission at its 32nd Ordinary Session.
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12
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45. The Complainant asserts that local remedies were not initially available to
the Victim due to the civil war in the Sudan, and legislations that impeded
his access to the local courts. It states that local remedies were exhausted
in 2006 when the matter was taken to the Constitutional Court after it was
reestablished. It also outlines various measures taken by the Victim to
obtain redress for allegations of torture against the NISS personnel,14 all of
which went unheeded. The Complainant avers that the Respondent State
does not identify any remedies that offer a prospect of success that would
redress the wrong alleged, including carrying out effective investigation
into the alleged torture and other violations.
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46. The Respondent State on the other hand challenges the fact that local
remedies have been exhausted on the grounds that amongst all the
remedies provided, there is no mention of any legal action that the Victim
or his legal representative took to bring the perpetrators to justice.
47. In Article 19 v Eritrea,15 the Commission ruled that:
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Whenever there is a crime that can be investigated and prosecuted by the
State on its own initiative, the State has the obligation to move the
criminal process forward to its ultimate conclusion. In such cases, one
cannot demand that the Complainants, or the Victims or their family
members assume the task of exhausting domestic remedies when it is up
to the State to investigate the facts and bring the accused persons to court
in accordance with both domestic and international fair trial standards.
48. The facts in the instant Communication show that the Respondent State
was aware of the allegations. This is justified by the numerous Complaints
made by the Victim to various authorities. His Complaints went unheeded
and while the Respondent State does not rebut the allegation of not
instituting an investigation, there is no evidence of measures it took to
investigate the allegations even though it had ample notice of the same.
This in itself, made any local remedies that theoretically existed,
ineffective.16 This view was also expressed by the Commission in Article
19 v Eritrea where eighteen (18) journalists were detained incommunicado
for allegedly posing a threat to national security, and were imprisoned for
several years. The Commission found that ―The State has had ample
notice and time within which to remedy the situation…and is expected to
have taken appropriate steps to remedy the violations alleged.‖17 In this
14
See paragraph 22 in the submissions of the Complainant above.
Communication 275/03 – Article 19 v Eritrea (ACHPR 2007) para 72.
16
See also Communication 48/90, 50/91/52/91, 89/93- Amnesty International and Others
v Sudan (ACHPR 1999) para 33.
17
n 15 above, para 77 & 78.
15
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light, the Respondent State by failing to take measures to investigate the
allegations in spite of being notified has forfeited its prerogative to deal
with the matter domestically.
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49. The Complainant also states that the Victim‘s lawyer made a direct appeal
to the Constitutional Court in 2006 which dismissed the matter on 6
November 2008, holding that the provisions in the Sudanese law
pertaining to statutory limitations and to immunities were not
unconstitutional. The Respondent State however contends that the
Complainant‘s resort to the Constitutional Court cannot be considered an
act of exhausting all local remedies or a final decision from the highest
judicial body.
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50. The Commission notes that the Constitutional Court in Sudan is
established according to Section 119 (1) of Sudan‘s Interim National
Constitution of 2005. According to Section 122 (1) of the same
Constitution, its decisions are final and binding. It is mandated under
Section 122(1) (d) amongst other things, to protect human rights and
fundamental freedoms. Furthermore, under Article 15(1) (d) of the
Constitutional Court Act of 2005, the Court has the jurisdiction to declare
legislation unconstitutional, and to compel the authorities to take action to
protect fundamental rights. In this sense, the Respondent State cannot
argue that the Complainant‘s resort to the Constitutional Court is not an
act of exhausting local remedies or a final decision from the highest
judicial body.
51. Additionally, citing the Constitutional Court case of Rafaat Makawi v.
Sudan,18 the Respondent State submits:―…This case confirms the existence
of an effective judiciary,‖ which contradicts its argument that approaching
the Court ―Cannot be considered an act of exhausting local remedies or a
final decision from the highest judicial body.‖ According to the
Commission, the Respondent State‘s submission reaffirms the
Complainant‘s position that the Victim‘s case to the Constitutional Court
was appropriate, even though it did not yield positive results.
52. The Respondent State further argues that remedies are enshrined in the
Sudanese legal system which are effective when it comes to accountability
and redress, referring to the courts and mechanisms that exist in Sudan. 19
It mentions laws such as the 1991 CPA and the National Security Act of
n 8 above. This case was declared Admissible by the Commission during its 48 th
Ordinary Session. Subsequently, the Complainant requested that the file be closed because the
subject matter of the Complaint had already been dealt with by the Constitutional Court.
