COMMUNICATION 443/13 - SAFIA ISHAQ MOHAMMED ISSA
(REPRESENTED BY THE REDRESS TRUST) V. REPUBLIC OF SUDAN
SUMMARY OF THE COMPLAINT:
1. The Secretariat of the African Commission on Human and Peoples' Rights
(the Secretariat), received a complaint on 26 March 2013 from The REDRESS
Trust (the Complainant), acting on behall of Safia Ishaq Mohammed Issa (the
Victim).
2. The Complaint is submitted against the Republic of Sudan (Respondent
State), State Party to the African Charter on H uman and Peoples' Rights (the
African Charter).1
3. It is alleged that the Respondent State arrested and detained the Victim due to
her participation in student rallies and her affiliation to Girifna, a non-violent
resistance movement and the Youth Forum for Social Peace. It is further
alleged that the Victim was subjected to torture and ill-treatment at the hands
of state agents, who beat, and subsequent to her arrest, gang-raped her.
4. The Complainant claims that the Victim was abducted by state agents on 13
February 2011, and taken to a facility which belongs to the National
Intelligence and Security Services (NISS). It is averred that following her
abduction, the Victim was subjected to continued beating and verbal abuse at
the hands of state agents.
5. The Complainant submits that following interrogations about the Victim's
alleged participation in rallies, regime change activities and communism; she
was repeatedly raped by three men, while she slipped in and out of
consciousness.
6. The Complainant avers that after the rape and beatings, the Victim was told
to leave, and threatened that i£ she was found again, the issue would escalate.
The Complainant states that although the Victim was in pain, she did not
speak of what happened to her due to the stigma attached to sexual violence
in Sudan and because of the threat of further violence. However, on 16
February 2011, the Victim went to a gynaecologist, who confirmed that she
was subjected to sexual assault. It is claimed that the gynaecologist did not
issue a medical report, due to concerns for his safety.
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7. The Complainant alleges that on the very same day, the Victim reported the
crimes to the Attorney General, who refused to register a complaint against
the NISS and told her to go to the police, arguing that it should be a complaint
against unknown suspects. The Complainant states that the Victim provided a
statement to officers at the Bahri-East Police Station who asked her to h ave a
medical examination at the Bahri Hospital, which issued a medical report
referred to as 'Form BA'. It is claimed that after the examination, the Victim
was asked to go to the house of the H ead of the Bahri East Police Station,
where she was interrogated and told not to proceed with filing the complaint
because N ISS officers would not do something of that nature, and because it
would besmirch her family's name.
8.
The Complainant submits that the Victim re turned to the police station and
gave her statement on record to a police officer who accused her of lying and
threatened her of the consequences of proceeding with the case. The
Complainant avers that the Victim received threats in person from a uthorities,
including the Attorney General, the Head of the Police Station, and the police
officer who had taken her statement, to the effect that harm would come to
her family, and her reputation would be damaged if she did not stop
pursuing the case.
9. The Complainant alleges that following threats to herself and her family, the
Victim fled to South Sudan on 18 February 2011 and on 21 February 2011, a
video of her first statement at the private clinic, the 'Form BA', the police
record of the Victim's statement and her complaint to the Attorney General
were all uploaded on the internet, which garnered her support from activists.
10. The Complainant contends that a group of civil society activists visited the
Victim's family to support them in demanding respect for their daughter's
rights, but the family was forced by the NISS to lock the activists inside the
home and file a case against the activists, accusing them of kidnapping their
daughter. The Complainant adds that the NISS sought to bribe the family by
promising them money and other benefits in return for persuading the Victim
to drop her complaints and to refrain from talking about her case.
11. The Complainant states that the Victim did not feel safe in South Sudan due
to its proximity to Sudan and so she left South Sudan for Uganda, and
eventually settled in France, where she was granted asylum on 31 March
2012.
12. The Complainant claims that the Victim still suffers from physical injurie
to the beatings on her leg and has difficulty walking. It is also claimed
Victim is suffering from post-traumatic stress and a series of other
psychological consequences, including hyper vigilance, nightmares, traumatic
flashbacks, and feelings of guilt and insecurity, as a result of the torture and
ill-treatment she was subjected to. The Complainant adds that the forced exile
aggravated these psychological consequences.
Articles alleged to have been violated:
13. The Complainant alleges violation of Articles 1, 2, 3, 5, 6, 7, 9, 10, 11, 12, 16
and 18 of the African Charter.
Prayers:
14. The Complainant requests the Commission to:
a. Find the Respondent State in violation of the aforementioned Articles of
the African Charter;
b. Find that the Respondent State is under an obligation to take all necessary
measures to ensure that effective remedies and adequate reparation are
provided to the Complainant for the aforementioned violated Articles of
the African Charter, including compensation, rehabilitation, satisfaction
and guarantees of non-repetition;
c. Urge the Respondent State to pay adequate compensation for the
violations suffered by the Victim;
d. Urge the Respondent State to investigate the allegations of torture and illh·eatment;
e. Request the Respondent State to publicly acknowledge and issue an
apology to the Victim;
f. Request the Respondent State to amend legislation incompatible with the
African Charter, particularly the National Security Act, the Personal Status
Law, the Evidence Act, Public Order Laws and the Criminal Act;
g. Call on the Respondent State to adopt legislation that provides adequate
framework for the criminalisation, prosecution and punishment of rape \
and sexual violence;
h. Urge the Respondent State to undertake institutional and practical reforms
to ensure that women alleging to have been subjected to rape or sexual
violence can effectively pursue complaints;
1.
Call on the Respondent State to train NISS members on adherence to
custodial safeguards and the prohibition of torture, discrimination or
sexual violence in the exercise of their fu nctions; a
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Request the Respondent State to establish an independent complaints
mechanism to investigate complaints against law enforcement personnel,
including the NISS.
Procedure:
15. The Secretariat received the Complaint on 26 March 2013 and acknowledged
receipt of the same on 2 April 2013.
16. The Commission was seized of the Complaint at its 53rd Ordinary Session and
the complaint was transmitted to the Respondent State by Note Verbale of 17
May 2013. The Complainant was also informed on the same date of the
seizure of the Communication and requested to submit its observations on
Admissibility.
17. On 17 July 2013, the observations of the Complainant on Admissibility were
received at the Secretariat w hich acknowledged receipt on 30 July 2013 and
forwarded same to the Respondent State for its observations.
18. On 18 December 2013, the Observations of the Respondent State on the
Admissibility of the Communication were received at the Secretariat which
acknowled ged receipt by Note Verbale on 24 December 2013 and forwarded
same to the Complainant with a request for its observations on the Sta te's
submissions.
19. On 23 January 2014, the Observations of the Complainant were received at the
Secretariat and transmitted the same to the Respondent State on 31 January
2014.
20. At its 55 th Ordinary Session held in Luanda, Angola, from 28 April to 12 May
2014, the Commission d eclared the Communica tion Admissible. Notice of the
Commission's decision was transmitted to the Parties by Letter and Note
Verbale respectively on 22 May 2014.
21. By the same letter, the Complainant was requested, in terms of Rule 108(1) of
the Rules of Procedure (RoP) 2010, to submit written ar guments and
su pporting evidence on Merits within 60 days of notification.
22. On 25 July 2014, the Secretariat received the Com plainant's submissions on
the Merits and h"ansmitted the same to the Respondent State for its
observations by correspondence d ated 4 Augus
4
23. By Letter and Note Verbale of 18 May 2015, the Secretariat informed the
Parties about the Corruuission' s decision during its 56 th Ordinary Session,
held from 21 April to 7 May 2015 in Banjul, The Gambia, to grant thirty (30)
additional calendar days for the Respondent State to submit on the Merits.
24. Following feedback received from the Promotion Mission of the Commission
to the Republic of the Sudan held from 22 to 28 May 2015, that the
Complainant's submissions on the Merits had not been received by the
Responden t State, the Secretariat proceeded to forward the relevant
documents on 29 June 2015. By 30 June 2015, the Respondent State was once
again granted thirty (30) calendar days from the date of notification to submit
on the Merits.
25. The Respondent State submitted on the Meri ts on 7 November 2015 and the
submissions were forwarded to the Complainant by Letter dated 11
November 2015. By the same Letter, the Complainant was requested to
su bmit its observations on the Respondent State's submissions on the Merits
within thirty (30) calendar days, in accordance with Rule 108 (2) of the RoP
2010.
26. The Complainant observations on the Respondent State's submissions on the
Merits were received at the Secretariat on 15 December 2015, and transmitted
to the Respondent State by Note Verbale of 26 January 2016.
27. Consideration of the Commu nication and decision on the Merits was deferred
during subsequent Sessions of the Commission.
Complainant's Submissions on Admissibility
28. The Complainant provides information substantiating the compatibility of the
Communication w ith all the provisions of Article 56 of the Charter.
29. Regarding Article 56 (5) in particular on the exha ustion of local remedies, the
Complainant states that the Respondent State failed to provide the Victim
with a remedy despite ample notice and time to do so; that the Victim made
several attempts to exhaust local remedies in the Respondent State and while
in exile to no avail, and that the victim and her representatives feared for their
lives due to the threats, harassment and intimidation to which they were
subjected by authorities of the Respondent State.
30. On the issue of notice and the failure to provide a remedy, the Com
states that the Victim herself brought the v iolations to the attenti
authorities by filing a criminal complaint with the Attorney G
Khartoum Bahri, together with her lawyer. On the same day, and following
the Attorney General's request, the Victim gave a formal statemen t to police
officers at the East Bahri Police Station w here she then filed a formal
compla int. The Complainant further informs the Commission that in addition
to filing her complaint directly with the authorities, the Victim also issued a
detailed public statement and posted a video on the internet a bout the
violations she suffered.2 It is pointed out tha t the statement and video
attracted a lot of attention from the national and international press as well as
human rights organisations and therefore put the Respondent State on notice
of the violations.
31. The Complainant contends that a press statement by the Director of the Police
of Khartoum State on 8 March 2011, declaring that medical tests on the victim
d id not prove the act of rape and stating that the Victim's complaint had been
referred for investigation is clear testimony of the Respondent State
authorities' knowledge of the allegations. The Complainant m aintains that
neither the victim nor her lawyer was informed of any investigation nor were
they at an y stage informed of th e d ismissal of the Victim's complaint.
32. It is submitted that w hile being awar e of the allegations, there is no indication
that the Respondent State took any measures to remedy the violations
com plained of even though prirna facie evidence existed to trigger the Sta te's
obligation to investigate the allegations. It is su bmitted further that there is no
indication that the a uthorities in charge of an investigation requested the
Director of the N ISS to lift the immunity of the NISS officials allegedly
responsible for the offence as required under Sudanese law. They state that
the response from the Respon dent State's a uthorities was instead
characterised by denial, dissuasion of the Victim and her family from
p ursuing the case as welJ as intimidation, harassment and threats directed at
the Victim, her family, lawyers and journalists covering the case.
