APT
ACHPR
Resolution On Guidelines and
Measures for the Prohibition and
Prevention of Torture, Cruel,
Inhuman or Degrading Treatment
or Punishment In Africa
The Robben Island Guidelines
2nd Edition
PUBLISHED BY THE AFRICAN COMMISSION ON HUMAN
AND PEOPLES’ RIGHTS (ACHPR)
ACHPR
90, Kairaba Avenue; P.O. Box 673
Banjul, The Gambia
Tel. : (+ 220) 39 29 62 / Fax : (+ 220) 39 07 64
Email: achpr@achpr.org / Website: www.achpr.org
JOINTLY WITH THE ASSOCIATION FOR THE
PREVENTION OF TORTURE (APT)
APT
P.O Box 2267 / CH-1211 Geneva 2
Tel. (+ 41) 22.919.21.70 / Fax (+41) 22.919.21.80
E-mail: apt@apt.ch / Website : www.apt.ch
And
Regional Office of the United Nations
High Commissioner for Human Rights
OHCHR
P.O. Box 3005, Addis Ababa, Ethiopia, New ECA Building, Room 1NC2
Telephone: +251 11 544 3105, 544 34 15, Fax: +251 11 551 60 78
E-mail: humanrights@uneca.org
Addis Ababa, April 2008
ISBN 2-9700214-7-1
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APT
ACHPR
Resolution On Guidelines and
Measures for the Prohibition and
Prevention of Torture, Cruel,
Inhuman or Degrading Treatment
or Punishment In Africa
The Robben Island Guidelines
2nd Edition
Foreword
The African Charter on Human and Peoples Rights establishes a regional human
rights body, the African Commission on Human and Peoples’ Rights (ACHPR), with
the mandate to promote the observance of the Charter, ensure the protection of the
rights and freedoms set out in the Charter, interpret the Charter and advise on its
implementation.
Article 5 of the African Charter provides that every individual shall have the right
to the respect of the dignity inherent in a human being and to the recognition of
his legal status. All forms of exploitation and degradation of man and particularly
slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment
shall be prohibited.
At the 28th Ordinary Session of the African Commission, the Association for the
Prevention of Torture (APT), an international NGO enjoying Observer Status to the
African Commission and committed to working internationally to tackle the global
problem of torture and ill-treatment, proposed to the African Commission to hold a
joint workshop in order to formulate concrete measures which would be taken for
effective implementation of the provisions of Article 5 of the African Charter.
The workshop was held, from 12 to 14 February 2002, on Robben Island, a symbolic
place for Africa, where Nelson Mandela and other activists against the South African
Apartheid regime were detained for many years. This meeting drew together African
and international experts from a variety of backgrounds. These joint efforts led to the
successful drafting of comprehensive guidelines and measures for the prohibition and
prevention of torture and ill-treatment in Africa, called “Robben Island Guidelines”.
The Robben Island Guidelines were adopted by the African Commission during its
32nd ordinary session. These Guidelines are designed to assist States to meet their
national, regional and international obligations for the effective enforcement and
implementation of the universally recognised prohibition and prevention of torture.
The adoption of the Robben Island Guidelines is an important step forward in the
promotion of human rights and in the prevention of torture and ill-treatment in Africa,
but it is not an end in itself. The Guidelines need to be promoted and implemented.
They have also to be understood as a collective endeavour of the African community
to deal with the phenomena of torture and to look forward to every person enjoying
the right to be free from torture and other forms of ill-treatment.
The African Commission on Human and Peoples’ Rights would like to draw the
attention of all African national and regional actors, as well as international ones, to
the crucial step of implementing the Guidelines. The implementation of the Guidelines
has to be encouraged at national level. This needs co-operation, dialogue and the
endeavour of several actors such as appropriate States Authorities, Parliamentarians,
National Human Rights Institutions and the whole Civil Society.
