Decision of the African Commission on
Human and Peoples' Rights on the Merits
Communication 376/09 - Acleo Kalinga
(represented by Rhys Davies & Ben Keith
International Human Rights Advisors) v.
Uganda
Summary of the Complaint
1. The Secretariat of the African Commission ,ort Human and Peoples' Rights
(the Secretariat) received a Complai:i;it on 20''·May 2009, submitted by
Redress Trust (REDRESS), World Organization Against Torture (OMCT)
and the International Rehabilitation Council for·Torture Victims (IRCT)
(the Complainants) on behalf of Mr. Acleo Kalinga (the Victim), against the
Republic of Uganda1 (the Respondent State or Uganda) pursuant to Article
55 of the African Charter on Human and Peoples' Rights ( the African
Charter).
·
2. The Victim is a Rwandese citizen, who according to the Complainants was
arbitrarily detained and ·subjected to torture and other cruel, inhuman and
degrading treatment in Uganda between 7 June 2005 and 3 May 2007.
3. The Complainants aver that on 7 June 2005, while on a journey from Kigali
to Mbara in Western Uganda to pick up his friend's sick mother, the
Victim stopped at a hotel for lunch. During his meal, a man informed him
that he had parked his car incorrectly. The Complainants allege that upon
returning to the car park, the Victim was bundled into a car by individuals
who he believes to be members of the Ugandan Security Services and
driven away.
4. According to the Complainants, from 7 June 2005 to 3 May 2007, though
never charged with any offence, the Victim was held incommunicado in
:;;.--;:;
~ 0 ;1<
1 The Republic of Uganda became a party to the African Charter on 10 May 1986.
/-"'"' s"-
r
v
'
'
2
(")
0
1,
X.
various detention centres including a number of safe houses and secret
prisons.
5. The Complainants allege that the Victim was denied access to his family,
legal representation, medical treatment, consular assistance, and the
possibility to challenge his detention by way of habeas corpus.
6. The Complainants state that during the period of his detention, the Victim
was repeatedly interrogated about his reasons for travelling to Uganda,
accused of being ·a member of the Rwanda Defence.Forces (RDF) involved
in espionage and of planning to shoot senior ygandarn. officials.
'' ~.
7. The Complainants aver that the Victim was subjected to V<'!,rious forms of
ill-treatment and on a number of occasions he w~s held in . s,o'litary
confinement for months; blindfolded and kept in small rooms; denied
access to toilet and bathing facilities arid for nine months of his detention,
he was only fed three times a we.ek.
8. The Complainants allege 'that the Victim was subjected to further forms of
ill-treatment such as; binding and stretching of his testicles; prolonged
application of extreme heat, incl,uding the 'ironing' of his back.; prolonged
hanging by his wrist from the ceiling of hi~, ~ell; electrocution; dousing
with freezing water; repeated beatings with batons, electrical wires,
wooden bars; starvation and denial of medical attention.
•
7
9. The Complainants further allege that various types of psychological
torture were inflicted on the Victim such as: death threats made while
guns were _shoved in his mouth; guns fired while held next to his ears;
confinement in small rooms where there were rotten cadaver of the other
tortured deJainees with threats that he would suffer the same fate if he did
not co-operate; pr9longed periods of isolation, sensory deprivation and
humiliation.
10. The Complainants state that due to political pressure by the Parliamentary
Committee on Human Rights; the Parliamentary Committee on Regional
Cooperation and the media publicity about the Victim's detention, he was
released on 3 May 2007. The following day, members of the Ugandan
Parliament along with several journalists, escorted the Victim to the
Rwandese Embassy and was taken back to Rwanda.
11. The Complainants aver that as a result of his arbitrary detention, torture
and other ill treatment, the Victim now suffers from serious a
physical and psychological health problems such as the fol
..
f
1\-..q
bleeding, impotence; complete loss of the sense of smell and taste; partial
deafness, partial loss of vision and paralysis of his torso; loss of bowel
control and sensation in his back, joint immobility, frequent fainting
episodes and s~vere headaches. In addition, he suffers from severe
depression, loneliness, anger and fear.
12. The Complainants allege that as a result of his ordeal and his present
physical and psychological state, he is unable to gain employment and
therefore has no means of supporting himself, his children or paying for
medical treatment.
13. Further to the receipt of the Complaint, the Secretariat received additional
information from the Complainants illustrating the developments that
took place subsequent to their filing of the initial c;:ommunication in May
2009 as follows:
14. The Complainants allege that in June 2009,::the Victim was transferred
without due process by Rwandan Security Agents from Rwanda to
Uganda and handed over to individuc:tls of the Ugandan Security Services.
He was again detained for one month in a secret detention facility in
Kololo in Kampala, Uganda. The Complainants state that the Victim
escaped and fle.d to Tanzania ,where he contacted the United Nations
Office of the I-ligh Commissioner for Refugees in Dar es Salaam.
15. While in Tanzania, the Complainants state that the Victim was accorded
Refugee Protection Status on 14 May 2010, on grounds that he should be
protected from return to a country where he is at risk of torture. While the
process of resettlement was ongoing, on 13 September 2010, Ugandan
security operatives abducted the Victim in Dar es Salaam where he was
again allegedly tortured.
16. The Complainants allege that on 14 July 2011, the Victim was forcibly
removed from Nairobi, Kenya, to Uganda, where he was placed in Mbale
Military Camp and was allegedly tortured. As a result, the Complainants
state that the Victim has difficulties standing, walking and using his right
arm.
17. The Complainants further allege that on 25 July 2011, the Victim was
asked by officials of the Uganda Police Defence Forces (UPDF) to
withdraw REDRESS' s mandate to represent him before the African
Commission on Human and Peoples' Rights (the Commission) and was
then released.
::;--: •;;;w~
{(
,fJ:,0"' ~<,l'-E'T
".......-------..
, ([ n
-;,
~-'I
~
18. The Complainants state that on 27 July 2011, the Victim met with
representatives of the International Committee of the Red Cross (ICRC) in
Kampala and following the meeting, the Victim called REDRESS, ,stating
that he had been informed that he will be sent to a "safe House" in Moroto,
Karamoja region in Northern Uganda.
19. The Complainants further state that on 28 July 2011, the Victim called
REDRESS to reinstate his fears of imminent arrest.
Articles alleged to have been violated
20. The Complainants allege violations of Articles 1, 5, 6 and 7 of the African
Charter.
Prayers of the Complainants
21. The Complainants pray to the Commission to:
a.
Direct the Government of Uganda to .conduct, as a matter of
urgency, an independent, impartial and thorough investigation
capable ' of identifying and punishing those responsible for the
alleged treatment of the Victim;
b.
Remind .. the Government of Uganda that in conducting such
investigation, it is under an obligation to ensure that the Victim is
kept informed ofcthe progress and outcome of the investigation and
of any subsequent prosecutions;
c.
Direct the Government of Uganda to provide the Victim with
material and moral damages which must include: loss of earnings;
compensation for his physical and mental pain and suffering, the
uncertainty and fear brought about by his incommunicado detention,
inability to make a habeas corpus petition, humiliation and damage
to his reputation as a result of his disappearance from Rwanda; and
provision for medical and psychological care and legal and social
services required by the Victim; and
d.
Remind the Government of Uganda to provide the Victim with just
satisfaction in the form of a full and public disclosure of the truth
about his arbitrary detention, torture and ill-treatme
'.:~
_.,,,.1"' tCRE'T A~
• ,-=-
II ,l
s
f (]
!:: :J: ()
,, -
0
\
~
~
,,
official apology, acknowledging and responsibility for his ill
treahnent.
Request for Provisional Measures
22. The Complainants allege that the Victim has again been detained and
tortured by the UPDF in July 2011 (as reflected in paragraphs 14-17 above)
and is at risk of being detained and tortured further in the immediate
future.
23. The Complainants request the Commission tb order provisional measures
against the Government of Uganda to ensure the \:ictim;s right to liberty
was enshrined in Article 6 of the African Charter and to prevent further
violations of the African Charter, in particular ArticleSthereof.
24. The Complainants urge the C~mmission to request the G6vernment of
Uganda not to take any measures that would cause irreparable harm to the
Victim and to adopt provisional measures to:
a) stop or refrain from arbitrarily detairting the Victim;
b) stop or refrain from torturing or ill-treating the Victim;
c) ensure the Victim's physical and psychological wellbeing; and
d) undertake an effective investigation to determine the identity of
those allegedly responsible for the latest incidents of torture
between 14 July and 25 July 2011.
Procedure
25. The Complaint date& 12 May 2009 was received at the Secretariat of the
Commission on 20 May 2009.
26. At its 45th Ordinary Session held from 13 to 27 May 2009 in Banjul, The
Gambia, the Commission considered the Communication and decided to
be seized thereof.
27. On 3 June 2009, the Secretariat of the Commission notified the
Complainants of this decision and requested them to forward their
written submissions on Admissibility within three months.
Communication to its 47 th Ordinary Session scheduled to be held in Tunis,
Tunisia from 12 to 26 May 2010.
29. By Note Verbale and letter dated 30 November 2009, the Secretariat
informed the Respondent State of the Complaint and informed both parties
of the deferment of the Communication to the 47th Ordinary Session of the
Commission to allow both parties submit on Admissibility.
30. On 22 December 2009, the Secretariat received the written submissions of
the Complainants on Admissibility and forwarded same to the
Respondent State.
31. By Note Verbale and letter dated 4 June 2010 respectively, the Parties were
informed that pending the Respondent State's submissions on
Admissibility, the Communication , Was deferred · to · the 48 th Ordinary
Session of the Commission scheduled to be held from 10 to 24 November
in Banjul, The Gambia. The Respondent State was also reminded to
submit its arguments on Admissibility.
32. By Note Verbale and letter dated 4 October 201Q, the Secretariat wrote to
the Respondent State remi.nding it to forward its submission on
Admissibility ofthe Communication and informed the Complainants of
the same.
33. At its 48 th Ordinary Session, the Commission deferred consideration of the
Communication to its 49 th Ordinary Session pending the Respondent
State's submissionon Admiss~bility.
34. On 12 November 2010, the Secretariat received the Respondent State
submissions on Admissibility of the Communication and a request for an
oral hearing on the Communication and forwarded same to the
Complainants on 9 December 2010.
35. By letter dated 21 April 2011, the Secretariat received the Complainants
additional submissions on Admissibility and forwarded same to the
Respondent State on 1 May 2011.
36. By letter dated 25 July 2011, the Victim wrote to the Secretariat
withdrawing rep~esentation of the Complainants (REDRESS) to represent
him on the Communication. 'The Secretariat informed the Complainants
and requested the Complainants to confirm the termination of the mandate
of all the Complainants to represent the Victim, seeing th ·
·
1
letter only made mention of one of the Complainants, i.e. RE
11
\\~-
37. By letter dated 28 July 2011, the Complainants requested for provisional
measures pursuant to Rule 111 of the Rules of Procedure of the
Commission.
38. By letter dated 24 August 2011, the Complainants informed the Secretariat
and that the Victim was under duress at the time he wrote withdrawing
the Complainants representation and that they were still representing the
Victim.
39. By letter dated 29 September 2011, the Secretariat acknowledged receipt of
the Complainants letter of 24 August 2011, infon:11ing them that the request
for provisional measures has been forwarded to the Bureau of the
Commission and would inform them of th.e outcome. In · the same letter,
the Secretariat sought some clarity on the alleged facts of the
Communication.