33. The Complainan t su bmits further that in addition to failing to rem ed y the
viola tions, the authorities of the Respondent State threatened, and harassed
the Victim, eventually forcing her to leave Sudan and seeking asylum in
France on 18 March 2011 where she was admitted on the basis of a 'well-
2
13 See the Victim's testi mony entitled 'Safia !shag's Rape' on Youtube at
http:/ / www.youtube.com/wa tch?v=4qMQ22ILoCY (in Arabic, with English s ubtitles), uploaded on
24
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23 Februa
6
founded fear of persecution'. It is stated that even while in exile, the Victim
continued to pursue her case from abroad. In March 2011, she instructed a
lawyer in Khartoum to act on her behalf in pursuing the complaint, and
provided the lawyer with an affidav it for that purpose. The lawyer sought to
progress h er case throughout 2011 and 2012 but faced considerable difficulties
described in the complaint, including threats, harassment and forcible search
and confiscation of case files (including the Victim's) from the lawyer's office.
It is submitted that these difficulties also caused the lawyer to flee to the
United Kingdom where she was granted asylum.
34. The Complainant submits finally that the Communication complies with
Article 56 (5) given that the Victim made several attempts to exhaust local
remedies and provided the Respondent State's authorities with ample
opportunity to rem edy the alleged violations. In addition, the authorities'
harassm ent and threats of the Victim, her family and her lawyers, made any
further attempt to exhaust domestic remedies futile and is obvious that it is
impossible for the Victim to obtain justice in the Respondent State in respect
of the alleged violations.
35. Regarding the requirement under Article 56 (6) on the submission of the
Communication w ith.in a reasonable time, the Complainant explains that the
Communication was submitted after a series of failed attempts to exhaust
local remedies. It is explained further that when she fled d ue to concerns for
her safety, she continued to make efforts to obtain redress domestically
through her lawyer who also subsequently fled Sudan due to concerns for her
safety. Following these d evelopments, the Victim then concluded sometime in
October 2012 that she could not obtain redress at the national level.
36. The Complainant points out that in the meantime, the Victim's situation had
drastically changed, as she had to struggle to adapt to a life far away from
family and friends in Sudan, in a new country with a culture and language
different from her own. The present Communication was then filed with the
Commission on 18 February 2013. The Complainant submits that in the light
of these circumstances, the Communication was submitted within a
reasonable period of time after realising that domestic remedies were no
longer available.
Respondent State's Submissions on Admissibility
37. The Respondent State contests the Admissibility of the Communic • ,~ ~::::::::-......
grounds that it fails to meet the requirements under Articles 56 (2),
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38. Regarding Article 56 (2), the Respondent State submits that the facts of the
Communication do not reveal a violation of the Articles of the Charter
enumerated by the Complainant (Arts 1, 2, 3, 5, 6, 7, 9, 10, 11, 12, 16 and 18)
and as a result, contradicts Article 56 (2) as being incompatible with the
Charter.
39. Concerning Article 56 (5), the Respondent State points out that the Victim
submitted her complaint to the Sudanese authorities on 16 February 2011,
who immediately followed up with an investigation and rendered a decision
on the investigation in June 2011. The Respondent State also points out that
the Victim left Sudan just two days after filing her complaint and the
Respondent State continued with its investigation even in her absence. The
Respondent State argues that two days cannot be considered ample notice for
an effective remedy and that publishing a video on the internet cannot also be
considered as an appropriate and reasonable means of putting the
Respondent State on notice of the violations. These, the Respondent State
claims, portray the victim's 'bad intention in handling the case'.
40. The Respondent State also points out that the Victim made her public
Statement on 23 February 2011 and her mother filed a criminal case
concerning her disappearance on 22 February 2011.
41. The Respondent State refutes the Complainant's allegations about the threats
directed at the person of the Victim and her family and points out that the
Complainant's family are peacefully living and enjoying the protection of the
Sudanese Legal system, with full access to all recourse mechanisms. The
Respondent State refers to the jurisprudence of the Commission in Article 19
V Eritrea in which the Commission held that it is incumbent on the
Complainant to take all necessary steps to exhaust local remedies.
42. The Respondent State also refutes allegations of harassment against the
Victim's lawyer and points out inconsistencies in her statements. The
Respondent State questions why the Victim's lawyer did not take any action
on the case between February 2011 to April 2012 and why she sought other
remedies thereafter instead of following tip on the case that had been
introduced before the District Attorney.
43. The Respondent State further points out that the rights alleged to have been
violated are well protected in Sudanese legislation, citing Article 149 of the
Criminal Act which criminalises rape. It also points out that several cases of
rape have been tried in Sudan and the perpetrators given heavy
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The Respondent State concludes that remedies in Sudan ar e therefore
available, effective and sufficient.
44. Concerning the requirement under Article 56 (6), the Respondent State
submits that the Communication was submitted aiter an unreasonable period
of time from when the violations are alleged to have occurred. According to
the Respondent State, the Communication was brought before the
Corrunission on 25 March 2013, 21 months from the date of the dismissal of
the Victim's complaint by the District Attorney, 25 months after she left the
country and 11 months after her lawyer left the country.
45. The Respondent State refers to jurisprudence of the Commission in Darfur
Relief and Documentation Centre v Sudan and Micheal Majuru v Zimbabwe
w herein the Commission held that a period of 29 months and 22 months
respectively was beyond a reasonable man's understanding of reasonable
time. The Respondent State accordingly submits that the present
Communication does not comply with the Requirement under Article 56(6) of
the Charter.
Complainant's Observations on the Respondent State's Submissions
46. The Complainant, in response to the Respondent State's submissions argues
a1nongst other things that the Communication is filed in accordance with the
requirements of Article 56 of the Charter.
47. Concerning Article 56 (5) the Complainant states that contrary to the
assertions of the Respondent State, there are significant shortcomings in the
latter's legal system and its practical application which render domestic
remedies for violations of the Charter unavailable, insufficient and ineffective.
48. The Complainant submits that the Respondent State failed to properly
investigate the Victim's complaint despite being notified of the violations.
Citing jurisprudence from the Commission, the Complainant submits further
that conh·ary to the Respondent State's claims, there was no obligation on the
part of the Victim or her lawyer to take additional steps to ensure that the case
was indeed investigation. 3
49. The Complainant explains that contrary to the Respondent State's claims,
there is no evidence that the latter carried out an investigation into the
Victim's complaint because neither the Victim, her lawyer nor her family
were informed of any investigation • )....Blei::l~e..
have till date, not been
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3 Article 19 v Eritrea, Communication 275/03 par
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provided a copy of the d ecision dismissing the case. The Complainants cites
international standards to the effect that the Respondent State is under an
obligation to inform victims about steps taken in response to alleged
violations as part and parcel of an effective remed y. 4 The Complainant points
out that a failure to inform victims or their lawyers about the outcome of an
investigation or judicial proceedings denies them their right to further
remedies and is in violation of the Respondent State's own regulations and
practice w hich foresees that decisions can be appealed to the 'Superior
Attorney General'. This, the Complainant maintains, presupposes that the
authorities are required to inform them about a decision to dismiss their case.
50. Concerning the submission of the Communication within a reasonable time,
the Complainant states that the Communica tion was submitted wi thin a
reasonable time from the moment the Victim realized that remedies were
ineffective and that she would not be able to obtain justice in the Respondent
State.
51. The Complainant submits that the present case must be distinguished from
the cases cited by the Respondent State because in the latter cases, the
Commission considered that the Complainant had taken no steps even
though effective domestic remedies were available or where a domestic body
had made a final decision. The Complainant claims that in the absence of any
official information about responses to her complaint, the Victim sought to
continue to pursue the remedy in the hope that an effective investigation
would be undertaken.
52. In light of the above, the Complainant urges the Commission to declare the
Communication admissible.
The Commission's Analysis on Admissibility
53. The provisions of Article 56 of the African Charter govern the Admissibility of
Communications submitted for consideration to the African Commission.
Article 56 sets out seven conditions which must all be complied with for any
Communication to be Admissible. The Complainant submits that all these
requirements have been met. The Respondent State on the other hand submits
that the Communication £ails to comply with the requirements of Articles 56
(2), (5) and (6).
4
Guidelines on the Right to a Fair Trial an
(h) (3) and the Robben Island Guidelines,
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rica, Section C (b) (3) and Section F
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54. The Commission notes from the parties' submissions and the facts of the
Communication, that the requirements under subsections (1) (3) (4) and (7) of
Article 56 have been adequately substantiated, raise no potentially
contentious issues and require no further examination. As such, the
Commission will only proceed to examine the provisions of Article 56 that
have been contested, namely Article 56 (2), (5) and (6).
55. Article 56 (2), of the Charter provides that a Communication shall be
considered by the Commission if it is 'compatible with the Charter of the
Organization of African Unity (now Constitutive Act of the African Union) or
with the present Charter'. It is the position of the Respondent State that the
Communication does not reveal violations of provisions of the African
Charter and is therefore incompatible with the latter. The Complainant on the
other hand argues that a prima facie case of violations of the Charter has been
sufficiently made for the Communication to meet the requirement of Article
56 (2).
56. The Commission recalls its jurisprudence in Samuel Muzerengwa & 110
Others v Zimbabwe5 wherein it was held that for purposes of compatibility
with the Charter, a Complainant only needs to show the existence of a prima
facie case of violations. In the same case, the Commission held that a person is
presumed to have presented a prima facie case of a violation under the
African Charter when the facts presented in a complaint show that a human
rights violation has likely occurred. Such a case should be one that compels
the conclusion that a human rights violation has occurred and is not
contradicted or rebutted by the Respondent State.
57. It is worth noting that for purposes of admissibility under Article 56 (2) of the
Charter, the Commission only needs to satisfy itself that there is a likelihood
of a violation of the provisions of the Charter; that the alleged v iolations
occurred in the territory of the Respondent Sta te or territory under its control;
that the complaint is brought by a person competent to do so and that the
violations complained of occurred at a time when the Charter was in
operation in the Respondent State.
58. In the present Communication, the Complainant has made a prima facie case
of violations of the African Charter as it has adduced evidence in support of
the allegations. The information provided by the Complainant is enough to
convince the Commission of the likelihood that a violation might have
violation did indeed occur is a matter that falls
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5 Communicatio n 306/09, pa
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to be properly d etermined at the Merits stage. There is also no doubt that the
alleged violations occurred in the territory of the Respondent State, at a time
w hen the Charter was in operation. The standing of the Complainant is also
not in dispute.
59. The Commission is therefore satisfied that the Communica tion meets the
requirements of Article 56 (2).
60. Article 56 (5) of the Charter provides that Communications shall be
considered by the Commission after local remedies have been exhausted
unless it is obvious that this procedure has been unduly prolonged. In the
present Communication, the Complainant has submitted that the Victim
made concerted efforts to bring the violations to the attention of the
authorities of the Respondent State; that the State had notice of the violations
allegedly perpeb·ated by its agents but failed to take the necessary measures
to remedy the violations, and that the victim feared for her life due to the
threats and harassment to which she was subjected. These circumstances
according to the Complainant render an y available local remedies in the
Respondent State ineffective and insufficient to remedy the alleged violations.
61. The Respondent State, while admitting that it did indeed have notice of the
violations submits that it acted expeditiously in investigating the complaint
which was subsequently d ismissed because there was apparently no
commission of an offence. It denies the Complainant's allegations that the
Victim, her lawyer and family were subjected to threats, harassment and
intimidation and points out that the rights alleged to have been violated are
well protected in Sudanese legislation. According to the Respondent State
remedies in Sudan are therefore available, effective and sufficient to redress
the alleged violations.
62. From the party's submissions, it is evident that the issue in contention is
whether the Respondent State effectively investigated the allegations which it
admits were brought to its attention and w hether or not the Victim and her
lawyer feared for their life to the extent that they were unable to make use of
any available local remedies.
