UNION AFRICAINE
AFRICAN UNION
African Commission on Human & Peoples' Rights
I®
UNIAO AFRICANA
Commission Africaine des Droits de I'Homme & des Peuples
31 Bijilo Annex Layout. Kombo North District, Western Region,P. O. Box 673, Banjul, TheGambia
Tel: (220) 4410505/4410506; Fax: (220) 4410504
E-mail: au-baniuKc&.africa-union.orq; Web www.achpr.org
Communication 401/11
Hawa Abdallah (represented by African Center for Justice
and Peace Studies)
•
The Sudan
Adopted by the
African Commission on Human and Peoples' Rights
during the 1f'Exra-Ordmary Session, from the 19 to 28 February 2015
Banjul, The Gambia
•"
Hon. Commissioner KAYXTESI Zainabo Syivie
Chairperson ofthe African Commission
on Human and Peoples' Rights
Kb.Dr. Mary H iboreke
' 'Secretary to the African Commission on
Human and Peoples' Rights
Communication 401/11 - Hawa Abdallah (represented by African Center for Justice and
Peace Studies) v The Sudan
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a Complaint on 21 June 2011, from the African Center for Justice
and Peace Studies (the Author), a human rights organization registered in Uganda and
acting on behalf of Ms. Hawa Abdallah (the Complainant).
2. The Communication is submitted against the Republic of the Sudan (the Respondent
State) State Party to the African Charter on Human and Peoples' Rights (African
Charter) on behalf of the above named Complainant.
3. The Author alleges that Ms. Hawa Abdallah, a Darfurian Community activist and
translator for the United Nations-Africa Union Mission in Darfur (UNAMID), was
arrested on Friday, 06 May 2011 at her home at the Abu Shouk Internally Displaced
Persons Camp by officers of the Sudanese National Intelligence Security Services
(NISS), and briefly detained in El-Fashir before being transferred to Khartoum on 8 May
2011.
4. The Author further alleges that on the day of her transfer to Khartoum, the state-owned
media outlet, SUNA, published an article accusing the Complainant of attempting to
convert children in Internally Displaced Persons (IDP) camps into Christianity as part of
a wider conversion effort (in spite of the fact that the Complainant herself is Muslim),
and of having links to an armed Darfurian militia and engaging in a wide range of other
unlawful activities.
5. The Author submits that although the Complainant has not yet been officially charged,
the severity of the accusations leveled against her in the media and by the authorities,
including the capital crime of apostasy, suggests the vehemence with which the
authorities were pursuing the matter. The release of a staged photograph alongside a
statement by SUNA, according to the Author, underlines this apprehension.
6. The photograph released by SUNA to accompany their story on 8 May 2011 depicted
Ms. Addallah posing with a bible and an identification card and showing visible signs
of fatigue and what appeared to be bruises on her face. The Author contends that it is
highly unlikely that a Muslim woman would pose with these items especially in a
country where apostasy is so severely criminalized; hence it concludes the photograph
was forcibly posed. Though it is unclear when exactly the picture was taken, the Author
maintains that it raises serious apprehensions about the likelihood of the Complainant
being subjected to treatment that violates the African Charter during her detention.
7. The Author states that its concerns are heightened by information that the Complainant
was previously tortured in NISS custody. In April 2009, she was detained in El-Fashir
for six days after the International Criminal Court (ICC) issued a warrant for the arrest
of Sudan's President, Omar Al Bashir. At that time, she was accused of passing
information about the Government's activities to UN AMID and the ICC and of
supporting a Darfurian rebel group, but she was ultimately released without charge.
She subsequently received threatening phone calls from individuals claiming to be NISS
officials who told her that the next time she was arrested, she would be killed.
8. The Author avers that it has received and reviewed reports further to interviews with
the Complainant about the above period of detention. In these reports, according to the
Author, the Complainant describes having been systematically beaten, whipped and
deprived of sleep, as well as being forced to stand in painful positions for hours at a
time. She was repeatedly called a prostitute and a spy and threatened with rape as well
as rape of her mother. Another prisoner detained in the cell next to her who had been
interviewed by the Author confirmed that he heard the Complainant crying for six
nights in a row.
9. The Author states that the Complainant has not been allowed access to her family or a
lawyer since she was detained despite repeated requests to the authorities. This was in
contravention of the Sudanese National Security Act, Article 5 of which permits family
visits. The detention was further in violation of the Status of Forces Agreement between
UNAMID and Sudan. She has not been charged with any crime since her arrest in May
2011.