,·
40. By letter and Note Verbale dated 9 Nove:rribf r4011, the Secretariat wrote to
the Complainants and the Respondent State informing both parties that at
its 50th Ordinary Session, which tookplace in Bamjul;>The Gambia, from 24
October to 7 November 2011,the Commission deferred consideration on
Admissibility of the Communication due to the pending request by the
Respondent State for an oral hearing before the Commission.
41. By letter dat~d 29 Novembef 2011, the Complainants wrote to the
Secretariat with,d rawing their representation in the Communication with
immediate effect: ·
42. By e:mq.il dated. 20 February 2012, the Victim wrote to the Secretariat
introducing himself and inquiring about the Communication and whether
it is possible for hirn to represent himself or whether there are any other
provisionsJ rom the Commission.
43. By letter and Note Verbale dated 6 March 2012, the Secretariat
acknowledged receipt of the letter from REDRESS dated 29 November
2011, received at the Secretariat on 17 February 2012, and wrote to IRCT
and OMCT informing them about the letter from REDRESS. In the same
letter, the Secretariat enquired about the Victim's correct contact details
and informed both Parties about the date set by the Commission for the
oral hearing requested by the Respondent State.
44. By letter dated 17 April 2012, REDRESS informed the Secretariat
do not have the contact details of the Victim and that they h
.l
Ii :,
0
V
.z
\ ')
., -
\
.
0
0
.
informed by OMCT and IRCT that they have equally terminated their
representation of the Victim in the Communication.
45. By Note Verbale dated 25 May 2012, the Secretariat informed the
Respondent State that at its 51 st Ordinary Session which took place in
Banjul, The Gambia, from 18 April to 2 May 2012, the Commission decided
to defer consideration of the Communication pending the oral hearing
requested for by the Respondent State.
46. By email dated 17 July 2012, the Secretariat acknowledged receipt of the
Victim's email of 20 February 2012, and informed him about the status of
his Communication and possibilities of,. representing himself in the
Communication.
47. By email dated 26 July 2012, the Complainants (I~CT and OMCT)
confirmed the termination of their representation of the V,jctim in the
Communication.
48. By letter dated 13 Augt,1St 2012, the Victim also confirmed termination of
the Complainants representation in the ·communication and enquired as to
whether the Commission can assist him to contact NGOs or Associations to
represent him in the Communication.
49. By letter dated 16 August 2012, the Secretariat acknowledged receipt of the
Victim's letter of 13 August 2012, m;d informed him that the Secretariat
does not contact NGOs on behalf of Complainants. The Secretariat referred
the Victim to the website of the Commission where he can access a list of
NGOs with observer Status with the Commission to contact any of them
for assistance. The Commission has since not heard from the Victim.
50. By letter dated 4 ~ar~h 2015, the Secretariat informed the Respondent
State thaf'further
its Note Verbale of 28 October 2010, requesting for an
oral hearing a.pd the Commissions subsequent Note Verbale of March
2012, the Cqmmission during its 17th Extra-Ordinary Session which took
place from 19 to 28 February 2015, in Banjul, The Gambia, considered the
Communication and decided to invite the Respondent State for the
requested oral hearing during the 56th Ordinary Session of the
Commission, which took place from 21 April to 7 May 2015 in Banjul, The
Gambia.
to
the related documents to the case and requested for a postponement of the
oral hearing to the 57°1 Ordinary Session of the Commission from 4 to 18
November 2015 in Banjul, The Gambia.
52. By Note Verbale dated 29 April 2015 and further to the request by the
Respondent State during the 56 th Ordinary Session of the Commission, the
Secretariat forwarded copies of the documents (Complaint, submissions
and all other documents) on the Communication to the Respondent State.
53. By Note Verbale dated 16 May 2015, the Secretariat informed the
Respondent State that during its 56 th Ordinarr Session, the Commission
deferred consideration of the Communication due to the request of the
delegation of Uganda for a postponement of the oral hearing to the 57th
ordinary Session of the Commission.
54. By Note Verbale dated 11 August 2015, the Secretariat informed the
Respondent State that during its 18th Extra- Ordinary Session which took
place from 29 July to 7 August 2015, in Nairobi, Kenya, the Commission
deferred consideration of the Communication due to the pending oral at
the 57th ordinary Session of the Commission.
55. By Note Verbale dated 12 October 2015, the Respondent State requested
the Secretariat to furnish the Ministry of Justice with all relevant
documents on the Communication and a confirmation of the dates set for
the oral hearing during the 57th Ordinary Session to enable the
stakeholders make the necessary arrangements on time.
56. By Note Verbale. dated 20 October 2015, the Secretariat acknowledged
receipt of the Respondent State's Note Verbale of 12 October 2015 and
informed it of the date set for the oral hearing during the 57th Ordinary
Session of the Commission.
57. By email dated 26 October 2015, the Respondent State acknowledged
receipt of the Secretariat's Note Verbale of 11 August 2015 and informed
the Secretariat that it misplaced the Communication file and requested the
Secretariat to forward all the relevant submissions filed by the
Complainants to enable the Respondent State prepare to attend the oral
hearing. Consequently, by Note Verbale dated 7 November 2015, the
Secretariat submitted a copy of the Communication file to the Respondent
State and postponed the oral hearing to the 19th Extra-Ordinary Session of
the Commission scheduled to from 16 to 25 February 2016 in Banjul, The
Gambia.
58. By Note Verbale dated 4 February 2016, the Secretariat informed the
Respondent State of the date for the oral hearing during the 19th ExtraOrdinary Session of the Commission.
59. During the 19 th Extra-Ordinary Session of the Commission held in Banjul,
the Gambia from 16 to 25 February 2016, the Commission held an oral
hearing which was only attended by the Respondent State.
60. The Commission differed consideration of the Communication on
Admissibility between the 58 th Ordinary Session to the 19th Extra-Ordinary
Session of the Commission.
61. By letter and Note Verbale dated 23 June 2023, the Secretariat informed
both parties that during its 20 th Ordi.n ary Session held from 9 to 18 June
2016, in Banjul, The Gambia, .. · ·the Commission considered the
Communication and declared it Admissible, and requested them to
forward their written submissions on Merits.
62. By letter and Note Verbale dated 21 November 2016, the Secretariat
acknowledged receipt of the email dated 14 bctobJr 2016, forwarding a
petition from the Victim and to inform both p;irties that during its 59 th
Ordinary Session, which took place from 21 October to 4 November 2016 in
Banjul, The Gambia, the Commission considered Mr. Kalinga' s request to
contact REDRESS to restore their representation on the above-mentioned
Communication, and agreed to forward the petition to REDRESS as
requested.
63. The
Commission deferred consideration on the Merits of the
Communication from its 21 st Extra-Ordinary Session to 23rd Ordinary
Session, ·pending the C0,mplainant's submission on the Merit, and granted
30 days e~tension for the Complainants to submit.
64. By Letter dat,ed 21 November 2018, the Secretariat informed the
Complainan:ts that during its 63 rd Ordinary Session, which took place form
24 October to 13 November 2018, in Banjul, The Gambia, the Commission
considered the request of the Victim's letter dated 16 October 2018, and
decided that, the Complainants should provide the Commission with
adequate reasons why the Commission should allow them to submit on
the Merits out of time.
65. By Letter and dated 21 November 2018, the Secretariat informed both
parties that during its 68 th Ordinary Session which took place virtuall
from 14 April to 4 May 2021, the Commission considered the req:rt'gsf,t
1
/,/,,,.• 't-e,l'-t'l ARJ,i
/1~·
1/ ..:.:,.., s ~-----
,(i
- ~~
g~
4FR,c~
-~
-~- ~- . ,-;;,,.,<
Complainants letter dated 22 February 2021, and decided to grant the
Complainants an extension of one (1) month to submit on the Merits.
66. By letter dated 18 October 2021, the Secretariat acknowledged receipt of
the Complainants letter dated 8 August 2021, informing the Secretariat of
the new legal representative of the Victim (i.e. Rhys Davies & Ben Keith
International Human Rights Advisors, in United Kingdom) and
forwarding the Complainants submissions on the Merits of the
Communication.
67. By Note Verbale dated 18 October 2021, the · Secretari?tt forwarded the
submissions on the Merits to the Respondent State and requested its
observations on the Merits within two (2) months of the notification
thereof.
68. A decision on the Merits of the Commission was deferred from the 70 th to
78 th Ordinary Sessions of the Commission.
The Law on Admissibility
Complainants Submission on Admissibility
69. The Complainants submit that the Communication meets the Admissibility
requirements under Article 56 of the African Charter and focused its
submissions exclusively on the exhaustion of local remedies under Article
56(5) of the African Charter. Accordingly, the Complainants submit that in
the present Communication, domestic remedies were unavailable,
ineffective and insufficient; thus, the Victim was not bound to exhaust local
remedies before bringing the Communication to the Commission.
70. The Complainants aver that in Sir Dwada K. Jawara v The Gambia, the
Commission recognized that domestic remedies must be available,
effective and sufficient and further stated that: "a remedy is 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". 2
71 . The Complainants submit that in Purohit and Moore v. The Gambia, the
Commission held that a remedy which exists in theory but is only available
to those who can afford to access it will not be considered effective. 3 The
Complainants further submit that in Alhassan Abubakar vs. Ghana, Sir
2
.-,:;:w;
,:.·
fl
Communication 147/ 95 and 149/96 -Sir Dawda K. Jawara v The Gambia, paras 31, 32.
3 Communication 241/2001- Purohit and Moore v. The Gambia, paras 34 - 37.
~~"'~e,P.ET
0
v
-~
'•1
' ~> n
·-
\ ~~
0
ri
.
4
~
Dawda K. Jawara v. The Gambia and Kazeem Aminu v. Nigeria, the
Commission recognized that it would not be "logical" to require an
individual to return to the State where he or she has allegedly suffered
violations of his or her fundamental rights and from which he or she had
fled, in order to bring a claim for reparation. 4
72. The Complainants aver that while an individual alleging torture and other
ill-treatment in Uganda would normally be able to lodge a Complaint
before the Ugandan High Court or the Uganda Human Rights Commission
("UHRC"), neither of these options is available to the Victim as he is
unable to travel to Uganda due to his serious state of health; 5 his limited
financial resources since he is unable to work as a result of his torture and
other ill-treatment; and the fears he has for his safety and security given
the manner in which he fled from Uganda.6
73. The Complainants argue that the serio11sness o,f the Victim's ,fear for his
safety and security is reinforced by the , absence of a law or specific
programme in place in Uganda providing protection for victims and
wih1esses, and by the reports of harassments ofcomplainants of torture in
Uganda such as: verbal intimidation, being followed by persons in
unmarked cars and attempted arrests.
74. The Complainants argue that if the Victim brought a civil claim for
compensation before the Ugandan High Court, he would most likely be
subjected to an order for security for costs as he is a non-resident plaintiff. 7
To reinforce their arguments, the Complainants stipulated provisions from
Order XXVIII Section 5 of the Ugandan Rules of Civil Procedure, which,
states that "where any court to which an application is made for the issue of a
commission for the examination of a person residing at any place not within
Uganda is satisfied that the evidence of that person is necessary, the court may
issue the commission or a letter of request".
75. Based on the above submission the Complainants argue that if this
procedure of taking evidence on commission was ordered by the Court,
4 Communication 103/9 - Alhassan Abubakar vs. Ghana, paragraph 6. See also, Sir Dawda K.
Jawara v. The Gambia, at para. 35; Communication 205/97 Kazeem Ami.nu v. Nigeria, para. 11.