63. Concerning the issue of an effective investigation, the Commission notes that
there is no contention in the present Communication that the Respondent
State was duly notified of the viola tions allegedly committed by its agents.
The Commission notes also that allegations of violations of a criminal na
impose an immediate duty on the State, after being notified of the viol
to initiate a prompt, impartial and effective investigation in order to es
the veracity of the allegations and bring the perpetrators to justice if the
allegations are founded.
64. The Respondent State has submitted that it was officially notified of the
allegations on 16 February 2011 and that it initiated investigations thereafter
which were concluded in June 2011 w hen the case was dismissed. The
Complainant on the other hand subrn.its that the Victim was never notified of
any investigation and was at no point provided w ith a copy of the decision
dismissing her case.
65. The Comm.ission notes that the Respondent State has not supported its
assertions w ith evidence to indicate that an investigation into the allegations
was indeed carried out. The Respondent State has not provided the
Cornm.ission w ith a copy of the decision d ismissing the case, nor have any
reasons been advanced for the dismissal of the case. The Respondent State
does not also deny that the Victim, her family or her lawyer were not notified
of the investigation and were not provided a copy of the decision dismissing
the complaint. The Respondent State has also not denied that the
Complainant was not involved in the investigation process. In the present
circumstances, the Commission is in no position to conclude that the
Respondent State fulfilled its primary obligation of carrying out an effective
investigation into the complaint that was duly notified to it, which would
have led the Cornm.ission to conclude that the Respondent State intended to
respond to the complaint seriously.
66. The Cornm.ission considers that the fail ure to inform the victim about the
investigation and the decision to dismiss her case prejudiced her because she
was left in a state of limbo without knowing what further steps to take. This
in effect renders any available remedies ineffective.
67. The Cornm.ission notes that the Complainant has also sufficiently
substantiated the allegation that the Victim, her family and lawyer were
subjected to threats, harassment and intimidation on the part of the
authorities that led to her forced exile from the Respondent State.6 The
Complainants have 1naintained that these circumstances render any available
local remedies ineffective and insufficient in the Victim's situation. The
Respondent State denies these allegations and submits that the Victim's
family is peacefully living in Sudan and enjoying the protection of th
----6 See paras 20 & 21.
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68. The Commission has maintained that merely casting aspersions on the
effectiveness of local remedies is not enough to absolve the Complainant of
the du ty to exhaust local remedies. Complainants must provide concrete
evidence and sufficiently demonstrate that their apprehensions are well
founded.7 The Commission considers that the fact tha t the Victim and her
lawyer w ere granted asyl um in third countries on grounds of a 'well-founded
fear of persecutions' lends credence to the Complainant's assertions. In that
regard, the Commission has held in the Jaw ara Case that " if an applicant
canno t turn to the judiciary of his country because of generalized fear for his
life (or even those of his relatives); local remedies would be considered to be
unavailable." 8 Similarly, the Commission considers that well-founded fear of
persecution on the Victim's part was enough to have precluded her from
pursuing local remedies thus rendering a n y theoretically availa ble remedies,
ineffective in her situation. The Respondent State's assertion that the
Complainant's family is living peacefully in Sud an is irrelevant.
69. The Commission therefore considers that any available local remedies were
ineffective and insufficient to redress the violations complained of in the
Victim's situation hence such local remedies were constructively exhausted.
70. Article 56 (6) provides that a Communication shall be considered by the
Commission if it is 'submitted within a reasonable period from the time local
remedies were exhausted or from the date the Commission is seized with the
matter'.
71 . The Complainant has pointed out that the Communication was s ubmitted
after a failed number of attempts to exhaust local remedies. It has been
explained that after the Victim fled Sudan in 2011, she continued to make
efforts to exhaust local remedies and had to struggle to adapt to life in a third
country, reason w hy the Communication was only submitted to the
Commission in February 2013, almost 2 years after the violations complained
of occurred . It has further been explained that since the Victim was not
notified of the outcome of her complaint to the Sudanese a uthorities, she was
uncertain about any further steps she could take. Based on these reasons, the
Complainant submits that the Communication was submitted within a
reasonable time.
7 See the Comm ission's d ecisio n in Communicatio n 299/05 -
ACHPR para 58
8 As in no 2 a
Activity Repor
•
Anua k Jus tice Co unci l v Ethiopia (2006)
mmunication '2:32/99, Ouka v Kenya, ACHPR. 14th Annual
14
72. The Respondent State on the other hand has m aintained that the
Conununication does no t comply with the reasonable time requ irement
because it was submitted 21 months from the date of the dismissal of the
Victim's com plaint by the Dish·ict Attorney, 25 months after she left the
country and 11 months after her lawyer left the cow1try.
73. The Conunission recalls that unlike in the other regional hwnan rights
insh·uments, notably the American Convention on Human Rights and the
European Convention for the Protection of Human Rights and Fundamental
Freedoms w hich all consider the period of six months9, as a reasonable period
within which complaints must be submitted after the exhaustion of local
remedies, the African Charter has no such period. The Conunission by virtue
of its manda te under Article 45 of the Charter therefore interprets this
provision on a case by case basis taking cognizance of its duty to promote and
protect human rights as laid down in the Charter.10
74. In the present case, the Conununication was sub1nitted aJmost 25 months
after the victim left the country, 21 months after her complaint was
purportedly dismissed by the authorities and 11 months after her lawyer
left.1 1 Judging from the practice of the other regional bodies, these periods
apparently appear to be unreasonable. However, the Conunission considers
that the context of the case and the circumstances in w hich the victim found
herself are cogent enough to justify submitting the application at the time she
did.
75. As outlined above, the Victim was no t provided with a copy of the decision
dismissing her complaint and she was therefore faced w ith uncertainty
concerning the remedy pursued. This notwithstanding, the Conunission notes
that the Victim continued to make efforts to avail herself of domestic remedies
through her lawyer, who subsequently fled from Sudan in April 2012 and the
Conununication was brought before the Conunission in February 2013. It has
also been proven through a psychological examination of 26 and 27 December
2012, submitted to the Commission and also made available to the
Respondent State that the Victim struggled to adapt to her new situation in a
foreign country.
9 See articles 56 (1) b & 36(1) respectively of the American Convention o n Human
Rights and the
European Convention for the Protection of Human Rights and Fundamental Rights and Freedoms.
10 See the Comm ission's decision in Micheal Majuru v •
abwe, Communicatio n 308/05(2008) 25th
Activity Report, ACHPR.
JJ The victim left Sudan in February 2011, ti
June 2011 and her lawyer left Sudan in Apr
that her case was dism issed in
15
le:
76. In the ligh t of these circumstances, the Commission considers that the
Communication w as su bmitted within a reasona ble period of time following
the unsuccessful attempts to exhaust local remedies.
Decision of the Commission on Admissibility
77. In view of the above, the Commission declared the Communication
admissible.
Merits
The Complainant's Submissi on s o n M erits
Alleged violation of Article 5 of the African Charter
78. The Complainant submits that the Victim was subjected to torture and illtreabnent at the hands of State security agents, who severely beat and gangraped her, in violation of Article 5 of the African Char ter. The Complainant
con tends that the Commission has con.firmed that acts of rape and the failure
to prevent and respond to such acts amounts to a violation of Article 5 of the
African Charter.
79. The Complainant refers to the case of The Prosecutor v An to Furundiijn w here
the International Criminal Tribunal for the former Yugoslavia (ICTY) found
that the following elements constitute rape: i) sexual penetration, however
slight, of the vagina of the victim by the penis of the perpetrator or any other
object used by the perpetrator; ii) by coercion or force or threat of force
against the victim or third person.12 The Complainant contends that the
ju risprudence of human rights treaty bodies confirm that the pain and
suffering caused by an act of rape are both physically and psychological
severe such as to constitute torture. The Complainant refers to the
jurisprud ence of the Inter-American Cour t of Human Righ ts (IACtHR)
w here it held that:13
...severe suffering of the victim is inherent in rape, even w hen there is no
evidence of physical injuries or disease. Indeed, the after effects of rape will
12 Prosec11tor v Allto F11ru11diijn ICTY (16 November 1998) Case No IT--95---17 / 1--T para 185; Miguel
Castro Castro Prison v Peru IACHR (25 November 2006) (Merits, Reparations and Costs), Series C No
160 pa ra 310.
13
Femri11dez Ortega et al. V
16
not always be physical injuries or diseases. Women victims of rape also
experience complex consequences of a psychological and social nature.
80. The Complainant submits that rape committed against a detainee will
always amount to torture. In support of this argument, the Complainant
refers to the case of V.L v Switzerland, where the United Nations (UN)
Committee Against Torture held that multiple rapes by State agents
constitutes torture. 14 The Complainant further contends that the rape was a
form of torture, for the purpose of obtaining information, punishing and
intimidating the Victim, as well as, aimed a t degrading and humiliating the
Victim, and her £a1nily.
81. On the applicable standards of evidence, the Complainant submits that it is
widely recognised that there are particular challenges in documenting rape,
due to the usual a bsence of witnesses, the stigma and the difficulty of
obtaining timely m edical. reports. The Complainant contends that these
challenges are aggravated in cases of rape in custody, particularly where
officials use their position to deny or counter allegations and threaten
victims. The Complainant submits that this challenge h as been recognised by
the Commission in its Resolution on the Right to a Remedy and Reparation
for Women and Girls Victims of Sexual Violence.15
82. The Complainant submits that in ligh t of this challenge, the IACtHR
considers the Victim's testimony to be the fundamental evidence in cases
involving rape. In support of this averment, the Complainant references the
case of Fernandez Ortega et nl. V Mexico, where the Court held that in view of
the nature of rape, one cannot await graphic or documentary evidence, thus
the Victim's testimony becomes the fundamental proof of that which
occurred.16 The Complainant also argues that other evidence such as a
psychological assessment, even if carried out some time after the rape, can
constitute sufficient evidence in support of the Victim's testimon y.
83. In this regard, the Complainant contends that the Victim testified on several
occasions about the severe bea tings, humiliation and acts of rape, in cluding
in her statement to the police on 16 Februar y 2011, the subsequent compliant
filed, her testimony on the internet and her affidavit of 15 February 2013. The
Complainant submits that the Victim's testimony corresponds with the
v Switzerland, CAT Committee (20 November 2006) CAT/C/37 / D/262/2005 para 8.10.
ACHPR/ RES.111 (XXXXll) 07 Resolution on the Ri I
a Re medy and Repa ration for Women and
Girls Victi ms of Sexual Violence 2007.
16 (n 13 above) para 100; Rose11ndo Cn11h1 et n
~----ust 2010) (Preliminary
Objections, Merits, Reparations and Costs),
14 V.L.
is
17
findings of the basic medical examination carried out in Bahri on 16
February 2011, albeit inadequate. They further contend that her testimony is
consistent with the psychological symptoms suffered, as documented in the
Victim's psychological report dated 28 December 2012. The Complainant
therefore submits that sufficient evidence exists of the torture and illh·eatment the victim suffered during her detention.