10. It is submitted by the Author that the Complainant is in danger of being subjected to
torture, and indeed may already have been so subjected. As a matter of particular
urgency, the Author seeks consideration by the Commission of a request for provisional
measures calling on Sudan to refrain from exposing Ms. Abdallah to torture and
inhuman or degrading treatment, in order to prevent irreparable harm being visited on
her.
Articles of the African Charter alleged to have been violated
11. The Author alleges violation of Articles 4, 5, 6, 7 12 and 16 of the African Charter
Procedure
12. The Secretariat of the African Commission received the Complaint by email on 21 June
2011.
13. The Commission was seized of the Communication during the 10th Extra-Ordinary
Session held from 6 to 9 August 2012 in Banjul, The Gambia. The Author was informed
and requested to submit on admissibility. The Communication was also brought to the
attention of the Respondent State. The request for provisional measures was not
granted.
14. The Communication was subsequently deferred during the 50th and 51st Sessions
pending submission of the Author's observations on Admissibility.
15. On 12 December 2012, the Author's submissions on Admissibility were received at the
Secretariat which acknowledged receipt of same on 8 January 2013. The submissions
were forwarded to the Respondent State by Note Verbale on the same day and it was
requested to submit its observations in accordance with Rule 105 (2) of the
Commission's Rules.
16. On 3 March 2013, the Secretariat received a Note Verbale from the Respondent State
that it had not been availed ofthe original complaint and could therefore not respond to
the Complainant's submissions. The Respondent State's Submissions on Admissibility
were received at the Secretariat on 18 June 2013.
17. The Communication was declared admissible at the 54th Ordinary Session of the
Commission held from 22 November to 05 November 2013 in Banjul, The Gambia. The
parties were informed of the Commission's decisions and the Author was requested to
submit on the Merits.
18. On 31 January 2014, the Author requested for an extension of time within which to
submit. The request was granted and the Author was informed by letter dated 30
January 2014.
19. On 31 March 2014, the Author's submissions on the Merits were received at the
Secretariat which forwarded same to the Respondent State by Note Verbale of April 01
2014 requesting for its observations on the said submissions.
20. The Communication was subsequently deferred pending the Respondent State's
observations.
The Author's Submissions on Admissibility
21. The Author submits that all the Admissibility requirements under Article 56 of the
Charter have been complied with.
22. With respect to the exhaustion of local remedies in particular, the Author explains that
the absence of available, effective and sufficient remedies for torture in Sudan does not
warrant them to exhaust the remedies for purposes of Admissibility. The Author points
out that it is almost impossible both as a matter of law and practice, to seek redress for
torture or unlawful detention by officials of the NISS in Sudan, despite the widespread
and numerous allegations which have been documented by various international and
national human rights organizations.
23. The Author claims that there are no effective modalities for lodging complaints before
the authorities in situations of NISS detention. Key aspects of the National Security Act
2010 (NISS Act 2010), under which the Complainant was held, are incompatible with
fundamental guarantees under articles 4, 5, 6 and 7 of the Charter, and do not provide
effective remedies for the violations alleged. They note that the NISS Act 2010, for
example, does not require specification of the grounds for arrest and detention,
provides no access to a lawyer during any point of the detention —which can be up to
45 days, or longer depending on the circumstances —and contains no provisions for
judicial supervision during the period mentioned above like the right to habeas corpus. In
fact in addition to detention for up to 45 days without judicial review, a person may be
detained for an additional three months if sanctioned by the National Security Council.1
24. Secondly, the Author points out that there is no individual right of action available
which would permit a complainant to request the Prosecution Attorney to exercise the
proprio motu powers which he does have under Article 51 (8) of the Act to inspect places
of detention. It is submitted that even if such a review was initiated, and a detainee was
able to lodge a complaint directly with the inspecting Attorney, it is unlikely to be
pursued.
25. Thirdly, the Author notes that neither the Criminal Procedure Act of 1991 nor the
National Security Forces Act of 1999, nor any other legislation, stipulate a duty on the
part of the authorities to commence an investigation upon receiving notice of an
allegation of torture or following a complaint of torture. There is no explicit right or
established procedure or precedent of using mandamus or other remedies to compel the
Sudanese authorities to commence an investigation.
26. Fourthly, the Author contends that even if such an investigation is indeed commenced,
proceeding against a suspect face significant additional hurdles. They note that in its
report adopted by the African Union (AU) Peace and Security Council in October 2009
the AU High Level Panel on Darfur noted with "particular concern" the existence of
"immunities from criminal processes that are enjoyed by members of the Security
Forces and which derive from legislation, as well as the exercise of powers conferred
upon the President."