5 See, Annex 4 containing the expert medical report by Drs. Morten Ekstrnm and Onder
Ozkalipci, together with enclosures. According to the Complainants, further to the medical
examinations, the victim has been advised to travel only for the purpose of receiving medical
treatment.
6 See, Annex 2 containing the victim's affidavit.
7 Under Order XXVI section 1 of the Ugandan Civil Procedure Rules, a defendant is .l;ll
_~_ i±
· ~-l\;
security for the payment of all costs.
/ /~ o"' ~
1/.-,"'' sl:-c. l'l
·t . ":.-""
~ :f
11}
!, ~
'.
....
0
#~
r
the Victim would have to meet all the costs involved, which would be very
considerable and beyond his means. If a commission was not ordered, the
Victim would only be able to submit evidence by deposition before a
notary public in Rwanda under Order 28, Rule 4 of the Ugandan Civil
Procedure Rules. It is further argued that, such evidence would have little
probative value as it would not be tested by cross-examination and would
therefore greatly prejudice the Victim's case. Accordingly, the
Complainants submit that in these circumstances, the Ugandan High Court
would not constitute an available and effective remedy for the Victim to
pursue.
76. The Complainants also argue that, while the Victim could theoretically
make a complaint to the UHRC, without his presence in Uganda, the
UHRC would not constitute an effective temedy. According to the
Complainants, the UHRC would qe unable t9 ~arry out its investigations
into the Complaint unless it traveled' to Rwanda, mosf probably on a
number of occasions, to interv,:ie'vV the Victim.and other potential witnesses.
The Complainants state that in light of the UHRC' s limited resources, this
is unlikely to be a possi?ility. 8
to
77. The Complainants aver that according
the norms set forth under the
Ugandan Constitution (Uganda Human :Rights Commission Procedure
Rules) S.I. Constitution 8, Rule 17, a Complainant is requested to be
present, once the case reaches the Tribunal stage, otherwise the hearing
may proceed in his or her absence. ,Taking into consideration the abovementioned provisions, the Complainants state that the Victim would not be
able to be present in Uganda. Accordingly, the Victim could therefore only
provide evi4ence by deposition which would greatly prejudice his case as
no opportunity for cross-examination would exist and he would be unable
to app~ar in ·person to demonstrate to the Tribunal Commissioners the
treatment
receiy,ed and the consequences thereof. In addition, the
Complainants note that at the time, the UHRC was not fully functional
from 21 Noyernber 2008, when the term of office of its Commissioners
expired and therefore was not, until an undetermined date, in a position to
hold Tribunal hearings. 9
he
See, Uganda Human Rights Commission, supra note 2, Annex 3 at 124 (setting out the
"inadequate funding. The Commission is not facilitated sufficiently to carry out its constitutional
mandate").
9 See Uganda Human Rights Commission, Press Release, Public
http:/ /www. uhrc.u g/press release.php?item 9.
8
78. The Complainants state that there is no criminal offence of torture in
Uganda, and for that reason, there can be no criminal investigations or
prosecutions for the crime of torture as such. Hence, the Complainants
assert that even if those responsible for the alleged violations committed
against the Victim were prosecuted by ordinary offences, these fail to
capture the specific nature of torture. The Complainants submit that for
these reasons, the Victim was unable to file a criminal complaint in
Uganda.
79. The Complainants argue that even if the Victim had a prospect of filling a
civil complaint and obtaining reparation in, · civil proceedings, such
proceedings would not be a sufficient remedy for ;ehe Victim as the
complaint is alleging serious violations of human rights, such as torture
and seeking an investigation into these violations.
80. Accordingly, the Complainants _submit that both the Ugandan Courts and
the UHRC do not present availal?le and effective fora in which the Victim
could seek a remedy and reparatio1,1. The Complainants indicate that on 1
August 2008, the Victi,m · submitted a formal ·request to the Rwandan
Minister of Foreign -· Affairs and Cooperation to provide him with
diplomatic protection by espou~ing his claim with the Government of
Uganda and the Victim's representatives . received no response to this
request. In addition, they claim that on 18 'December 2008, the Victim's
representatives wrote to the Minister of Foreign Affairs and Cooperation
repeating the request to formally espouse the Victim's claim and
requesting a response by 10 January 2009; and they have received no
response. For the abovementioned reasons, the Complainants assert that
no available and effective remedies exist by which the Victim could pursue
his cla1m again~t the Respondent State.
Respondent State's Submission on Admissibility
81. The Respor:ident State challenges the Admissibility of the Complainants
submission. The Respondent State submits that the Communication does
not fulfill the requirements set out in Article 56(5) of the African Charter,
which requires that local remedies should have been exhausted before a
complaint is brought to the Commission, and thus should be declared
inadmissible.
still pursue his Compliant and have his cause heard. The Respondent
State went further to cite the Commission's decision in Institute for
Human Rights and Development in Africa (on behalf of Jean Simbarikiye)
v. DRC 10, where the Commission held that a Complainant must prove that
attempts were made to exhaust local remedies and provide evidence that
he or she is undergoing physical and financial constraints that prevent
him or her from exhausting local remedies. The Respondent State argues
there is no proof that the Victim has made any attempt to exhaust local
remedies and furthermore he does not provide evidence proving that he is
undergoing physical and financial constraints that prevent him from
exhausting local remedies.
83. The Respondent Statedted Ugandan human rights legislation, specifically
the Ugandan Human Rights Act Cap.24 in Section 25 which provides that
'where a person entitled to bring a complaint before the Commission against any
violation of a human right is incapacitated from doing so by reason of age,
infirmity of body or mind, detention or just c;ause, whether similar to the
foregoing or not, then the Complaint .may be brought at any time within five(S)
years after the incapacity ceased or the person entitled to bring the complaint dies
whichever event first occurs'. The Respondent State argues that the Victim
still has the opportunity to lodge his complaint with the UHRC after he
has recovered physically and financially.
84. The Respondent State contends the Complainants argument that the
Victim fears for his safety and security given the way he left Uganda and
that this fear is reinforced by the absence of a law or specific programme
in place in Uganda .providing protection for victims and witnesses and
reports of harassment of comp faints of torture and other ill-treatment.
85. According to the Respondent State, the Victim's safety is guaranteed
because Uganda is a party to all relevant international conventions against
torture and the Robben Island Guidelines for the Prohibition and
Prevention of Torture, . Cruel, Inhuman and Degrading Treatment.
Furthermore, the Constitution of the Republic of Uganda 1995 under
Article 24, guarantees protection from torture or cruel, inhuman or
degrading treatment or punishment. Accordingly, the enactment of a Bill
on the prohibition and prevention of torture is also in its advanced stage.
The Respondent State, therefore, submits that all these laws and efforts
demonstrate that the Victim's safety is guaranteed once he enters into
Ugandan territory to institute his suit.
10 Communication 247 /02 - Jnstitute for Human Rights and Development in Africa (on behalf of
JeanSimbarikiye) v. DRC.
r/
f!
1/ o;-.:;u-
~c.,"","'<,'-c,fhc1
r
V
~
f
I-~
1-t
'J
(')
~~ ~~
~
i >. ,qmic,
....
~~1ll/c,En
86. On the Complainants argument that if he lodged a case in the High Court,
as a non-resident he would be required to pay for security costs, the
Respondent State argues that the Victim could have lodged a complaint in
the High Court as the Courts in Uganda have decided in various cases,
such as in East African Holdings Ltd vs. Madavan HCCS 1181 of 1988,
that the payment of security for costs is not mandatory but at the
discretion of a judge.
87. The Respondent State submits that the UHRC' s funding has greatly
improved 11 and is fully constituted with six full time Commissioners
sworn in, in May 2009. Therefore, the Victim can notify the UHRC of his
case to enable it initiate investigations in line with Article 52 (1) of the
Constitution 1995(which permits the UHRC to instate suo moto
investigations) and the decision of the UHRC in its Complaints Handling
Procedure Manual 2008, that any person may bring an issue to the
attention of the . Director of Complaints and Investigations that they
believe requires a Commission initiated investigation.
Complainants
Admissibility
Response
to
the
Respondent :State's
Submission
on
88. The Complainants submit that the remedies referred to by the Respondent
State are not available to the Victim because to effectively access the
remedies would require the presence of the Victim in Uganda. The
Complainants refer to the case of Anuak Justice Council v Ethiopia 12,
where the Commission held that a remedy may only be available if the
petitioner can pursue it without impediments or if he can make use of it in
the circumstances of his case. The Complainants submit that the Victim
therefore is not required to exhaust any local remedy which is found to be,
as a practical matter, unavailable or ineffective.
89. The Complainants further submit that contrary to the Respondent State's
assertion that his safety "is guaranteed once he enters into Ugandan
territory to institute his suit", he could not and still cannot return to
Uganda due to well-founded fears for his safety which existed at the time
the initial communication was filed in May 2009, and which continue to
exist today.
11 UHRC in its 2008 Annual Report acknowledged that there has been improvement in funding as
reflected in the financial year 2008/2009 budget allocations.
Communication 299/205- A1mauk Justice Council v Ethiopia, para. 51 .
12
90. The Complainants aver that the Commission has established that the mere
fact that a Complainant is located outside the Respondent State does not
provide an exception to the requirement to exhaust local
remedies 13 .However, the Commission has also consistently held that
Complainants who escape for fear of their life could not be expected to
return to the Respondent State to exhaust local remedies. Accordingly the
Complainants make reference to Rights International v Nigeria, where
the Commission held that the Complainant was "unable to pursue any
domestic remedy following his flight for fear . of his life" 14, Alhassen
Abubakar v Ghana, where the Commission held that it would not be
logical to require an individual to return ta,
State where he or she has
allegedly suffered violations of their fundamental rights and from which
he or she had fled, in order to bring a claim for reparc:1tion'fJ 5 and
particularly, in Gabriel Shumba v Zimbabwe, where the Complainant fled
Zimbabwe for fear of his life after having been tortured 1:>y the Zimbabwe
Republic Police, the Commission established that no attempts need to be
made to exhaust local remedies16 •
the
91. The Complainants submit that the. above facts are similar to those in the
present Communication because the Victim was arbitrarily arrested,
detained incommunicado and systematically tortured for almost two
years by individuals belonging to Ugandan Security Services, the
Ugandan Army and Ugandan Police1 7. The length of the arbitrary
detention and the severity of his to;ture over a long period of time
naturally instilled r. high level of fear in the Victim and left him physically
impaired and traumatized18 . The Complainants referred to the
Commission's decision in Jawara v The Gambia, where the Commission
held that "it would be reversing the clock of justice to request the
Complainant to attempt local remedies" .19
>
.
,,
'
92. The Complainants argue that the Victim's fear for his life if he returned to
Uganda is rein.forced by the absence of any legislation and any programme
that would provide protection against reprisals and threats, should he plan
to file a Complaint against the State Agencies that allegedly were
responsible for the violations forming the subject matter of the
13
Communication 219/1998-Legal Defence Centre v The Gambia,para 17.