84. The Complainant contends that the burden of proof therefore shifts to the
Respondent State to disprove the allegations raised. They submit that the
State has failed to adequately investigate the Victim's complaint, and has not
provided any evidence in contradiction of the facts. The Complainant argues
that the Respondent State's failure to provide the victim with any reparation
is contrary to its obligation under Article 5 of the African Charter. In support
of this argument, the Complainant refers to the Commission's Guidelines
and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman
or Degrading Treatment or Punishment in Africa (Robben Island Guidelines)
which stipulates the State's obligation to, inter alia, provide victims of
torture and their dependents with "appropriate medical care ... access to
appropdate social and medical rehabilitation and ... appropriate levels of
compensation and support" _17
85. The Complainant therefore submits that in light of the foregoing, ample
evidence has been presented of the acts of rape the victim was subjected to,
and that the rape unequivocally amounts to torture in violation of Article 5
of the African Charter.
Alleged violation of Article 2 of the African Charter
86. The Complainant submits that acts of rape and insults of a sexual nature
against a woman in custody are aimed at negating her dignity as a human,
on account of her gender. The Complainant therefore submits that the
torture and ill-treatment the Victim suffered at the hands of NISS officials,
was inherently discriminatory.
87. The Complaina nt refers to the definition of discrimination in Egtjpti.nn
Initiative for Personal rights nnd Jnterights v Egi;pt,18 and contends that the
Respondent State has a positive obligation under Article 2 to respond to
gender-based violence particularly rape, as ending impunity for such
17
Resolution on Guidelines and Measures for the Pro hibition a nd Prevention of Torture, Cruel,
~=::::::::::::::......_
Inhuman or Degrading Treabn ent or P unis hment in Africa (The Ro bben Isla nd Guide •
Edition 2008 para 50.
18 Communication 323/06 - Eg,Jptin11 lnitintive for Personal rights nnd J11terights v Eg,Jpt
~
violence and ensuring access to justice is crucial for women to enjoy their
rights under the African Charter. The Complainant submits that in the
Victim's case, the NISS officers used sexual violence as a means of repression
to punish and intimidate a female activist, and instead of exercising d ue
diligence in their response, the State authorities deliberately tried to silence
her, and those acting on her behalf.
88. The Complainant submits that these concerted efforts, constitutes a violation
of the Respondent State's duty to ensure non-discrimination on the basis of
gender and political opinion as provided u nder Article 2 of the African
Charter.
Alleged violation of Article 3 of the African Charter
89. The Complainant submits that the right to equality before the law requires
States to act against discrimination by public and private agencies in all
fields. They contend that equality before the law requires the State to remove
any formal inequalities, and equal protection of the law entails that gender is
not a factor that should lower a person's level of protection under the law.
Accordingly, the Complainant contends that the Respondent State must take
positive measures to end sh·uctural discrimination that leads to violence
against wom en.
90. The Complainant submits that several pieces of Sudanese legislation treat
women differently from men with no apparent justification. The
Complainant refers to Article 149 of the Sudanese Criminal Act of 1991 on
the crime of rape, and avers that the provision d isproportionately impacts
women, as female victims of rape are at the sam e time being exposed to
possible accusations of adultery.
91. The Complainant therefore argues that the Victim suffered a lack of
protection against rape, and an official response that was diametrically
opposed to the due diligence standard recognised under international law, in
violation of Article 3 of the African C harter.
Alleged violation of Article 6 of the African Charter
92. The Complainant submits that the Victim's arrest by the NISS officials on 13
February 2011 was arbitrary, and as such violates Article 6 of the African
.....-:::::=:::::::-......
Charter. They refer to the Commission's jurisprudence in Article 19 v .,,.,, ~l:IR~,.,.,.,.-<1,i,.
~c .,.~,.q 'O
where it held that arbitrariness should not only be equated with 'a
s t tn,__ ,,. ~~
~
<I!
law' but must be interpreted more broadly to inclu de elements of
inappropriateness, injustice, lack of predictability and due process of law. 19
93. The Complainant submits that the arrest and detention was executed in
accordance w ith Article 50 (1) (e) of the National Security Act 2010, which
vests N ISS w ith the power to arrest or detain any suspected person for a
period not exceeding thirty (30) days, provided that his/her relatives are
immediately informed. The Complainant contends that this provision does
not specify the requisite level of suspicion and lacks sufficient precision and
predictability. They aver that in practice, this has given rise to concerns, as the
NISS regularly apprehend individuals without a formal arrest warrant or any
visible grounds, and without judicial oversight.
94. The Complainant submits that the manner of the Victim's arrest by plain
clothes officers of the NISS was akin to a kidnapping rather than an arrest.
They contend that the nature of the subsequent "interrogation", which was
characterised by beatings, insults and rape, indicates that the purpose of the
arrest and detention was to punish the Victim for the past exercise of her
freedom of expression, association and assembly, and to intimidate her from
exercising these freedoms in the future. The Complainant therefore submits
that the Respondent State's failure to guarantee the Victim's protection from
arbitrary arrest and detention, and to provide her w ith an effective remedy in
this regard violates Article 6 of the African Charter.
Alleged violation of Article 7 of the African Charter
95. The Complainant submits that after the rape, the Victim was threatened by
authorities in the Respondent State in order to discourage her from seeking
justice. They aver that despite these threats, the Victim filed a complaint on 16
February 2011. The Complainant however submits that the Respondent State
failed to effectively investigate the complaint; and following the filing of this
complaint, agents of the NISS subjected the Victim's lawyer to threats,
harassment and intimidation, ultimately forcing him to flee Sudan .
96. The Complainant submits that this impeded the Victim's ability to access the
relevant judicial bodies to have her cause heard, and grant her adequate relief
in accordance w ith Article 7 (1) (a) of the African Ch arter. The Complainant
argues that for the right to an effective remedy to be realised, victims
frequently require legal assistance, and in that regard referred to the
provisions of the Principles and Guideline n the Right to a Fair Trial and
20
Legal Assistance in Africa (Principles of Fair Trial and Legal Assistance)
which s tipulate that States have an obligation to ensure that lawyers "(i) are
able to perform all of their professional functions without intimidation,
hindrance, harassment or improper influence .. ." .20
97. Further, the Complainant contends that the Respondent State violated the
Victim's rights to a defence, including the right to be defended by a counsel of
her choice in violation of Article 7 (1) (c) of the African Charter. The
Complainant submits that pursuant to Article 7 (1) (c), any person arrested or
detained shall have prompt access to a lawyer and, unless the person has
waived this righ t in writing, shall not be obliged to answer any questions or
participate in any interrogation without his or her lawyer present.
98. The Complainant submits that the Victim was not granted access to a lawyer
during the eleven (11) hours of her detention. They contend that pursuant to
Article 51 (2) of the National Security Act 2010 detainees have the right to
inform their families and employers of their detention and may communicate
with a lawyer if doing so does not prejudice the progress of interrogation,
enquiry and investigation. The Complainant su bmits that this provision fails
to guarantee prompt access to a lawyer, and gives the NISS unfettered
discretion to exclude access where it is deemed detrimental to the
investigation. The Complainant submits that this provision is incompatible
with international standards on the right of access to a lawyer, and as such a
violation of Article 7 (1) (c) of the African Charter.
Alleged violation of Article 9 of the African Charter
99. The Complainant submits that the Respondent State violated the Victim's
right to express and disseminate her opinion within the law as enshrined in
Article 9 (2) of the African Charter.
100.The Complainant submits that the Victim was actively engaged in peaceful
protests and ad vocacy, including distributing flyers calling for the respect of
h uman rights in Sudan and engaging in demonstrations. They contend that
the arrest, detention, rapes and other forms of torture and ill-treatment were
in response to the exercise of her freedom of expression. The Complainant
submits that the aim of the punishment was to d iscourage the Victim from
exercising her freedom of expression and therefore amounts to a violation of
Article 9 (2) of the African Char ter.
':,
20Principles and Guideline on the Right to a Fair Tria l and Legal Assistance in Africa 2003 R
p
~
Alleged violation of Article 10 (1) and 11 of the African Charter
101. The Complainant submits that the rights expressed under Article 9 (2) 10 (1)
and 11 of the African Charter are closely related and complement each other,
as such a violation of one result in a violation of the others. They contend that
State Parties have an obligation to guarantee the right to freedom of assembly
as enshrined in Article 11, a right that is inh·insically related to the guarantee
of the freedom of association.
102. The Complainant submits that the Victim's arrest closely followed her
participation in the d emonstrations of 30 January 2011, and she was targeted
for being a m ember of Girifna, a non-governmental, non-violent prodemocracy movement. She contends that the arrest, detention, rapes and
torture she suffered were aimed at p unishing her for exercising her freedom to
assemble and associate, and to prevent her from exercising these righ ts in
future. The Complainant argues that preventing an individual from gathering
with others to discuss human rights, by ' punishing' he/ she for doing so
amounts to a violation of the rights enshrined in Articles 10 and 11 of the
African Charter.
Alleged violation of Article 12 of the African Charter
103. The Complainant submits that the Respondent State violated Articles 12 (1)
and (2) of the African Charter when the Victim was forced to flee her coun h·y of
residence on account of her human rights activities.
104. The Complainant submits that the high-profile nature of the Victim's case and
the mounting threats forced her to flee Sudan. The Complainant sta tes that the
publication of the Victim's video testimony and the aggressive official
responses to any person raising her case in Sudan, was a clear indication that
she would be at risk if she returned to Sudan.
105. The Complainant therefore submits that the Victim's right to freedom of
movement, as well as right to residence within, and return to Sudan have been
infringed contrary to Article 12 (1) and (2) of the African Charter.
Alleged violation of Article 16 of the African Charter
106. The Complainant submits that the Respondent State is responsible for the
violation of the Victim's right to the.best attainable state of physical and mental
health pursuant to Article 16 of the African Char ter. They submit that the
Victim was subjected to physical and mental torture and ill-tre~~~..::.w hich
resulted in physical injuries and ongoing psychological suf
107. The Complainant submits that the UN Committee on Economic, Social and
Cultural Rights has held that the right to health is closely related, and
dependent upon, the realisation of other human rights, including the
prohibition of torture.21 The Complainant therefore contends that it is generally
recognised that rape and other forms of torture and ill-treatment cause severe
mental and physical h'auma on the victim, as such, the resulting ill-health as a
consequence of torture can be attributed to the State as the author of the
torture.
Allege d violation of Article 18 of the African Charter
108.The Complainant contends that the Respondent State has failed in its
obligation to ensure the elimination of all forms of discrimination against
women pursuant to Article 18 (3) of the African Charter. The Complainant
submits that in examining whether a violation had occurred, the Commission
had considered whether the alleged violations were indeed gender-specific
and discriminatory on the primary basis of gender. They submit that the
Commission in EgiJptinn Initiative for Personal Rights nnd lnterights v EgiJpt
found that verbal assaults such as 'slut' and 'whore', as well as physical
violence and acts of sexual harassment such as fondling a woman's breasts,
were gender specific and as such a violation of Article 18 (3) of the African
Charter. 22
Alleged violation of Article 1 of the African Charter
109. The Complainant submits that the Respondent State failed to comply with its
obligation to adopt legislative or other measures to give effect to the rights in
the African Charter as stipulated under Article 1.
110. The Complainant submits that the Respondent State has a duty to respect,
protect, promote and fulfil the rights contained in the African Charter. They
argue that this entails, at a minimum, that the Respondent State exercises due
diligence in providing effective remedies to victims, including through
conducting investigations and providing adequate reparations. The
Complainant therefore contends that the failure of the Respondent State to
comply with its due diligence obliga tions violates Article 1 of the African
Charter.