Dupe ATOKI
Commissioner of the ACHPR
Jean-Baptiste NIYIZURUGERO
APT Africa Programme Officer
RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
RESOLUTION ON GUIDELINES AND MEASURES
FOR THE PROHIBITION AND PREVENTION OF
TORTURE, CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT IN AFRICA
The African Commission on Human and Peoples’ Rights, meeting at its 32nd
ordinary session, held in Banjul, The Gambia, from 17th to 23rd October 2002;
Recalling the provisions of -:
• Article 5 of the African Charter on Human and Peoples’ Rights that
prohibits all forms of exploitation and degradation of man, particularly
slavery, slave trade, torture, cruel, inhuman or degrading punishment and
treatment;
• Article 45 (1) of the African Charter which mandates the African
Commission to, inter alia, formulate and lay down principles and rules
aimed at solving legal problems relating to human and peoples’ rights and
fundamental freedoms upon which African Governments may base their
legislation;
• Articles 3 and 4 of the Constitutive Act of the African Union wherein
States Parties undertake to promote and respect the sanctity of human
life, rule of law, good governance and democratic principles;
Recalling further its Resolution on the Right to Recourse Procedure and Fair Trial
adopted during its 11th ordinary session, held in Tunis, Tunisia, from 2nd to 9th
March 1992;
Noting the commitment of African States to ensure better promotion and respect
of human rights on the continent as reaffirmed in the Grand Bay Declaration and
Plan of Action adopted by the 1st Ministerial Conference on Human Rights in
Africa;
Recognising the need to take concrete measures to further the implementation
of existing provisions on the prohibition of torture and cruel, inhuman or degrading
treatment or punishment;
Mindful of the need to assist African States to meet their international obligations
in this regard;
THE ROBBEN ISLAND GUIDELINES
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
Recalling the recommendations of the Workshop on the Prohibition and
the Prevention of Torture and Ill-treatment, organised jointly by the African
Commission and the Association for the Prevention of Torture, on Robben Island,
South Africa, from 12th to 14th February 2002;
1. Adopts the Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The
Robben Island Guidelines).
2. Establishes a Follow-up Committee comprising of the African Commission,
the Association for the Prevention of Torture and any prominent African
Experts as the Commission may determine.
3. Assigns the following mandate to the Follow-up Committee -:
• To organise, with the support of interested partners, seminars to
disseminate the Robben Island Guidelines to national and regional
stakeholders.
• To develop and propose to the African Commission strategies to promote
and implement the Robben Island Guidelines at the national and regional
levels.
• To promote and facilitate the implementation of the Robben Island
Guidelines within Member States.
• To make a progress report to the African Commission at each ordinary
session.
4. Urges Special Rapporteurs and Members of the African Commission to
widely disseminate the Robben Island Guidelines as part of their promotional
mandate.
5. Encourages States parties to the African Charter, in their periodic reports to
the African Commission, to bear in mind the Robben Island Guidelines.
6. Invites NGOs and other relevant actors to widely disseminate and utilise the
Robben Island Guidelines in the course of their work.