19
See Paragraphs 28 and 29 above.
18
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2010. The Respondent State particularly refers to Article 35 of the CPA
which governs immunities of members of the NISS and gives the Director
of Security Service the ultimate power and discretion to decide whether to
waive immunity or not.
53. The Complainant on the other hand, argues that the Victim could not
approach the courts mentioned by the Respondent State for the following
reasons:
Decree No. 2 of June 1989;20
ii.
The prevailing political situation in Sudan in the 90s;
iii.
The CPA of 1991.21
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54. Having regard to the foregoing, the Commission concurs with the
Complainant‘s argument that the political situation in Sudan and Decree
No. 2 of June 1989 impeded the Victim‘s approach to the courts mentioned
by the Respondent State due to the restrictions imposed by the Decree,
especially the state of emergency. This was also the Commission‘s position
in The Law Office of Ghazi Suleiman v Sudan,22 where it reasoned that the
political situation at the time did not permit the Victim to exhaust local
remedies because application of law was made difficult due to the state of
emergency. According to the Commission in the said case, ―It is
reasonable to assume that not only will the procedure of local remedies be
unduly prolonged, but also that it will yield no results.‖
55. In Article 19 v Eritrea, the Commission also ruled that an exception will
apply where the domestic situation of the State does not afford due
process of law for the protection of the rights.23 It follows therefore that
the Victim could not approach the courts in Sudan at the time due to the
circumstances aforementioned and particularly because of the ouster
clauses in the Decree which rendered local remedies non-existent and
ineffective.24
See paragraph 22 (v) above.
See Paragraph 22 (iv) above.
22
Communication 228/99 The Law Office of Ghazi Suleiman v Sudan (ACHPR 2002), para 36
23
n 15 above, para 78.
24
See Communication 105/98, 128/94, 130/94, 152/96 -Media Rights Agenda, Constitutional
Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria (ACHPR 1998), para
50.
20
21
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56. With respect to the mechanisms referred to by the Respondent State as
remedies,25 it is the Commission‘s view that they do not fall under the
category of judicial remedies which should be sought by Victims. This is
because remedies referred to in Article 56(5) entail remedies sought from
the courts of a judicial nature.26
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57. Concerning the other remedies in the form of laws, the Commission notes
that the National Security Act was adopted in 2010, while the violations
occurred in 1989. In this regard, the Respondent State cannot cite a law
that was not applicable at the time the alleged violations were committed
or could be used to approach the courts. The above notwithstanding, it is
the view of the Commission that the National Security Act of 2010 does
not safeguard the interest of the Victim in the instant Communication. The
reason being that even though the Act has provisions under Article 54(1)
(2) which penalizes members of the NISS who commit crimes contrary to
the Act, it also maintains the immunity of NISS members from
prosecution and disciplinary action which can only be waived by the NISS
Director after preliminary investigations have been initiated. This is an
impediment in itself because the Victim cannot prosecute under such
circumstances, especially because no preliminary investigations have been
initiated in the instant case.
AC
58. Regarding Article 35 of the CPA, the Commission considers that the
concept of immunity under this Act27 equally has the tendency of
shielding government officials from lawsuits by private citizens and
unless these are absent or waived by the concerned officials, courts will
not entertain suits by private individuals against them. This unreasonably
limits the opportunity to deal with violations in courts and consequently
lack of redress to victims of human rights violations.
59. Furthermore, the remedy provided under Article 35 of the CPA has been
described in the Commission‘s jurisprudence as discretionary
extraordinary remedy of a non judicial nature and therefore not effective.
It has also been seen as a remedy not contemplated by Article 56(5),28
because it is an impediment to the exhaustion of local remedies. In a
similar case, Monim Elgak, Osman Hummeida and Amir Suliman (represented
Namely, the Civic Judiciary System; Complaints within the National Security Services;
The Grievances Committee within the National Advisory Council; The National Commission on
Human Rights; and Office of the Ombudsman.
26
Communication 221/98 - Alfred B. Cudjoe v Ghana (1999) para 14.
27
As is the case with the National Security Act of 2010.