21 UN CESCR, General Comment 14 'The right
of the International Covenant on Economic, S
22 Commun ication 323/06 (n 18 above) para 1
-~~---~
e standard of hea lth (Article 12
' 2000.
23
The Respondent State's Submissions on Merits
111. The Respondent State contends that the Complainant's averments are
groundless, contradictory and unsu bstantiated by evidence. The Respondent
State submits that on 16 February 2011, the Victim filed a complaint at the
office of the Public Prosecutor of Bahri (Khartoum North City) claiming tha t on
13 February 2011 she was a bducted by two persons who drove her to a house
near Shendi bus station in Khartoum North, where she was raped by three (3)
men who allegedly were members of the security forces.
112. The Respondent State submits that the prosecutor ordered entry of criminal
proceedings under sections 20, 149 and 162 of the Criminal Act against
anonymous suspects, and directed the victim to the Kafouri police station to
proceed with the investigations. The Respondent State contends that the victim
did not present the first complaint which carried the prosecutor's order, but
instead lod ged a new complaint reiterating the same claims and adding that
she was d riven in a w hite car to a courtyard near Shendi bus station w here she
was beaten and raped by three (3) men who allegedly were members of the
security forces.
113. The Respondent State submits that initial investigation under section 44 of the
Criminal Procedure Act was ordered, and Form 8 (forensic examination) was
issued. The Respondent contends that the examining d octor reported on the
form that: there were ulcers around the opening of the vagina, that the hymen
could not be seen due to circumcision, and that there was blood outside the
vagina, w hich the Victim confirmed as menstrual.
114. The Respondent State contends that the examining d octor s ta ted that the said
ulcers could be due to attempted rape, vaginal infections or intentionally selfinflicted, an d that she, the doctor could not affirm whether or not rape had
occurred. The Respondent avers that the Victim was summoned for requestioning but never appeared again.
115. The Respondent State further submits that the Victim's sister was also
questioned as a w itness. The State contends that she stated that the Victim left
her aunt's house on 16 Februar y 2011 and did not return home. The Victim's
family reported her missing at the North Umbadda police station on 22
February 2011, and that subsequently, the Victim's sister received a phone call
from the Victim informing her that she was in Juba. The Respondent State
submits that the testimony of the Victim's sister indicated tha t on the same d ay,
a group of persons affiliated to some political parties we
family house a nd informed the family that the Victim was a
116. The Respondent State submits that Mr. Hayder Abdel Gadir, a lecturer at
Sudan University testified that the Victim attended the facul ty on 13 February
2011, and at about 8:30 to 9:30, she was present at their office. At 14:50, they
went out together to buy a mobile phone from Souq Arabi market, and
thereafter they went to his house in Remaila quarter in Khartoum and stayed
there until 20:30. He then hired a taxicab and took the victim to her house in
Umbadda, arriving at the Victim's home at 21:30. They submit that according to
the testimony, the Victim asked Mr. Gadir to h·ansfer an account to her mobile
phone which he did, and at 22:43 she sent him an SMS message to verily his
arrival home, he replied to her message, and she sent another SMS w ishing him
a good night.
117. The Respondent State contends that based on the above investigations, the
senior district prosecutor found that the Victim failed to establish the primn fncie
evidence necessary for continuing the proceedings, and that she failed to
pursue her case when summoned for further investigation. As a result, on 2
June 2011 the prosecutor made the decision to close the proceedings and
ordered notilication of the Victim, and of her right to appeal the decision.
118. The Respondent State submits that on the missing person complaint filed by
the Victim's family on 22 February 2011, the preliminary investigation
established that the Victim arrived a t her aunt's house on 16 February 2011 at
about 22:00, and the following morning she informed her aunt that she was
going to meet two of her colleagues at the neigh bouring quarter.
119. The Respondent State submits that on 23 February 2011, a group of politicians
visited the Victim's family in Umbadda introducing themselves as
representatives of a hwnan rights organization called La liqnhr nlnisaa (No to
suppression of women), and informed the family that the Victim was in a saie
place. The Respondent submits that the group agreed with the Victim's famil y
to handover the Victim to one of her relatives residing in Juba, after intensive
telephone calls between the group and a man called Monim Algak in Juba.
120. The Respondent State submits that based on the above investigation, the
district prosecutor ordered the initiation of criminal proceedings under section
164 (illegal confinement) against Monim Algak and under sections 24 and 26
(abetment and criminal conspiracy) against the Ln liqahr alnisan. group.
121. The Respondent State submits that pursuant to section 51 of the National
Security Act 2010, the leadership of NISS initiated a promptu moto inter~n==a=1~ ......
inquiry as soon as it took notice of the allegations, and reached the
that the Victim's allegations are baseless and unsubstantiated, a1
~
.q
0
Victim was never arrested or summoned by the NISS and had never been
wanted for any security issue.
122. The Respondent State contends that the Victim's claim that she was abducted
is rebuttable by the testimony of Mr. Hayder Abdel Gadir w ho assured the
police that he had been in the company of the Victim from 8:30 in the morning
to 11: 00 at night on the d ay of the alleged incident. The Respondent submits
that the assumption that the men w ho allegedly abd ucted and raped her were
N ISS officers or government agen ts are mere aspersions casted with no
evid ence to support it. The Respondent also contends that the assertion that
several other complainants or former detainees recognised the said place as an
N ISS building is mere hearsay.
123. The Respondent State submits that the rape itself has not been substantiated,
as the medical report which was conducted a few days after the alleged
incident was undecided in establishing any allegation of rape. The State
contends that rape is a serious offence in Sudan, with a p unishment which may
amount to death (section 149 Criminal Act 1991). It therefore submits that the
State fulfilled its obligation by initiating prompt judicial and administrative
proceedings upon the Victim filing her complaint. As such, the Respondent
contends that the fact that the Victim was absent for the investigation and
failed to p ursue her case, w hich remained open in its primary stage for over
five (5) months, w hether in person or through a legal representative, casts
reasonable doubt to her story.
124. Finally, the Respond ent State su bmits that the Victim's family, particularly
her m other w ho reported the Victim missing, never mentioned that her
daughter had complained of any assault on her person, nor did her colleague.
The Respondent State submits that the Victim's con tention that she was
prevented from disclosing what had happened to her due to fear of social
stigma is untenable and contradictable by the fact that she later on divulged the
w hole episod e of her assumption on the internet, including by publishing the
medical report which is confidential and intimate in nature.
125. For the above reasons, the Respondent State pray the esteem ed Commission
finds that the Government of the Sudan has not violated any of the articles of
the African Charter, and d ismiss the Communication accordingly.
Preliminary Objection to the admission of the Respondent State's submission on
Merits
126. The Complainant sta tes that its submission on the Merits were tran
the Commission on 25 July 2014, and the Commission ackn owledged
4 August 2014 in.forming them that the submissions had been forwarded to the
Respondent State for its observations in accordance with Rule 108 (1) RoP 2010.
Accordingly, the Respondent State's submissions were due on 3 October 2014.
127. The Complainant submit that in the absence of the Respondent State's
observation on the Merits, they inquired with the Secretariat about the
Commission's decision on the Merits, and were in.formed on 18 May 2015 that
during its 56U, Ordinary Session, the Commission " granted the Republic of The
Sudan a final period of 30 calendar days from the date of notification within
which to file its written observations on the Merits", and that the Commission
will proceed to adopt a d ecision on the Merits if the observations are not
received w ithin the stipulated time.
128. The Complainant submits that the extension granted to the Respondent State
expired on 17 June 2015. However, despite the generosity of the Commission,
the Respondent State again failed to submit its observations in time. The
Complainants submit that the Secretariat forwarded the Respondent State's
undated response on 11 November 2015 (more than 13 months after the initial
cut-off date of 3 October 2014), and invited the Complainant to submit its
observation on the response in accordance with Rule 108 (2) of the RoP 2010.
129. In light of the above, the Complainant raises a preliminary objection to the
admissibility of the Respondent State's submissions on the Merits in
accordance with Rule 103 (1) of the RoP 2010. The Complainant contends that
any submission falling outside the stipulated time frrune should not be
admitted by the Commission. They contend that non-compliance with the time
frame causes d elay and contributes to the backlog of cases pending before th e
Commission. These delays they contend have a negative impact on the Victim,
particularly as the case involves a violation of Article 5 of the African Charter.
130. The Complainant therefore requests that the Commission promptly proceed
to deciding the Merits solely on the Complainants' su bmission. However, if the
Commission d ecides that the Respondent State's submission is admissible, the
Complainant su bmits its response as elaborated below.
The Complainant's Reply to the Respondent State's Submissions on Merits
131. The Complainant submits that the Commission in its d ecision on
Admissibility has found that the Complainru1t "sufficiently substantiated the
allegation that the Victim, her fam ily and lawyers were subjected to threats,
~=:::::::::-......
harassment and intimidation on the part of the authorities that led to her fore 0 ,. .iuMA.-..q....,
o" e,11.El A~1.q,- O ,o
exile from the Respondent State." The Complainants contend tha jf'ie,~~-- ~o..,
~
<
Commission also established that the Victim" continued to make efforts t Jva
herself of domestic remedies through her lawyer, who subsequently fled from
Sudan in April 2012." As such, the Complainant submits that the Respondent
State's assertions that the Victim absented herself from the investigation, and
failed to pursue her case are unfounded.
132. In response to the Respondent State's assertion that the Prosecutor ordered
that the Victim be notified of the decision to close the investigation; the
Complainants contend that the Commission has already found in its decision
on Admissibility that the Respondent State authorities' failure to inform the
Victim of the outcome of the alleged investigation had rendered remedies
ineffective.
133. The Complainant submits that the Respondent State did no t adduce any
evidence to rebut the Victim's substantiated allegations. They submit that the
Victim has testified on several occasions, and in all her testimonies provided a
consistent account of the torture and rape suffered. The Complainant submits
that the Victim's testimony is consistent w ith the psychological symptom
characteristic of victims of rape, as reported in the psychological report dated
28 December 2012. The Complainants therefore argue that these evidence
shifts the burden of proof to the Respondent State who has failed to discharge
its burden of proof.
134. The Complainant submits that the Respondent State did not provide the
alleged testimonies of Ms Safinaz Ishaq and Mr. Hayder Abdel Gadir referred
to in its submission, as such, there is no information verifying the claims
therein. They submit that Mr. Hayder Abdel Gadir is known to the Victim as a
lecturer at the University of Sudan where she attended. However, the Victim
has never spent time with Mr. Gadir outside the University, neither on 13
February 2011 nor on any other day.
135. The Complainant submits that on the basis of medical form 8 examination, the
doctor could not exclude the possibility that the rapes were committed. They
contend that the medical form 8 is a one-page reporting docwnent for reports
on physical injuries generally, rather than specifically for allegations
concerning sexual violence. The Complainant therefore submits that form 8
does not allow for a comprehensive medical report.
136. Regarding the contention that the Victim' s allegation that she was detained at
an NISS office near Shandi bus station, are mere aspersions based on hearsay,
the Complainant submits that this is in contrast with the well-documented us:..-:e==:::--...
of this particular office as a place of detention and torture. In supper
averment, the Complainant submits that the Commission found in Mo
Osmnn Hummeidn Amir Suliman (represented by FLOH nnd OMCT) v Sudnn 23 that
three human rights defenders were detained and tortured in the NISS office
near Shandi bus station.