14 Communication 215/98- Rights International v Nigeria, para 24.
15 Communication 103/1993-Alhassen Abubakar v Ghana, para 6.
16 Gabriel Schumba v Zimbabwe- paras 89, 90.
17 See initial Communication, Annex 2- the Applicants affidavit.
18 See initial Communication, Annex 4- Medical Report.
19 Communication 147/95- Sir Dawda K Jawara v The Gambia, para 40.
Communication. The Complainants state that while Respondent State
argues that it ratified international conventions that would ensure the
Victim's safety and security once he enters Ugandan territory to institute
his suit, it does not provide any evidence as to how these international
treaties are implemented by the State in practice. The Complainants refer
to the UHRC' s Twelfth Annual Report of 2009 that stated that it faces a
number of challenges in particular in relation to Complaints initiated by
victims of torture against the Uganda Police Force and that there are
reprisals against victims and witnesses by security operatives. 20
93. The Complainants argue that developments subsequent'to the filing of the
initial complaint in May 2009, illusb'ate the risks the Victim would be
exposed to should he return to Uganda, namely continued arbitrary
detention and further torture illustrated by tlle facts as stated in para. 1519 above. The Complainants cited tht Commis,sion's decision in John D.
Ouko v Kenya, where the Com:rriissiqit held th,a t where the Complainant
is unable to pursue any domestic remedy following his flight to the DRC
for fear of his life, and his subsequent r~cognition as a refugee by the
Office of the UNHCR, the Complainant is unable to pursue any domestic
remedy, and therefor,e declared the Communication admissible, based on
the principle of constructive exhaustion of local reinedies. 21
94. For the above reasons, the Complainants submit that the Victim was not
and still is notable to return to Uganda to lodge a complaint due to fear of
his life and the remedies referred to by the Respondent State were and are
not readily accessible and hence'not available to the Victim.
95. Regarding the Victim's health, the Complainants note that their initial
subm~ssion included a detailed expert medical and psychological report
setting out the constraints preventing the Victim from h·avelling to
Uganda to attempt to exhaust local remedies. The reports are based on a
comprehensive two months treatment of the Victim in a rehabilitation
centre specialised for rehabilitating victims of torture. This report
confirmed that the Victim is suffering from severe depression and posth·aumatic sb'ess disorder concluding that the Victim was massively
traumatized.
96. The Complainants further note that the Victim's release in May 2007 was
widely reported in the media and the Annual Report of the UHRC of 2006,
also referred to the Victim's detention without charge in 2006. Therefore,
the Respondent State knew of the case in May 2007, if not earlier, yet no
investigations appear to have been carried out by the time the Complaint
was filed before the Commission in May 2009, almost two years after the
Victim's release. Instead the Respondent State submits that the UHRC by
its mandate can suo moto initiate investigations yet fails to adduce any
evidence that such an investigation has been launched in regards to the
Victim's case.
97. The Complainants therefore submit that it is inconceivable to expect the
Victim to return to Uganda in light of the psychological report findings to
the Victim's health as a result of the torture he allegedly suffered in
Uganda, and in light of the foregoing, request the Con_lmission to find the
Communication Admissible.
Oral Submissions of the Respondent State
98. The Respondent State during the oral hearing held on 17 February 2016,
submitted the following:
i.
the request for oral hearing was .made to amplify its written
submissions on Admissibility in particular, the domestic remedies
available to the Complainants.
ii.
this Communication should be declared Inadmissible as domestic
remedies are available which the Complainants are bound to
exhaust before corning to the Commission in accordance with
Article 56(5) of the African Charter.
iii.
the following remedies are available in Uganda to redress the claims
of the Cmnplainants under the Constitution of Uganda: Article 24
provides that no person shall be subjected to torture and Article
44(2) provides for the non-derrogability from torture. Article 50
provides that where any person claims that a fundamental right has
been infringed, that person can apply to any court for redress,
noting that there have been several cases filed in this regard. Article
52 gives any person or organization a right to bring an action on
his/her own behalf or on behalf of another person including
indigents. The Respondent State cited the case of Greenwich v. AG
of Uganda 2002, where the courts held that another person has the
right to bring an action against any other person.
iv.
the Constitution of Uganda in Article 137 allows any person who
wants to challenge a violation of their rights in Uganda to petition
the Constitutional Court22 .
v.
there are <;1-lso other avenues available for the Victim to lodge a
complaint particularly through the UHRC, whose core function is to
investigate any complaint in accordance with Article 53 of the
Constitution.
vi.
the UHRC is independent, fully constituted, hears and grants
appropriate remedies such as rehabilitation, ·n:i.edical care and
psycho-social remedies.
vii.
the UHRC has been handling many complai1its of this nature 'since
its establishment and accordingly, the Complainants have not
bothered to lodge a singl~. complaint in the Respondent State before
bringing the Communication to the Commission.
viii.
the Complainant$ allegation that by b_rihging the case before the
Courts in Ugai:t;4ar. the Victim wi11-J?e required to pay for securicy for
is baseless as the Courts ~n Uganda have refused to award costs in
matters of human rights. ·
•.
ix.
Uganda has enacted the Prevention of Torture Act of 2012, which
criminalizes torture and affirm_$· its non-derrogable nature including
a sentence , of life imprisonm~nt. The Act also provides for strong
investigations to be carried out and confers a ducy to anyone who
has reasonable grounds to report such acts and provides
·. . remedies/compensation where torture has been properly proved.
Ftuthermore, under the Constitution of Uganda, where a person is
incapacitated to bring a case, a complaint can be brought anytime
within 5 years of the time he is incapacitated and the Victim is still
withiptime to bring a case in Uganda, which he has failed to do.
x.
as such, there is no proof that the Victim filed a case in any Court in
Uganda or the UHRC. The Complainants have thus made no
attempt to file any case through the above-mentioned avenues and
have also failed to proof the Victim's indigence.
xi.
local remedies have not been exhausted and the Communication
should be declared Inadmissible.
The Commission's Analysis on Admissibility
99. Article 56 of the African Charter governs the Admissibility of
Communications and provides seven requirements based on which the
Commission assesses the Admissibility of Communications submitted
before it.
100. The Complainants in this Communication claim that all the requirements
of Admissibility under Article 56 of the African Charter have been met.
The Respondent State argues that the Complainants have not exhausted
local remedies as required by Article 56(5) of the,African Charter.
101. The Commission therefore notes that the sole contentious Article between
the Parties is with respect to the requirement under Article 56(5) of the
African Charter. After carefully examining the Communication and the
submissions of both Parties, the Commission notes that the authors have
indicated that the Communication is compatible with the provisions of the
Charter and the Constitutive Act of the AU as ·,it outlines a prima facie case
of the violations of Articles 1, 5, 6, and 7 of the African Charter; it is not
written in disparaging or insulting language; it is not exclusively based on
news disseminated through the mass media; it was submitted within a
reasonable time; and has not been settled through other international
procedures.
102. Further, since the RespondentState did not make any submissions to the
contrary, the Commission is convinced that the Communication meets six
of the Admissibility requireme.n ts under Article 56 of the African Charter
which has been ~dequately substantiated by the Complainants, raise no
contentious issues and require no further examination. To this end, the
analysis on Admissibility of this Communication will focus on the
requirements contained in Article 56(5) of the African Charter.
103.Article 56(5) of the African Charter stipulates that Communications
should be 'sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged'. The principle of exhaustion of local
remedies is a well-recognized principle of international law. The rationale
behind this principle is that States should be given the opportunity to
address the issue before the matter is brought before international treaty
bodies. Besides, the international adjudicatory bodies are not meant to
function as first instance jurisdictions, especially where effective and
available local remedies exist.
:::g~~
,.
_,'/4
l ~l
.
,·
'-:
. ~
\
,,.1\.
~
104. The Commission has addressed the rule of exhaustion of local remedies in
several of its decisions. In Free Legal Assistance Group and Others v
Zaire 23 and Recontre Africaine pour la Defense des Droits de l'Homme v
Zambia 24 the Commission held that the requirement on exhaustion of local
remedies is founded on the principle that a government should have notice
of human rights violations in order to have the opportunity to remedy
such violations before approaching an international body.
105.Accordingly, the submissions of the Parties in this case will be assessed in
light of the above.
106. The Complainants submit that while an individual alleging torture and
other ill-b·eatment in Uganda would normally be able to lodge a
Complaint before the Ugandan High Court or the UHRC, neither of these
options is available to the Victim as he is unable to travel to Uganda due to
his serious state of health ; his limited financial resources (since he is
unable to work as a result of his torture and other ill-treatment); and the
fears he has for his safety and security given the manner in which he fled
from Uganda.The Complainants further submit that the Ugandan Courts
and the UHRC do not present available, effective and sufficient fora in
which the Victim could seek a remedy and reparation. The Complainants
are therefore of the view that the requirement to exhaust local remedies
must be dispen~ed with in the present · Communication as domestic
remedies are unavailable, ineffective and insufficient. As a result, the
Victim is not required to exhaust any,_ local remedy which is found to be, as
a practical matter, unavailable or ineffective.
107. The Respondent State in response argues that the Complainants have not
attempted to exhaust local remedies and still have both administrative and
judicial remedies left to pursue. According to the Respondent State, the
petitioners could approach both the UHRC and the Ugandan Courts. The
Respondent State thus argue that there is no proof that the Victim has
made any attempt to exhaust local remedies or provide evidence proving
that he is undergoing physical and financial constraints that prevent him
from exhausting local remedies.
108. The real question before the Commission is, in assessing this particular
situation, are the existing remedies available and capable of effectively
remedying the alleged violations suffered by the Victim? Therefore, a
23 Communkation 25/89, 47 /90, 56/91, 100/93 - Free Legal Assistance Group and Others v Zaire
(1995) para. 36.
Communication 71/92 - Recontre Africaine pour la Defense des Droits de l'Homme
(1997) para. 10.
,, .
24
I"'" , ,
<.j
-
0
0
~
\
.__,~,
~llxl::•
IFlrimis,~~-
"'
critical analysis of the circumstances of the case is helpful to determine
whether the Complainants have fulfilled the requirements under Article
56(5).
109.In Sir Dawda K. Jawara v The Gambia, 25 the Commission held that, 'in
evaluating the rule of exhaustion of local remedies, three major criteria
shall be taken into consideration, namely the remedy must be available,
effective and sufficient. The Commission's approach to such criteria
involves three basic enquiries: first, whether the petitioner can pursue the
existing local remedies without impediment (the rule of availability of local
remedies). If the remedies are found to be available, whether it offers a
prospect of success (the effectiveness of/ loca! remedies), and finally
whether it is capable of redressing the complairit'{the ,Bufficiency of local
remedies). However, if the petitioner cannot pm.:.s he lhe ~existing local
remedies without impediment, i.e., if the remedies are not available, the
enquiry ends there as it would not be logical to analyse the eff~ctiveness of
remedies that are deemed unavaHable to address a complaint
110.In the present Communication, the Victim was allegedly never charged
with any offence from,, 7 Ju11e 2005 to 3 M~y 2007. Although never charged,
he was held incommunzcado in various ·detentions centres including a
number of safe houses .and secret prisons; denie·d access to his family, legal
representation, medical treatment, consular assistance, and the possibility
to challenge his detention by way • of habeas corpus. Hence, the
Complainants claim that the Victim could not pursue the existing local
remedies due to his financial inability to travel consecutively to Uganda,
his health problems as consequence of the alleged torture suffered, and his
fear for his life, safety and security.