27. According to the Author, no authority other than the Director of the NISS can lift the
immunities granted to NISS officials. Even if such a request to the Director is made,
there are no procedures available before Sudanese courts which can compel the Director
to make a decision on such a request, order a review of a decision not to lift immunities,
or directhim to respond in the affirmative. A decision by the Director of the NISS to lift
1See, for example, the decision oftheSudanese Constitutional Court in Alam Eldeen AbduElgani and others vs. the
NISS, issued the 8thJuly, 2007, confirming the impossibility of review, inter alia, ofthe period of detention of the
applicant. The Court declared that it would notintervene in the matter as the authors were detained according to
the Articles 6 and 30of the NISS Act1999 and therefore the periodof detentionstipulated in article 31 (2) (b)
could not be subject to scrutiny.
immunities is therefore ultimately an administrative or political one, rather than a
judicial one. The Author avers that the constitutionality of these immunities was upheld
by the Constitutional Court in 2008 in the case of Farouq Mohamed Ibrahim al Nour vs
Government of Sudan.2
28. The Author submits that in addition to these substantive legal and procedural barriers,
as a matter of practice, it is not aware of any prosecution - let alone conviction —of a
member of the NISS for torture. It knows of no instance in which immunities of NISS
officials were lifted - although there have been some instances documented of
immunities being lifted and prosecutions pursued with respect to military or police
suspects.
29. The Author recalls that the requirement for exhaustion of domestic remedies with
respect to the procedures of the Commission does not require the applicant to exhaust
extraordinary or administrative remedies which are unfettered by any procedures for
review. The Commission has recognised that the fact that a formal legal complaint has
not been submitted is not, by itself, a bar to a finding of admissibility. To this effect, the
Author cite the Commission's decision in Amnesty International v Sudan3 wherein it
was held that where no action has been brought by the alleged victims, the Government
has been sufficiently aware of the extent that it can be presumed to know the situation
prevailing within its territory as well as the content of its international obligations.
30. The Author explains that in the instant case, approaches to the NISS authorities to seek
access to the Complainant by family members and lawyers while she was in detention
were rebuffed. They state that on 15 May 2011, for example, a lawyer known to ACJPS
approached the NISS Prosecutor in Khartoum to seek to meet Ms. Abdallah and
ascertain if any charges had been filed, but his requests were ignored.
31. It explains further that the Complainant was only able to afford herself an opportunity
to communicate with a lawyer or her family upon her release in Khartoum on 12th July
2011. Ultimately however it rapidly became clear to her that pursuit of a complaint
against the authorities for her torture and detention was not feasible. First, during her
detention NISS officials had allegedly threatened her and warned that she would be
2Farouq Mohamed Ibrahim Al Nour v (1) Government ofSudan; (2) Legislative Body; 6 November 2008.
3Communication 48/90, 50/91, 83/93 - Amnesty International, Comite Loosli Bacheland, Lawyers Committeefor Human
Rights and Association ofMembers oftlie Episcopal Conference ofEast Africa v Sudan, ACHPR 1999-2000, 13"' Activity
Report, para 33.
6
.
killed if she told anyone about what had unfolded while in custody. Second, in addition
to the arrest and beating by the NISS of both her driver and uncle at the time of her
arrest, while she was in detention two NISS officers from Khartoum travelled to El
Fashir and met with her father at Abu Shouk IDP camp to interrogate him about a range
of allegations which had been made about her in a statement by the Sudanese news
service, the Sudan Media Centre on 8 May.
32. It is also pointed out that the Complainant's father was told that his daughter's life and
that of her family would be in danger if he did not confirm these allegations. Learning
about this encounter exacerbated the Complainant's concerns about the safety of her
family generally, but especially if she proceeded in any way with respectto a complaint.
In this regard, the Author confirms that it has documented a number of cases where
family members or lawyers who acted on behalf of individuals detained by the NISS
were themselves arrested and detained.
33. The Author submits further that after her release, the Complainant was made aware by
a lawyer based in El Fashir that (while she was still detained charges had been filed
againsther on 29 April under Article 63 of the Sudan Criminal Code 1991 (sedition).She
was unable to find out, however, on what basistpr in connection with what conduct the
charges were filed. According to the Complainant, the fact that she could be re-arrested
any time on foot of these serious charges acted as a further deterrence to her
considering seeking redress for her torture and detention.
34. The Author avers mat the Complainant was also highly sensitive to the fact that she had
been forced to sign documents by NISS officials prior to her release but had not been
permitted to read the texts. This added to her fear that additional charges might be
under preparation: for example, as she had been forced to pose with a Bible and been
photographed while in custody. The charge of apostasy was of particular concern to
her. The penalty for apostasy is death under article 126(2) of the Sudanese Criminal
Code 1991 and even the mere allegation carries huge social and cultural stigma. The
photo of the Victim posing with a bible was published by the Sudan Media Centre on
8th May 2011.