28
Communication 60/91 - Constitutional Rights Project (in respect of Wahab Akamu, G. Adega
and Others) v Nigeria (ACHPR 1994) para 10.
25
15
by FIDH and OMCT) v Sudan,29 where the Respondent State claimed the
availability of other remedies (referring to Article 34(2) of the CPA, as well
as Articles 54(1) and 59 of the National Security Act of 2010), the
Commission ruled that this kind of remedy is purely discretionary, not
subject to judicial oversight and hence final.
R
60. The Commission also took this position in Constitutional Rights Project (in
respect of Zamani Lakwot and 6 Others) v Nigeria,30 where it reasoned that
‖…It would be improper to insist on the Complainant seeking remedies
from a source which does not operate impartially and have no obligation
to decide according to legal principles. The remedy is neither adequate
nor effective.‖ In this regard, the Commission finds that the CPA cannot
provide an effective remedy to the Victim.
AC
HP
61. The third argument of the Complainant raises the issue of the retroactive
application of the 1991 CPA which made it difficult for the Victim to
exhaust local remedies at the time. The violations alleged commenced on
30 June 1989 during which period Decree No. 2 of June 1989 applied.
When the Act was adopted in 1991, it had a retroactive effect in the sense
that, the criminal offence of torture which was the essence of the Victim‘s
Complaint retroactively became subject to a limitation period of two (2)
years, expiring in 1994. In this connection, the Victim or his lawyer could
not bring the matter before any courts at the time because as a matter of
fact, they were time barred and consequently, access to courts was denied
by virtue of the Act.
62. Even though the Respondent State contends that other cases were
entertained by the courts during that period,31 the Commission notes that
the cases referred relate to murder, while the subject matter of the Victim‘s
Complaint is torture which was statute barred. In this regard, the
Commission finds that remedies were not available to the Victim at the
time.
63. The questions that may arise at this point is why the Victim did not approach
the courts after the limitation period expired in 1994, and why he took the matter
directly to the Constitutional Court in 2006 without approaching the other
courts?
29
Communication 379/09 – Monim Elgak, Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) v Sudan, para 68.
30
Communication 87/93 Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others)
v Nigeria (ACHPR 94) para 8.
31
n 9 above.
16
R
64. In response to these questions: Firstly, it is worth reiterating that the
Victim left the country for fear of persecution in 1991 and only returned in
2002.32 On this ground, the Commission‘s jurisprudence has shown that
fear of persecution is one of the exceptions used to waive the requirement
to exhaust local remedies. In the Jawara Case,33 the Commission ruled that
―The existence of a remedy must be sufficiently certain, not only in theory
but also in practice, failing which, it will lack the requisite accessibility
and effectiveness. Therefore, if the applicant cannot turn to the judiciary of
his country because of generalized fear for his life (or even those of his
relatives), local remedies would be considered to be unavailable to him.”
Accordingly, the Victim could not be required to approach the courts at
the time.
HP
65. Secondly, other laws such as the 1991 CPA and the National Security Act
were adopted which hindered litigation before Sudanese courts, especially
against NISS members who are the alleged perpetrators of the violations
in the instant Communication.
AC
66. Thirdly, as already discussed above, there are substantial grounds to
believe that the political situation and state of emergency at the time
hindered the Victim‘s access to the courts. When the political situation
improved, the Victim could not approach the courts to prosecute the
alleged perpetrators due to the immunity they enjoyed under the CPA
and the National Security Act. It was practical for the matter to be taken
directly to the Constitutional Court for the latter to rule on the
unconstitutionality of the Acts. Thus, since the Respondent State forfeited
its prerogative to deal with the matter domestically, the Commission
considers that the requirement to exhaust ‗all‘ local remedies must be
dispensed with.
67. Based on the above reasoning, the Commission holds that all local
remedies could not be exhausted in the present Communication because
they were not available, adequate and effective. Hence, the Complainant
has constructively exhausted local remedies pursuant to Article 56(5) of
the African Charter.
In addition to the fact that his Lawyer advised him in the mid-nineties ―Not to return to
Khartoum in search of justice due to the political situation.”
33
n 10 above, para 35, See also Communication 215/98 - Rights International v Nigeria, where
the Commission found that the Victim ….‖Was unable to pursue any domestic remedy following his
flight for fear of his life to the Republic of Benin…‖ Para 24.