111. The Respondent State on the other hand, contests the Complainants
arguments and argues that there are sufficient and effective legal and
institutional mechanisms (the UHRC, the Constitutional Court and the
Ugandan High Court) where the Victim could have pursued and can still
pursue his complaint and have his cause heard. The Respondent State
further argues that there is no proof that the Victim has made any attempt
to exhaust local remedies and the Complainants did not provide evidence
proving that the Victim is undergoing physical and financial constraints
that prevent him from exhausting local remedies. According to the
Respondent State, in as far as safety is concerned, the Victim's safety is
guaranteed because Uganda is a party to all relevant international
conventions against torture and the Robben Island Guidelines fo
e
,"':- ,
:;..- ·---.....;
::;;-:,, .. ON f;lJ/\.,4,.,,
<:,tCRET4-9
# ®~·,
~
25 Communication 147 /95 -149/96 Sir Dawda K. Jawara vs. The Gambia, para.
1,~.·
',q,. () '
I
.
~ @.
~
•1 .i:
. <!
l in
\
, )
~1;
~ ~·,
Au~ 3
'3_ \ ,
,~ti!I£. ~
~;;~
~~P,j
{1
~.j'?
l<tclFlt"cme,1~"<"...
.f
ti.
Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading
Treatment and furthermore the Constitution of the Republic of Uganda
1995.
112. The Commission has pointed out in Institute for Human Rights and
Development in Africa (on behalf of Jean Simbarkiye) v DRC and previous
decisions that, there is a need for a Complainant to provide evidence
showing the moral and material constraints alleged to have prevented him
from exhausting local remedies. 26
113. The Complainants, in setting out the constraints preventing the Victim
from travelling to Uganda to attempt to exhaust local remedies indicated
that, the Victim could not return to Uganda to file a Complaint due to the
serious state of his health and the risk of re-,traumatization. Furthermore,
the Complainants argue that due to the Victim's poor health conditions, he
is now unable to perform work, gain employment and financially support
himself. This allegation is confirmed by ~ M~dical Report attached to the
Complaint (Annex 4 - Preliminary Medical. Report) which is clear in
asserting that the Victim now suff€'rs from seri◊l1-s life-long physical and
psychological health problems such as anal bleeding; complete loss of
olfactory sensation; partial deafness, loss of vision and paralysis of his
torso; loss of bowel control and sensation in his back, amongst others.
114. The Complainants also indicate that contrary to the Respondent States'
assertion that th~ Victim's safety and security is guaranteed once he enters
into Ugandan territory to instiµite his suit, the Victim cannot return to
Uganda due to well-founded fears for his safety which existed at the time
the initial Communication was filed in May 2009, and which continues to
exist today. The length of the arbitrary detention and the severity of his
torture over a long period of time naturally instilled a high level of fear in
the Victim and · left him physically impaired and traumatized. The
Complainants argue that the remedies referred to by the Respondent State
are therefore not available to the Victim because to effectively access the
remedies would require the presence of the Victim in Uganda. For these
reasons, the Complainants assert that the Victim cannot return to Uganda
to institute his claim and therefore the remedies are not available.
115.Accordingly, as illustrated above, the Commission is convinced that the
medical report thus confirms the Victim's poor health conditions, inability
to travel to Uganda and also to perform work and financially support
26 Communication 47 /02- Institute for
Jean Simbarkiye) v DRC, para, 33.
-
1 N~•
Human Rights and Development in Africa (o~ ~-
//i·
t/.J
1, ~
lq
• -.i
-
n
0
~
~
~l.kll)f1 4 ''?,
,i
himself. It is true that the High Courts and UHRC could have been
approached as available means to address the situation, however, as
pointed out above, a remedy is considered available if the petitioner can
pursue it without impediment, failing which it will lack the requisite of
accessibility. Even if the Commission was to consider these remedies as
available to the Victim, questions would arise on whether they could offer
prospects of success or whether they could properly remedy the situation?
The answer to these questions would be negative as the Commission has
set out in Purohit and Moore v The Gambia 27 that a remedy which exists in
theory but is only available to those who can afford to access it will not be
considered effective. The Commission is therefore of the view that under
such particular circumstances, local remedi~s/ although a vailable in theory,
cannot be said to be available to the Victim in practice, under this sui
generis situation.
116. Furthermore, the Commission in assessing both Parties' 'submissions on
the issue of the Victim's fear for his safety a~d security, _would like to
reiterate its decisions in Michael Majuru v. Zimbabwe, Alhassen Abubakar
v Ghana and Rights lnternationa.l v. Nigeria 28 where it held that
Complainants who escape for fear of their lives could not be expected to
return to the Respondent State t9 ~xhaust local remedies. The Commission
would also like to cite its decision in Gabriel Shumba v Zimbabwe, where
the Complainant fled Zimbabwe for fear , of his life after having been
tortured by the Zimbabwe Republic Poljce, it established that no attempts
need to be made to exhaust local remedies 29 .The Commission is therefore
of the view that under the present circumstance of this Communication,
due to fear for his life and safety, the Victim cannot be required to return to
the R~spondent State where he has allegedly suffered a series of violations
of his rights and from which he has fled, in order to exhaust local
remedies.
117. The Comm,ission for these reasons, is satisfied that the Complainants have
provided sufficient evidence showing the moral and material constraints
preventing -the · Victim from exhausting local remedies, as the
Complainants have sufficiently proved the Victim's health, financial
constraints and fear for his life and security that prevent him from
exhausting local remedies.
Abubakar v Ghana and Communication 215/98- Rights International V Nigeria,
29 Gabriel Schumba v Zimbabwe, paras 89,90.
118.At this juncture, the Commission would also like to allude to the
Complainants argument that the Victim's release in May 2007 was widely
reported in the media, and the Annual Report of the UHRC of 2006 also
referred to the Victim's detention without charge in 2006. Therefore, the
Respondent State was aware of the matter since May 2007, if not earlier,
and yet no investigations were carried out, before the Complaint was filed
before the Commission in May 2009, almost two years after the Victim's
release. TI1e Complainants therefore contend the Respondent State's
argument that the UHRC by its mandate can suo moto initiate
investigations yet fails to adduce any evidence that such an investigation
has been initiated in the Victim's case.
119.The Commission has held in Article 19 v. Eritre(J, that 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, furthermore, where the State has_, had ample
notice of the violations, it ,should take steps to remedy / them. 30 The
Commission is therefore of the view that the Respondent State did have
ample notice of the Victims case from 2006 and as such s.h ould have
initiated investigations ·on the allegations made by the Victim in line with
Article 52(1) of the Constitution of Uganda, whic,h it did not do.
120.For the aforementioned reasons, it is the view of the Commission that
local remedies .though theoretically available, are not effective and/ or
sufficient. Therefore, the requirement to exhaust local remedies must be
dispensed with in the present Communication and thus holds that the
Complainants have complied with the requirements of Article 56(5) of the
African Charter.
·
121.For these reasons, the •Commission declares this
Admissible.
°Communication 275/03 - Article 19 v. Eritrea. Para, 72,78,
3
26
MERITS
The Complainants submission on the Merits
Alleged Violation of Article 5 of the African Charter
122. The Complainants submit that the acts of torture and ill-treatment
perpetrated upon the Victim, violates Article 5 of the African Charter,
which prohibits "[a]ll forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment".
123. The Complainants submit that the Commiscsion in interpreting Article 5
of the African Charter, referred to Article l .of the UN Convention
against Torture and other Cruel, Inhuman ,or Degrading Treatment of
Punishment (UNCAT),31 and .has drawn o:n
. · the jurisprudence of the
European Court of Hqman Rights on Artjcle 3 of the European
Convention on Human Rights3 2•
124.
The Complainants argue that as recognized by Article 1 of the
UNCAT, the European Court of Human Rights 33 and the jurisprudence of
the Commissi~n, psychological trea.t ment - such as death threats, instilling
fear, solitary confinement, and humiliation - may constitute torture or
cruel, inhuman or degrading treatment or punishment. As the
Commission has recognized, . the term 'cruel, inhuman or degrading
punishment or treatment' "is; to be interpreted so as to extend to the
widest possible protection against abuses, whether physical or mental" 34 .
Moreover, the Complainants argue that the Commission held that
'inhuman or degrading treatment "includes not
only action which
cause
serious physical or psychological suffering, but which
humiliate or force the individual against his will or conscience." 35
125.The Complainants submit that the arbitrary detention of the Victim
was characterized by gross and inhuman acts of cruelty and torture,
including; the binding and stretching of his testicles, wherein the
Victim's testicles were tied with plastic string and attached to a car and he
was told to 'pull the car' with beatings administered if he refused;
prolonged application of extreme heat, including the 'ironing' of his
back, wherein ghee and a shirt was applied to the Victims' back and his back
was 'ironed' causing extreme pain and internal bleeding; and prolonged
hanging by his wrists from the ceiling of his cell, during which time
beatings were administered.
·.
126.According to the Complainants, the Victim was further subjected to
elech·ocution; dousing with free~ing water; repeated beatings with batons,
electrical wires, wooden bars, sticks and military boots; squeezing of his
eyes; starvation; the refusal of me~ical attention; death threats made while
guns were shoved intohis mouth; guns fired while held next to his ears;
confinement to a small room with the rotting cadavers of other tortured
detainees, including one occasion. where he was forced to eat his food out
of the mouth of a dead detainee, with threats of a similar fate if he did not
cooperate; prolonged periods of isolation; sensory deprivation; and
humiliation.
127. The Complainants further submit that the Victim was held
incommunicado for over 23 months, during which period he was denied
contact with a legal representative and with his family members. The
incommunicado detention of the Victim was particularly acute given its
prolonged duration. The Complainants state that the Commission has
recognized that prolonged incommunicado detention in itself may give rise
to a violation of Article 5 of the African Charter36 .
128. According to the Complainants, for nine (9) months of the Victim's
detention, he was fed only three times a week; refused access to toilet
and bathing faciHties and was often deprived of clothing other than shorts
or underwear. Furthermore, the Complainants state that throughout the
Victim's detention he did not know the reasons for, or the duration of his
detention. This caused him severe psychological suffering, amounting
to inhumane or degrading treatment. The Complainants argue that the
Commission has held that being detained arbitrarily, not knowing the
reason or duration of detention, is itself a mental trauma37.
129. The Complainants submit that the Victim now suffers from serious and
life-long physical and psychological health problems as a result of his
arbitrary detention, torture and other ill-treatment. His physical injuries
include but are not limited to anal bleeding, loss of bowel control, urination
of blood, impotence, complete loss of the sense of smell and taste, partial
deafness, partial loss of vision, partial paralysis of the torso, loss of
sensation in the back, joint immobility, frequent fainting episodes, severe
headaches, widespread pain and permanent . scarring. According to the
Complainants, the physical consequence~ ··· of the torture is serious,
significant and ongoing. In addition, the Victim suffers from extreme
psychological problems including Post Traumatic Stress Disorder, as well as
severe depression, loneliness, anger and fear 38 .
130. The Complainants state that the Victim was assessed by medical doctors
namely, Dr. Morten Ekstr0m and Dr. Onder Ozkalipci who concluded,
inter alia, that;" his mental symptomatology and clin.ical evaluation indicate
that he has been massively traumatized; and physical marks on his body are
highly consistent with the allegations of tortureduring his detention period39 ."
131. The Complainants submit that all the acts inflicted on the Victim, as
described above, would satisfy the criteria for any sensible definition of
torture. According to the Complainants, in any event, the acts were
intentionally cai:ried out to inflict severe pain or suffering upon the Victim
during his arbih·~ry detention, .·c onstitute torture or cruel, inhuman, and
degrading treatmerit, in violation of Article 5 of the African Charter.
Alleged Violation of Article 6 of the African Charter
132. The Complainants submit that the Victim was denied his right to liberty
and security of the person and subjected to arbitrary arrest and detention
in violation of Article 6 of the African Charter.