35. The Author concludes that subsequent to her release Ms. Abdallah was in a state of
considerable fear for her life from the authorities; concerned about the charges which
had been filed against her, disturbed by the threats that had been made against her
family and in need of medical attention. The cumulative effect of these factors, coupled
with the major substantive and procedural hurdles which she faced in lodging any
7
formal complaint, was her decision not to attempt to seek redress for the harm to which
she was exposed: domestic remedies were neither available, effective nor sufficient. The
Author therefore submits that all the conditions for admissibility under Article 56 of the
Charter have been fulfilled with respect to this Communication.
The Respondent State' Submissions on Admissibility
36. The Respondent State submits that the Communication does not meet the admissibility
requirements under Article 56 of the Charter, specifically subsections (4), (5) and (7).
37. The Respondent State argues that the Communication is based exclusively on news
disseminated through the mass media. It points out that the facts of the case and the
reasons for the arrest of the Complainant as well as allegations of the torture suffered by
her are all cited from a newspaper.
38. On Article 56(5), the Respondent State submits that the Author's allegation that local
remedies are unavailable is ill-founded and untrue. The Respondent State cites Article
27 (3) of the 2005 Interim National Constitution of the Sudan which states that all the
rights and freedoms included in any international treaty ratified by Sudan are an
integral part of the Bill of Rights.
39. The Respondent State outlines the different Courts and mechanisms that an aggrieved
party could approach in Sudan and cites the Commission's decision 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. It submits further, citing the European
Court of Human Rights, that even if the applicant has reason to believe that available
domestic remedies and possible appeals will be ineffective, they shall seek those
remedies since it is generally incumbent on an aggrieved individual to allow domestic
courts the opportunity to develop existing rights by way of interpretation.
40. The Respondent State points out that the justification for applying the principle of
exhaustion of local remedies is to give the State space to exercise its sovereignty, to
apply its laws and to remedy any situation of a violation. It states that torture is
prohibited under the Constitution and the rights of arrested persons are provided for
under the National Security Act. According to the Respondent State, there are available
and effective remedies in the Sudanese legal system which the Complainant failed to
use even though it had the opportunity to do so. The Respondent State contends that
the intention of the Complainant not to make use of domestic remedies is clearly
manifested in the fact that she was arrested on 6 May 2011 and the Communication was
brought before the Commission on 26 June 2011. In that regard, the Respondent State
refers to the Commission's decision in Law Office of Ghazi Suliman v Sudan where
the Commission was of the view that a period of one month was a short interval within
which the Complainant could have accessed and exhausted all local remedies.
41. The Respondent state points out that the Author's allegation that the National Security
Act does not require specification of the grounds for arrest; provides no access to a
lawyer at any time during detention, and contains no provisions for judicial
supervision, are untrue and ill-founded. It clarifies that Article 51 of the
abovementioned Act clearly provides for the right of the arrested person to be informed
of the reason for the arrest, the right to be visited by his family and lawyer and the right
to medical care. It states further that judicial supervision of detention is assured by the
District Attorney who is under a duty to regularly inspect places of detention, receive
complaints, and resort to the courts if the duration of legal detention is exceeded.
42. The Respondent State also points out that the 3 months additional renewal of detention
is not the authority of the Director of National Security, but that of the NationalSecurity
Council. It also points out that in practice, detainees usually exercise the right of access
to family, the right to lawyer visits and the right to lodge complaints against the
detaining authorities.
43. Regarding Article 56 (7), the Respondent State submits that the case has already been
settled by the state given that the victim was released after the completion of
investigations which were carried out in compliance with Sudanese legislation and
international human rights norms.
The Author's Additional submissions on Admissibility
44. The Author submits in response to the Respondent State's contention that the
Communication is based exclusively on information disseminated through the mass
media, that the Communication is based on information provided by the Victim, her
family members and colleagues. The Author states that other independent human
rights and other public reports have also been cited in the Communication to support
their submissions.
45. Regarding the Respondent State's submissions on the exhaustion of local remedies, the
Author submits that the mere existence of the standards and jurisdictions enumerated
by the Respondent State is of little assistance to those in national security detention if
there are no effective modalities to access or activate them. The Author refers to the
hurdles earlier outlined above, faced by those in national security detention, including
the lack of an individual right of action which could compel the exercise by the
competent prosecutor of his proprio muto powers to inspect places of detention and
receive complaints.
46. The Author explains that the reason they brought the Communication before the
Commission shortly after the Complainant was arrested was because she had been held
incommunicado and media concerns about her treatment in detention prompted fears
that she might suffer irreparable harm. They explain further that after a series of efforts
to raise the matter domestically, the only channel available to them was to seek
assistance from the Commission.