137. In response to the Respondent State's assertion that the Victim's complaint
was adequately investigated, the Complainant submits that the investigation
was not thorough, as it only consisted of two statements and the medical
examination on the basis of form 8. The Complainant submits that these steps
are insufficient and further investigations ought to have been conducted,
including obtaining the records of NISS officials on duty on the day of the
alleged incident, and interrogate them accordingly. As such, the Complainant
submits that the failure to adequately investigate the allegations violates
Articles 5 and 1 of the African Charter.
The Commission's Analysis on the Preliminary Objection
138. Pursuant to Rule 103 (4) of the RoP 2010, when a preliminary objection is
raised, the Commission shall first determine this objection before any other
question relating to the Communication is considered. The Commission
therefore notes the Complainant's contention that the Respondent State's
submissions on the Merits should not be considered, for failure to comply
with the time frame stipulated in Rule 108 (1) of the RoP 2010.
139. As noted in paragraph 24 and 25 a bove, the Complainant's submissions were
re-transmitted to the Respondent State on 29 June 2015, following feedback
from the Commission's Promotion Mission to the Republic of Sudan, held
from 22 to 28 May 2015. Although the Respondent State's submissions on the
Merits were received on 7 November 2015, three (3) months past the
stipulated deadline, the Commission considers that admitting the submissions
would be in the interest of justice, as both parties would be afforded the
opportunity to respond to allegations raised and evidence submitted. This
would allow for a constructive analysis of the provisions of the African
Charter alleged to have been violated and the relief sought by the
Complainant.
Decision of the Commission on the Preliminary Objection
HU
m1111eida Amir Suli111a11 (represented by FIDH a11d
23 Communication 379/
OMCT) v Sudn11 paras 4
29
"'R,c.a.1~ 0
ETDE
140.
In view of the foregoing, the Commission dismisses
Complainant's preliminary objection and consequently admits
submissions of the Respo ndent State on the Merits.
the
the
Commission's Analysis on the Merits
Alleged Violation of Article 5
141. Article 5 of the Charter reads:
Every individ ual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status. AU
forms of exploitation and degradation of man, particularly slavery,
slave trade, torture, cruel, inhuman or degrading punishment and
treatment sha11 be prohibited.
142. The Complainant alleges that the Victim was abducted on 13 February 2011
by three men alleged to be NISS officials, and taken to an NISS office near
Shendi bus station, Khartoum North, where she was severely beaten,
humiliated and gang raped. The Complainant contends that the acts of torture
were aimed at damaging the Victim's dignity and punishing her for her
participation in student rallies and her affiliation to Girifna, a non-violent
resistance movement, and the Youth Forum for Social Peace.
143. The Respondent State however contends that upon an initial investigation,
the Victim's claim of abduction was rebutted by the testimony of one Mr.
Hayder Abdel Gadir who assured the police that he was in the company of the
Victim on the day of the alleged incident. The Respondent submits that the
alleged rape has not been substantiated as the report of medical form 8 was
undecided in this regard. The Respondent State further contends that the
Victim's averments that the torture and rape were carried out by N ISS officials
are mere aspersions, and that the contention that the location has also been
recognized by other complainants as am NISS building, is mere hearsay.
144. The Commission in the case of Monim Elgak, Osman Hummeida and Amir
Suliman (represented by FIDH and OMCT) v Sudan set out the principal elemen ts
that constitute torture as follows: " that severe pain or suffering has been
inflicted; for a specific purpose, such as to obtain information, as punishm~e~ =~.....
or to intimidate, or for any reason based on discrimination; by
instigation of or w ith the consent or acquiescence of State authorities." 24 The
Commission in its interpretation of Article 5 of the African Char ter has also
ad opted the definition of torture contained in the United Nations Conven tion
against Torture and Oher Cruel, Inhuman or Degrading Treatmen t or
Punishment (UN Convention Agains t Torture).25
145. The Commission in d etermining whether the alleged acts constitute a
violation of Article 5 of the African Charter, must first consider the four
constitutive elements qualifying an act as torture, these include: i) the nature of
the act; ii) the intention of the perpetrator; iii) the purpose; and iv) the
involvement of public official.
146. Regarding the nature of the act, the Commission in its jurisprudence has
noted the reasoning of the European Court of Human Rights (ECtHR) in lrelnnd
v United Kingdom w here it held that the " ... ill-treatment must attain a
minimum level of severity [a nd] ... The assessment of this is, in the nature of
things, relative; it d epends on all the circumstances of the case, such as the
duration of the treatment, its physical or mental effects and, in some cases, the
sex, age and state of health of the victim etc." 26 The crime of ra pe is of such a
grave and cruel natui-e that it autom atically fulfils the severity tlu·eshold for
torture. As observed by the IACtHR in Fernandez Ortega et nl. v Mexico " ... the
severe suffering of the victim is inheren t in rape, even when there is no
evidence of physical injuries or disease". 27
147. The Commission notes the Victim's testimony which d escribes in detail the
abduction, verbal insults, beating and rape by tmee men whom she alleges to
be officers of the N ISS. In support of these averrnents, the Complainant subrni t
medical examination form 8A dated 16 February 2011, a psychological report
prepared by TRACES-Reseau Clinq ue International, Paris and the Victim's
statements taken a t the Khartoum North Prosecution Office and the Kharto um
Nor th (Barui) East Police Station on 16 February 2011.
148. An examination of the evidence su bmitted by the Complainant reveal a high
degree of consistency in the accounts of facts given by the Victim to the Public
Prosecutor, Police, clinical psychologist, and in her statement submitted to the
Commission. These statem ents were rendered at different times between the
periods of 2011 to 2013. The Commission however notes that the Respondent
State in disputing the Victim's version of events of 13 February 2011 relies
primarily on the testimony of one Mr. Hayder Abdel Gadir, a lecturer at the
University of Sudan, and the medical form 8A.
149. The Commission notes that neither the testimony of Mr. Gadir nor medical
form 8A was submitted in evidence by the Respondent State. The Commission
reiterates that in cases of human. rights violations, the burden of proof rests on
the Respondent State to provide evidence to contradict an allegation of human
righ ts violation made against it. 28 Where the State fails in this regard, the
Commission may consider the facts alleged as proven, or at the least probable
or plausible.29
150. The Commission further notes that medical form 8A was submitted in
evidence by the Complainant, and its admission or authenticity has not been
challenged by the Respondent State. Medical form 8A reports as follows:
There are sores around the vagina. The vagina opening (entrance) is very small
because of the circumcision. That is why I couldn' t see the h ymen. There is blood
coming out of the vagina which the mentioned above [Victim] said it is
men strual blood.
The Commission considers that the nature of the injuries described above is
consistent with the prognosis that the Victim may have been subjected to some
form of sexual violence, and the Victim's version of events of 3 February 2011
supports this fact. Additionally, the Commission notes that the psychosocial
evaluation further corroborates the Victim's allegations, as it concludes that the
Victim's symptoms revealed post-traumatic pain and suffering linked to the
abuse of 13 February 2011. These symptoms the evaluation lists as follows:
sexual troubles, hyper vigilance, nightmares, sadness and anxiety, feelings of
guilt, loss and insecurity amongst others.
151. The Commission in assessing the veracity of allegations raised by
complainants, generally require that evidence submitted must be compelling,30
or "contain elements likely to reasonably lead to D a conclusion [that the
alleged violation occurred]."31 Similarly, the EC tHR held in the case of Afet
Siire1111n Eren v Turkey that proof may " ... follow from the co-existence of
28 Communication 48/90-50/91-52/91-89/93 - A111neshJ /11temntionnl, Comite Loosli Bnclzelnrd, Lmuyers'
Co111111ittee for H11111a11 Rigltts, Association of Members of lite Episcopal Co11ference of East Africa v S11da11 para
52.
29 As above.
30 Communication 212/98 - AnmeshJ Tn.ternntio11al v Zambia para 45.
3 1 Communicatio n 144/ 95 - Willia111 A. Curson v Eq11atori(ll G11inea p ara
..~.~-_......
32
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact."32 In light of the foregoing, the Commission finds that the
evidence as presented by the Complainant establish that on 13 February 2011
the Victim was indeed subjected to an act of sexual violence w hich includes
rape.
152. The definition of torture as contained in the UN Convention against Torture
d emands that the severe pain or suffering be inflicted for a prohibited purpose,
such as: to obtain information or a confession, to punish, intimidate or coerce,
or any reason based on discrimination of any kind. The Commission notes the
reasoning of the International Criminal Tribunal for Rwanda (ICTR) in The
11
Prosecutor v Jean-Paul Akayesu that •• • rape is used for such purpose as
intimidation, degradation, humiliation, discrimination, punishment, control or
destruction of a person" _33
153. In the present Communication, the course of events as described by the
Victim shows that the physical assault, insults and rape were inflicted with
intent to obtain information on the Victim's participation in the activities of
Girifna, and aimed at punishing the Victim for her involvement with the said
group. The Commission considers that rape under such circumstances
constitutes torture when inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.
As noted by the ECtHR in the case of Aydin 11 Turkey " [r]a pe of a detainee by an
official of the State must be considered to be an especially grave and abhorrent
form of ill-treatment given the ease with which the offender can exploit the
vulnerability and weakened resistance of his victim." 34 The Commission must
therefore consider the contentious issue of whether the gang rape, beatings and
insults suffered by the Victim were perpetrated by State agents.
154.The Commission notes that the Victim in her testimony taken at Khartoum
North (Bahri) Police Station identified her attackers as security agents,35 and
categorically stated in her testimony to the Commission that she " ... went to see
the Attorney General to file a criminal complaint against the NISS. He
completed a petition requesting the police to register [her] complaint against
unknown suspects ... " 36 The Respondent State does not contest this averment,
but denies the involvement of NISS officers.
32 Afet Sfl_reyyn Eren v Turkey ECtHR (14 March 2016) App No 36617 / 07 Final para 29.
33 Tlze Prosecutor v Jenn-Pnul Aknyesu, Case No ICTR-96-4-T, (Chamber I) 2 September 1998 para 597.
~~~
34 Aydin v T11rkey ECtHR (25 Septe mber 1997) App No 57/ 1996/
35 Complaint filed at Khartoum North (Bahri) East Police Statior
Annex 3 to the Initial Complaint.
0~~'
36 Testimony of the Victim, Annex 1 to the Initial Complaint i~a 7
~ 8
~ \
a 83.
• le 44 (a) (c),
33
~
~
155.The Commission notes that the Robben Island Guidelines stipulates that where
an individual raises an arguable claim of torture or ill treatment, the
Respondent State is obliged to initiate an effective investigation into the
allegations raised, in conjunction with its duties under Articles 1 and 5 of the
African Charter.37 The Istanbul Protocol further provides that the "[t]he
investigators, w ho shall be independent of the suspected perpetrators and the
agency they serve, must be competent and impartial."38
156.The Commission
notes
that rather
than
undertake
an independent
investigation into the Victim's averrnents, an internal inquiry was conducted
by the NISS, and the Respondent State in its submission dismissed the Victim's
allegation as mere aspersions. The Comnussion considers that the case of
Monim Elgnk Osmnn Hummeidn Amir Sulimnn (represented by FIDH and OMCT) v
Sudan may ser ve as corroborative evidence of the use of a building near Shendi
bus station by the NISS. However, it is important to emphasize that rape
constitutes torture even when it occurs outside Sta te facilities. As the IACtHR
noted in Rosendo Cnntu et nl v Mexico " ... the objective and subjective elements
that d efine an act as torture do no t refer to the accumulation of acts or the place
w here the act is committed, but rather to the severity of the suffering and the
purpose of the act ... "_39
157.The Commission has found that h uman rights violations not directly imputable
to a State Party (because it is an act of a private person or by unidentified
persons) can lead to international responsibility of the State, not because of the
act itself, but due to the failure to exercise due diligence to prevent the violation
or respond to it as required by the African Charter.40 In the present
Communication, the Respondent State clearly failed in its duty to diligently
investigate the acts alleged, identify the perpetrators and accordingly punish
those responsible.
37 Resolution on Guidelines and Measures for the Prohibition a nd Prevention of Torture, Cruel,
Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines) 2008 para
17 and 18.
38 Istanbul Protocol - Manual on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatmen t or Punishment, 9 August 1999 (reproduced as OHCHR,
Professional Trai ning Se ries No. 8/ Rev. 1, UN Doc. HR/ P / PT/ 8/ Rev.1, available at
hllp://"" \\ .ml.01g/lk•faull.c1~p,?JI ) '.:!701 ), para. 79.
39 Rosendo Ca1Lt11 et al v Mexico IACHR (31 August 2010) (Preliminary Objections, Merits, Reparations
and
~!:iei~~
216 para 118.
7 - Eq11alihJ Naw anrl Ethiopian Women Lawyers Association (EW LA) v Ethiopia
34
158.In view of the foregoing, the Commission finds that the Responden t State' s
failure to effectively investigate the allegations raised by the Victim; the
accumulation of acts of physical and mentaJ violence inflicted on the Victim,
and the especially cruel act of rape to w hich she was subjected amounts to a
violation of Article 5 of the African Charter.
Alleged Violation of Article 2, 3 and 18
159.Article 2 of the African Charter provides for the freedom from discrimination
of any kind, and Article 3 stipulates that: (1) Every individual shall be equal
before the law; (2) Every ind ividual shall be en titled to equal protection of the
law.
160.Article 18(3) of the African Charter further provides that: "The State shall
ensure the elimination of every discrimination against women and also ensure
the protection of the righ ts of the woman and the child as stipulated in
inter national declarations and conventions."
161.The right to non-discrimination is imperative for the respect and enjoyment of
all other rights and freedoms protected in the African Charter. 41 The Protocol to
the African Charter on Human and Peoples' Rights on the Rights of Women in
Africa (Maputo Protocol) defines 'discrim.ination against women' as "any
d istinction, exclusion or restriction or any differential treatment based on sex
and wh ose objectives or effects compromise or destroy the recognition,
enjoyment or exercise by women .. .of h uman rights and fundamental
freedoms ... " 42 The Maputo Protocol further defines violence against women as
"all acts perpetrated against women which cause or could cause them physical,
sexual, psychologicaJ and economic harm ... " 43
162.The Commission notes the sexual nature of the violations alleged, and
reiterates its jurispru dence in the case of EgiJptinn Initiative for Personal Rights &
INTERlGHT v EgiJpt, where it held that w here the alleged assault is genderspecific, "in the sense that the Victim [was] subjected to acts of sexual
harassment an d physical violence that can only be d irected to women ... there
can be no doubt that the Victim [was] targeted in this manner due to [her]
Application 006/2012 - African Com111issio11 0 11 Human a1Ld Peoples' Rights v Ke11ya, Judgment, 26 May
2017 para. 138.
42 Protocol to the Af •
and Peoples' Rights on the Rights of Women in Africa
(Maputo Protocol)
43 (As above) art 1 U
41
35
gender."44 Further, the Commission has held in EqualihJ Now and Ethiopian
Women Lawyers Association (EWLA) v Ethiopia that " ... distinctively exacting
violence on someone simply because she is a woman, as opposed to being a
man, or exacting more violence on women as compared to men in the same
circumstances amounts to discrimination." 45
163.In the present case, the Complainant does not only contend that the violence
meted on the victim was discriminatory, they further allege that the State
authorities were discriminatory in its response to the Victim's allegations of
sexual violence by State security agents. The Respondent State contests this
allegation and avers tha t the Police conducted investigations which revealed
the absence of a primn facie violation, as such, in the absence 0£ the victim or her
representative, proceedings were closed on 2 June 2011.
164.Guaranteeing freedom from discriminatory treatment based on sex or an y
other ground, is a prerequisite to ensuring effective access to justice for victims
of sexual violence, particularly women. The Commission notes the Victim's
written testimony that upon filing her complaint on 16 February 2011, she was
termed a 'liar' by the Attorney General, Head of the Khartoum North (Bahri)
Police Station and the officer who took her statement. 46 She also avers that she
was threatened to the effect that her family may come to harm i£ she continues
to pursue the complaint against the NISS. The Complainant submit that
following these threats, the Victim fled to South Sudan on 18 February 2011
and eventually settled in France where she was granted asylum on 31 March
2012.
165.The above account is corroborated by the written testimony of the Victim's
lawyer who also alleges that he was forced to flee Sudan due to repeated
threats and harassment from the NISS, a nd sought asylum in the United
Kingdom on 23 April 2012. Further, this intimidation was extended to
journalists reporting on the Victim's case, as the Commission notes the witness
testimony of a Sudanese journalist submitted by the Complainant, wherein he
testifies to facing threats and even imprisonment for the offence 0£ defamation,
spreading false news and threatening society's security.47
44
Communicatio n 323/ 06 - Egyptian l11itiativefor Perso11nl Rights & LNTER!GHT v EgtJpt para 144.
45 Communicatio n 341/2007 - Eq11alihJ Now nnd Etliiopin11 Wol/le11 Lawyers Associatio11 (EWLA) v Etl,iopin
Para 145.
46 Testimony of the V-
.U,M".;~-'<'~
Initial Complaint para 7 and 9.
s ubmiss ion on Adm·
36
166.The Com.mission has held that to make out a claim of a violation of Articles 2 of
the African Charter, the Complainant must establish a primn fncie case that the
Respondent State had "accorded less favourable creatment to the victim than
that accorded to others in relevantly analogous situa tions ... " 48 In essence, the
Complainant must identify the comparator and show how the creatment
complained of and that of the comparator are comparable. The Commission
notes that in the present Communication the Complainants do not identify the
comparator; and the Corrunission acknowledges the difficulty in identifying
one, particularly in cases of sexual violence involving State security personnel.
In the absence of a comparator, the Corrunission reiterates its position in
EqualihJ Now and Ethiopian Women Lawyers Associntion (EWLA) v Ethiopia that it
is " ... indisposed to affirm that there was discrimination ... [however], it is
sufficient that the failures of the Respondent State amount to violations of a
name other than "discrimination" .. ." 49
167.With respect to Article 3 (2) of the African Charter, the Commission has held in
Zimbabwe Lawyers for Human Rights and Institute for Human Rights and
Development in Africa v Zimbnbwe tha t equal protection of the law relates to the
right of all persons to have the same access to the law and courts and to be
created equally by the law and courts both in procedures and in the substance
of the law.so In the present Communication, the Commission notes that the
Victim was created in a manner w hich denied her the opportunity to seek the
protection of the courts, as the Victim and her lawyer were compelled to flee
Sudan, due to threats and harassment from State authorities. The Commission
in its Resolution on the Right to a Remedy and Reparation for Women and
Girls of Sexual Violence emphasized the obligation of States to adopt
appropriate measures to ensure that perpetrators and accomplices of such
crimes are held accountable by the relevant judicial system, this includes
conducting an effective investigation into the victim's allegations.51 An
obligation the Respondent State failed to uphold.
168.It is important to state that the use of sexual violence by perpetrators embody
gendered discrimination, in that these crimes target the gender and sexual
identity of victims. Given the above considerations, the Com.mission finds that
48 Communication 341/2007 - EqunlihJ Now nnd Ethiopian Wo111e11 Lawyers Associntio11 (EWLA) v Ethiopia
para 147.
49 (As above) para 150.
so Communication 293/0
Develop111e11t iii Afric
51 ACHPR/ Res.111 (FV'l.,w-..
Girls Victims of Sexu
~~~
._ __._
ers for Hu11w11 Rig/its and /11stit11te for H11111m1 Rights nnd
he Right to a Remedy a nd Reparation for Women and
37
the gendered nature of the insults and rape suffered by the Victim, the failure
of the State authorities to independently investigate the victim's allegations, as
well as the intimidation and harassment which hindered the Victim's access to
justice violates Articles 2 and 3 of the African Charter. The Commission
therefore does not find it necessary to separately examine the alleged violation
of Article 18 (3) of the Charter as it was invoked w ith regards to discrimination,
w hich has already been confirmed to have been violated.
169.Finally, the Commission notes the Complainants' contention that several pieces
of legislation provide for differential treatment between men and women in
Sudan, with no apparent justification. The Complainants however only referred
to Article 149 of the Sudanese Criminal Act of 1991, and avers that the
provision disproportionately impacts women, as female victims of rape are at
the same time exposed to possible accusations of adultery. The Commission
notes that the referenced provision was amended in February 2015 by the
government of Sudan. As such, Article 149 now includes a d efinition of rape
meeting international standards, and the inh"oduction of Article 151 (3)
providing a new offence of sexual harassment. 52 Accordingly, the
Complainant's contention with the above referenced provision of the Sudanese
Criminal Act 1991 has been overtaken by events.
Alleged violation of Article 6 of the African Charter
170. Article 6 of the Charter reads:
Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbih"arily arrested or detained.
171. The Complainant submits that the manner of the Victim's arrest was akin to a
kidnapping in violation of Article 6 of the African Charter. The Respondent
State however contends that pursuant to section 51 of the National Security Act
2010, an internal inquiry was conducted by the N ISS and it was concluded that
the Victim was never arrested or summoned by the NISS.
172. The Commission has held in the case of Patrick Okiring and Agupio Samson
(represented by Human Rights Network and ISIS-'NlCCE) v. Republic of Uganda,
IOl'\\.Hd-two-'ilep,;-balk -.pd l (accessed 2Ju
38
that the right to liberty serves as a substantive guarantee that 'any arrest or
detention w ill n ot be unlawful or arbitrary' .53 As such, deprivation of liber ty
without d ue process and without the legal protections of a fair trial amounts to
a violation of Article 6 of the African Charter.54
173. The Coffilnission observes that in the present case, the Respondent State
contends that the Victim was neither summoned, arrested or detained by the
NISS. The Commission reiterates its findings in paragraph 156 above that
indeed the case of Moniru Elgak, Osman Hummeida and Arnir Suliman. (represented by
FIDH nnrl OMCT) 11 Sudan is confir m ation of the existence of an N ISS building
near Shendi bus station. In the case of Monim Elgnk, the facts and evidence
presented by the Complainants unequivocally affirmed that their arrest and
detention were executed by State security agents. In the present circumstance,
the identity of the perpetrators are unknown to the Victim, and sufficient
evidence has not been adduced to establish that the Victim was arbih·aTily held
in the same building referenced in the a bove Communication. Hence, the
Commission is indisposed to affirm that the Victim's abduction and detention
were committed by State security agents in violation of Article 6 of the African
Charter.
174. Nevertheless, the Commission considers that the Respondent had not acted
w ith due diligence in verifying the victim's statement and clarifying the
circumstances of the alleged violation. The Guidelines on the Conditions of
Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda
Guidelines) stipulates that where there are reasonable grounds to believe that a
human rights violation has taken place, the Sta te shall ensure prompt
investigation by independent and impartial authorities.55 In the present case,
there is no doubt that the Victim suffered from the lack of due diligence on the
part of the authorities in investigating, apprehending and prosecuting the
alleged perpetrators identified as N ISS officials. Accordingly, the Commission
finds a violation of Article 6 of the African Charter.
Alleged violation of Article 7 of the African Charter
Patrick Okiri11g a11d Agupio Sn111son (represe11ted by H11mn11 Rights Network
n11d ISIS-WJCCE) v. Rep11blic of Ugnnda para 107.
54 Comm unication 37
• k, Osmn11 H11111111eidn n11d A111ir 511/iman (represented by FIDH and
53 Comm unication 339/2007 -
OM CT) v S11rfn11 pa
55 Guidelines on th
Guidelines) 2014
39
175. The Complainant avers that the Respondent State violated the provisions of
Article 7 (1) (a) and (c) of the African Charter. The righ t prescribed under
Article 7 (1) (a) of the Charter includes both the initial right to seize a court, as
well as the right to appeal. The Complainant contends that the Respondent
State did not only fail to effectively investigate the complaint, active steps were
taken by State Security agents to intimidate the Victim's lawyer and impede her
access to justice.
176. The Commission in its Principles and Guidelines on the Right to a Fair Trial
and Legal Assistance in Africa (Fair Trial Principles) elaborates on the right to
an effective remedy by competent national tribw1als, which includes: access to
justice; reparation for harm suffered; and access to the factual iniormation
concernin g the v iola tions. 56
177. The Commission notes the written testimony of the Victim 's lawyer where he
states that on 18 April 2012 he was arrested in his office by NISS officers in
connection to the Victim's case; and that the Victim's case file w hich included a
power of attor ney issued in March 2011 was coniiscated. 57 In light of the
foregoing, the Commission emphasizes the critical role of lawyers in providing
effective legal assistance and guaranteeing access to justice. Accordingly, States
are obliged to ensure that lawyers are able to perform their professional
functions without intimidation, hinderance, harassment or improper
interference, and to provide adequate safeguards where the security of the
lawyer is threatened .58 The Commission therefore finds th at in the present case,
th e Respondent State failure to uphold its obligation in this regard amounts to
a violation of Article 7 (1) (a) of the African Charter.
178. As it pertains to the Complainants' contention on the alleged violation of
Article 7 (1) (c) of the African Charter, the Commission has noted in paragraph
172 above that in the absence of compelling evidence on the identities of the
perpetrators, it cannot reach a determination that the Victim's abduction and
detention were perpetuated by State security agents. Consequently, the
Commission is unable to evaluate the alleged violation of Article 7 (1) (c) of the
African Charter.
56 Principles and Guidelines on the Rig ht to a Fair Trial and Legal Assistance in Africa (Fair Trial
Principles) principle C (b).
57 Statement by the Victim's lawyer d
.J.B:~v::;'!M.3 Annex B4 to the Complainant's submission on
Admissibili ty.
ss (Fair T rial Principles) Pr inciple I
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Alleged violation of Article 9, 10 (1) and 11 of the African Charter
179. Articles 9 (2), 10 (1) and 11 of the African Charter guarantees the freedoms of
expression, association and assembly. The Commission has held that there is a
close relationship between these rights, and because of this relationship, the
actions of States may not only violate the rights to associa tion and assembly,
but also implicitly violate the righ t to freedom of expression.59
180. The Complainant contends that the Victim was arrested and tor tured
subsequent to her participation in a pro-democracy demonstra tion organized
by Girifna on 30 January 2011. The Respond ent State however denies
culpability, contending that the Victim was neither arrested nor summoned by
the N ISS.
181. The Commission has emphasized in the case of Constitutional Rights Project,
Civil Liberties Orgnnizntion nnd Medin Right Agenda v Nigeria th at freedom of
expression is a ' basic human righ t vital to an ind ivid ual's personal
development and political consciousness, and to [ones] participa tion in th e
cond uct of public affairs in [ones'] country." 60 As such, State Par ties ar e
obliged to guarantee the righ t to seek, receive and impar t information and
ideas of all kinds regard less of frontiers.61 This includes political discourse and
discussions of a hum an rights nature. 62 In this regard, the Declaration of
Principles on Freedom of Expression and Access to information in Africa
stip ulates the responsibility of State Parties to take effective legal and other
measures to investigate, prosecute and punish perpeh·ators of attacks against
journalists, media practitioners and human rights defenders; as well as ensure
that victims have access to effective remedies. 63 Further, w here d iscriminatory
conduct or physical a ttack or harassment are carried out by private individuals
in the course of or pursuant to an assembly, the Commission's Guidelines on
Freedom of Assembly and Association in Africa clearly stipu lates the
responsibility of States to investigate, prosecute ad punish such perpetrators
where necessary.64
I11temntio1rnl PEN, Co11stih1tio11nl Rigltts Project,
Civil Liberties Orgnnizntio11 nnd l11terrights (on beltnlf of Ken Snro-Wiwn Jnr) v Nigeria pa ra 110.
60 Com munication 140/94-141 /94-145/95 - Co11stit11tio1Lnl Rights Project, Civil Liberties Orgnnizntio11 n11d
Medin Rights Agenda v Nigeria para 36.
6 1 General Comment No 34 Article 19: Freedoms of Opinion and Expressio n para 11.
62 As above.
63 Declaration of Principles on Freedom of Expression
~~~~
rmatio n in Africa principles 6
a nd 20.
64 Guidelines on Freedom of Association and Asse
at 60th Ordinary Session
held in Nia mey, Niger, from 8 to 22 May 2017 par
59 Communica tion 137/ 94-139/ 94--154/ 96-161/ 97 -
41
182. In the present Communica tion, the Respondent State has failed to u phold the
above obligations, consequently the Cormnission finds a violation of Articles 9
(2), 10 (1) and 11 of the African Charter.
Alleged violation of Article 12 of the African Charter
183. Article 12 (1) and (2) of the African Charter stipulates the right to freedom of
movement and residence, and the right to leave and return to ones' country.
184. The Complainant contends that the Victim was forced to flee Sudan due to
threats she received from NISS officials, and the continuous persecution of
persons w ho offered her support after the publication of her video testimony.
The Respondent State disputes this fact, and states that the Victim was only
invited for further questioning at the Kafouri police station and never
appeared.
185. The Commission in its jurisprudence has found a violation of Article 12 (1)
and (2) of the African Charter in circumstances where the complainants were
forced to flee their country of residence due to fear of persecution by the
authorities.65 It has been established that by no tice of 30 March 2012, the Victim
was granted asylum to reside in France based on a 'well-founded fear of
persecution' should she return to Sudan.66 Further, the Commission notes that
the harassment and threats alleged were not only targeted at the Victim, but
also at journalists, human rights activists and organizations w hich sought to
assist the Victim in obtaining justice, one of such organizations being La liqahr
alnisaa (No to the suppression of women).
186. The Commission considers that the fact that the Victim and her lawyer were
granted asylum in third countries on grounds of a 'well-founded fear of
persecutions' lends credence to the Complainant's assertion that the Victim and
her lawyer were subjected to threats, harassment and intimidation at the hands
of State a uthorities. Given the above circumstances, the Commission finds a
violation of Article 12 (1) and (2) of the African Charter.
Alleged violation of Article 16 of the African Charter
65 Communicatio n 232/99 - Jolt11 D Ouko v Kenya para 31; and Communica tion 379/09 (n 23 above)
para 126.
66 Decision by the Office Fran~ais d e Protection
trides dated 30 Ma rch 2012, Annex
BS to the Complainant's s ubmiss ion o n Adu 411~lll
42
187. Article 16 of the African Charter stipulates the right to enjoy the best
attainable state of physical and mental health. The Complainant contends that
the Respondent State is in violation of Article 16, as the mental and physical
injuries the Victim suffered was as a consequence of torture by State security
agents.
188. As noted in paragraph 172 above, the Commission is unable to determine
whether the act of torture was perpetrated by State agents. Accordingly, the
Commission cannot determine the culpability of the Respond ent State as it
relates to the violation of the right to health as alleged by the Cornplainant.
Alleged violation of Article 1 of the African Charter
189. Article 1 of the African Charter underscores the obligation of States to
"recognise the rights, duties and freedoms enshrined in the Charter and shall
adopt legislative or o ther m easures to give effect to them." The Complainant
contends that the Respondent State's failure to provide an effective remed y for
the Victim violates Article 1 of the African Charter.
190. The Commission reiterates its jurisprudence in Om1mission Nntionnle des Droits
de l'Homme et des Libertes v Chnd, w here it held that "if a State neglects to ensure
the rights in the African Charter, this can constitute a violation [under article 1],
even if the State or its agents are not the immediate cause of the violation." 67 In
the present Communication, the Commission has reached a conclusion that the
Respondent State had not shown due diligence to seek out, investigate and
prosecute the perp etrators of the violations found. Further, the Commission
considers that in cases of sexual violence agains t women, it is important that
the investigation is conducted in a d etermined and effective manner, taking
into consideration the collective societal obligation to reject violence against
women, and the State's corresponding obligation to eliminate it.68
Consequently, the Commission finds that the failure of the Respondent State to
uphold th.is obligation constitutes a violation of Article 1 of the African Charter.
Decision of the Commission on Merits
67
Communication 74/92 - Co11111rissio11 Nationale des Droits de l'Ho111111e et
68 Fernalldez Ortega et al. v Mexico IACHR (30 August 2010) para. 193;
African Charter on Human and Peoples' Rights: The Right to Red re
Other Cruel, inhuman or degrading Punishment or Treatment, 2017
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43
Based on the above reasons, the African Commission on Human and Peoples'
Rights holds as follows:
i. That the Respondent State - the Republic of the Sudan has violated Articles 1,
2,3, 5, 6, 7(1) (a), 9 (2) 10 (1), 11, 12 (1) and (2) of the African Charter on
Human and Peoples' Right;
ii. Requests the Republic of Sudan to:
a. Pay adequate compensation to the Victim named in this
Communication in accordance with the d omestic law of the Republic of
the Sudan for medical expenses, physical and emotional suffering, and
damages suffered in relation to the violations found;
b. undertake institutional and practical r eforms to en sure effective redress
for victims of sexual and gender-based violence. These measures may
include: ensuring adequate d ocumentation; accountability of
perpetrators; providing support to victims at all stages of the legal
process; identifying the causes and consequences of sexual and gender
based violence and take all necessary measures to prevent and eradicate
it; establishing efficient and accessible reparation programmes, and
ensuring participation of victims in the adoption and implementation of
such programmes; as well as providing unimpeded and regular access
to comprehensive healthcare;
c. Promptly and independently investigate, prosecute, and punish all
actors, including State security agents responsible for the abduction,
rape and torture of the Victim ;
d. Adopt and implement procedural safeguards for the prevention of
torture and other forms of ill-treatment as required under the Robben
Island Guidelines;
e. Train secu rity officers on relevant standards concerning adherence to
custodial safeguards and the prohibition of torture;
iii. Inform the Commission, in accordance with Rule 112 (2) of the Commission's
Rules of Procedure (2010), within one hundred and eigh ty days (180) of the
notification of the present decision of the measures taken to implement the
present decision.
Done Virtually, at 72nd Ordinary Ses •
held from 19 July to 2 August 20
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