133. The Complainants state that the Victim's arrest was arbih·ary as he was
seized suddenly without explanation, without any lawful basis and was not
3.~ See, Annex 2 containit11; the expert medical report by Drs.
Ozkahpci together with encrosures.
39
Ibid 38
informed of the reasons for his arrest. The Complainants further state that
the Victim was detained for over 23 months without being informed of the
reasons of his arrest and detention, and without ever being charged with
an offence. This according to the Complainants, constitutes an arbitrary
arrest and detention in violation of Article 6 of the African Charter and
the Constitution of Uganda which established that " a person arrested or
detained ... upon reasonable suspicion of his or her having committed or being
about to commit a criminal offence under the laws of Uganda, shall, if not earlier
released, be brought to court as soon as possible, but in any case not later than 48
hrs from the time of his or either arrest". The Complainants also referred to the
decision of the European Court which held that an arrest must be based on
"reasonable suspicion" 40.
134. The Complainants in interpreting the notion of arbitrarily arrest,
referred to the decision of the , Commfasion where it clarified that
arbitrariness is not to be equated wfrh "against the law" but must be
interpreted more broadly to include elelllents of inappropriateness,
injustice, lack of predictability and due process of law" 41 . The Complainants
also referred to the Commission's jurisprudence where it recognised the
right of individuals to be informed of reasons for tJ.,.eir arrest4 2 and where
individuals have been detaine.d without charges being brought, constitutes
an arbitrary deprivation of their liberty in violation of article 6 of the
African Charter43. The Complainants therefore submit that the detention
of the Victim from 7 June 2005 to 3 May 2007, constitutes a breach of the
Victim's rights44,
135.Furthermore, the Complainants. aver that the Victim's rights in Article 6
and 7 of the African Charter were violated in that he was held
incommunicado for over 23 months, during which period he was denied
contact with a lawyer and with his family. The Complainants state that
the Commission • has held that "Incommunicado detention is a gross
human rights violation that can lead to other violations such as torture or
ill-treatment or interrogation without due process safeguards. . .. There
40 See Application 70279/01, Gusinkiy v Russia, European Court on Human Rights, at para 53
41 Communication 275.2003, Article 19 v Eritrea, at para 93.
42 Communication 224/98, Media Rights Agenda v. Nigeria, at para 83-86.
Communication 143/95 and 150/96, Constitutional Rights Project and Civil Liberties
Organisation v. Nigeria, at para 55.
44 The Complainants request the Commission to note that those additional detention periods
detailed above do not form part of the index application and will form the basis of a fresh
Communication to the Commission in due course. Nonetheless those periods of additional
detention highly relevant to the indexed circumstances, tending to suggest a sustained c
N
i;> .
conduct in targeting the Victim, as well as a pattern of failures to respect t ,"'\,P~q_nnsr;;"' <11,
,:.
""<1
0
fundamental rights.
o'"'
;- ~
43
d" (?) \. .
''\,r \
AU.u~
J t'
<- u.,, q ------~-"'".IF
"" <if
+o¾:-.;.,.~ICA!ftt \)l</"~·
"-ETl!)ESII'~
should be no secret detentions and States must disclose the fact that
someone is being detained as well as the place of detention. Every detained
person must have prompt access to a lawyer and to their families" .... 45
136. The Complainants also submit that during the period of his arbitrary
detention, the Victim was also denied access to consular assistance in
contravention of •Article 36 (1) of the Vienna Convention on Consular
Relations 1963 which has been interpreted to confer rights on both the
national to access his or her consulate and the state to access his or her
national.
Alleged Violation of Article 7 of the African Charter
137. The Complainants submit that the Victim was denied the right to have his
cause heard in violation of Article 7 of the African Charter.
138. The Complainants state that Article 7 of the African Charter is violated in
that the Victim was dented the right to challenge his detention by way of
a habeas corpus application before a judicial authority; and the right to have
his detention reviewed on a periodic basis by a court of law or other
appropriate judicial authority. The Complainants state that the
Commission has held that even in cases in which the period of detention
before being brought before a judge is e~panded marginally, the individual
detained must still have the right to make a habeas corpus application to
challenge the detention and access to a lawyer46 .
139.The Complainants further state that the Victim's Article 6 and 7 of the
African Charter rights were violated in that he was denied the right to be
brought promptly before a judicial authority and the right to have his cause
heard. The :ComplaiI1arits submit that not only was the Victim detained for
23 months without being brought promptly before a judicial authority, he
was also not tried. The Complainants refer to Resolution on the Right to
Recourse and Fair Trial, in which the Commission recognized that Article
7 (1) of the African Charter entails that "[p]ersons arrested or detained
shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within a
reasonable time or be released47. The Complainants also refer to the
Commission's decision where it held that refusal and/ or negligence" of the
respondent state to bring the applicant "promptly before a judge or other
judicial officer for trial" constitute a violation of Article 7 (1) (d) of the
African Charter48.
140.The Complainants accordingly submit that throughout the entire period
of the Victim's detention, he was denied access to a lawyer, in
contravention of Article 7 (1) (c) of the African Charter, which sets out the
"right to defence, including the right to be defended by counsel of his
choice. The Complainants argue that the authorities of the respondent
state were under the obligation to provide the Victim with prompt
access to a legal representative within a fe,w days of detention, as
recognized by the Commission. 49
Alleged Violation of Article 1 of the African C::::harter
141. The Complainants submit that the failure to conduct a prompt,
independent, effective and thorough investigation into 'the Victim's
treabnent and the failure to conduct an effective remedy to the Victim for
the breaches of his rights, violates Article 1 'of the African Charter, in
conjunction with Articles 5, 6 and 7 of the African C:harter.
142.The Complainants state that the Ugandan authorities were aware of the
Victim's detention, torture and other ill-treabnent, and that it was only
after the Victim's return to Rwanda and substantial media coverage
of his treabnent, that reports of an investigation emerged in the
Ugandan and Rwandan press, ·however no investigations have been
forthcoming 50 .
143.According to the Complainant, the failure of the Respondent State to
conduct a prompt, impartial, thorough and effective investigation into
the allegations of arbitrary detention, torture and other ill- treabnent
made to the Victim, constitutes a violation of Article 1 read in conjunction
with Articles 5, 6 and 7 of the African Charter.
144. The Complainants further argue that as a result of his arbitrary detention,
torture and other ill-treabnent, the Victim has the right to a satisfactory
remedy and adequate and effective reparation. The right to an effective
remedy and reparation is widely recognised in international law with
particular reference given to the UN Basic P rinciples and Guidelines
on the Right to a Remedy and Reparation for Victims of Gross violations
of International Human Rights Law and serious violations of International
Humanitarian Laws1.
145. The Complainants submit that the Respondent State has not provided the
Victim with an adequate and effective remedy and reparation for the
terrible violations he has suffered. The Complainants reiterated that the
Victim does not have access to judicial remedies in Uganda which he
could pursue, thus, for the above reasons, the Respondent State has failed to
meet its obligation under Article 1 of the 4frican Charter, read in
conjunction with Article 5, 6 and 7 of the African Charter.
Prayers
146. The Complainants pray that in the present C:ommunication, the Victim
seeks the following remedies:
1)
A finding and/ or declaration by the Commission that the Victim
was subjectto violations of Articles 1, 5, 6 and 7 of the African Charter;
2)
A finding and/ or declaration by the Commission that the Victim
was subject arbitrarily detained and torhlred by individuals and/ or
organisations for whom the Respondent State is responsible
3)
That
the
Commission
direct
the
R e s p o n d e n t
S t a t e to conduct an independent, impartial and thorough
investigation .capable of identifying and punishing those responsible
for the alleged treatment of the Victim as a matter of urgency;
4)
That the Commission remind the Respondent State that in conducting
such an investigation, it is under an obligation to ensure that the
Victim is kept informed of the progress and result of the investigations
as well as any subsequent prosecutions;
5)
That the Commission directs the Respondent State to provide
material and moral damages to the Victim. Such damages must
include, but may not be limited to:
a. Loss of earnings (including both past and future earnings
and earning potential given that the Victim is now unable to
work as a result of the torture and cruel, inhuman and
degrading treatment);
b. Compensation for his physical and mental pain and suffering,
and damage to his reputation;
c. Provision for the necessary medical and psychological care
and legal; and
d. social services required by the Victim.
6)
That the Commission remind the Respondent State of its duty to
provide the Applicant with just satisfaction, in particular in the form
of a full and public disclosure of the truth about his arbib·ary
detention, torture and ill-b·eatment and an official apology,
acknowledging and accepting responsibility for his treatment.
Submission of the Respondent State on Merits
147.In accordance with the provisions .of Rule 105(1) of its Rules of Procedure
(2010), the Parties shall each have sixty (60) days to make their submissions
on the Merits to the Commission. They sh 9ll also have at their express
request, an additional period of time not exceeding thirty (30) days per
party at each stage of the proceedings; to make their submissions. The
Secretariat ensures the exchange of ,written submissions and compliance
with these various deadlines.
148.In the present case, the Commission notes that the above procedural
requirements have been complied with. In addition, due to time
constraints,. the CC?mmission deferred the examination of the
Communication to _its successive sessions. Despite this, the Respondent
State did not submit on the Merits nor did it provide any justification for
its failure to do so.
149.As such, the Commission decides to examine the Communication on the
basis of the information in its possession, and make a default decision in
accordance with its own practice 52 . The Commission will therefore
determine whether the actions of the Respondent State as described by the
Complainants, constitute a violation of Articles 1, 5, 6 and 7 of the African
Charter.
Analysis of the Commission on the Merits
Alleged Violation of Article 5
150.Article 5 of the African Charter provides that:
"every individual to have the right to the respect of the
dignity inherent in a human being. It further provides that
all forms of exploitation and degradation , of man,
particularly slavery, slave trade1torture, .crurl, inhuman or
degrading punishment and treatment shalrbe prohibited"
151. The Commission has held that Article 5 of th!2 African Charter is aimed at
the protection of both human dignity and the physical and mental integrity
of the individual. 53 The African Charter does not define the meaning of the
words or the phrase "torture or degrading treatment or punishment."
However, the Coi;nmission· iI:i. its interpretation of Article 5 of the African
Charter, adopted the definition of torture contained in Article 1 of United
Nations Conv,e ntion against Torture (UNCAT) which states that54 :
[T]he term "torture" means any act by "is
intentionally inflicted on a person for such purposes as
obtaining from him 01? a third person information or a
confession, punishing him for an act he or a third
person has committed or is suspected of having
committed, or intimidating or coercing him or a third
person,: or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence
of a public official or other person acting in an offi
Ffi:J!!:
ci ~ ~-,.
Ji\•,..,;fv""'"
capacity.
·/~••' .-,1:.cRn 4R,,i;1,;-~
'
; •:;\-. Ql'II
fl
•
i
®
'ct,. ~\
fl~
I •t
I
I -
) t
I
~o
t
I ' . ••
IJ. \ ;
\~~~:#y!h
~~4~~
s=-, ~·"' ~ 0~"-'
'~
53 Communication 279/03-296/05 para 155.
54 Ibid.
35
152. The Commission also adopted the interpretation of the United Nations
Committee against Torture 55 in its General Comment No. 2, which states
that "for torture to have occurred, the incriminated acts must intentionally cause
severe suffering, be intended to obtain information or a confession, punish the
victim for real or alleged acts, and be attributable to a public official or person
acting in that capacity".