47. Regarding the Respondent State's submission that the case has been settled, the Author
submits that Article 56(7) of the Charter is meant to prevent the submission of a
Communication to multiple levels at the same time, which is not the situation in the
present Communication. The Author contends that the simple fact of release of the
Victim from detention does not constitute a sufficient settlement or remedy for the
violation.
Analysis of the Commission on Admissibility
48. The Admissibility of Communications submitted to the Commission is governed by the
requirements contained in Article 56 of the African Charter. Article 56 comprises seven
requirements which must be cumulatively complied with for a Communication to be
admissible. The Author submits that these requirements have been complied with
except the one relating to the exhaustion of local remedies under Article 56 (5), for
which it has set out reasons why the requirement must be dispensed with.
49. The Respondent State on the other hand argues that the Communication should be
declared inadmissible because it does not meet the admissibility requirements under
Article 56 (4) (5) and (7).
50. From the above submissions of the parties, it appears that the requirements under
subsections (1) (2) (3) and (6) of Article 56 raise no contentious issues. The Commission
after carefully examining the facts and submissions considers that the requirements
under the above provisions have been complied with and will proceed to examine the
contentious requirements in detail.
51. Article 56(4) of the Charter provides that Communications relating to human and
peoples' rights shall be considered by the Commission if they 'are not based exclusively
on news disseminated through the mass media'. The Respondent State claims that the
information contained in the Communication is based exclusively on
disseminated in the mass media; a fact which the Complainant contests.
news
52. In examining this requirement, the Commission recalls its jurisprudence wherein it
dealt with cases with similar contentions under Article 56(4). In Dawda Jawara v The
Gambia,4 the Commission had held that "while it would be dangerous to rely
exclusively on news disseminated from the mass media, it would be equally damaging
if the Commission were to reject a Communication because some aspects of it are based
on news disseminated through the mass media. This is borne out of the fact that the
African Charter makes use of the word 'exclusively'.
53. The submissions from the Author, while admitting that some of the allegations draw
upon media reports, all the information contained therein cannot be said to be based
exclusively on news disseminated through the mass media. For one thing, the Author
has indicated that the Communication is based on information provided by the
Complainant, her family members and colleagues. Additionally, sources, other than
media reports have been cited in the Communication. The Commission, is thus of the
view that the claim that the Author's allegations as filed before the Commission are
exclusively based on news reports cannot be sustained.
54. Article 56(5) of the African Charter requires that Communications be "sent after
exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged".
55. The Author submits that it has not, nor did it attempt to exhaust local remedies,
advancing a number of reasons that warrant that the requirement to exhaust local
remedies be dispensed with in the present Communication. The Author outlines
various factors that rendered the exhaustion of local remedies impossible, namely the
absence of effective modalities for lodging complaints concerning allegations of torture,
4Communication 149/94/149/96 - Sir Dawda Jawara v The Gambia (2000) ACHPR.
11
the immunity enjoyed by NISS officials and the threats and intimidation to which the
victim and her family were subjected.
56. The Respondent State has on the other hand outlined the various norms and
mechanisms that exist in Sudan which could be made use of by the Complainant. The
Respondent State has explained that the Complainant had the opportunity to seek
redress domestically but had no intention to do so citing the submission of the
Communication to the Commission shortly after she was arrested, as a manifestation of
the her unwillingness to seek domestic redress.
57. The Commission has consistently reiterated in its jurisprudence that the requirement to
exhaust local remedies is necessitated by the imperative of giving the state notice of
alleged violations that have occurred in its territory and affording the authorities of the
State Party an opportunity to address the alleged violation. In the present
Communication, it has been demonstrated in the Author's submissions above that the
Sudanese authorities were sufficiently notified of the violations perpetrated against the
Victim. The Respondent State has not refuted the fact that it was notified of the alleged
violations against the victim. Without any argument from the Respondent State to the
contrary, the Commission considers that the Respondent State was notified of the
violations, failed to act on them and as a consequence, loses its prerogative to settle the
matter domestically.5
58. The Commission notes the Author's submissions regarding the unavailability of local
remedies. The Author has explained that there are no effective modalities for lodging
complaints regarding allegations of torture and arbitrary detention by the NISS; that no
individual right of action is available which would permit the Complainant to request
the proprio muto powers vested on the Prosecution Attorney by Sudanese legislation to
commence an investigation upon receiving notice of a violation, and the immunity from
prosecution enjoyed by NISS officials under the law which can only be waived at the
sole discretion of the Director of the NISS.
59. Although the Respondent State has clearly outlined the mechanism that exist under
domestic law which aggrieved individuals could approach, it has not shown how these
mechanisms could be made use of by the Complainant in the circumstances of her case.
The Respondent State has not refuted the existence of the hurdles outlined by the
5Centre for Housing Rights and Evictions (COHRE) v. Sudan, Communication 296/2005.
Author, which in effect render the availability of the remedies enumerated by the
Respondent State, questionable and ineffective in the circumstances of the present case.
60. Additionally, the Commission considers the granting of blanket immunities to NISS
officials as an impediment to the exhaustion of local remedies since there is no evidence
that there is a legal obligation on the part of the NISS hierarchy to lift the immunity of
an official who is suspected of committing an offence. Because of the immunity granted
to NISS officers, no criminal action could be brought against them unless such
immunities were lifted, which immunities could only be lifted by the NISS hierarchy
which in any case, has no obligation to do so.
61. The Commission considers that the hurdles outlined above are a significant bar to
access to local remedies for victims of serious crimes such as torture and other forms of
ill-treatment. One of the primary obligations of the State under the Charter in respect of
allegations of torture is for the state to among other thing, initiate a prompt, impartial
and effective investigation. It is also incumbent on the state to establish readily
accessible mechanisms to which victims can bring their complaints and above all, to
ensure that acts of torture are distinct offences under the law. The State is also expected
to ensure that anyone who commits the serious crime of torture does not enjoy
immunity.6
62. It is evident from the Author's submissions that the Respondent State failed in
upholding these principles, thus causing significant impediments to the exhaustion of
local remedies. In the circumstances, it would be unreasonable to expect the
Complainant to overcome all these hurdles in pursuit of exhausting local remedies. In
light of this the Commission agrees with the Author that local remedies were not
available or even if they were theoretically available, could not be effectively made use
of in the Complainant's circumstances.
63. The Author has also pointed out that the seriousness of the alleged false charges against
the Complainant, the treatment she was subjected to while in detention, and the threats
and intimidation directed at her following her release, generated considerable fear
which prevented her from pursuing her case before the Sudanese authorities. The
6See Articles 4, 16 (b), 17 and 18 of the Guidelines and Measures for the Prohibition and Prevention ofTorture,
Cruel, Inhuman or Degrading Treatment or Punishment commonly known as the Robben Island Guidelines. It
should be noted that the Robben Island Guidelines are an authoritative interpretation of the provisions of Article
5 of the Charter in respect of torture and other forms of ill-treatment.
13
Respondent State has not refuted any of these allegations. The Commission has
consistently emphasized that victims of human rights violation who find themselves in
life threatening situation as well as persistent threats of persecution and harm cannot be
required as a matter of principle to exhaust local remedies.7
64. From the forgoing, it is the view of the Commission that local remedies though
theoretically available, were ineffective in the situation of the victims and therefore the
requirement of Article 56 (5) is accordingly dispensed with.
65. Article 56 (7) of the Charter provides that Communications shall be considered by the
Commission if they 'do not deal with cases which have been settled by the State
involved in accordance with the principles of the Charter of the United Nations, or the
Charter of the Organization of African Unity or the provisions of the present Charter'.
66. It is submitted by the Respondent State that the case was already settled by the State
upon the release of the Complainant after completion of the investigations. The Author
has submitted that Article 56(7) is intended to prevent the submission of a
Communication to multiple human rights bodies at the international level at the same
time, which is not the case with the present Communication.
67. The Commission recalls its jurisprudence in Sudan Human Rights Organisation &
Centre on Housing Rights and Evictions (COHRE) v The Sudan, where it held that 'a
matter shall be considered settled within the context of Article 56 (7) of the African
Charter, if it was settled by any of the UN human rights treaty bodies or any other
international adjudication mechanism, with a human rights mandate. The Respondent
State must demonstrate to the Commission the nature of remedies or relief granted by
the international mechanism, such as to render the complaint res judicata, and the
African Commission's intervention unnecessary.8
68. It follows that the release of the Complainant, after investigations by the authorities of
the Respondent State cannot amount to the case being settled in terms of Article 56 (7)
of the Charter.
7See Jawara v The Gambia (2000) ACHPR and IHRDA (on behalf of Sierra Leonean Refugees in Guinea v Guinea
(2004) ACHPR para 33.
8Communication 279/03 &296/05 - Sudan Human Rights Organisation &and Centre on Housing Rights and Evictions
v The Sudan.
14
69. In view of the above, the Commission declares the Communication admissible.
Merits
The Author's submissions on the Merits
70. The Author submits that the actions of the Complainant's arbitrary arrest and the
actions of the Respondent State that followed the arrest violate Articles 4, 4, 6, 7,12 and
16 of the Charter.
Alleged violation of Article 4
71. According to the Authors, the treatment to which the Complainant was subjected
following her arrest and incommunicado detention both in 2009 and 2011, including
various acts of torture and threats of death purportedly directed against her by NISS
officials gave rise to a very real fear for her safety and life, in violation of Article 4 of the
Charter. In reaching this conclusion, the Authors recall the Jurisprudence of the
Commission in Aminu Kazeem v Nigeria9 in which the Commission stated that it
would be a narrow interpretation of the right to life to think that it would be violated
only when one is deprived of it.
Alleged Violation of Article 5
72. The Author submits that while in the custody of the NISS in El Fashir and in Khartoum,
the Complainant was subjected to a series of Acts, which singly and in combination
caused severe physical and mental pain and suffering inflicted by officials with the
purpose of extracting information and inflicting punishment. According to the author,
Ms. Abdallah was subjected to sustained severe beatings that amounted to torture. It is
submitted that during her arrest, she was repeatedly slapped and beaten by the
arresting officers with the butts of their guns. She was also allegedly punched, whipped
and beaten with various objects including an iron rod and metal wires and subjected to
other physical forms of abuse during the period of her detention.
73. The Author claims that the Complainant was raped on three occasions by NISS officers
in El Fashir which led to physical and mental anguish owing to the stigma and risk of
additional harm associated with the risk of being a rape victim in Sudan. The Author
Communication 205/97, ACHPR (2000) 13 AR.
further claims that the Complainant was subjected to subjected to electric shocks on her
chest, nails and shoulders as punishment for shouting for help while she was being
raped. It is also submitted that a chemical solution was applied to her scalp, causing a
large circular spot and an itchy skin condition that has persisted after her release.
74. In addition, the Author submits that the Complainant was threatened on various
occasions, denied medical attention during her detention and was detained
incommunicado. Referring to various international and regional standards and
decisions of the Commission, the Author submits that the acts described above, singly
and in combination amount to a violation of Article 5 of the Charter.
Alleged violation of Article 6
75. According to the Author, the Complainant was detained for two months and thereafter
released without charge. She was allegedly never shown a warrant for her arrestor any
other document relating to her detention. It is submitted that she was accused of serious
crimes, including some carrying heavy penalties such as the crime of apostasy and
spying for the US and some European Embassies in Sudan and providing false
information to humanitarian and human rights organizations about the situation of
IDPs.
76. The Author avers that after the Complainant was released, she was made aware by a
lawyer based in El Fashir that on 29 April 2011, prior to her arrest on 6 May 2011;
charges of sedition under Article 63 of the Sudanese Penal Code had been filed against
her. She was not however aware on what basis and in relation to which conduct the
charges had been filed. The Author also contends that the Complainant's arrest was not
based on a reasonable suspicion. The Author claims that the Complainant's arrest and
detention was therefore arbitrary.
11. The conformity of the domestic legislation (the National Security Act, NSA) under
which the Complainant was purportedly detained with Article 6 of the Charter is also
called into question by the Author. According to the Author, Article 50 (e - h) of the
NSA gives NISS members wide powers to arrest and detain a person on vague grounds
for up to thirty days and a possible total of four and a half months without the
possibility of judicial. The Author avers thatthe legislation lacks the requisite specificity
under the Charter given that there is no explicit requirement for the NISS to issue
specific criminal charges.
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Alleged violation of Article 7
78. The Author submits that the Complainant's right to a fair trial under Article 7 was
violated given that she was detained for two months without charge, not informed of
the reason for her arrest and denied access to a lawyer. The Authors avers that Ms.
Abdallah was detained incommunicado and denied access to the outside world except
for a one thirty minute supervised meeting with the then UNAMID Joint Special
Representative for Dafur, at an unknown date. The Author cites various international
and regional standards as well as decisions of the Commission to support its argument.
79. The Author also avers that Article 51 (2) of the NSA also violates Article 7 (1) (c) of the
Charter as it only allow communication with and visits by family members and lawyers
of a detained person if this does not prejudice the progress of interrogation, enquiry and
investigation. This, according to the Author means that the NISS may still hold
detainees incommunicado where it sees it fit.
Alleged Violation of Article 12
80. The Author submits that the Complainant's right to freedom of movement was violated
by the Respondent State as a result of her arbitrary arrest, detention and the threats
which were directed at her and her family, all of which forced her to flee from Sudan to
the US where she was admitted as a refugee on the basis of a well-founded fear of
persecution. The fear of persecution has also prevented her from returning to Sudan.
This, the Author claims is in violation of her right to freedom of movement residence as
well as her right to return to her country, contrary to Article 12 of the Charter.