Done in Banjul, The Gambia, 23rd October 2002
02
THE ROBBEN ISLAND GUIDELINES
RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
GUIDELINES AND MEASURES FOR THE
PROHIBITION AND PREVENTION OF
TORTURE, CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT IN AFRICA
THE ROBBEN ISLAND GUIDELINES
Preamble
Recalling the universal condemnation and prohibition of torture, cruel, inhuman
and degrading treatment and punishment;
Deeply concerned about the continued prevalence of such acts;
Convinced of the urgency of addressing the problem in all its dimensions;
Recognising the need to take positive steps to further the implementation of
existing provisions on the prohibition of torture, cruel, inhuman and degrading
treatment and punishment;
Recognising the importance of preventive measures in the furtherance of these
aims;
Recognising the special needs of victims of such acts;
Recalling the provisions of:
-
Art. 5 of the African Charter on Human and Peoples’ Rights which
prohibits all forms of exploitation and degradation of man, particularly
slavery, slave trade, torture, cruel, inhuman or degrading punishment and
treatment;
-
Art. 45 (1) of the African Charter which mandates the African Commission
to, inter alia, formulate and lay down principles and rules aimed at solving
legal problems relating to human and peoples’ rights and fundamental
freedoms upon which African Governments may base their legislations;
-
Arts. 3 and 4 of the Constitutive Act of the African Union by which States
Parties undertake to promote and respect the sanctity of human life, rule
of law, good governance and democratic principles;
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
Recalling further the international obligations of States under:
-
Art. 55 of the United Nations Charter, calling upon States to promote
universal respect for and observance of human rights and fundamental
freedoms;
-
Art. 5 of the UDHR, Art. 7 of the ICCPR stipulating that no one shall be
subjected to torture, inhuman or degrading treatment or punishment;
-
Art. 2 (1) and 16 (1) of the UNCAT calling upon each State to take effective
measures to prevent acts of torture and other acts of cruel, inhuman or
degrading treatment or punishment in any territory under its jurisdiction;
Noting the commitment of African States as reaffirmed in the Grand Bay
Declaration and Plan of Action adopted by the 1st Ministerial Conference on
Human Rights in Africa to ensure better promotion and respect of human rights
on the continent;
Desiring the implementation of principles and concrete measures in order to
make more effective the struggle against torture and other cruel, inhuman or
degrading treatment or punishment in Africa and to assist African States to
meet their international obligations in this regard;
The “Robben Island Workshop on the Prevention of Torture”, held from 12
to 14 February 2002, has adopted the following guidelines and measures for the
prohibition and prevention of torture, cruel, inhuman and degrading treatment or
punishment and recommends that they are adopted, promoted and implemented
within Africa.
04
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
Part I: Prohibition of Torture
A.
B.
Ratification of Regional and International Instruments
1.
States should ensure that they are a party to relevant international and
regional human rights instruments and ensure that these instruments
are fully implemented in domestic legislation and accord individuals
the maximum scope for accessing the human rights machinery that
they establish. This would include:
a)
Ratification of the Protocol to the African Charter of Human and
Peoples’ Rights establishing an African Court of Human and Peoples’
Rights;
b)
Ratification of or accession to the UN Convention against Torture,
Cruel, Inhuman and Degrading Treatment or Punishment without
reservations, to make declarations accepting the jurisdiction of the
Committee against Torture under Articles 21 and 22 and recognising
the competency of the Committee to conduct inquiries pursuant to
Article 20;
c)
Ratification of or accession to the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil
and Political Rights and the First Optional Protocol thereto without
reservations;
d)
Ratification of or accession to the Rome Statute establishing the
International Criminal Court;
Promote and Support Co-operation with International Mechanisms
2.
States should co-operate with the African Commission on Human
and Peoples’ Rights and promote and support the work of the Special
Rapporteur on prisons and conditions of detention in Africa, the Special
Rapporteur on arbitrary, summary and extra-judicial executions in
Africa and the Special Rapporteur on the rights of women in Africa.
3.
States should co-operate with the United Nations Human Rights
Treaty Bodies, with the UN Commission on Human Rights’ thematic
and country specific special procedures, in particular, the UN Special
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
Rapporteur on Torture, including the issuance of standing invitations
for these and other relevant mechanisms.
C.
Criminalization of Torture
4.
States should ensure that acts, which fall within the definition of
torture, based on Article 1 of the UN Convention against Torture, are
offences within their national legal systems.
5.
States should pay particular attention to the prohibition and prevention
of gender-related forms of torture and ill-treatment and the torture
and ill-treatment of young persons.
6.
National courts should have jurisdictional competence to hear cases
of allegations of torture in accordance with Article 5 (2) of the UN
Convention against Torture.
7.
Torture should be made an extraditable offence.
8.
The trial or extradition of those suspected of torture should take place
expeditiously in conformity with relevant international standards.
9.
Circumstances such as state of war, threat of war, internal political
instability or any other public emergency, shall not be invoked as
a justification of torture, cruel, inhuman or degrading treatment or
punishment.
10. Notions such as “necessity”, “national emergency”, “public order”,
and “ordre public” shall not be invoked as a justification of torture,
cruel, inhuman or degrading treatment or punishment.
11. Superior orders shall never provide a justification or lawful excuse
for acts of torture, cruel, inhuman or degrading treatment or
punishment.
12. Those found guilty of having committed acts of torture shall be subject
to appropriate sanctions that reflect the gravity of the offence, applied
in accordance with relevant international standards.
06
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
13. No one shall be punished for disobeying an order that they commit
acts amounting to torture, cruel, inhuman or degrading treatment or
punishment.
14. States should prohibit and prevent the use, production and trade of
equipment or substances designed to inflict torture or ill-treatment
and the abuse of any other equipment or substance to these ends.
D.
Non-Refoulement
15. States should ensure no one is expelled or extradited to a country
where he or she is at risk of being subjected to torture.
E.
Combating Impunity
16. In order to combat impunity States should:
F.
a)
Ensure that those responsible for acts of torture or ill-treatment are
subject to legal process.
b)
Ensure that there is no immunity from prosecution for nationals
suspected of torture, and that the scope of immunities for foreign
nationals who are entitled to such immunities be as restrictive as is
possible under international law.
c)
Ensure expeditious consideration of extradition requests to third
states, in accordance with international standards.
d)
Ensure that rules of evidence properly reflect the difficulties of
substantiating allegations of ill-treatment in custody.
e)
Ensure that where criminal charges cannot be sustained because of
the high standard of proof required, other forms of civil, disciplinary
or administrative action are taken if it is appropriate to do so.
Complaints and Investigation Procedures
17. Ensure the establishment of readily accessible and fully independent
mechanisms to which all persons can bring their allegations of torture
and ill-treatment.
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
18. Ensure that whenever persons who claimed to have been or who
appear to have been tortured or ill-treated are brought before
competent authorities an investigation shall be initiated.
19. Investigations into all allegations of torture or ill-treatment, shall be
conducted promptly, impartially and effectively, guided by the UN
Manual on the Effective Investigation and Documentation of Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment
(The Istanbul Protocol)1.
Part II: Prevention of Torture
A.
Basic Procedural Safeguards for those Deprived of their Liberty
20. All persons who are deprived of their liberty by public order or
authorities should have that detention controlled by properly and
legally constructed regulations. Such regulations should provide a
number of basic safeguards, all of which shall apply from the moment
when they are first deprived of their liberty. These include:
B.
a)
The right that a relative or other appropriate third person is notified of
the detention;
b)
The right to an independent medical examination;
c)
The right of access to a lawyer;
d)
Notification of the above rights in a language, which the person
deprived of their liberty understands;
Safeguards during the Pre-trial Process
States should:
21. Establish regulations for the treatment of all persons deprived of their
liberty guided by the UN Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.2
1
2
08
Annexed to UN GA Res. A/55/89, 4 Dec. 2000, UN Publication No.8, HR/P/PT/8.
UN GA/Res. 43/173, 9 Dec.1988
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
22. Ensure that those subject to the relevant codes of criminal procedure
conduct criminal investigations.
23. Prohibit the use of unauthorised places of detention and ensure that
it is a punishable offence for any official to hold a person in a secret
and/or unofficial place of detention.
24. Prohibit the use of incommunicado detention.
25. Ensure that all detained persons are informed immediately of the
reasons for their detention.
26. Ensure that all persons arrested are promptly informed of any charges
against them.
27. Ensure that all persons deprived of their liberty are brought promptly
before a judicial authority, having the right to defend themselves or to
be assisted by legal counsel, preferably of their own choice.
28. Ensure that comprehensive written records of all interrogations
are kept, including the identity of all persons present during the
interrogation and consider the feasibility of the use of video and/or
audio taped recordings of interrogations.
29. Ensure that any statement obtained through the use of torture,
cruel, inhuman or degrading treatment or punishment shall not be
admissible as evidence in any proceedings except against persons
accused of torture as evidence that the statement was made.
30. Ensure that comprehensive written records of those deprived of their
liberty are kept at each place of detention, detailing, inter alia, the
date, time, place and reason for the detention.
31. Ensure that all persons deprived of their liberty have access to legal
and medical services and assistance and have the right to be visited
by and correspond with family members.
32. Ensure that all persons deprived of their liberty can challenge the
lawfulness of their detention.
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
C.
Conditions of Detention
States should:
33. Take steps to ensure that the treatment of all persons deprived of
their liberty are in conformity with international standards guided by
the UN Standard Minimum Rules for the Treatment of Prisoners.3
34. Take steps to improve conditions in places of detention, which do not
conform to international standards.
35. Take steps to ensure that pre-trial detainees are held separately from
convicted persons.
36. Take steps to ensure that juveniles, women, and other vulnerable
groups are held in appropriate and separate detention facilities.
37. Take steps to reduce overcrowding in places of detention by, inter alia,
encouraging the use of non-custodial sentences for minor crimes.
D.
Mechanisms of Oversight
States should:
38. Ensure and support the independence and impartiality of the judiciary
including by ensuring that there is no interference in the judiciary
and judicial proceedings, guided by the UN Basic Principles on the
Independence of the Judiciary.4
39. Encourage professional legal and medical bodies to concern
themselves with issues of the prohibition and prevention of torture,
cruel, inhuman and degrading treatment or punishment.
40. Establish and support effective and accessible complaint mechanisms
which are independent from detention and enforcement authorities
and which are empowered to receive, investigate and take appropriate
action on allegations of torture, cruel, inhuman or degrading treatment
or punishment.
3
4
10
UN ECOSOC Res. 663 C (XXIV), 31 July 1957, amended by UN ECOSOC Res. 2076 (LXII), 13 May 1977
UN Doc. E/CN.4/1995/39
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RESOLUTION ON GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA
41. Establish, support and strengthen independent national institutions
such as human rights commissions, ombudspersons and commissions
of parliamentarians, with the mandate to conduct visits to all places
of detention and to generally address the issue of the prevention
of torture, cruel, inhuman and degrading treatment or punishment,
guided by the UN Paris Principles Relating to the Status and
Functioning of National Institutions for the Protection and Promotion
of Human Rights.5
42. Encourage and facilitate visits by NGOs to places of detention.
43. Support the adoption of an Optional Protocol to the UNCAT to create
an international visiting mechanism with the mandate to visit all
places where people are deprived of their liberty by a State Party.
44. Examine the feasibility of developing regional mechanisms for the
prevention of torture and ill-treatment.
D.
Training and Empowerment
45. Establish and support training and awareness-raising programmes
which reflect human rights standards and emphasise the concerns of
vulnerable groups.
46. Devise, promote and support codes of conduct and ethics and develop
training tools for law enforcement and security personnel, and other
relevant officials in contact with persons deprived of their liberty
such as lawyers and medical personnel.
E.
Civil Society Education and Empowerment
47. Public education initiatives, awareness-raising campaigns regarding
the prohibition and prevention of torture and the rights of detained
persons shall be encouraged and supported.
48. The work of NGOs and of the media in public education, the
dissemination of information and awareness-raising concerning the
prohibition and prevention of torture and other forms of ill-treatment
shall be encouraged and supported.
5
UN A/Res/48/134, 20 Dec. 1993
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Part III: Responding to the Needs of Victims
49. Ensure that alleged victims of torture, cruel, inhuman and degrading
treatment or punishment, witnesses, those conducting the
investigation, other human rights defenders and families are protected
from violence, threats of violence or any other form of intimidation or
reprisal that may arise pursuant to the report or investigation.
50. The obligation upon the State to offer reparation to victims exists
irrespective of whether a successful criminal prosecution can or has
been brought. Thus all States should ensure that all victims of torture
and their dependents are:
a)
Offered appropriate medical care;
b)
Have access to appropriate social and medical rehabilitation;
c)
Provided with appropriate levels of compensation and support;
In addition there should also be a recognition that families and
communities which have also been affected by the torture and illtreatment received by one of its members can also be considered as
victims.
12
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