153. In the present Communication, the Commission notes the Complainants
allegations that all the acts inflicted on the Victim as described above in
paragraphs 123 to 128 above, satisfy the criteria for torture and that the
acts were intentionally carried out by state officials, to inflict severe pain
or suffering on the Victim, during his arbitrary detention. The
Commission further notes the Complainants submission that the treatment
the Victim was subjected to include the infliction of not only severe physical
but also psychological pain and suffering resulting in serious and life-long
physical and psychological health problems, as a result of his alleged
arbitrary detention, torture and other ill-treatment, his physical injuries.
154. Consequently, the Commission would proceed to assess whether the
alleged acts stipulated in paragraph 123 to 128 abov;e, do constitute acts of
torhire or cruel, inhuman or degrading treatment and punishment, in
violation of Articl€5 of the African Charter?
155. The Commission recalls its decision in Sudan Human Rights Organization
and Center for Housing Rights an.d Evictions v Sudan56in which it set out the
principal elements that constitute torture under the African Charter,
namely that, severe pain or suffering has to have been inflicted for a
specific purpose,, such as to obtain information, as punishment or to
intimidate, or for any reason based on discrimination, by or at the
instigation of or with the consent or acquiescence of state authorities.
Furthermore, the Commission in Egyptian Initiative for Personal Rights and
Interights v Egypt57 held that 'when a person is injured in detention or while
under the control of security forces, th.e re is a strong presumption that the
person was subjected to torture or ill-treatment.
55 Ibid 19 & See Article 4 of the Resolutio n on Guidelines and
Measures fo r the Prohibition and
Prevention of Torture, C ruel, Inhuman or Degrading Trea tment or Punishmen t in Africa (Rob n
lshmd Guidelines ) adopted by the Commission in October 2002.
56 Communication 279/ 03 - 296/05 Sudan Human Ri hts Or aniza lion and Ce
Rights and Evict.ions v Sud a n (2009) ACHPR para 255 [sic!] &156. .
57 Communication 334/06 - Egyptian Initiative for Personal Rights and I
,
Republic of Egypt pa,a 168.
i
~'\
~o
)
(fl~
.
..; ET CE:;
j)]
;pl
1;
r-_'-:'!~ -: .
-~ ..... -.:::~:.
156. The Commission in determining acts that constitute torture also held in
Malawi African Association, Amnesty International, Ms Sarr Diop, Union
interafricaine des droits de ['Homme and RADDHO, Collectif des veuves et
ayants-Droit, Association mauritanienne des droits de ['Homme v Mauritania 58,
that where the detainees were beaten and forced to make statements;
denied the opportunity of sleeping and being held in solitary confinement,
were acts that details instances of torture, and cruel, inhuman and
degrading treatments.
157. Based on the judsprudence of the Commission above, the Commission in
the present Communication is of the view that the acts inflicted on the
Victim as illustrated in paragraphs 123 to 128 above59, details such a
serious, cruel and inhumane nature that it attains the thresllold of severity
to constitute torture.
158. Regarding the Complainants submission that the Victim _was denied
medical attention during his detention, the Commission in Krishna
Achuthan (on behalf of Aleke Banda); Amnesty International (on behalf of Orton
and Vera Chirwa), Amnestylnternational (on behalf of Orton and Vera Chirwa) v
Malawi 60, held that aspects of the treatment of Vera and Orton Chirwa such
as excessive solitary confinement, shackling within a cell, extremely poorquality food and denial of access to adequate medical care, were in
contravention of Article 5 of the African Charter. The Commission's
Guidelines on Arrest, Policy Custody and Pre-Trial Detention (Luanda
Guidelines) also provides for "the right to urgent medical assistance, to
request and receive a medical examination and to obtain access to existing
medical facilities" 61 . Based on the same reasoning, the Commission finds
that, the denial of the Victim to access medical care while in detention,
constitutes a viol~tion of Article 5 of the African Charter.
58
Communica ti oi1s
54/91-61 /91 -96 /93-98/93-164/97 196/97-210/98
Malawi
African
Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme
and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de
l'Homme v Mauritania.
59 See Annex 2- containing the affidavit of the Victim (including being held in solitary confinement
for a period of months; being held incommunicado in various detention centres including a
number of safe houses and secret prisons, the binding and stretching of his testicles, prolonged
application of extreme heat, including the 'ironing' of his back, electrocution, dousing with
freezing water, dousing with freezing water, starvation and denied medical attention amongst
others).
·
6° Communication 64/92-68/92-78/92_8AR- Krishna Achuthan (on behalf of Aleke Banda),
Amnesty International (on behalf of Orton and Vera Chirwa), Arnnesty~ibiiiilu16.'Q:
n behalf
of Orton and Vera Chin,va) / Malawi- para
61
See Guidelines on Arrest, Policy Custody and Pre-Trial Detention
<"o~~
,~,'·':tcRET -'lJv.q;-~~
/4f'
I
.
l
I
~
~i\.
:~i.)1
i
~ 8
~
Z
~ ~
-0•
u>a
~ ti)i
~ ~1 37
1Pr:: ;,;'"
c,Q
<'-· '1,4 ~/CAIN~ o<i-
,.,q,-<,:;c,
• "'1£: l:T DES I',...
011,
159. It is also the practice of the Commission to rely on sworn testimonies and
a medical certificate as proof of torture 62 . In the present Communication,
the Complainants submit sworn testimony of the Victim and medical
report provided by Medical Experts and Forensic Physician in 2007
following the Victim's release 63 .The Medical Report also containing
pictorial evidence found that "the Victim's mental symptomatology and the
clinical evaluation indicates that he has been massively traumatised and the
physical marks on his body are highly consistent with the allegation of torture
during his detention period" 64 . The Commission in relying on the sworn
testimony of the Victim, backed by the medical report, satisfies itself that
torture occurred.
160. On the issue of the Complainants allegations that the Victim was held
incommunicado for over 23 months, during which period he was denied
contact with a legal representative and with . his family members, the
Commission in its Principles and Guidelines on Fair Trial provide States an
obligation "to ensure that any arrested or detained person is provided with the
necessary facilities to communicate with his lawyer, doctor, family and friends" 65 •
The Luanda Guidelines also provides for "the right of all persons arrested to
contact and access a family member or another person of their choice, and if
relevant consular authorities or embassy" 66 .
161.Moreover, the Commission recalls its decision in Amnesty International,
Comite Loosli Bachelard, Lawyers' Committee for Human Rights and the
Association of Members of the Episcopal Conference of East African Bishops'
Conference v. Sudajz and Law Offi{:e of Ghazi Suleiman V: Sudan, where it held
that detaining persons without allowing them any contact with their
families and refusing to inform the families of the fact and place of their
detention, constitutes inhuman treatment of both the detainees and their
families .
Communication 379/09, Monim Elgak. Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) v Sudanpara 100
62
63
See Annex 2- containing the affidavit of the Victim (describing the places in which he was held). This
affidavit also sets out in detail the torture and other ill treatment inflicted.
See Annex 3- 9th Annual Report to the Parliament of the Uganda Human Rights Commission (page 31-32)
containing a scanned copy of the Makindye Military Barracks 'violent Crime Unit Register containing the
Victim 's name, date of an-est but no charge against him.
See Annex 4-Medical/psychiatiic Report of Danish Medical Group, Amnesty International and
International Rehabilitation Council for Torture Victims in Denmark.
64 See Annex 4 containing the Expert Medical Report by Drs. Mortem Ekstrom and Onder
Ozkalipci together with enclosures.
;;.;:; 0N-;;t;;;,-....
65 Ibid Principle M (2) (e)
.
-1
sf..CR!:T 4;"' ..,,,,
0
66 Principle 4(d), (£)of the Guidelines on Arrest, Policy Custody and Pre-Trial ~ 'enlio
..,~ ~
,f'\)
·
I/{
J
.I
.
@
'~it.'
-•y,..
I
r,
! i.4 ~;;
ti•
I
AU-UA
I
,_
1
~.I.
~- 1
,.
:i
u}o -...--- ~o ~
( . 'I,..,
<:,<::!
">-(.~i.
"R1cA1NE. o<c: "-"'
·il?c er OES pi)SVV
162.In line with the same reasoning, the Commission is of the view that the
prolonged incommunicado detention of the Victim and denial of contact
with his family while in detention, constitutes inhumane and degrading
treatment.
163.Regarding the Complainants argument that more than 14 years after the
Victim's release and despite the media reports on his alleged torture and
arbitrary detention67, the Respondent State did not take measures to
investigate the acts of torture, the Commission refers to the Robben Island
Guidelines which provides that states parties are under an obligation to
establish fully independent mechanisms to which allegations of torture are
brought; ensure that where claims of torture or ill-treatment are brought before the
competent authorities, an investigation shall be initiated; investigations shall be
conducted promptly, impartially and effectively rmd reparations are offered to
victims irrespective of whether a successful criminal prosec:ution can or has been
brought 68 .
These provisions are also reinfo~ced in the Commission's
Luanda Guidelines, which provides that . states shall ensure prompt
investigations into allegations of torture 69 • Similarly, the European Court of
Human Rights i:n Alpar v Turkey 70 also held that States are obligated to
conduct an effective investigation into the claims of the victim on torture,
and having not done so, they violated Article 3 prohibiting torture.
II
II
164.The Commission therefore finds that the failure of the Respondent State to
carry out investigations on the acts of torture meted on the Victim,
constitutes a violation of Article 5 of the African Charter.
165. For the above reasons therefore, the Commission finds that the
Respondent State viola.t ed Article 5 of the African Charter.
Alleged Violation of Article 6
166.Article 6 of the African Charter provides that:
"Every individual shall have the right to liberty and to
the security of his person. No one may be depri'oed of
his freedom except for reasons and conditions
previously laid down by law. In particular, no one may
be arbitrarily arrested or detained.
167. The Commission observes that not all actions that constrain an individual's
physical freedom can amount to a deprivation of liberty in terms of Article 6
of the African Charter. However, a deprivation of liberty that falls outside
the strict confines of the law, or for reasons that are not acceptable or simply
arbitrary, will amount to a violation of Article 6 of the-African Charter. In its
General Comment No. 35, the United Nations Human .Rights Committee
emphasized that a person's liberty and security of person are precious in
themselves, but also because the deprivation of liber.ty· and the denial of the
right to security of person have always beenc means .of hinderfng the
enjoyment of other rights. Both rights ·a re therefore fundamental, because
they condition the enjoyment of other rights 71 •
· ··
168. In the present Communieation, the Complainants submit that the Victim
was denied his right to liberty and security of the person and subjected to
arbitrary arrest and · 'detention. The Complainants also submit that the
Victim's arrest was arbitrary as he was arre~ted without being informed
the reasons of his arrest and detained for 23. months (from 7 June 2005 to 3
May 2007) without ever being charged, with an office and without any
lawful basis72 •
169.The Commission has established in its Principles and Guidelines on the Right
to a fair Trial and Legal Assistance in Africa and Robben Island Guidelines that
anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his/her arrest and shall be promptly informed, in a language
he/ she un9erstands, of any charges against him/her; and ensure that all
persons deprived of tl1eir liberty are brought promptly before a judicial
authority 73 . Furthermore, the Commission's Luanda Guidelines also
provides that "arrested persons shall have the right to be informed of the
reasons for their arrest and any charges against them. 74
170.In general, the Commission has considered arbitrary detention, to mean a
prolonged detention without trial. This position was held in Ouko v
Kenya 75 , where the Complainant was detained for ten (10) months without
trial. The same position was held in Free Legal Assistance Group and Others v.