Alleged violation of Article 16
81. In the Author's view, the Complainant was subjected to a range of acts of torture that
caused extreme physical pain and anguish and allegedly denied medical treatment
despite repeated request in violation of her right to health under Article 16 of the
Charter.
Alleged Violation of Article 1
82. According to the Author, in addition to a failure to respect the rights outlined in this
communication under Articles 4, 5, 6 and 7, 12and 16 of the Charter, the Respondent
State has also failed in its positive obligation under Article 1 to exercise due diligence
17
and effectively prevent and respond to violations of the rights enshrined in the Charter.
Specifically, the respondent state has failed to put in place an adequate legislative
framework to protect individuals within its jurisdiction from arbitrary detention,
torture and other ill treatment by the NISS or to ensure the right to fair trial or the
availability of effective remedies and sanctions in the event of a breach. It has also failed
to investigate allegations of wrongdoings by its agents and took no measures to ensure
the availability of an effective remedy in the Complainant's case.
The Commission's Assessment on the Merits
83. The Commission is called upon to determine whether the alleged actions of the
Respondent State as outlined above infringed the provisions of Articles 1, 4, 5, 6, 7, 12
and 16 of the Charter.
84. The Commission notes that while the Respondent State submitted on the Admissibility
of the Communication, it has not made any observations on the Author's submissions
on the Merits. In the presentcircumstances and in accordance with the practice of the
Commission as enunciated in the case ofInstitute for Human Rights and Development
in Africa v. Republic of Angola, Union Inter Africaine des Droits de l'Homme,
Federation Internationale des Ligues des Droits de 1'Homme, Rencontre Africaine
des Droits de 1'Homme, Organisation Nationale des Droits de 1'Homme au Senegal
and Association Malienne des Droits de 1'Homme/Republic of Angola, "in the face of
the state's failure to address itself to the complaint filed against it, the African
Commission has no option but to proceed with its consideration of the Communication
in accordance with its Rules of Procedure."
85. In the same decision, the Commission re-affirmed its position by holding that "... it
would proceed to consider Communications on the basis of the submission of the
Complainants and information at its disposal, even if the State fails to submit." The
Commission must consequently give due weight to the Complainant's allegations
insofar as these have been adequately substantiated.
86. The Commission considers that an allegation is sufficiently substantiated where the
Complainant provides evidence which leads to conclusions consistent with the facts.
87. The Commission notes that in the present Communication, the Author has recounted
events which it claims constituted violations of the Complainant's rights under the
18
Charter. Apart from links to some media reports, no other evidence has been provided
to substantiate these allegations.10 While these media articles confirm that the
Complainant was arrested, they do not detail the circumstances of the arrest nor do
they confirm that the alleged violations indeed happened in the circumstances
intimated by the Author.
!. The Author has not provided any other piece of evidence to substantiate its allegations;
not even the Complainant's testimony has been tendered in evidence. In its
submissions, the Author has made reference to interviews they had with the
Complainant. However, no transcripts of such interviews have been made available to
the Commission. No medical certificates or psychological reports have been tendered
to substantiate the torture or ill-treatment of the Complainant. The Author has not also
alleged the impossibility of obtaining these pieces of evidence, nor have they alleged
any difficulties they encountered in obtaining same. While the Author seems to suggest
that the Complainant was not in the mood to discuss her treatment when she was
released, purportedly because of trauma, the Author has confirmed that it indeed had
interviews with her. This appears to be contradictory.
89. The Commission considers that in cases of such a nature, at least the Complainant's
sworn testimony would suffice to substantiate the allegations. In the absence of any
testimony from the Complainant and any other supporting evidence, the Commission is
of the view that the alleged violations have not been sufficiently substantiated.
90. In view of the above, the Commission considers that the information before it is
insufficient to support the finding of a violation.
91. The Commission decides as a consequence to dismiss the Communication.
Done in Banjul, The Gambia at the 17th Extraordinary Session of the African
Commission on Human and Peoples' Rights held from 19 - 28 February 2015.
10 Thefollowing are some of the reports relied on bythe Author: http://news.bbc.co.Uk/2/hi/africa/7685248.stm ; which
details conditions in the Abou Ahouk refugee camp and confirms that the Complainantwas a language translator for
UNAMID: http://news.bbc.co.Uk/2/hi/africa/7057949.stm features the Complainant in an interview:
http://www.amnestv.orR/es/library/asset/AFR54/015/2011/es/799bccee-3551-4d71-8262-
67490ec22b85/afr540152011en.pdfan Amnesty International Press Release on the Complainant's arrest and
incommunicado detention: http://www.bbc.co.uk/news/world-africa-13808969 ; BBC news article quoting the Amnesty
International Press Release about the Complainant's arrest.