32
17
68. The last issue in contention is the requirement under Article 56(6) of the
African Charter which provides that “Communications received by the
Commission will be considered if they are submitted within a reasonable period
from the time local remedies are exhausted, or from the date the Commission is
seized with the matter…”
69. The Respondent State submits that the Communication does not comply
with the requirement under Article 56(6) because it was not submitted
within a reasonable period of time, since it mentions allegations dating
back to 1989.
HP
R
70. The Complainant contends that Article 56(6) has been complied with
because the material date for exhaustion of local remedies was 2009, not
1989. It avers that the Victim‘s initial Complaint of February 1990 had
been pending for several years during which no remedies were available
to challenge the failure of the authorities to investigate. This situation only
changed in 2005 with the adoption of a new Constitution which enabled
the Victim to raise the legal issues surrounding the lack of effective
remedies by way of a constitutional challenge in 2006.
AC
71. Before the Commission proceeds to analyze whether the Communication
was submitted within a reasonable period of time, it is important to
underline the fact that reasonable time does not pertain to the period
when the allegations were committed as submitted by the Respondent
State. It is computed from the time when the Communication was
submitted to the Commission after exhaustion of local remedies, or when
the Complainant immediately realizes that local remedies are not
available, sufficient or effective.
72. As opposed to the Inter-American and European Human Rights Systems
which prescribe 6 months as a reasonable time period, the African Charter
does not have provisions or definition with respect to reasonable time. In
the absence of this, the Commission has been flexible, treating each case
based on its context and characteristics. Ascertaining the notion of
reasonable time therefore within the Commission, depends on the
circumstances of every case.
73. According to the facts before the Commission, the Communication was
brought in May 2010 after the decision of the Constitutional Court was
communicated to the Victim in January 2009. A period of fifteen (15)
months elapsed between the time when the Constitutional Court ruled on
the matter, (counting from the time when the decision was communicated
18
to the Victim), and when the Communication was submitted to the
Commission.
74. At this point, the Commission would proceed to determine whether
fifteen (15) months can be seen as a reasonable period of time.
HP
R
75. In Michael Majuru v Zimbabwe, the Commission ruled that, …‖Where there
is good and compelling reason why a Complainant could not submit
his/her Complaint for consideration on time, the Commission may
examine the Complaint to ensure fairness and justice‖.34 In that
Communication, the Complainant submitted his Complaint twenty-two
(22) months after fleeing the country, explaining that, he needed time to
settle, was undergoing psycho-therapy and was concerned for the safety
of his family. The Commission held that the arguments advanced by the
Complainant as impediments for the late submission do not appear
convincing, and that twenty two (22) months after fleeing the country is
clearly beyond a reasonable man‘s understanding of reasonable period of
time.35
AC
76. Similarly, in Darfur Relief and Documentation Centre v Sudan,36 a period of
twenty-nine (29) months (2 years and 5 months) elapsed between the time
the matter was brought to the Commission after exhausting local
remedies. The Commission held that the Communication was submitted
―Way beyond a time which could be considered reasonable.‖37 The
Commission also reasoned that ―There is no sufficient reason given as to
why the Communication could not be submitted within a reasonable
period,‖38 and therefore declared the Communication inadmissible.
77. Relying on the above jurisprudence, the Commission holds that, fifteen
(15) months of delay in the present Communication cannot be considered
as reasonable time, as the explanation given by the Complainant justifying
the delay is not compelling.
78. In this regard, the Communication does not fulfill the proviso of Article
56(6) of the African Charter.
34
35
36
37
38
Communication 308/07—Michael Majuru v Zimbabwe (ACHPR 2008) para 109.
n above, para 110.
Communication 310/10- Darfur Relief and Documentation Centre v Sudan, ( ACHPR 2009).
n above, para 78.
n above, para 80.
19
Decision of the Commission on Admissibility
79. In view of the above, the African Commission on Human and Peoples‘
Rights:
Declares this Communication Inadmissible in accordance with
Article 56 of the African Charter;
ii.
Decides to notify the Parties and attach the decision to its
Activity Report in accordance with Rule 107(3) of its Rules of
Procedure.
HP
R
i.
AC
Done in Banjul, The Gambia, at the 13th Extra-Ordinary Session of the
Commission held from 19 to 25 February 2013
20