Zaire 76 , where the Commission held that a detention for an indefinite
period of time was in violation of Article 6 of the African Charter.
Furthermore, the UN Human Rights Committee has also held a similar
position in Chambala v. Zambia 77, where it considered as arbitrary, a
detention for a period of twenty-two (22) months without any grounds of
detention.
171.Jn Constitutional Rights Project and Civil Liberities Organisation v. Nigeria 78,
the Commission held that where individuals have been detained without
charges being brought against them, constitutes an arbitrary deprivation of
their liberty and thus a violation of Article 6 of the African Charter. The
European Court of Human Rights has .also considered that the
unacknowledged detention of an individual c;onstitutes a total negation of
the fundamental guarantees enshrined in Article 5 of the Convention and
an extremely serious violation of this provision 79 . Moreover, failure to
record information such as the date and time 9f arrest, · the place of
detention and the reasons for detention must .be deemed incompatible,
inter alia, with the very purpose of Article 5 of the Convention80, as well as
with the requirement that detention be lawful within the meaning of the
Convention81 .
172.In line with the above reasoning, it is the Commission's view that
arresting the Victim without giving him any reasons for his arrest and
detaining him for a period .of 23 months without charge, constitutes
arbitrary arrest and detention in conh·avention to the above-mentioned
standards and principles laid down by the Commission, and thus, in
violation of Article 6 of the African Charter.
Alleged Violation of Article 7
173.Article 7 of the African Charter guarantees for everyone the right to have
his/her cause heard. This includes the right to:
1.
(a) an appeal to competent national organs against acts
of violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulat-ions and
customs in force;
(b)The right to be presumed innocent until proved
guilty by a competent court or tribunal;
(c) The right to defence, including the right to be
defended by Counsel of his choice;
(d) The right to be tried within a reasonable time by an
impartial court or tribunal."
174. The Commission notes the submission of the Complainants that the
Victim was denied the right to be brought promptly before a judicial
authority to have his cause heard and to challenge his detention by way of
a habeas corpus application. The Commission fui:ther notes the submission
of the Complainants that during the arbitrary detention of the Victim, he
was denied his right to legal representation; consular assistance; and to
contact his familys2.
175. Pursuant to the right of the Victim under Article 7 of the African Charter,
the Commission will assess the argument of the Complainants that the
Victim was detained for 23 months without being brought promptly before
a judicial authority and have his cause heard.
176. The Commission has established in the Luanda Guidelines that" all persons
in police custody and pre-trial detention shall have the right, either personally or
through their representative, to take proceedings before a judicial authority,
without delay, in order to have the legality of their detention reviewed"83 . In its
Principles and Guidelines on Fair Trial and the Robben Island Guidelines,
the Commission also established that "States should ensure all persons
deprived of their liberty are brought promptly before a judicial authority"84 . The
same principle was held in Abdel J:ladi & Others v Republic of Sudan and in
Huri-Laws v. Nigeria, where the Commission found that the "refusal and/ or
negligence" of the respondent state to bring the applicant "promptly
before a judge or other judicial officer for trial" constituted a violation of
Article 7 (1) (d) of the African Charter.
177. While courts and international human rights bodies have determined the
meaning of 'promptness' based on the facts and circumstances of the
individual case, they have set clear upper time limits. General Comment
No. 8 of the UN Human Rights Committee on Article 9 of the
International Covenant on Civil and Political Rights sets out that, "[m]ore
precise time-limits are fixed by law in most States parties and, in the view of
the Committee, delays must not exceed a few days" 85 . The Commission in
the same spirit has held in Annette Pagnoulle v. Cameroon 86 , that two (2)
years without any hearing or projected trial date, constitutes a violation of
article 7 (1) (d) of the African Charter.
178.Additionally, the Commission notes that the Constitution of Uganda87
establishes that" a person arrested or de,tained ... upon reasonable suspicion of his
or her having committed or being about to commit a criminal offence under the
laws of Uganda, shall, if not earlier released, be brought to court as soon as possible
but in any case, not later than 48 hours from the .time of his or her arrest"88 .
179. The Commission is therefore of the view that, the length of detention of
the Victim of 23 -months in custody without charges being filed and not
brought before a judicial authority89, not only constitutes an undue delay in
contravention to the guarantees laid by the Commission and international
standards, but also exceeds the prescribed duration underlined in the
Constih,ltion of Uganda?0•
See M2 (a)(b) and 3 (A) of the Principles and Guidelines on Fair Trial & Article 25, 26 & 27 of
the Robben Island Guidelines
85 UN Human Rights Committee, "General Comment No.8 Right to Liberty and Security of
Persons (30 June 1982) at para 2
86 Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mezou) v Cameroon
84
180. Turning to the argument of the Complainants that the Victim was denied
the right to challenge his detention by way of a habeas corpus application
before a judicial authority and the right to have his detention reviewed on a
periodic basis by :a court of law or other appropriate judicial authority,
the Commission in the spirit to guarantee expeditious access to justice for
persons in detention, would like to refer to its Principles and Guidelines on
the Right to a Fair Trial and Legal Assistance in Africa, which provides that
"judicial bodies shall at all times hear and act upon petitions for habeas corpus ... or
similar procedures. No circumstances whatever must be invoked as a justification
for denying the right to habeas corpus ... "91
181. The Commission therefore finds that the detention of the Victim for 23
months without being brought promptly before a judicial authority and
have his cause heard and the denial of his right to challenge his detention
by way of a habeas corpus applic;aticin before a judicial authority, is a
violation of article 7(1)(d) of the African Charter. .
182. Regarding the Complainants submission that the Victim was denied
contact with a lawyer, consular assistance and 'h is family, the Commission
refers to the Luanda Guidelines and Principles and Guidelines on Fair Trial
which states that" all persons under arrest shall have the right of access, without
delay, to a lawyer of his or her choice, or if the person cannot afford a lawyer, to a
lawyer or other legal service provider, provided by state or non-state institutions
including the right of all persons arrested to contact and access a family member or
another person of their choice, and if relevant consular authorities or embassy" 92 .
183.Similarly, the UN Basic Huma,n Rights reference Guide on Right to a Fair
Trail and Due Process in the context of Countering Terrorism provides that
all persons have the right to representation by component and independent legal
counsel of their choosing or to self-representation at all stages of the proceedings,
and to the right to adequate time and facilities to prepare his or her case 93 .
184. Turning to its jurisprudence, the Commission recalls its decision in Malawi
African Association and Others v. Mauritania 94 and in Krishna Achuthan (on
behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera
Chinua), Amnesty International (on behalf of Orton and Vera Chinua) v Malawi
95 in which it held that where the accused either had no access or only
resh·icted or delayed access to a lawyer, the Respondent State violated
article 7(1) (c) of the African Charter. This is also the position of the
European Court .of Human Rights, which held that the right of every
accused person to be effectively defended by a lawyer is one of the
fundamental elements of a fair trial: "Prompt access to a lawyer constitutes
an important counterweight to the vulnerability of suspects in police
custody, offers essential protection against the coercion and ill-treatment to
which they may be subjected by the police, and contributes to the
prevention of miscarriages of justice and to the achievement of the aims
pursued by Article 6, in particular equality of arms between the accused
and the investigating or prosecuting authorities96".
185. In line with the its above, the Commission finds that the denial of the
Victim to have access to a lawyer and his family, violates Article 7(1)(c) of
the African Charter.
186. The Commission therefore holds that the Respondent State violated
Article 7(1) (c) and ((d) of the African Charter.
Alleged Violation of Article 1 .
187.Article 1 of the African Charter provides that:
'The member states of the Organization of African
Unity parties to the present Charter shall recognize the
rights, duties and freedoms enshrined in this Charter
· and sl1all undertake to adopt legi.slative or other
measures to gi.ve effect to them.
188. The Complainants submit that the failure of the RespondentStateto conduct a
prompt, independent, effective and thorough investigation into the Victim's
treatment a~,, well as, to provide adequate and effective remedy and
reparation for the violations the Victim has suffered, violates Article 1 of
the African Charter, in conjunction with Articles 5, 6 and 7 of the African
Charter. The Complainants further submit that the Victim does not
have access to judicial remedies in the Respondent State which he could
pursue, thus, the Respondent State has failed to meet its obligations under
Article 1 of the African Charter, read in conjunction with Articles 5, 6 and 7
of the African Charter.
189. The Commission held in Abdel Hadi, Ali Radi& Others v Republic of Sudan 97
that "if a State Party fails to respect, protect, promote or fulfil any of the
rights guaranteed in the African Charter, this constitutes a violation of
Article 1 of the African Charter." The African Court on Human and
Peoples' Rights also reached the same conclusion in the Thomas v. Tanzania
where it held that the obligation under Article 1 of the African Charter is
not complied with or is violated when any of the rights, duties or freedoms
set out in the African Charter have been restricted, violated or not applied.
190. The Commission therefore finds that the failure of the Respondent State to
protect the Victim from being subjected to torture and other i.11-treatrhents;
as well as the failure to respect the Victim's right to liberty, access justice
and medical care, is in violation of Article 1 of the African Charter.
to
191.This is in line with practice of the Commission in which it held in several
Communications that the violation of any of the provisions of the African
Charter automatically means a violation Article 1 of the African Charter. In
light of the above and having . found that the Respondent State in this
Communication violated Articles 5, 6 and 7 of the African Charter, the
Commission finds that the Respondent State has violated Article 1 of the
African Charter.
192. In view of the above reasoning, the Commission:
1.
Finds the Respondent State is in violation of Articles 1, 5, 6 and 7
(l)(c) and (d) of the African Charter;
ii.
Requests the Respondent State to:
(a) conduct prompt, independent and impartial investigations into
the allegations of unlawful detention, torture and inhumane,
degrading treatment/punishment of the Victim and to
prosecute and punish all the perpetrators;
(b) pay adequate compensation to the Victim in accordance with
the domestic law of the Respondent State, for the prejudices
suffered including loss of earnings, medical expenses, physical
and psychological torture, in relation to the violations found;
~
.
/1/ ~;;
()l'o
I\"-"
111,1\ ,~..
./.,:;..,...,' "''°'cRn ,Q,, 41. ',
/, /.,,.•
97
·v4 ~ O~
Communication 368/09- Abdel Hadi, Ali Radi& Others v Republic of Suda,f(.:l
\'\
·:[
_) n
~-. \
'J :
~
-; g,
::· i;
=J.
6'
.c· U
'(j,
"1.<);>ICAINf.O~ ~:
o//
~
IETOESI'~?
.;,'?'-'
-
(c) to apologize to the Victim as an acknowledgement of violation
of his rights, and ensure non-repetition of the actions and/ or
omissions;
(d) adopt and implement procedural safeguards for the prevention
of torture and other forms of ill-treahnent as required under the
Robben Island Guidelines;
(e) train Security Officers on relevant standards concerning
adherence to custodial safeguards and the prohibition of torture;
and
(f) inform the Commission, in accordance with Rule 112 (2) of the
Commission's Rules of Procedure (2010), within one hundred
and eighty days (180) of the notification of the present decision
of the measures taken to implement the present decision.
.1 /01~~
Done at the 78 th Ordinary Session, held virtually, from 23 February to 8
2024
RET
v·, ,
~
VJ
•
'a
----<
o<-
47
t
~
,, '
:t'
i: