Oocusign Envelope 10: E7AF91 C9-03FE-400B-BB32-6030BB963041
~ r) ~~ttt:ti
Human Rights our
Collective Responsibility
Human and Peoples' Rights
Communication 704/18
Berhane Abrehe Kidane (Represented
by Solomon Weldekirstos and Eritrean
Law Society)
v
The State of Eritrea
Adopted by the
African Commission on Human and Peoples' Rights
During the 71ft Ordinary Session done virtuoJly from 23 February to 08 March 2024.
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 4410504
Email: au-banjul@africa-union.org
https:/achpr.au.inVO (~.
ec/prc/AIO
ACHPR
African Commission on
Human and Peoples' F,ights
Human F~ightsour
Collective Responsibility
Communication 704/18 - Berhane Abrehe
Kidane
(Represented
by
Solomon
Weldekirstos and Eritrean Law Society) v
The State of Eritrea
Summary of Complaint:
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a complaint on 12 October 2018 from Solomon H.
Welsdekirstos (the First Complainant) and the Eritrean Law Society (the Second
Complainant) jointly submitted on behalf of Berhane Abrehe Kidane (the Victim).
The First Complainant is the nephew of the-Victim and both Complainants are
based in the United States of America.
2. The Complaint is submitted against the State of Eritrea (Eritrea/ the Respondent
State), a State Party to the African Charter on Human and Peoples' Rights (the
African Charterj.I
3. The Complainants aver that the Victim is a 73-year-old citizen of the Respondent
State and the former Minister of International Development and Finance of the
same State. They note that he had a long history of involvement in the struggle for
the liberation of ~ritrea from 1963and 1975 when he joined the Eritrean Liberation
Front (ELF) and the Eritrean People's Liberation Front (EPLF) respectively, and
following the liberation of Eritrea in 1991 up to 2012 served in various senior
government positions.
4. The Complainants aver that since independence the Respondent State has been
ruled by the Peoples' Front for Democracy and Justice (PFDJ), the successor to the
EPLF, under the dominant leadership of incumbent President Isaias Afwerki. They
claim that the President has, from time to time, been challenged~~~~,'of
pis (
,
,
<;,"
colleagues and senior government officials regarding his administratio
.
\r
~
,
L
•..
j"}
1
()
Eritrea ratified the African Charter on Human and Peoples' Rights on 14 Januari1~9
l\ll. Organ of the
AfriGan (( ~~
Union '-.>rn~
\.
'"
AU i IA
',-<~~>
.
,
~
~B;:~!1
~J.
c,..,
The African Commission
~mf~~;PI~~'
Rights
31 Bijilo Annex Layout. Kombo Nortii'Sisl.ill:t West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 0504
Email:
au-baniulra>africa-union.ore
https:/achpr,au,inVCI
'-' a
Human Rights our
Collective Responsibility
5. In that vein, they claim that the Victim in March 2012, in his capacity as Minister
of International Development and Finance, made a formal proposal, to a meeting
of the Cabinet of Ministers chaired by the President, highlighting the urgency and
need to conduct a comprehensive evaluation on the workings of government as
well future policy and governance frameworks. According to the Complainants,
the proposal was a clear call for overhauling the political system in Eritrea,
introducing a constitutional order based on the adopted but unimplemented
Constitution of Eritrea, 1997 and the election of new political leadership.
6. The Complainants additionally aver that the Victim in his proposal indicated that
the ministry which he headed was being deliberately undermined, in an effort, he
believed, was orchestrated by the President. The Complainants qver that the
President responded by summarily dismissing the Victim from iUs ministerial
position in August 2012.They claim that since then, the Victim had been living as
a civilian.
7. The Complainants aver that following his dismissal, the Victim wrote a book
entitled Eritrea Hagerey (Eritrea,flv!-Y Country), published in the United States of
America, which is critical of the President. The Complainants allege that the
publication of this book, which inter alia blames the President for the political crisis
in the Respondent State and calls on Eritreans to struggle peacefully for democratic
change in Eritrea, is one of two major reasons for the Victim's illegal detention. The
second .being, ~.•.pre-recorded internet audio message, released before the
inauguration of the book, in which the Victim repeated the core themes of the book
and invited the President for a televised debate.
8. They claim that on 17 September 2018, a few days after the book was published,
the Victim was approached by security agents of the Respondent State and taken
to an undisclosed location. They assert that the Victim's whereabouts remain
unknown and that no official account has been given of his predicament. They
claim that he has not been brought before a court of law, nor allowed to contact his
family, a doctor, or lawyer of his choice. The Complainants submit, therefore, that
the Victim has been unlawfully detained and subjected to incommunicado
./
,\\u, ..;,. ;"u
0
detention.
,,\
1(,,;\1\11\1'
'\.
I
il?
,c,
,0
<(<'
""
u
5
;.~
\ _j
M O'gan of the
.-:_'
African
~/f"
·
\ ~\.'
Uruon ~"l·Ji.
I
~ ~
0
0
':t~
'~~7.
The African
Commission
0,
um~ro~~
>
•
.eRfle~;,~J'pts
§1S'~{I§ion
:4"1'0504
fSl~g~~~:C
Phone: (220) 230"4:
Email:
~J'
~'}
Nt;
't..~
31 Bijllo Annex Layout. Kombo No
(...0
":>
~
au-baniul!a>a nca-union.ore
https:/achpr,au,inVO
0 D
ef:r'ACHPR
"'.
.;
cTJ:mx,lr.
African Commission OJ:
Human and Peoples' Rights
Human Hights our
Collective Responsibility
9. The Complainants claim that the Victim has a poor medical history. They aver that
the Victim underwent a liver transplant in 2010 and that he has to travel abroad
regularly to receive specialised treatment related to the surgery. They claim that
since 2014, he has experienced repeated and hostile obstacles in this respect, and
by 2017had been prohibited from international travel. They claim that he had been
importing supplementary medicine at an exorbitant price, which had done little to
improve his health.
10. The Complainants assert that the illegal detention took place amidst this
precarious health situation and submit that his health must have deteriorated,
presenting the danger of irreparable harm.
11. The Complainants submit that the Complaint complies with the requirements
under Rule 93(2) of the Rules of Procedure of the African Commission, in that the
name, nationality, full address and signature of the person or persons filing the
Complaint are provided. The Complainants do not request anonymity and confirm
that the Complaint has not been submitted to another international settlement
proceeding.
12. The Complainants also submit that domestic remedies do not have to be exhausted
in this case, as they do not exist, and are neither available, effective nor sufficient
due to the political situation in the Respondent State.
13. The Complainants claim, that the Victim's wife, referred to as Ms. Almaz
Habtemariarn, has also been detained incommunicado since January 2018.However,
the Complainants do not include a full account of the alleged plight of the wife and
accept that her case may be addressed in a separate Complaint.
Articles alleged to have been violated
14. The Complainants submit that the Respondent State has violated Articles L 4, 5, 6,
7, 9(1), 12(1)(2), 13(1) and 16(1) of the African Charter on Human and Peoples'
Rights.
Prayers
~ti~"~'
ACH.PR
~/
CH:£lXl.-i"...
African Commission on
Human and Peoples' Rights
Human Hights our
Collective Responsibility
15. The Complainants request the African Commission on Human and Peoples' Rights
(the African Commission) to:
a, Be seized of this Complaint and find the Respondent State in violation of
the Charter provisions above;
b. Issue Provisional Measures pursuant to Rule 98 of the Rules of Procedure
in order to prevent irreparable harm to the Victim on account of the
possibility of imposition of extra-judicial execution or the risk of death due
to deplorable health conditions or abysmal conditions of the prison,
continued incommunicado
detention, ongoing risk of torture and
mistreatment or the lack of legal}ecourse faced by the Victim, as follows:
i. Immediate and continUihg disclosure of the Victim's location and
status;
11. A guarantee of the Victim's safety and well-being while in custody;
111.
Regular and unhindered communication with and access to his
family;
iv. Regular and unhindered access to medical treatment of the Victim's
choice; and
v. Regular and unhindered access to legal representation of the
Victim's choice.
c. Urge the Respondent State to immediately release the Victim, which is
critical since the specialised medical treatment which he needs is not readily
available in the Respondent State, which can be administered through a bail
bond, or provide compensation for the harm he has sustained as a result of
the unlawful detention without trial.
d. If the Respondent State opts to take further legal action against the Victim,
instruct the Respondent State to do so in accordance with obligations of the
latter emanating from the African Charter, including the duty to ensure the
right of the Victim to a fair trial, the right to be represented by a lawyer of
his choice and his right to bail, among others.
An Olgan of the
African (~'\
Union JJl
Human Rights our
Collective Responsibility
custody, allow immediate, unhindered communication with and access to
his family, a doctor and a lawyer of his choice.
Procedure
16. The Secretariat received the Complaint on 12 October 2018.
17. During its 63rd Ordinary Session held from 24 October to 13 November 2018, the
Commission decided to be seized of the matter and issued provisional measures.
Both parties were informed of its decision on 29 OCtober 2018. By note verbale of
same date, the Commission informed His Excellency Mr. Issais Afwerki, the
President of the State of Eritrea, of the issuance of provisionCllmeasures.
18. On 27 December 2018, the Complainants' submissions on Adrriis~ibility were
received at the Secretariat and subsequently transmitted by Note Verbale Ref:
ACHPR/COMM/704/18/ERI/232/19
to the Respondent State on 8 March 2019
for its observations.
19. On 6 June 2019, following the 64th Ordinary Session of the Commission, the
JIc' ,
Secretariat informed both parties that the Respondent State had been granted an
extension of 30 calendar days within which to file its late submissions on
Admissibility, failing which the Commission would proceed to a default decision.
20. On 19 N()Vemb~r.,2019,following the 65th Ordinary Session of the Commission, the
Secretariat informed both parties that the extended deadline for the Respondent
State's submissions on Admissibility had expired and thus the Commission would
proceed to a default decision.
21. Consideration of the Admissibility of the Communication was subsequently
deferred until the 67th Ordinary Session.
22. The Commission considered on the Admissibility of the Communication during
its 67u, Ordinary session held from 13 November to 3 December 2020, and parties
were informed on 20 January 2021.
An (>'.an of tile
African ('c>"i
Union '~'iYlij
https:/achpr.au.inV('J
0
D
(;"~~\ACH PR
I,}
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
23. By email dated 19 March 2021, the Secretariat received the Complainants'
submissions on Merit, receipt of which was acknowledged in correspondence
da ted 19 April 2021.
24. On 19 April 2021, the Commission transmitted the Complainant's submissions on
Merit, to the Respondent State, notifying the State of the sixty (60) days it had,
within which they were to make submissions on Merit.
25. The period of sixty (60) days lapsed on 18 June 2021. The Respondent State has
neither made submissions on Merits, nor requested an extension to allow them to
make the submissions, in accordance with the Rules of Procedure. The
Commission therefore proceeds to decide on merit in light of the Respondent
State's default.
Admissibility
The Complainants' submissions on Ad~is~r!?ility
26. The Complainants submit that the instant Communication satisfies all the
requirements for Admissibility as outlined in Article 56 of the African Charter and
present arguments in support of this submission.
27. The Complainants do not provide standalone arguments addressing sub-Articles
56(1), (2), (3), (4), (6) and (7) of the African Charter. However, the Complainants
make several claims throughout their submissions, which speak to these subArticles and suggest that the Communication satisfies their requirements.
Accordingly, the majority of the Complainants' submissions focus on sub-Article
56(5) of the African Charter.
28. In that regard, the Complainants admit that they have not exhausted or even
attempted to exhaust domestic remedies but plead that the African Commission
waive such requirement based on the doctrine of constructive exhaustion of
domestic remedies. Specifically, the Complainants submit that domestic remedies
do not exist, and are neither available, effective nor sufficient due to a climate of
fear and impunity for human rights violations in Eritrea.
/;UI1 LUI .. "
,:' ,0
-::~JJ
s- Ch[T41i'1
.,~
.'.
._.
()
(.{
An 01'1)." of the
AfriGan(~5\
Union ",,;W!
(~;:;~ACH PR
, ~lq)
rrrrnr",
.
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
29. The Complainants claim that incommunicado detention, including that of the
Victim, is among some of the most widespread human rights violations in Eritrea
which are perpetrated by state agents without any guarantees for accountability.
They claim that Eritrea is the only country in Africa without a working constitution
and a functioning parliament thereby exacerbating the said climate. The
Complainants refer to two reports by the United Nations (UN) Commission of
Inquiry on Human Rights in Eritrea (COl) which they argue found that
" ... systemic, widespread and gross human rights violations have been and are
being committed in Eritrea under the authority of the Government">. The
Complainants argue that indeed, the African Commission was the first
intergovernmental human rights monitoring body to spotlight the "worrying"
situation of human rights in the Respondent State. Essentially, the Complainants
submit that the Respondent State suffers from a complete breakdown of the rule
of law and a climate of impunity.
30. From that assertion, the Complainants argue that. this climate oHear and impunity
makes it impossible to exhaust domestic remedies. The Complainants refer once
again to the COl Reports which they claim found that" ... without substantial
institutional and legal reform ... there is no genuine prospect of the domestic
judicial system [in Eritrea] holding perpetrators to account in a fair and transparent
manner">, They note that the African Commission has found functional and
structural shortcomings as regards the operation of domestic remedies in three
Communications against Eritrea, namely, Liesbeth Zegveld and Mussie Ephrem v.
Eritrea', Article 19 v. Eriireai and Dauiti'lsaak v. Eritrea».
31. Additionally, the Complainants submit that the Supreme Court of British
Columbia in 4ra~tf v. Nevs~n.:Resources Ltd? confirmed that domestic remedies in
Eritrea are ineff~ctive. The Complainants state that the case involved a lawsuit
initiated by Eritreans who alleged that they suffered from human rights violations
in Eritrea involving a Canadian mining company (Nevsun). The Complainants
state further that the applicants, in that case, claimed that they were unable to go
2
3
4
6
7
Complaint Addendum, para 13 citing COl, First Report, A/HRC/29/42
(2015) para 23 & COl,
Second Report Summary, A/HRC/32/47 (2016), paras 59-95.
Complaint Addendum, para 25 citing Second COl Report, supra note 2, para 107.
Communication 250/02 (2003) ACHPR.
Communication 275/03 (2007) ACHPR.
Communication 428/12 (2016) ACHPR.
2016 BCSC 1856.
An Organ of the
AfriGan 6.'~
Union ,,,",#.
(~i)ACHPR
., ~nf."
(llJJJ.£'.,
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
back to Eritrea to seek justice from the national courts due to the overall political
situation in the country as well their fear of persecution,
32. The Complainants argue that the Court decided in the applicants' favour finding
that there was sufficient evidence to conclude that the applicants would not receive
a fair trial in Eritrea as any domestic judge deciding in their favour would place
his or her career and personal safety in jeopardy". The Complainants note that the
above ruling was confirmed on appeal by the Court of Appeal for British Columbia
in Araya v. Nevsun Resources Ltd'. The ComplainaJ)~§;~~~o
note that the said rulings
were mostly based on expert testimonies provided by two former senior judges in
Eritrea, both of whom are also members of the Eritrean Law Society, the Second
Complainant in this case.
33. The Complainants refer to the findings of the European Court of Human Rights in
Akdivar and Others v. Turkef'", and submit that the rule of exhaustion of local
remedies is deemed inapplicable for a State whose authorities have remained
passive in the face of widespread and systematic human rights violations. The
Complainant concludes that in such cases, it is neither practical nor advisable to
pursue domestic remedies.
.1,
34. The Complainants claim that ordinarily the victim or any other person based in
Eritrea could have filed for a writ of habeas corpus in the High Court of Asmara,
this being the place from which they allege the Victim was taken. They note that
Articles '177 179 of the Transitional Civil Procedure Code of Eritrea allows for
the filing of the said writ by any person in Eritrea. They argue, however, that due
to the climate of fear and impunity, alleged above, no one would venture to file
such an applicatiori due to safety concerns.
to
35. The Complainants claim that alternatively, as entities based abroad, they could
have filed for a writ of habeas corpus in the High Court of Asmara by mailing the
application via courier services, such as DHL. They note, however, that
procedurally and as a matter of general practice, submission of any application to
Eritrean Courts by an entity not based in Eritrea is not possible except such entity
has legal representation in Eritrea. They argue again that due to the climate of fear
r;"r.\ACHPR
~'\:
I
African Commission on
'~rm;.;(;i#! Human and Peoples' Rights
Human Rights our
Collective Responsibility
and impunity, appointing a legal representative in Eritrea, for the sole purpose of
filing for the said writ places the safety of such person at risk.
36. The Complainants refer the Commission to the facts of Daunt Isaak v. Eritrea
arguing that in the given case, the Complainants, entities based abroad, attempted
to file for a writ of habeas corpus in the High Court of Asmara via DHL but that the
application was ignored. To corroborate this claim, the Complainants attach to
their Admissibility submission, the affidavit of Bjorn Tunback, a Swedish
Journalist who claims to have assisted in the Daunt Isaak case. In his affidavit, the
affiant also testifies that due to the climate of fear and impunity aforementioned
" ... there are no available domestic remedies for cases related to grave human
rights abuses, such as the crime of incommunicado detention".
ANALYSIS OF THE COMMISSION ON ADMISSIBILITY
37. This Communication is submitted pursuant to Article 55 of the African Charter,
and as such must fulfil the seven cumulative requirements prescribed under
Article 56 of the African Charter. Whereas the Complainants claimed to have
fulfilled all the said requirements, the Respondent State does not contest any
submission despite the opportunity afforded it. Nevertheless, the Commission
shall proceed to a decision on Admissibility based on the submissions of the
Complainants and information at its disposall-. The Commission will give due
weight to the Complainants' allegations insofar as these have been adequately
substantiated.
a. Identification of authors (Article 56(1) of the African Charter
38. To begin, Article 56(1)of the African Charter requires Communications to 'indicate
their authors'. In the instant case, Mr. Solomon H. Weldekirstos and the Eritrean
Law Society, referenced earlier as the First and Second Complainants respectively,
are duly identified as the authors with full name and contact details. Accordingly,
the present Communication complies with Article 56(1) of the African Charter.
:-;,)I,lt ACHPR
rm:r.x.'".
African Commission on
Human and Peoples' Rights
Human nights OUf
Collective Responsibility
b. Compatibility with the African Charter and AU Constitutive Act (Article
56(2))
39. Article 56(2) of the African Charter provides that a 'Communication should be
compatible with the African Charter and the Constitutive Act of the African
Union'. Compatibility requires that the alleged violations must be submitted by a
person competent to do so against a State Party to the African Charter (ratione
personae); relating to rights guaranteed by the African Charter (ratione materiae);
that occurred at a time when the African Charter was operational in the State Party
(ratione temporis); and within the territory of the said State (ratio loci)12.
40. From its reading, the Commission considers that the present Complaint reveals
prima facie violations of specific adumbrated provisions of the African Charter
occurring within the territorial sphere of the State of Eritrea, a State Party to the
Charter, at a time when the African Charter was operational in the State.
Accordingly, the Commission considers that the present Communication complies
with Article 56(2) of the African Charter.
' ,
c. Disparaging or insulting language (Article 56 (3) of the African Charter
41. In accordance with Article 56(3) of the African Charter, the Commission considers
that this Communication is not written in a disparaging nor insulting language.
d. News disseminated through mass media (Article 56(4)) of the African
Charter
42. On Article 56(4) of the African Charter, the Commission considers that the
allegations proffered herein are based on an affidavit from the First Complainant,
a nephew of the Victim, as well various reports and case judgments. Accordingly,
the Complainants have not relied exclusively on media sources and are thus in
compliance with Article 56(4) of the African Charter.
e. Exhaustion of domestic remedies (Article 56(5)) of the African Charter
12
Communication 335/06- Dabaloriohuuia Patriotic Front v, the Republic of South J¥
An Org~1) of the
AfriGan((-,
, '~,~~
Unlon~'a!~
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
43. Article 56(5) of the African Charter requires that Communications be submitted
after exhausting local remedies if any unless it is obvious that this procedure is
unduly prolonged. In this regard, the Commission has expounded extensively on
the exhaustion of domestic remedies rule, most prominently in the case of Jawara
v Gambia, where the Commission held that domestic remedies must be available,
effective and sufficient, establishing further that a domestic remedy is considered
available if the Complainant can pursue it without impediment, effective if it offers
a prospect of success, and sufficient if it is capable of redressing the complaint.P
44. In the present case, the Complainants have acknowledged that they have not
exhausted or even attempted to exhaust local remedies ~but plead the African
Commission waive such requirement based on, the doctrine of constructive
exhaustion of local remedies. Mostly, the Complainants have submitted that due
to the widespread and systematic violations of human r;!g~ts wlli2hoccur with
impunity in Eritrea, firstly, local remedies do not or cannot be said to exist and
secondly, even if they exist, their exhaustion would be impractical and
undesirable.
45. As earlier indicated, the Respondent State 'does not contest these submissions by
the Complainants. Nevertheless),'the Complainants, by invoking the exceptions to
the exhaustion rule, must initially present a prima facie case that they have
constructively exhausted domestic remedies in order to shift the onus onto the
Respondent State.
46< As regards their first submission, the Commission is of the view that the
Complainants fail to show how the alleged widespread and systematic violations
in Eritrea affect#1e existence of domestic remedies. Considering that the existence
or otherwise of domestic remedies is a legal and material fact that is readily
observable, a general claim on this matter without substantiation cannot suffice.
Notwithstanding the Complainants' doubts as to the functioning of the Eritrean
Constitution, it provides for a tiered ordinary judicial system, consisting of the
Supreme Court and Lower Courts, all of which, to the best of this Commission's
knowledge, were operational at the time of the alleged incommunicado detention of
the Victim. Indeed, by acknowledging that there was an option to file for a writ of
habeas corpus in the High Court of Asmara, the Complainants effectively concede
that domestic remedies exist in Eritrea. The Commission does not vyfftU:reJ1f6ICiaim
~-J-i-~(j~(it
13
Communication
147/95 and 149/96, (2000) ACHPR, para 31,
I
,
"
''I
"---
Phone: (220'Y-23a:."J;9,
~
~:;C> .
j \\
The African Commission p~
man a~.g",op
31 Bijilo Annex Layout, Kombo No :,. - trich'l/est
Email: au-
<O~~
(EJ: ~~~" 1 \)) "-i\
.'
,'In OJ,jan of the
AfriC.anf;\~~',;,
B: lrl
Union ~,...,;?
Rll\r
_
. q....
..:."!£\(~P,\~:;
0
.j?
~~i9 en ts
~s!Y'
i,on
4~~' 504
~.......:~-
a0~~I(Q}arrlC~.
0
.orz
.._ O_~t1H,g~fI~c13p_ u.inVCJ U D
~,;':c~p:)ACH PR
(
'.it African Cornrnission on
m:m:('
~
Human Rights our
Collective Hespons.oititv
Human and Peoples' Flights
that these remedies would have resulted in the release of the Victim as contested
by the Complainants and the findings of the COl Reports and the Nevsun case,
paragraphs 26 to 27 supra. However, such claims speak more so to the accessibility
and effectiveness of domestic remedies rather than their existence.
47. Regarding their second submission, this Commission is uncertain about the legal
value of the claim that widespread and systematic violations of human rights
render exhaustion of domestic remedies impractical or undesirable. This
uncertainty stems from the dearth of legal meaning.or value ascribed to the terms
"widespread" and "systematic" for purposes of judicial adjudication. The
Commission, for the most part, has not determined the nature of "widespread" and
"systematic" violations and their partic4'~~ implications for the exhaustion of
domestic remedies.
48. The Complainants, however, elaborate on this submission by arguing that "the
exhaustion rule is deemed inapplicable wQ~n-there is practice consisting of a
repetition of human rights violations and official tolerance by State authorities
towards such practice">. From that line of reasoning" the Commission gathers that
the Complainants are attempting to argue that the' present Complaint reveals
"massive" and ~;serious" violations of human rights. While these terms have not
been used expli~hly, they are nevertheless the most prominent expressions in the
Commission's lexicon that speak to the dispersal and periodicity of rights
violations in a State. .Indeed, whenever Complainants allege widespread and
systematic violations, the Commission conducts an analysis to determine the scale
and gravity of the said violationstowards ascertaining whether they are "massive"
and "serious" for purposes of waiving or invoking the exhaustion rule-".
49. As indicated above, towards determining whether violations are serious and
massive, the Coriunission considers both the scale and nature or gravity of the
alleged violations-e. In terms of scale, a violation is massive, where a significant
number of people are targeted within a specific area or entirety of a State Party. In
terms of nature, a violation is serious, where it is the product of a consistent and
::--....
//0'\
\ \\.l 1.1
A'I '" \'D
/_,-0\\ x..G~E1l1Rll\r
1>(
Complaint Addendum, para 30,
Communication 467/14 - Ahmed lsmael and 528 Others v. the Arab Republic of
para 170.
16 Communication 279/03 - Sudan Human Rights Organisation & Another v. Sudan (~09)
14
Eg{jpfhr~~eHR, o~)\
fIt
(\ .~\
--l ~./ ~
15
~!,
i~ '6
AnO-ganofthe
.
,.-~
Af nqan'
j,
Union
1',
Ul ~"~\
,-'';.
The African
Commission
'ott H~~f~
p'u-u
,,12
~
is
Q'J:'
au-baniti
t:
~igJ}ts
31 Bljilo Annex Layout. Kombo Nd[~9iSBIC.i),,~~~~a~tiReg'On
Phone: (220) 2 ",'4'~"ffh'6t~~5
Email:
c;: i
04
(alafr;iGa-l::Jf)ion.orl<
https:lachpr.au.inUO
0
D
."">\ ACHPR
I
(:
~
;;
African Commission on
Human Rights OUI
Collective Responsibility
(';:rm.:l.~"" Human and Peoples' Bights
predetermined action or omission that impacts on a right or a combination of rights
guaranteed under the African Charter.
50. In this respect, notwithstanding the reference to the systematic and widespread
violations of the rights of so-called political dissenters and Eritrean citizens in
general, the Complainants are representing only a single Victim and not all
political dissenters or citizens of Eritrea. As such, the Commission is called to
determine whether the incommunicado detention of Berhane Abrehe Kidane, alone,
violates the African Charter. The broader context serves as evidentiary material for
that purpose but is itself not up for adjudication. At this stage, therefore, the
question is whether the alleged violations stemming from the incommunicado
detention of the Victim meet the requisite gravity and· scale threshold for
exempting the Complainants from exhausting domestic remedies.
51. To that end, while the alleged ongoing incommunicado detention of the Victim may
reveal grave or serious violations; of human rights'? the Commission is not
convinced that the scale of the violations amounts to that which renders the
exhaustion of domestic remedies impractical or undesirable. In all cases where the
Commission has found an e~cepti61( to tH~'exha~s'tion rule in this respect, the
alleged violations affected a large number of victims. Indeed, in Ahmed Ismael and
528 Others v. the Arab Republic of tiypt, the Commission found that the alleged
violations of the rights of over 500 Victims failed to meet the threshold for
massive" violations as the victims were 'all identifiable and their convictions
could be individually appealed'". Accordingly, in the instant case, there is nothing
to suggestthat exhausting domestic would be impractical or undesirable. As such,
this Commission considers that the instant Communication does not reveal
"serious" and ~/wassive" violations of human rights which would permit waiver
of the exhaustion requirement.
II
52. Having found that the alleged violations in this case do not meet the requisite scale
threshold for permitting an exemption to the exhaustion requirement, the next
consideration is whether there are other factors which nevertheless impede access
to domestic remedies and or render them ineffective. In this respect, the
Commission notes that the Complainants' second submission caa- also be
understood as invoking the principle of futility. This principl~4'}i%$/F~here a
I:.I.;::.~';
f/~
17
18
See Liesbeth Zegveld and Mussie Ephrem v. Eritrea, supra note 4, para. 55.
Supra note IS, para. 173.
~ oc
The African
Commis
0
)
...
'.
\..-'-/
1'1
AU-UA
J'3!
~
c.,
m!ff.Q\.-B~oples' Rights
I1P~1!abillLi5'tStfi~t~*~_oast
Phone: (2
Email:
r
.!I
0;..0
31 Bijilo Annex Layout. Kom
'1'0
1.7
(J n
~ 'a \.,
An 0'9an of the
AfriGan(~' ~~
Unlon\"ow;1
lr1
{ ~
s~
. 2jb6¥3l3!l~x~(220)
~
Region
4410504
au-banii:Jl(a)africa-union.org
https:/achpr.au.inVCl
0
a
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Hesponsibititv
complainant firmly establishes that the domestic court or authority will inevitably
dismiss a claim or when a positive result is impossible due to past court rulings,
state inaction, or danger in seeking out the remedy. Indeed, the Commission has
previously found that complainants are not required to exhaust domestic remedies
that objectively have no chance of success 19. This principle speaks to the
effectiveness or otherwise of a domestic remedy.
53. In this respect, the Complainants have argued that they could not file for a writ of
habeas corpus on behalf of the Victim as doing so ""i~;tlldrequire employing a legal
representative based in Eritrea, an untenable. option considering the risk to the
personal safety and career of such person. In this same vein, they argue that the
courts in Eritrea would ignore any habeas corpus applic,ationJiled before them as
doing otherwise would jeopardise the career and pe~~itmial
'saf~"t~B£theresponsible
judges.
54. On this claim, the Commission is reluctant to admit blanket P!oclamations that
absolve Complainants from even attempting to exhaust domestic remedies. While
this Commission takes note of the findings of the COl concerning the alleged
climate of fear and impunity in Eritrea, the Commission is mindful that political
instability though regrettable is' .not uncommon. Indeed, the Commission has
declared numerous Communications inadmissible for failure to exhaust domestic
remedies notwithstanding the political upheavals described therein". In this case,
the Complainants are based outside Eritrea and could have sought the assistance
of any number.of legal representatives towards filing their writ. They have not
firmly established that all the available legal representatives in Eritrea are reluctant
to file such applications due to fear of persecution or that the Courts will always
ignore such appli~ations.
55. The Complainants referred the Commission to the three Communications against
Eritrea, mentioned in paragraph 26 supra, as evidence of impediments created by
the climate of fear and impunity. In those Communications, they argue that legal
representatives in Eritrea refused to assist in filing for a writ of habeas corpus and
that applications filed by the complainants were nevertheless ignored. Notably,
two of the three Communications referenced were decided more than ten years
,
/
19
~-:-...
0\1 \\U:.1A/J-1
See for example Communication 368/09 (2013), Abdel Hadi, Ali Radi & Others 1rIRrjp~bJfE-ror§tlda~f,,,<.
particularly paras 46-49.
/.~'~
.
. -e
....
I'
Supra note 15; see also Communication 340/07 - Nixon Nyikadzino (representec{1fI1 Zi a?J7tfma)
"'.
Rights NG.O.. Forum) v Zimbabuie (2014) ACHPR.
o
(...
"/~
20
An°f,gaf~Ofthe
.'
A ncan ((~1
Union ~lo1
'I~
(!}t
,~S.
AU-UA
~te<f.
1
~~
0 ;;;
The African CommiSSio~n
~
~ights
31 Bijilo Annex Layout. Kombo ~!il[tQ P~1r~tR~~ttCb~Region
Phone: (220j·~t~P,.1fFE'1X~P-~0:)V~:1 0504
Email: au-bafi-l'iJt@Jlfr:l:G'lH1nlon.org
https:lachpr,au.intiO
0
III
ACHPR
African Commission on
Human and Peoples' Rights
Human r,ights our
Collective Hesponsibilitv
ago, and the third Communication
decided in 2016, was dismissed
the legal and factual issues advanced
in one of the two earlier Communications.
Indeed, in Article 19 v. Eritrea, the Commission
provides
ample safeguards
charge or trial including
Accordingly,
held that the Eritrean Constitution
against persons who are arrested and detained
without
the right to petition the court for a writ of Habeas Corpus.
the Commission
to at least attempt
for re-litigating
held that it was incumbent
to exhaust domestic remedies
on those Complainants
notwithstanding
their claims that
doing so would be futile?'.
56. The
above
notwithstanding,
Communications
arguments
the
admissible.
adduced
The Commission
by the Complainants
infer from the circumstances
ineffective=.
detention
Commission
engender
the
above
that even though
the case that domestic
the
ongoing
remedies
were
incommunicado
State's
positive
obligation
the Commission
declared
that when a person is being
held in detention
and accused of committing
Member
State,
through
promptly
before.a
its appropriate
competent
reasoned
held that cases alleging
the Respondent
process of law. Accordingly,
declared
were not sufficient, it could nevertheless
surrounding
The Commission
still
to afford
a crime, it is the responsibility
judicial
bodies,
to bring
due
of the
the person
court of law ,to enable him or her to be tried-".
Further, if it is shown that the State had ample notice, even if not within the context
of domestic
remedies,
and is expected
57, This positive
the State may still be said to have been properly
to take appropriate
obligation
steps to remedy the alleged violation-s.
arises because
incommunicado
detention
or interrogation
'prolonged
incommunicado
to be a form
Accordingly,
without due process safeguards'.
of cruel,
detention
inhuman
punishment
in Article 19 v. Eritrea specifically, the Commission
victims incommunicado for over three years demonstrates
due process of the law and in particular,
further
Additionally,
and/ or solitary confinement
or degrading
a
and
by itself,
could be held
treatment'<.
found that holding
a prima facie violation
Article 7 of the African Charter.
that, by not taking any action to remedy
months after the Commission
'constitutes
such as torture or ill-
gross human rights violation that can lead to other violations
treatment
informed
the situation
of
It held
more than twelve
had been seized of the matter, the State had failed to
ACHPR
African Commission on
Human and Peoples' fiights
Human Hights our
Collective Responsibility
demonstrate that domestic remedies were available and effective and thus the
Complainants were discharged from the obligation to exhaust them.
58. Indeed, in those cases, the State of Eritrea admitted that it had detained the
mentioned victims and that it had failed to bring them before a court of law due to
various shortcomings in its criminal justice system. It admitted that the High Court
of Asmara had only one chamber responsible for handling criminal matters and
that the Court's calendar was highly congested as a result leading to significant
delays in bringing detainees before a court of law. The admissions, therefore,
aligned with the Commission's presumption that domestic remedies were not
effective.
59. In the present Communication, at the time of submission of the Complaint, the
victim had been allegedly detained incommunicado
for two months
notwithstanding the need for urgent medical attention. In this Commission's
considered opinion, the State has had ample time and notice to at least charge the
Victim or grant him access to legal representation, considering that he is a highprofile individual whose release and whereabouts have been requested by
numerous internationally reputable organisations=. Indeed, over a year has
passed since the Commission seized this Communication and engaged the State,
but the latter has not been forthcoming and has not complied with requests for
assurances that the Victim's health needs vyould be managed while in custody.
60. Admittedly, the Respondent State in the present Communication, unlike previous
Communications, has not acknowledged detaining the victim nor any
shortcomings in its criminal justice system. While the Commission cannot
conclusively findthat the State has detained the Victim, the Complainants adduce
reliable evidence establishing a prima facie case that state agents detained the
Victim incommunicado. Nevertheless, this Commission is convinced that Eritrea's
admissions in the previous Communications did not affect their outcome. The
State's admissions merely confirmed the presumption that domestic remedies
were ineffective, a presumption established by the failure to afford due process
guarantees for alleged victims of incommunicado detention. Indeed, where a party
raises non-exhaustion of local remedies because of a lack of due process guarant~es
26
An Organ of the
African
(P\ -~.M...\
·
U ruon
'-,llI';'·.
https:/achpr.au.inVCI
U a
ACHPR
African Commission on
Human and Peoples' Rights
Human Hights our
Collective Responsibility
in the State, the burden of proof will shift to 'the State claiming non-exhaustion
and it has an obligation to prove that domestic remedies remain to be exhausted
and that they are effective's". By failing to engage the Commission on the
allegations made by the Complainants, the Respondent State fails to discharge this
onus. It would be an affront to justice to reward the State for its silence in this case
while penalising it for its admissions in previous Communications.
61. As such, in the absence of any concrete steps on the part of the State to bring the
victim to court, or to allow him access to his legal representatives two years after
his arrest and detention, and more than one year after being seized of the matter,
the African Commission is persuaded to conclude that domestic remedies, even if
available, are not effective nor sufficient.
62. Accordingly,
the Commission considers that the i,Complaif1:ants have
constructively exhausted domestic remedies and are thus:'in compliance with
Article 56(5) of the African Charter: ..
f. Submission
Charter
within a reasonable period (Article 56(6) of the African
63. Article 56(6) of the African Charter requires that a Communication must be
submitted ' ...within a reasonable period from the time local remedies are
exhausted or from the date the Commission is seized of the matter'. The
Commission rec~lls that the African Charter does not provide a fixed period for
reasonableness and instead determines this on a case-by-case basis. In practice,
the Commission adopts the international standard of a six-month delimitation
within which a <;ilommu~iCationmay be reasonably submitted from the domestic
level. The reasonableness of submission beyond this period is dependent on the
circumstances of the case.
64. Ordinarily, the reasonableness period runs from the moment local remedies are
exhausted. However, where remedies are unavailable, the period runs from the
date on which the alleged violation(s) occurred or when the applicant became
aware of the act or its effects. If the Complainant attempts to exhaust an apparently
available remedy and only subsequently becomes aware that the0~\'I~H'E1"Jo
circumstances that render the remedy ineffective or insufficient, thrp6tIQdl:fUI1S I,~
27'
See Liesbeth Zegveld and Mussie Ephrem v. Eritrea, supra note 3, para 36.
(S
I/i/
~rl.(
"~ ~
z
~ <1
o
~--L
<~ \
u~ I
.' 17.
~-i
is en
<\ ~ 0
",u-\.lJ'>,
<.t"
The African Commission ori'Mb ~a~Peopl~
31 Bijilo Annex Layout, Kombo Nort~ istri~(OX~~I:.~e,~~1
Phone: (220) 230 \ 6t ~8x:~i&j
.~
11JY',E ETO.,. ,"'Email: au- baruun
. lJLiEoUnlO!Y.Org
';hC>V
t4J~5~()~
ACHPR
African Commission on
Human and Peoples' Rights
Human Hights our
Collective Besponeibiutv
from the date the Complainant became aware or ought to have become aware of
the said circumstances.
65. The Commission observes that the present case raises claims of ongomg
incommunicado detention and thus concerns a "continuing situation". This being
" ... a state of affairs which operates by continuous activities by or on the part of
the State to render the applicants victims'<s. This term has often been used by the
African Commission when considering the ratione temporis compatibility of an
application. However, sister bodies such as the European Court have also
considered it under their timeliness provisions. The case law concerning the scope
of acts constituting continuing situations is by no means settled. However, there is
consensus in international law regarding ongoing enforced disappearances or
incommunicado detention as continuing violations-".
66. As indicated in the preceding paragraphs, if d9mestic remedies are deemed
ineffective, as in the present case, the reasonableness period starts to run the
moment the Complainant became or ought: tq, have become aware of these
circumstances. Notably, if the act complained oris "instantaneous", "does not
extend in time", the above rule applies. However, if thealleged act is" continuous",
"continues in time", different rules apply. The European Court in this respect has
held that if an alleged act" constitutes a continuing situation against which no
domestic remedy is available, it is only when the situation ends that the six-month
period starts to run"30 but if the alleged act continues, the six-month rule is not
applicable-t.
, jJ
67. The Commission recalls that principally, the timeliness provision is anchored upon
the need for legal certainty since over time a fair examination of issues raised
becomes problematic. However, with continuing situations, this problem does not
arise since the act(s) complained of is ongoing. Essentially, "if there is a situation
of ongoing breach, the time limit ... starts afresh each day and it is only once the
situation ceases that the final period of six months will run to its endll32.This rule,
therefore, serves the purpose of preventing perpetrators of ongoing violations
from enjoying impunity for these acts.
28
96;u~ "~
Kevin Mcdaid and Others v. United Kingdom (1996) ECHR (Application No. 25681/94).
"""
\U1d .....
Inter-Am. Ct. H.R. (ser. C) No. 36, Blake v Guatemala at 1 (2 July 1996)
/ ,0 \ ~ T\, 'u /
/ " G ~- ',r
c
Sa~ri .Giine$ v. Turkey (2012) ECHR (Applica~on_ No. 27396/06) para 54.
I_':.~'i.)c._,<c..
\
Oliari and Others v. Italy (2015) ECHR (Application Nos. 18766/11 & 36030/11~ }ras
f
29
30
31
An0i::"Of~:ma.vaand Others v. Turkey (2009) ECHR (Application Nos. 16064/90 et al) p~ ~ 159~t..~_}
. ft " "', \
Af n~an
'(~)I
Union ~:.>...;7
1
c~
~
• L) o
(>..
'J (/)
The African CommiSSi~ ~n ~
an SrYd~eo~ e'l Rights
31 Bijilo Annex Layout, Kombo~ brth1J~ ~e~Roa~l~egion
Phone: (220:: 3Q _43'6'~Fia~~2'Ot-M1
0504
-:
cc,\ ,
Email: au-b
.'.~ r~~a"_unIOn,or2
, "https: achpr.au.intiCi
U a
ACHPR
African Commission 011
Human and Peoples' Bights
Human nights our
Collective Responsibility
68. In Octavia Ruben Gonzalez Acosta v Paraguay33, despite a lapse of 24 years, the InterAmerican Commission on Human Rights (IACHR) employed the doctrine of
continuing violations and held that
taking into account the date of the alleged
violations, the possible existence of a situation of continuing violation of human
rights, and the status of the various domestic remedies in Paraguay, the
Commission finds that the petition under analysis was submitted within a
reasonable period of time">.
1/ •••
69. Accordingly, considering that this case complainsof a continuing situation - being
the continued incommunicado detention of the Victim - the Commission holds that
the present Communication was submitted within Clreasonable period of time.
,~
-,
..
.,~
70. Indeed, even if the Commission disregarded the principle of continuing violations,
the Complaint would still have been submitted within a reasonable period. The
Complaint was submitted on 19. October 2018, two months» after the alleged
incommunicado detention of the Victim, which occurred on 17 September 2018.
Clearly, submission within two months is well within the international standard
of a six-month delimitation period. As such, the present Communication complies
with Article 56(6) of the African Charter.
g. Other procedure of international settlement (Article 56(7) of the African
.Charter
71. In accordance with Article 56(7) of the African Charter, the Communication, as
duly indicated by the Complainants, has not been submitted to, or settled by
another regionaIpr international complaints mechanism.
Decision of the Commission on Admissibility
72. In view of the above, the African declared this Communication Admissible in
accordance with Article 56 of the African Charter;
CONSIDERATION OF THE MERITS
/""0,1
•
33
34
petitio, n 12.358: Octavia Ruben Gonzalez Acosta v Paraguay (7 - 24 October
Id, para 30..
tlUI.14J
0\\
~
,
,eRE
,
L'/I/""
0
2003);;,",l' ~'-;-. - . ":~'
:'!~ 8
._I-': \~
AnO'll""of!he
Afr'can~/'-'"
I.
f J
Union 'On ,
t'
Xa. ~.
\_,~
,.~./
)!5
AU-UA
1 !; 2;
~,I
d? '"
The African commiSSiOrii~H;rQ)~
Q.d..Be ~e<S' Rights
31 Bijilo Annex Layout, Kombo~'
t02istflC!?IWest:-eO~~Region
Phone: (220)
~6b f-r~Q'2)\~.41 0504
Email:
au-ba~lrar;;rfr:rGa"!union.ore:
https:/achpr.au.inlll;)
0 a
ACHPR
African Commission on
Human and Peoples' flights
Human nights ow
Collective Responsibility
Complainant's submission on the Merits
Alleged violation of Articles 4 and 16(1) of the African Charter
73. The Complainants submitted that the Victim has been denied access to medical
treatment. They submit that in 2010the Victim underwent a liver transplant, which
necessitates periodic specialized medical treatment. The victim can only access the
treatment by traveling abroad. Without such medical treatment, the Victim's
health can deteriorate quickly, leading to irreparable harm.
74. The Complainants further argue that the prison conditionin Eritrea are abysmal,
to the extent of making the right to enjoy the be~t~ttainable .state of physical and
mental health, more problematic.
75. Additionally, the complainants aver that the Victim's extended detention places
him at risk of a deliberate act oLextra~judicial execution. The basis for this
submission, is that it is a common problem in the Respondent State.
~!'.--,--_:,<
.
"
76. The Complainants submit therefore, that the Respondent State has exposed the
Victim to a great danger that Caribe a cause to a violation of his right to life,
provided for in Article 4; and the highest attainable standard of physical health, as
provided for in Article 16(1). They request a broad reading of the right to life as
provided by the Commission in Kazeem Aminu v Nigeria35 to include the state's
obligation to protect against real or imminent death.
Alleged violation of Article 6 of the African Charter
77. The Complainants aver that the acts of 17 September 2018, of the Respondent
State's security agents taking the Victim, and thereafter holding him in
incommunicado detention, were in violation of the Victim's right to liberty.
78. Citing Article 19 v The State of Eritrea= wherein the Commission indicated that
where a person is in continuous detention, without access to effective legal
representation, or is unable to avail themselves of assistance, or is unable to
i
/
/"
\v'
~."o\ Cl
,u,,,,
CT,
v Nigeria, Communication 205/97
i~//' <:. __ " r (\
Article 19v The State of Eritrea, Communication 275/03, para 81, 93, and 99, referring,~he ~man
t_?
Rights com,m,ittee's decision in Albert Womah Mukollg v Cameroon, Communication fff/19~U(N
Qo~, ,w~'
CCPR/C/51/458/1991ofl0AugustI994,para,
,-~ 8
"'~,,./
:=' ~
oc_
t!::r'
A"Org""ofthe
\~
'f.
Au-uiO
'3"-!
35 Kazeem Aminu
36
African I{~'r.
Union ~;"'/~
The African Commission on\i~'\P~t:iVln .pe~ ~~?~<-~h~
31 Bijilo Annex Layout, Kombo North ,i§~~9PWest-'6ba~\,ftegt0n
Phone: (220) 230·'1' ~5(r(i2Q0r~41
0504
Email: au-baniulzsafrica-uhion.ora
nttps.rachpr.au.int/O
U
D
ACHPR
African Commission on
Human and Peoples' Rights
Human Hights our
Collective Responsibility
challenge their detention, then their detention will be considered arbitrary,
unlawful and therefore constitutes a breach of their right to liberty, the
Complainants submit that the Complainant's detention, is in violation of his right
to liberty as provided for in article 6 of the Charter.
Alleged violation of Article 7 of the African Charter
79. The Complainants submit that since the Victim's arrest on 17 September 2018, he
has never been brought to Court. This, they submit is a violation of his right to
receive a fair hearing, trial process, including the appropriate procedures to ensure
equality before the Courts, as provided for in Article 7 of the African Charter.
Alleged violation of Article 9 of the tA:frican Charter
80. The Complainants
allege that the Victim's illegal detention took place after the
publication of his two-volume book, and the release of his pre-recorded message.
The Respondent State's action, in detaining theVictim, the Complainants aver, is
therefore intended to silence the Victim.
81. Citing Constitutional Rights Project, Civil Liberties Organisation and Media Rights
Agenda v Nigerid37the Complainants submit that the Commission recognizes the
right to freedom of expression both as a basic human right and as an element
necessary for political consciousness, including participation in the public affairs
of a given country. In this sense, the .right is framed as a two- pronged concept, as
it "comprises the right to receive information and to express one's opinion."38
82. The Complainants aver further that, for the Victim, who is a former high-ranking
government official, unlike ordinary citizens, this right is most critical. They
premise this submission on the fact that the Victim's previous position in
government gave him insider's knowledge about how the government of the
Respondent State functions, which knowledge, they submit, is most vital in the
formation of public opinion. In exercising such right, they aver, the Victim would
be contributing to the political life of his country.
Constitutional Rights Project, Civil Liberties Organisation
Communications 105/93, 128/94, 130/94,152/96 (1998)
38 Ibid.
37
and Medin
An 0I'g.-", of !hi;!!
Afriqan (~.~l
Unlon\.&J;
https:/achpr,au.intJO
U
a
d ....~'. ACHPR
~
.~
'cuxu('
..
African Commission on
Human and Peoples' Rights
Human Hights our
Collective Hesponsinlhtv
83. The Complainants submit therefore that the detention, due to the publication of
his two-volume book, and the audio recorded message, is a violation of Article 9
of the African Charter.
Alleged violation of Article 13 of the African Charter
84. The Complainants submit that the political situation analysis of the government of
the State of Eritrea, and the peaceful and non-violent call to all Eritrean citizens to
take part in the conduct of public affairs, was an exercise of his right to participate
in the government of his country, provided forin Articl~ 13 of the African Charter.
85. They submit that the Respondent
therefore a violation of this right.
State' ~. reaction in detaining
.~/'~:>
..~. "..
'
the Victim is
\!~t
86. The Complainants aver that in a democratic order, there would be nothing wrong
with openly calling for a resignation of a head of state, and encouraging the general
population to organize themselves in a peaceful and non-violent way, to advance
this cause.
87. The above, they aver, is what the Victim did. They aver that these acts are part and
parcel of the exercise of fundamental .rights and' fr~edoms. They therefore submit
that the Respondent State's detention of the Victim is in violation of his rights that
allow him to participate freely in the goveriunent of his country, such as the right
to freedom of expression, the right to freedom of peaceful assembly, and the right
to participate in'the public affairs of one's own country, provided for in Articles 9,
11 and 13 of the African Charter.
Alleged violation of Articles 2 and 3 of the African Charter
88. The Complainants 'submit that the Respondent State committed the other
violations outlines above in response to the Victim's expression of his political
opinion critical to the President of the Respondent State. The expression of his
rights, the Complainants aver, made him susceptible to mistreatment, that would
otherwise not be meted against others who would not hav~XJ?).ies~edI\ASJ1,Ch
,,,
",,-"'(hi<1 .r
c.
opinions. To this end, the Complainants allege that the Vj ,~itTI;,'.CWS- eate~~
,
~
differentially.
'J
' .\
," 1-,
(\1.
10
\.)
• I'll
o ('
.\
~\~
('l
Ct
.,s{,
'f)
p..U'U'"
• ,,:"'t.:-. '~" ~o
','\...
.'
:::.
3 Vi
,.:'"
,v;!f "> /
0~1<V
,~~,
IVMRICP.\\-
~
The African Commission··~,;-i:fl'lm~1.E'!I'Iq,e~~f2les'
Rights
31 Bijilo Annex Layout, Kornbo Nor't:'t;i;Q~.JtJesfCoast
Region
Phone: (220) 230 4361 Fax: (220) 441 0504
Email:
au-ban iul (ci)africa-union.or~
htlps:/achpr.au,inVCJ
tiJI D
.p..C~~Il.
Q. ·';;"
.~
m---.,.£o<
~
Ai'fr'lc\aCll camHI~' u°ISSI'P
on alRl
c
Human nights our
Collective Responsibility
i
Human and Peoples' Rights
89. The Complainants submit therefore that the above differential treatment was in
violation of the Victim's right to not be discriminated against, as provided for in
Article 2 of the African Charter, including his right to be treated equally under the
law, provided for in Article 3 of the African Charter.
Alleged violation of Article 12 of the African Charter
90. The Complainants submit that the Victim has been precluded from traveling
abroad.
91. They submit therefore, that the Respondent State in so doing, violated the Victim's
right to travel abroad, which right is guaranteed in ~r,ticle;~go£.theAfrican Charter
~:,' " .!'.
')~!':-~--.)
~.:.:-,-,
Alleged violation of Article 5 of the African Charter
92. The Complainants submit that the cumulative effect of the .rights violations
detailed above is anti-thesis to the idea of dignity inherent in the human person,
and provided for in the African Charter. The further indicate that, for example,
deprivation of access to the fa.tnilyrri~mbers:is degrading both to the Victim and
his family members.
R'
~
93. Citing the Commission's decision in Liesbeth Zegoeld and Mussie Ephrem v Eritrea'?
the Complainants submit that the longer the Victim remains under incommunicado
detention, the greater the risks are for him to be exposed to additional torturous acts
of the Respondent State.
Alleged violation of Article 1of the African Charter
94. Citing the Commission's decision in Dauida Jawara v The Gambia the Complainants
submit further that a violation of any of the provisions contained in the African
Charter is an automatic violation of Article 1 of the African Charter.
39
Liesbeth Zegveld and Mussie Ephrem v Eritrea, Communication
250/02,
para 55
https:/achpr.au.intiO
U' a
,:c ..
r.\ ACHPR
1 African Commission on
~
(ro'fJX'~
Human Rights our
Collective Responsibility
Human and Peoples' Rights
95. The Complainants
submit therefore that in violating the above detailed rights and
freedoms, the Respondent
state violated Article 1 of the African Charter.
Respondent State's submissions
96. As indicated above, the Respondent
State did not submit its observations
merits, despite having been invited to do so, followed
deadline
and the extensions
Commission
of time granted
by reminders
on the
about the
to the Respondent
State. The
will therefore proceed to consider this Communication
in absentia,
in accordance with Article 108(1) of the 2010 Rules of Procedure.
The Commission's
decision on Merit
On the violation of the right to equality before the law and the right to not be
discriminated against
97. Article 2 of the African Charter provides that:
Every individual shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction of any kind such
as race, ethnic group, colour, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or any status.
98. Article 3 of the African Charter provides that:
1. Even) individual shall be equal before the Lalli.
2. Every individual shall be entitled to equal the law protection of the law.
99. The non-discrimination
principle
generally
ensures
equal
treatment
of an
individual or group of persons irrespective of their particular characteristics.
Equal protection of the law, on the other hand, requires that the law itself treats
people equally, without discrimination, while the right to equality before the
law implies equal treatment of all people by the courts and tribunals, without
discrimination.w,
which supplements
Therefore,
article 3 of the African Charter guarantees equality,
the general prohibition
~
on discrimination
:gr6_){itiecl'fot,
in/'\
;,-' c:,":,c
=:»
m~,
,"'/ " - ~
Article 2.41
0(\
-
~
U
V
..
'!
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218 233, paras. 84 e 85.
41 Antonie Bissangou v Congo, Communication 253/02, para 70.
40
An Organ vt the
African P~))
UnIOn'i"n;;lr
'(
i3 n
•
..l ~_,
A
\
~,
...._...-'
~
1
::
,j;;;
AU-UA
'-
J-u
J
24')
~v
'"
Hu~~~
The African Commission ~n
1~rt-d''j)!~Ple;' Rights
31 Bijilo Annex Layout, Kombo North Distrfd~W&~t Coast Region
Phone: (220) 230 4361 Fax: (220) 441 0504
Email: au-baniulreafrica-union.ora
https:/achpr.auJnlf(J
0
D
(:'i-ii'ACHPR
.~J African Commission on
Human Rights our
Collective Responsibility
Human and Peoples' Rights
100. The Commission notes that there is no evidence that the law itself provides
for differentiated protection between opponents or critics of the government
and opponents or non-critics of the government, so the question of equal
protection by the law does not arise here. In the case of equality before the law,
i.e. before the courts, the Commission is of the opinion that the failure to address
the alleged opponents' rights, amounts to discriminatory treatment, which
constitutes a violation of the right to equality before the courts and tribunals.
!-',
~:"1A:~'·
101. With regard to discrimination, the Commi"ssion recalls the doctrine in
Equality Now42, according to which the victim must always provide a
comparator. If there is a plausible element of comparison, the Respondent State
must provide credible grounds to justify the discriminationx'I'he Commission
also notes that when it comes to opponents, it has been its understanding that
the element of comparison arises from the simple fact that there are people from
the regime or supporters of the government who are free to express themselves
without being victims of repression that is reserved for opponents.
102. The Commission recalls that it has referred to Article 2 in the broader context
of the human rights situation in Africa, when it urged the Egyptian government
to "put an end to the harassment, arbitrary arrest, detention and sentencing of
journalists, human rights defendants, and individuals who express dissenting
viewsregarding the Government's actions."43
103. The Commission has established jurisprudence, in which political belief and
opinion have been raised as a ground for protection against discrimination.
Specifically, in Sir Dauida Jawara v The Gambia, the Commission held that by
suspending the Constitutional Billof Rights:
the government therefore restricted the enjoyment of the rights guaranteed therein, and,
by implication, the rights enshrined in the Charter .... The suspension of the Bill of
Rights and consequently
the application of the Charter was not only a violation of
Article 1 but also a restriction on the enjoyment of the rights and freedoms enshrined
in the Charter, thus violating Article 2 of the Charter as well. "44
~u~,
42
r'U1":~'
f'?~o~s
43 Resolution on the Deteriorating
Human Rights Situation in the Arab RepubliQ::.~fEgpt-A~JRj
Res.297 (EXT.OSjXVII) 20,28 February 2015, para 3.
44 Sir Dat.Vda K. [auiara v Gambia (The), Communication
147195-149/96,.paras 4~I~d05.
/18 ("
An O'f)an of tha
African e~))
Union ~13.
~\ ~
9.
r U
'
~\'
'u "_
UA
2'£;;:
t..~) ~[
The African commi:i%n
}R'.t'u~
~~~e,s' Rights
31 Bijilo Annex Layout. Komti N~rtW'bisW~p..We~t,~ast Region
Phone: (22
OO'~~\~~220)
4410504
Email:
au:'oaA1UI®~fFfca-union.ore
https:/achpr.au.intlCJ 0
D
Human Fii9hts our
Collective Hesoonsibihtv
104. The Commission found, in this case therefore that banning political parties, as
well as banning ministers of the former civilian government from taking part in
political activity, was discriminatory.
105. Similarly, in Liesbeth Zegoeld and Mussie Ephrem v Eritrea, where a number of
former government officials were openly critical of the Eritrean government,
resulting in their arrest and detention, the Commission found that they had been
'detained on account of their political beliefs' and found a violation of Article 2 of the
African Charter.
106. In the present Communication, the COIl1JUiss,i(:W'",
,.o~serves that the
Complainants have illustrated thatthe Victim has been ·tte~ted :differentially, on
the basis of his political opinion, and his critique of th~ country's Jeadership.
However, criticisms of opposition parties by me~bers o{the ruling party, have
never resulted in arrest, incommurl.fcado detention, or being held for extended
periods of time, without fair trial, and' an opportunity to apply for bail.
,
.
.'
"-;,
,,"".
.
I'>
107. The Commission notes that, althbughthe victim is from the ruling party, his
criticisms constitute opposition to the way in which his party and its leadership
have managed the country. In terms-of form, the victim is not an opponent, but
in material terms he is an internal opponent and therefore deserves the same
protection as any other opponent. It should be noted that had the victim not
criticised the government, he would not have been the subject of repression.
108. To this extent, the Commission therefore finds that there has been violation of
Articles 2 and 3 of the African Charter.
On the violations of the right to life and to physical and mental health
109. The complainants allege the violation of Articles 4 and 16(1) of the African
Charter. Indeed, Article 4 of the African Charter provides that" Human beings are
inviolable. Every human being shall be entitled to respect for his life and the integrity of
his person. No one may be arbitrarily deprived of this right." On the other hand, Article
16 (1) of the African Charter provides that "Every individual sha~.~~1!ff.the_right to
enjoy the best attainable state of physical and mental health.
R"'.r U /(c,
0".~ \,
{f'~~
~\':.
'l{'
h.
) ()
\!
\~
'-...-
A\.l·Ut>.
,}.
i- 2£
u
The African Commi§Siojif~?
uma il.SIY~l?les' Rights
31 Bijilo Annex Layout, K'~b,(9 .Na~tt<1.r;l!RJlict,~W@$v::oast
Region
Phone:~~$~9,tiqfir,9~;
(220) 4410504
Email: ace-!T-
aniuf(a)africa-union.ore
https:/achpr.au.inVI:J
U a
ACHPR
African Commission 011
Human and Peoples' nights
Human Hights our
Collective Hesponsibilitv
110. The Complainants claim that the Victim suffered restrictions in accessing
healthcare even before he was detained. Further, they aver that the conditions of
prisons in the Respondent state, are abysmal, exposing detainees to tremendous
health risks, which are often life threatening.
111. The Commission considers the right to life the supreme right of every human
being, and the foundation of all other human rights.4S Without this right, the
Commission has observed, all other rights lack meaning.w This right is violated
when the Respondent State exposes individuals to "personal suffering and
... deprive him of his dignity."47
112. To ensure that other rights are meaningful, the Commission advances a broad
interpretation of the right to life, that includes dignity, health, livelihood and to
live in peace.w The UN Human Right Committee has similarly emphasized that
" the right to life includes the right of persons to befree from acts and omission or expected
to cause their unnatural or premature death and to live in dignihJ."49
113. The Commission recognizes that a violationof Article 4 can occur without
1£
resulting in death. The African Court on Human and Peoples' Rights, in African
Commission on Human and Peoples' Rights v Kenya held that" contrary to other human
rights instruments, the Charter established the link between the right to life and the
inviolable nature and integrity of the human being."SO Consequently, the denial of
essential necessitit.s therefore, such as medical attention can constitute a violation
of the right to life, as the state has the obligation to ensure 'respect to life'.sl
Noah Kazingachire, John Chitsenga, Elias Chemuura and Baianai Hadzisi (represented by Zimbabwe Human
Rights NCO Forum) v Zimbabwe Communication 295/04,
46 Sudan Human Rights Organisation
and Centre for Housing Rights and Evictions (COHRE) v Sudan,
Communications 279/03-296/05, para 146
47 John K Modise v Botswana, Communication
97/93, Decision on the Merits: Amicable settlement
48 General Comment NO.3 on the Right to Life, Adopted During the 57th Ordinary
Session of the
African Commission on Human and Peoples' Rights held from 4 to 18 November 2015 in Banjul, The
Gambia, paras 6 and 41. In the same vein, see Leon Mugesera c. Rwanda, ACtHPR, Case No. 012/2017,
Judgment of 27 November 2020 (merits and reparations), §§ 100 -107.
49 General Comment no 36 of the United Nations Human Rights Committee sur l'article 6 du Pacte
international relatif aux droits civils et politiques", para 3
50 African Commission on Human and Peoples' Rights v Kenya (merits) (26 May 20J.16·'Al~~:~1i.l(52
51 Malawi African Association,
Amnesty International, Ms Sarr Diop, Union JinJttii'fJ/flcai
es dr6'its de
l'Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritdnimne . s droit«
'Hol~me
v Mauritania, Communications 54/91-61/91-96/93-98/93-164/97_196/97-2'«/98,
aIlt14,Oji'
'tS ?c> \
45
.~\;_'J
'-......
u
r, z
l
~
An Organ of the
.-1.
~. ';?
\:t;'
'0
%
",\.l'u'"
~:;
- ,~
g 2,
C)
c.)
'WI
Go)
The African Com" 'tsio~
.
n~
~~ples'
Rights
31 Bijilo Annex Layout. K
b<{ No7tH'@j~fI'ct5 ~fi'st Coast Region
Phone:'
, 3fi:43i6\l~b-ax: (220) 441 05 04
an-iUf(ci) africa-u nion. 0 re
httpsvachpr.au.mt/O
0
D
_,:':r.,
AC
H
P
R
( . :J
am::n)..,
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
114. The Commission acknowledges that the state's responsibility to protect
individuals who are in custody is heightened. It includes a positive obligation to
protect detained persons from emergencies that threaten their life. This obligation
extends to the provision of necessary conditions of a dignified life, namely the
provision of adequate healthcare.
115. The Commission recalls that in Monim Elgak, Osman Hummeida and Amir
Suliman (represented by FIDH and OMCT) v Sudan it has affirmed that States
have the obligation to "refrain from denying or limiting equal access for all
persons, including detainees, to health services". As noted earlier in the present
decision, and in relation to Article 5 of the. African Charter, the state's
responsibility to protect health is heightened where individuals are detained.
116. In Monim v Sudan, where the detainee had high blood pressure, the
Commission found that the medication he was provided with, in detention, was
'not adequate to guarantee his health,' and instead resulted in this being both life
threatening and jeopardized his health.'52 The Commission considered that the
Respondent State in this circumstance violated the victim's right to health by
failing to take the necessary measures to protect his health, especially given that
he was in the custody of the State authorities.
117. Similarly, the Commission has found in Media Rights Agenda, Constitutional
Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria», that
denying a detainee access to doctors while their health is deteriorating, is a
violatio~ of Arti~le 16 of the African Charter.
118. In the present Communication, the Complainants have raised concerns
regarding the victim's lack of access to medical treatment, particularly due to the
Respondent state's restrictions on the Victim's travel abroad. The Complainants
have demonstrated that the Respondent state has obstructed the Victim's ability
to travel abroad since 2014, and that he has been completely precluded such travel
since 2017, a year before the Victim was taken by security agents of the Respondent
State.
(~';~,ACH
PR
. J
African Commission on
Human and Peoples' Rights
Human Rights our
Collective
Responsibility
119. The Complainants have also adequately demonstrated that the Victim's health,
given his medical history and incommunicado detention, is a risk of rapid
deterioration, if he does not receive adequate medical attention from qualified
doctors. The medical attention required by the Victim, is specialized and in scarce
supply, in the Respondent State.
120. The Commission notes that the Complainants' allegations about the victim
condition of detention are confirmed by the First Report of the UN Commission of
Inquiry on Human Rights in Eritrea which describe,$1,th,e conditions of detention in
the Respondent State prison as
extremely harsh, and the lack of access to sufficient food, water and medical care while
in detention is found to debilitate prisoners and to lead to short- and long- term health
complications, and sometimes death. The practice of keeping detainees in
incommunicado detention and/or in isolation with total disregard for international
standards is widespread. The mental and physical health of prisonrrs is thus unduly
and unnecessarily affected.54
121. The Commission considers that the conditions of the victim's detention, as
described by the complainants and confirmed by the UN above-mentioned
report, and the impossibility of pursuing appropriate treatment abroad, are
likely to lead to a serious deterioration of the victim's state of health and,
therefore, jeopardise his life.
122. The Commission therefore finds based on the above, that there is a violation of
Articles 4 and 16(1)of the African Charter.
On the allegation of torture, cruel, degrading and inhuman treatment
123.
Article 5 of the African Charter provides that:
Every individual shall have the right to the respect of the dignih} inherent in a human
being and to the recognition of his legal status. All forms of expLoitation and
degradation of man, particularly sLavery, sLave trade, torture, cru;~ 1'[}~Hl':!,~~or
degrading punishment and treatment shall be prohibited.
cf lOT fI."".)" v
A~;-;
;"n~~'C·''"
! ~
,
4
\;~I,
< -\
w~
';2
First Report of the UN Commission of Inquiry on Human Rights in Eritrea, A/HR : 2fl;/ 2,4 June 201
i
para. 73.
\ "&. \
AU·UA
,? C;;
54
"n 0;9"" of Ih~
Atrican
IP:-....~
I.
ll~.)
Union
~:';7i'i:f._
-~
U/O,\!
(j, .
.
o.;2~ c,
.q~RICA\t<'(·
':'
The African Commission
0
iT1<)flE1-ll4p~o):»es' Rights
31 Bijilo Annex Layout, Kombo North Dfstrist$est
Coast Region
Phone: (220) 230 4361 Fax: (220) 441 0504
Email:
au-baniul(1i)africa-union.ore
https:/achpr au.inVCJ 0
D
i":~' ACHPR
. African Commission on
Human and Peoples' nights
Human Rights our
Collective Ilesponsibilily
124. The Commission notes from the onset that the present Communication does
not raise any issues related to slavery and slave trade, and will therefore confine
its analysis of Article 5 to torture, cruel, inhuman or degrading treatment or
punishment.
On the alleged torture
125. The Commission has repeatedly held, is one of the most egregious and morally
reprehensible human rights abuses. 55 Its absolute prohibition is therefore one of
the most fundamental values of a democratic state.
126. Adopting the definition of torture as provided for in Article 1 of the
Convention of Torture, the Commission has acknowledged that:
Torture means any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
third person, qrfar any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation afar with the cansent or acquiescence of a
public official or other persan acting in an official capacity. It does not include pain or
suffering arising anly from, inherent in or incidental to lawful sanctions=
127. In Sudan Human Rights Organisation and Center for Housing Rights and
Evictions v. Sudani/, the Commission
defined torture as (i) severe physical or
.' .
psychological pain or suffering inflicted at the instigation of or with the consent
or acquiescence of state authorities; (ii) with a specific aim of obtaining
information, punishing or intimidating the victim, or for any reason based on
discrimination.
128. The Commission recalls that the alleged violations must be analysed in the
light of the time at which the complaint was submitted. In the present case, the
Commission notes that the victim was detained on 17 September 2018 and the
Abdel Hadi, Ali Radi & Others v Republic of Sudan, Communication 368/09,pa~ra69.
The Convention against Torture and Other Cruel, Inhuman or Degrad'
1i'r.ea:h:q.~tor
Punishment, Adopted by the General Assembly of the United Nations on,ISJ>' ~eBiibE:rfl~4
.~
.".
-<
(resolution 39/46)
,:.,"
<0
o
.....
57 communic.ation No. 279/03-296/05:Sudan Human Rights Organisation 8fcece
pn.)Jo ing ~')
Rights and Evictions (COHRE) v Sudan (2009)CADHP, paras. 155-157.
;·.I~ o
w ~',
55
56
All Organ of tile
Atrican
/.1"'-'"
.
(
T
Union ~~
The African
Cornrnis
'
31 Bijilo Annex Layout, Ko
Phone
Z_~·JI
......
/
:lY'l
9_-
oc
~:r.
~
ifl)
<I)J.
oR~c
Ci
AU·UA
man an
e
'll&plegJ Rights
,
. CA.~,?RegiOn
'f
~9F ~8tl~ Xi~(~t~41 0504
Email: au"b.anflW~J.!lta'LJnlon.or2
(
hI ps:/achpr.au.inVU
Ua
ACHPR
African Commission 011
Human and Peoples' Rights
Human Hi9hts our
Collective Besponsibilitv
complaint was submitted on 12 October 2018. In other words, the victim had
been in detention for twenty-five (25) days at the time of seizure of the
Commission. The analysis could be restricted to the twenty-five (25) days if the
Respondent State had complied with the Provisional Measures ordered by the
Commission. Therefore, the Commission considers that the detention lasted
until the beginning of this 78th Ordinary Session, making it a total of five (5)
years, five (5) months and eight (8) days.
The Commission notes that the Complainants have not presented any facts
demonstrating that (i) severe physical or psychologica] pain or suffering was
inflicted at the instigation of or with the consent or acquiescence of the state
authorities. Nevertheless, the Commission considers that the detention for (5)
years, five (5) months and eight (8) days in the >~onditi6hsr~ferred to above,
naturally implies a high level of suffering for which ,the Respondent State is
responsible.
129.
The Commission considers that the duration of the detetition referred to
above, without communication with the outside world, without contact with the
family and the lawyer, and without any-judicial control, and considering the
state of health and age of the victim, creates a framework of psychological
pressure such that it is reasonable Jp consider that this may have caused severe
psychological suffering to the victim. The first requirement of torture is
therefore met.
130.
With. regard to the second requirement, the Commission considers that
detention is normally aimed at ensuring that the victim is brought to justice to
answer for t~e acts of which he is accused. In the CPP of the Requested State
itself, even wHen detention is ordered by the judge, it is aimed at ensuring the
detainee's presence in court; or for the protection and safety of any person or the
public or the risk of continuing criminal activity or interfering with the
investigation. 58
131.
The Commission observes that, in the absence of any plausible motivation,
it is natural to consider that the detention of the victim for a more than five (5)
years by itself constitutes a kind of punishment, which implies fulfilment of the
second requirement of torture. It is therefore concluded thaytlj~ vieHIU"yvas
132.
~:,~er?'t:~!:Q'" >~
~
;0 ~::~::::::~
~::ure in violation of Article 5 of the African
AnO'llallofthe
Afncan
(0' .'~
.
\}'J
U nlon ".;.'lI'~!<.
'
Email:
CP.[TAf(1
~
AU-UA
u~·
-o
31 -
~
'~'It \
The African Commis
31 Bijilo Annex Layout. Ko
Phone
<.,0
# C;;
.Pc§OpleS' Rights
(t)lpr1¥l'llili,!it:ifI\.I\YWSl C9-a'st Region
(
~2S.'l--i3r6d[:,~~'2.20)
441 05 04
au-b'ahitJl{@africa-union.ore
hllps:/achpr.au.intlQ
0
a
ACHPR
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Besponsibititv
On the alleged of cruel, inhuman or degrading treatment
133. The Commission notes that torture, by its very nature, is inhuman treatment,
due to the severity of the suffering and the objective pursued. 59 In Civil Liberties
Organisation v Nigeria, the Commission stated that, '[w]hile being held in a military
detention camp is not necessarily inhuman, there is the obvious danger that
normal safeguards on the treatment of prisoners will be lacking.w In the samecase,
the Commission emphasized that "[b]eing deprived of the right to see one's family is a
psychological trauma difficult to justifiJ, and may constitute inhuman treatment. Deprivation of
light, insufficient food and lack of access to medicine or medical care also constitute violations of
Article 5."
134. Further, to the above, in Abdel Hadi, Ali Radi & Others.» Republig;,Qj Sudan, the
Commission states that
Regarding the incommunicado detention, death threats, denial of access to medical care
and adequate toilet facilities, the Commission observes that holding a person in
detention under conditions that are not in keeping wi~}Jhis dignittj and pose a threat to
his health amounts to cruel, inhuman and degrading treatment or punishmentt'=
f~'~.,
~'
,
'!",
,
135. In the present Communication, the Commission found above that the Victim
has been held in incommunicado detention with no access to a lawyer, or appropriate
health practitioners, despite his very serious health condition and his age
advanced age of ,73. The 'Commission
therefore considers that this amounts to
. ,
inhuman and degrading treatment.
136. For these reasons, the Commission therefore finds that Article 5 of the African
Charter has been violated.
On the violation of the right to liberty
137.
Article 6 of the African Charter provides that:
..(I.
,/"'_u~:url liU ' 1,..
.;
f("J
Curtis Francis Doebbler contra 0 Sudiio, Queixa 236/00, paragrafo 37.
l{"
Civil Liberties Organisation v Nigeria, Communication 151/96, paras 26 and 27. <v
61 Abdel
Hadi, A, u Radi & Others v Republic of Sudan, Communication 368/09, patf~~
\
-··
5Lf
An Org31\ 0' tile
Afrl'can~;;,'~<\
.
(
;
Union \, .
j \~
_~ ~/.,)6.;:
59
60
...
T~r../"
' l: o
t, ~,'
\ ,.
.1-'1.;:
AU-U
\ I.L
~:
<If
•
&
3.:';2.
u:
I..fJ
C
;Z
The African commis~' on 'dip uman ~d Pr ol'le~ Rights
31 Bijilo Annex Layout, Kom
~kiCIr-v(e.fftl't:oa'S.t Region
Phone: ( 2cq;2,30'l\'!{0.1NF,_J.X:
~{))"41
0504
<r.~dh~,
Email:
a~-b~Orul~(a)!J'f'rrca-union.or2
• https:/achpr.au.inVCI"
D
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective F~espons!bility
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 laui. In particular, no one may arbitrarily arrested or detained.
138. In accordance with the Commission Principles and Guidelines on the Right to
Fair Trial and Legal Assistance in Africa,both arrest and any subsequent detention
that are not in accordance with the African Charter are deemed to be arbitrary=.
139. The Commission recognizes that the deprivation of the right to liberty and
security often adversely and directly affectsthe enjoyment of other African Charter
rights. In Sudan Human Rights Organisation & Centre on Housing Rights and Evictions
(COHRE) v Sudan, the Commission specifically pointed to ;ights ranging from the
right to family and private life, the right to freedom of assembly, association, and
expression, as well as the right to movement, as rights that may be-impacted by
the restrictions of the right to liberty and security. 63
140. The Commission emphasises that, according to Article 6 of the African
Charter and the guidelines referred to above, liberty is the norm= and that its
deprivation can only occur on grounds and under conditions laid down by law.
This means that-the law must provide for the possibility of deprivation of liberty
and that it must take place under the conditions and by the proper procedure
before the competent authority. Under the law of the Respondent State65, police
officers may arrest the detainee, but they must bring him before a judge within
48 hours and inform him of his right to legal counsel. 66
141. The Commission notes that, in the present case, the victim was detained by
security agents and placed in custody for fort-five25 days (when the case was
referred to the Commission) without ever being brought before a judge and
without a lawyer. The detention continues under the same conditions until the
date of this decision, even after the Commission ordered the victim's release as
a Provisional Measures. The Commission notes that, in any case,
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003 (M).
Sudan Human Rights Organisation & Centre 011 Housing Rights and Evictions (COHl}E) v Sudan,
Communication 279/03-296/05, para 171.
~tl
HUh,/.,
64 Sudan Human Rights Organisation and Centre on Housing Rights and Eviction.sJ.cQURE1J!{'Su4an,
'.'
I/',. "
Communication No. 279/03-296/05, para. 171.
..5'
(65 Article 33(1) do Code of Criminal Procedure (CCP).
'~
0.' ~
S
62
63
AnO~:n~,~:icle
60(1) of the CCP.
African (~)
Union
~'Ii";"
~{~ 8
(.,,\>~~ i33~\.
,';t~~
JPBr~'
"Ci
The African Com~1 Si:}{r~ "Z~~~~~n
Rights
31 Bijilo Annex Layout, Ko. I!f~ &qp DistrictbVVffit C'?fst Region
Phone;
r01J,3(N8tWF~~0)
4410504
Email:
~~banRft~~iri6-union.ore:
.-
-https:/achpr,au.inVC'J
0
a
ACHPR
African Commission on
Human and Peoples' flights
Human Hights our
Collective Responsibility
incommunicado detention forty-five (25)days cannot be considered compatible
with the requirements of lawful detention.
The Commission recalls that in Sir Dauida K. Jawara v The Gambia, it
acknowledged incommunicado detention as arbitrary deprivation of liberty, and as a
gross human right violation.s? Furthermore, in Liesbeth Zegveld and Mussie Ephrem
v Eritrea, the Commission observed that arrest and detention in an unknown
location is contrary to Article 6.68
142.
For these reasons, the Commission finds a violation of Article 6 of the African
Charter.
143.
On the violation of the right to be heard and the right to a fair trial
144. Article 7 of the African Charter provides that "Every individual shall have the
right to have his cause heard ..."
The Commission recalls that in Dino Noca v The Democratic Republic of Congo, it
has observed that the right to beh~~r,drequires 'unfettered access to a court having
jurisdiction to hear his case'69 and with sufficient powers to establish the
violations and order reparations. 70
145.
In the present case, the Complainants assert that the arrest of the victim on 17
September 2018, without subsequently being brought before a court. Thus, the
issue is not the existence of judicial bodies competent to deal with alleged
violations of the victims' rights, but the impossibility of accessing them in order
to obtain justice.
, ')1
146.
t'
The Commission notes that if a victim can access the courts and even not
have their rights protected, the impossibility of accessing them because of
incommunicado detention by the authorities of a State, as is the case of the
victim in the instant Communication, constitutes the most primary form of
violation of the right of persons to have their causes heard, in accordance with
Article 7 of the African Charter.
147.
Sir Dauida K. [aioara v Gambia (The) Communication 147/95-149/96
, ~u \ IU", I :
Liesbeth Zegveld and Mussie Ephrem v Eritrea, Communication 250/02, para 59.
/
t} ,r U ,
69 Dina Noca v Democratic Republic of Congo Communication
286/2004 para 190.
'.;,~" ~-'-,
'" Z;mba"bW, e uman Rights NGO Forum contra a Zimbabwe Comunication 245,~{q¥
2~f' >\j,
tJJ
An 0'>1."
ttl..
, Z
',(( ~ ':I
34 0 67
68
j ,}\
PI'
H,
of
Afriqan (~'~')'
Union \tn!'
The African commis~)i~~
0%
T \ \/
t;
ma~~Reo
e§ RJihts
31 Bijilo Annex Layout, Kombo~oittr,
' trict, Wes
~~t Region
Phone: (22.0) 23tY$~,
' ~~Q) ~ 10504
Email:
a~ti.i:!'oi41~'clNi~q,~.t:)~bn.or2
",
'"I.h~p~pr,aU.int/CI
0D
ACHPR
African Commission 011
Human and Peoples' nights
Human H.ights our
Collective Responsiuilitv
On the violation of the right to freedom of expression
Article 9(2) of the African Charter provides that "Every individual shall have the
right to express and disseminate his opinions within the law."
148.
For greater respect of freedom of expression, it is necessary to promote
individual's right to hold opinions, seek, receive and impart information and ideas
without interference or restrictions of any kind."!
149.
150. In Kenneth Good v Boteioana'', the Commission noted that expression is limited
to protect the rights or reputation of others, for national security, public order,
health, or morals. Freedom of expression is therefore not absolute. However, in the
2002 Declaration of Principles on Freedom of Expression in Africa and expanded in the
2019 Declaration of Principles on Freedom of Expression and Access to Information in
Africa made it clear that restrictions on fre'edom of expression" shall be provided
by law, serve a legitimate interest and be necessary in a democratic society."73
151. In Malawi African Association and Others v Mauritania the Commission stated
that 'the expression 'within the law' must be interpreted in reference to
international norms',74
152. Further to the above, the Commission in Amnesty International and Others v
Sudan observed that freedom of expression is essential to the development of
political consciousness and participation in the public affairs of one's country" A
higher degree of tolerance as well as a higher threshold are therefore expected and
Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the
Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002,
preamble
72 Communication 313/05:Kenneth Good v. Republic of Botswana (2010)CADHP, para. 187.
73 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the
Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002.
74 Communications 54/91: Malawi African Association vs /Mauritania: 61/91: Amnesty International
vs/Mauritania; 98/93: Ms. Sarr Diop, Union Interafricaine des Droits de l'Homme -a~\\\B-~DfiO
vs/ Mauritania: 164/97 a 196/97: Collectif des Veuves et Ayants-droit vs/~'cf~J'i~aJA~lW9S~
Association Mauritanienne des Droits de I'Homme vs/Mauritania (200)CADHP, p.~a.Ern .- ~
u'1
75 Amnesty International and Others v Sudan; also cited in Egyptian Initiative fi.IJJ' '1erso alt,' ig~.t~
d \~_
INTERIGHTS v Egypt, Communication 323/06, para 246
~~
'J,
71
'5!:~ ?~.
All Or(',.I) of 'he
Af nqan.(
. V!~....'~j
<i
.'
Union ~.
The African Commissi
~
"'-.....
.~ ~
L)"
. ;pn~
.
AIJ·IJA
an and P
3·f:>---
f! (;
jj?s' Rights
31 Bijilo Annex Layout, KombO., orth~~~Q~~it~egiOn
Phone: (220
~0tt\.~~~~t~Q»)l!~10504
Email: au-ba
1l:J1@~1fFiEa-unlon.or2
.vhttps:fachpr.au.intlO
'"
D
ACHPR
African Commission on
Human and Peoples' Rights
Human Hights our
Collective Responsibility
required when political speech is directed towards government and government
officials."
153. In LaIDOffices of Ghazi Suleiman v Sudan, the Commission stated that the public
expression of views about government, that contribute to political debate,
warrants special protection as it adds special value to society."?
154. In the instant case! the Complainants submit that the two-volume book
published by the Victim, is purely political commentary which criticizes the
political system, and particularly the president; and encouraging the general
public to take active interest in the leadership of the country, and to organize
themselves in a peaceful non-violent' way, .to advance this cause. The
Complainants further argue that there·i~;i\.~thingjnthe books that has the potential
to cause instability, or concern. The contents of the books are not disparaging,
defamatory or inflammatory. The views expressed in the book are just critical
comments that are expected from any civilian encouraging political consciousness
and participation.
155. The Commission notes that in the absence of a response from the
Respondent State! it is forced to accept the complainants' allegations and
consider that the victim's detention following the publication of her book!
without any judicial process! constitutes a violation of her right to freedom of
expression! provided for in Article 9 of the African Charter.
I
On the right to travel abroad
156.
Article 12 of the African Charter provides that:
1. Even) individual shall have the right to freedom of movement and residence
within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own,
and
to
return
to
his
country.
This right may only be subject to restrictions, provided for by law for the
protection of national security, law and order, public health or morality.
. ',U., ,.1 l'
"0
"'< c
GI
_--
"
J
Kenneth Good v Botswana, Communication
313/05, para 198;
77 Law Offices oJ Ghazi Suleiman v Sudan, Communication
228/99, para 52
Afriqan~.,.,r-~··'"'''~\!'''
Unlon \.ms-,:..Y
\
o :
.,J -o __
.
76
A"O'l)~nolth.
•
)
/'"
0' ({~
"
,,"r'~r
...
~"".,.g6
~
\
~ t
I!?
?,
IJ,I>.
(5 c
The African Commission on U
ffUIil<l~ndlfS~oPle
R(ghts
t{ '/.
${,
31 Bijilo Annex Layout, Kombo Nort 'Dislf~t,
.
- S{) eglon
Phone: (220) 23G,..:t3f{~.,~l?)\r4'4(,§5
04
,. l'fi::I &. •
- ~.'i'
Email: au- b aniu (~JtfVm<ta-mJ:n'lon.org
https-;Thchpr.au.intJO 0 a
ACHPR
African Commission 011
Human and Peoples' Bights
Human Hights our
Collective Responsibility
3. Even) individual shall have the right, when persecuted, to seek and obtain
asylum in other countries in accordance 'with the law of those countries and
international conventions.
4. A non-national legally admitted in a territory of a State Party to the present
Charter, may only be expelled from it by virtue of a decision taken in accordance
with the law.
5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall
be that which is aimed at national, racial, ethnic or religious groups.
157. Article 12 sets out a broad range of rights encoillpa~sing the rights to freedom
of movement and residence, the right to leave, asylum and prohibition against
mass expulsion or expulsion without due process. It is an article that sets out a
range of different rights but they have been itifetpreted' as ~ihaving a close
relationship with each.other.
158. In Sudan Human Rights Organisation & Centre on Housing Rights and Evictions
(COHRE) v Sudan, the Commission 'held that freedom of movement generally
asserts that a citizen of a state has the right to leave that state and return at any
time." The Commission interpreted the right as including the right to "travel to,
reside in, and/ or work in, any part of the State the citizen wishes, without
interference from the State.
159. In Sir Dauida Jawara v The Gambia, the Commission indicated that freedom of
movement includes the right to ingress and egress.?? The Commission held, in this
case, that restricting the travel outside the Gambia, of former government officials
and parliamentarians violated freedom of movement provided for in Article 12 of
the African Charter.
160. Similarly, in Law offices of Ghazi Suleiman v Sudan where Mr. Ghazi was
threatened with arrest by security officials, if he traveled to Sinnar to give a lecture
on human rights, the Commission found these threats to be in violation of Article
12 of the African Charter, as he was acting to promote and protect human rights
in his country. Specifically, the Commission stated that the acts were
disproportionate to the Victim's work of advancing human rights.
ACHPR
African Commission on
Human and Peoples' nights
Human Rights our
Collective 11Gsponsitlility
161. The Commission notes, however, that this is not an absolute right. It may be
subject to restrictions laid down by law which are necessary for the protection
of national security, public order, public health or public morality, in accordance
with Article 12(2) of the African Charter.
162. In the present communication, the Respondent State's actions of detaining the
Victim, in response to an expression of his politically dissenting opinion, and
limiting his movement in, and out of the country, which started even before his
detention, constitute a violation of their right to freedom of movement under
Article 12(1) and (2) of the African Charter.
On the violation of the right to participation
country and other freedoms
in the government
of one's
163. Article 13(1) of the African Charter provides that "Even) citizen shall have the
right to participate freely in the government of his country, either directly or through freely
chosen representatives in accordance with the provisions of the laui."
164. The content.?f this provision has been established in the Commission's
jurisprudence in number of Communications - Modi;~ v Botsioana/» Dawda Jawara
v Gambia.t' Constitutional Rights Project v Nigeriat? and Legal Resources Foundation v
Zambia83.
a
165. In the above cited jurisprudence, it has been established that this right entails
the right of citizens to directly 'Orindirectly take part in the conduct of public affairs
through electoral processes and have access to public services and property
without discrimination of any kind.
166. In the present Communication, the Complainants aver that the Victim's
political activism, expressed through authoring a book calling on Eritreans to take
interest in their national politics, was the basis for his discrimination, depriving
him of his right to participate in the public life of her country, in accordance
with Article 13(1) of the African Charter. However, the complainants do not
demonstrate to what extent the victim was participating in the government of
.
..-
\ I\.JI·1A 'J 1
.".
Modise v Botswana 97/93 AR
/ 0\\ "ill,,/' No/,
.
#' 0'">' c,\<'c
vr 'u
81 Jawara v The Gambia (n 68 above)
I, >' ~«;
'~
82 Constitutional Rights Project and Civil Liberties Organisation v Nigeria CornmunitC?arlon ~:
';;"
83 Legal Resources Foundation v Zambia Communication
211/98.
80
Af' nqan .
U nlon '~, ,
AnO'llanolrt.e
ec"\
Ii~O b((})\
\~~
""'.1 s:...,
~
z
........
('l
0
cr.
The African Commis •~ ~
maA-~n't'P Jt~s' Rights
31 Bijilo Annex Layout. KO~~~P,
tl'i
~~o~'?RegiOn
Phone: (2
2l0046Mi$a~\~2~1«441 0504
.
I-fD' ~=-.4t:."'~
Email: au- '~'!,l!Q!.~,.u:a.!,!J~unlon.orE!"
-~hpr.au.inV\J
U a
:z .
(~\ACHPR
,
.
"African
Commission on
Human and Peoples' Rights
,
his country through the publication
jeopardised that participation.
Human Hi9hts OLJr
Collective Hesponsibifrtv
of the book and how her detention
Based on the failure to substantiate the alleged violation by the
Complainants, the Commission considers that the allegation of a violation of
Article 13(1) of the Charter has not been established.
167.
On violation
of Article 1 of the African Charter
Article 1 of the African Charter, provides that "Member States of the Organisation
of African Unitt), parties to the present Charter, recognise the rights, duties and freedoms
set forth in this Charter and undertake to adopt legislative or other measures to give effect
to them."
168.
,-
This provision implies that States must give. effect to the provisions of the
African Charter. By ratifying the African Charter, the State of Eritrea undertook to
ensure respect for the rights protected by the African Charter by taking the
necessary measures to prevent violations and by remedying any violations.
Consequently, by violating Articles 1,2, 3, 4, 5, 6, 7, 9, 12(1)(2), 13(1) and 16(1) of
the African Charjer, the Respondent State has also violated Article 1of the African
Charter.
169.
Complainants' Submissions on Reparations
The Complainant have submitted that as the Respondent State is in violation
of the African Charter provisions addressed in the Communication, and
accordingly request. that th§"Commission urge the State immediately release the
Victim and/ or' pfbvide compensation for the harm he has sustained as a result of
the unlawful detention without trial.
170.
171. The Complainants further submit that in the event that the Respondent State
opts to take further legal action against the Victim, that the Commission instruct
the Respondent State to do so in accordance with obligations of the latter
emanating from the African Charter.
~n
In addition to this, the Complainants submit that the denial of f~rni1y.~(C.ontact
and preventing the Victim's family from knowing his wherea~9'tlts_Cafu~bnt~/tp
172.
J,'>:inhu.ma,n,e treatment of the Victim in contravention of arti~f"~?5
~r )Rhhee7;~ . an\~
AnO!~~'noflh.
Af .
-
ncan (~~
Union ~;J"i!l
,I
i ;z
~,
·«
The African comm~\~o~
31 Bijilo Annex Layout, Ko~o
Phone:~202.~0"14)m
"
,IJ)\
u).
Jill
,PO/II
c-
,__,/;;r
Hu~:alitd
ppqpiesJ~Ri9hts
~Jt .Qistric:!;)Y~I:,'eoast Region
(.<....
~~~q2m$'441 0504
~r;r'S I'
.<\~~
•
Email: ChI<1,)~!o'iH:o~,~,r\le.a~unlon.or2
- _ _ httP~1achpr.au.inVO
0 a
ACHPR
African Commission on
Human and Peoples' Hights
Human nights our
Collective F1esponsibility
Charter. In light of this, they request that the Victim be accorded access to his
family.
173. Finally, the Complainants request that bail considerations be upheld in the
event that the Respondent State decides to pursue lawful action against the Victim.
The Commission's Observations on the Requestfor Remedies
174. The Commission reiterates its position tha,t the duty to make reparation
arises from Article 1 of the African Charter whenever a State party fails to fulfil
its obligations and that failure entails the violation of human rights84• The
Commission notes that in the present case, a violation of Articles 1, 2, 4, 5, 6, 7,
9(2), 12(1)(2), 13(1) and 16(1) of the African Charter has been established. The
Commission also notes that in addition to the existence of a violation, the award
of reparations requires that there '6e damage, proven by the complainant, and
that this damage has resulted from the violation committed (causal link).
175. The Commission notes that reparations can take different forms. In ElSharkawi v. Egypt, the Commission, relying .on the Basic Principles and
Guidelines on the Right to a Remedy for Victims of Gross Violations of
International Hu~an Rights Law and Serious Violations of International
Humanitarian Law (2005),stated that
Full and effective
reparations
include restitution,
compensation,
rehabilitation, satisfaction and guarantees of non-repetition. The Guidelines
also state ,ii~'at compensation should be provided for any economically
assessable injury, such as physical or mental injury; lost opportunities,
including employment, education and social benefits; property damage and
loss of income, including loss of earning potential; pain and suffering; and the
costs of legal assistance or specialized legal assistance, medical and
psychological and social seroices.w
", _:'
• :. :~' "" ,_.-,-1,
\
ACHPR
African Commission on
Human and Peoples' nights
Human Hi~lhtsour
Collective Hesponsibilitv
Any person who has been the victim of unlawful or arbitrary arrest or
detention, or of torture and ill-treatment in police custody or pre-trial
detention, shall have the right to seek and obtain effective redress for the
violation of his or her rights. This right extends to the immediate family or
dependants of the direct victim. Remedies include the following:
a. Restitution to restore the victim to the situation that would have
existed if the violation had not occurred.
b. Compensation, including any quantifiable damages resultingfrom the
violation of the right and any physical o'rmental harm (such as physical
or mental injury, pain, suffering and emotional distress, loss of
opportunity, including education, damage to property and loss of actual
or potential income, inju~~(.to,reputation or dignitY,,;.and costs of legal
or specialist assistance, medicines, medical services and the like), as
well as legal costs, and
psychological and social services).
c. Rehabilitation, including medical and psychological care as well as
legal and social services.
d. Satisfaction and guarantees of non-repetition. 86
j< --~-,'
177.
In this case.'the Complainants
•
are requesting
favour of the victim. Although the complainants
compensation
in general in
do not refer specifically to it,
the Commission considers that the compensation in question includes material
and moral damages, the conditions of which are analysed below.
a) Compensation for material and moral damages
178.
The Commission notes that the Complainant seeks monetary compensation
for material and non-material
damages. In order to award compensation,
in
addition to the existence of the violation, it is necessary to establish the victims
involved, the damage suffered and its link to the violation found. With regard
to material damage, the Complainants does not present any material damage he
suffered and the proof thereof. In these circumstances, the claim for
compensation
for material damage suffered is null and void, and there is no
point in analysing
the other conditions.
However, this does n~! prev~nt the
tI/
•
....
J ~ IU .. '.....tJ '~.~
(.."lr~.'t'/~OA
I
0\
--; _,J ~
~
~ «>
86 Luanda Guidelines, § 38. In the same vein, see General Comment No.4 on ~Righ(t() R~a tiOI;-\_'
for Victims of Torture in Africa, adopted at the 21st Extraordinary Session of ~ Afr can:'t~~is
'qg i
on Human an'.d Peoples' Rights held from 23 February to 4 March 2017 in BanJ~ Ga~bia~:;3!i'.!39. f:} ~
,lit 0
An Organ ofth.
\ '"
'£.
AU-UA
6I?l
C/J
"i
a"-~'~
Afric;an
Union ~""~~
The African
commiss~n
:-;r1:jV
I.e! ee~R!eS' Rights
31 Bijilo Annex Layout, KOmbiN1qF.!l1_6iSfi<fee'W~ttSt'oast Region
Phone: (220)'230"~~1I ~
(220) 4410504
Email:
au-baniullalafrica-union.ore
https:/achpr.au.inVCJ
U
tel
AC H P R
1I.~CHP~:,~.
[i
,j) African Commission on
Human Hight!> our
a:rDxI.'. Human and Peoples' Bights
Collective Responsibility
victim from claiming material damages before the domestic courts. The other
elements required for monetary compensation for non-material damages are
analysed below.
i)
About the Victims
179. The Commission notes that there is no doubt that the victim of violations is
the one who has suffered these violations in persona. This is a natural
consequence of the ownership of rights. If a person's right is violated, the victim
is the holder of that right. However, in international law, the notion of victim is
broader. For example, in the Basic Principles and Guidelines on the Right to a
Remedy for Victims of Gross Violatio,ns of International Human Rights Law
and Serious Violations of InternationalHumanitarian
Law '(2005),
the victim is
.r
.
,
defined as follows:
Persons who, individually or collectivel'!!, .1tave suffered harm, including
physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that
constitute serious violations of international' human rights law or serious
violations of international humanitarian law. Where appropriate, and in
accordance with national law, the term "victim" shall also include the
immediate family or dependants of the direct victim and persons who have
suffered harm in intervening to assist victims at risk or to prevent
uictimization.i?
180. Under the Luanda Guidelines mentioned above, compensation extends to
the immediate family or dependants." In Zongo v. Burkina Paso, concerning the
lack of dilige~§~ of the State in the investigation of the deaths of four (4)
persons, including journalist Norbert Zongo, the African Court held that "it is
reasonable to consider that those who acted (directly or by representation) in the
front line of this case and who suffered the most from this situation are the
,/
87
8.
J\
'J
'1IlI,
IV
....
,\",
vt . I/~V ,(.
Basic Principles and Guidelines on the Right to Reparation for Victims ,¢ €r'oss-Yic;[ations of
Internationa,l, Human Rights Law and Serious Violations of International
88
_.,
=rt
~&
,./
Luanda Guidelines, § 38.
AnO,ganoflhe
African
~~~
I.
('- .,.~)
Union ~.r!".
I~
La~J005)~.§
,·,)t
\\'.{ o0
.......
,,'"","
,~";:.
AU·UA
L)
\6. 't,
The African comm~' Siolrltjp
'E\ ~
r::r
...,
J? 4' '
urrrai(~ti"Q~'b~res' Rights
31 Bijilo Annex Layout, Ko
<ii'IJ!P0flt)1St}ictI'W~sjCoastRegion
Phone: ( o:r..~cr·43&~(220)
441 0504
Email:
au-oaniul@africa-union.or!l
https.zachpr.au.lnt/O
CiJl a
ACHPR
African Commission on
Human and Peoples' Rights
Human nights our
Collective Responsibility
spouses, children, fathers and mothers of the deceased'"? , who appear in the
final decision as indirect victims.
181. The Commission notes that in this case, the direct victim is Mr Berhane
Abrehe Kidane; the indirect victims are his wife and the children, y any.
Although the complainants alluded to the detention of the victim's wife in their
observations on the merits, the Commission considers that she cannot be
included in this case at this stage of the proceedings. However, she benefits from
the right to reparations for moral damage in her 9u~a£ityas wife, not as a victim.
,{~::v'-:~.~. _:.;3
ii)
On Moral Damages and the Causal Link
182. The Commission notes that the Complainants do:not spe~i(y the amount of
monetary compensation sought for non-material damage. They simply ask the
Commission to order appropriate reparations. The Commission shares the view
of the African Court on the issue of moral damages and th~ir causal link. It
should be noted that the African Court's position was inspired by the case law
of its Inter-American counterpart'v . In Zongo v. Burkina Faso, the African Court
states that:
As regards the causal link between the unlawful act and the non-material
damage suffered, the Court considers that such a link may arise from the
violation of a human right, as an automatic consequence, without the need for
any,proof.91
Beneficiaries of the late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo, Blaise
Ilboudo and Mouvementburkinabe
des droits de l'homme et des peuples v Burkina Faso (Reparations)
(2015) 1 AfCLR 258, § 5m
90 IACHR: Caracazo v. Venezuela, Judgment of 29 August 2002. Reparations and Costs, paragraph 50
... "the presumption that human rights violations and a situation of impunity in relation to such
violations cause grief, anguish and sorrow, both to the victims and to their relatives. See in this regard
Idem: Aloeboetoe v. Suriname, (Reparations and Costs), judgment of 10 September 1993, paragraph 76:
Idern l Loayza Tamayo v. Peru (Reparations and Costs), Judgment of 27 November 1998, para. 140:
Idem: Gonzalez Medina and Others v. Dominican Republic, 27 February 2012 (Preliminary Objections,
Merits, Reparations and Costs), para. 270; Idem: Myrna Mack v. Guatemala, Judgment of 25 November
2003 (Merits, Reparations and Costs), para. 243; IACHR: Mapiripan Massacre v. Colombia, (Merits,
Reparations and Costs), Judgment of 15 September 2005, para. 146' "Beyond the above, in a case such
.~
~{,1;lI iUl·'AN
as the Mapiripan massacre, the Court considers that no evidence is necessary to show,theJse~Rlfl'ti,wpaf,t
on the mental and emotional well-being of the victims' relatives.
. .: ':> _
• r
'\
91 Beneficiaries of the late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, I~hest
z6rtgo) B ise \,
I1boudo and Mouvement burkinabe des droits de l'homme et des peuples v Bur~~ Fa (R:'p~r~lion Lu ~:
(2015) 1 AfCLR 258, § 55.
I~ <3
~=.~j(
~
f
\ ..l:.
::r:
89
\'i \,
-:?
AnO"J"'~Oflh.
'.
Afnqan ((~~
Union ~f~
.
t-;
AU-UA
~
(.;!
.~~.9~i~s'
The African CommiSSiO~O? ~~b'tt)f,n
,
Rights
31 Bijilo Annex Layout. Kombo ~~m)~jstrlt!f.WeslGo't.ist
Region
Phone: (220) 235.4'261fTf!a.X:'(.220)
441 0504
-r-
~t..-, _..-
Email: a u-ba niul(al'clfrica-union.ore:
https:/achpr,au,inIfCi
0
D
ACHPR
I.
African Commission on
Human and Peoples' Rights
Human f~ights our
Collective Hesponeibititv
183. The Commission notes that the African Court considers that once there has
been a violation, there is moral damage. In this case, as a violation has been
committed, the existence of moral prejudice is therefore legally presumed and
the causal link with the violations found is also established. However, the
question arises as to the extent of the non-material damage. In this respect, the
Commission leaves it up to the national authorities to determine the amount of
financial compensation. In any case, it should be noted that the compensation
to be awarded by the Respondent State must JIbe fair, adequate and
proportionate to the material, moral and other damage suffered. " 92
Reparations Requested
184. The Commission recalls that violations of Articles 1, 2, 3, 4, 5, 6, 7, 9(2),
12(1)(2),13(1)and 16(1) of the African Charter have been established. In effect,
reparations will be determined according to the .violations found. Indeed, the
Commission notes that the Complainants.requested the following:
(i)
immediate and continuous disclosure of the victim's location and
situation;
(ii)
guarantee of the victim's safety and well-being during his detention;
(iii) regula~ and unhindered communication with and access to the family;
(iv) regular and unhindered access to medical treatment of the victim's
choicer:
(v)
(vi)
regular and unhindered access to legal representation of the victim's
choice; and
immediate release of the victim and respect for their right to a fair trial.
185. With regard to the first request, the Commission recalls that, having found
that the incommiinicado detention was arbitrary, it naturally accepts the request
for disclosure of the victim's place of detention. With regard to the second
request, in particular the guarantee of safety, the Commission considers that it
is not in a position to fulfil it, since it has not considered the victim's safety, nor
has the Complainants made any observations on it. However, the Commission
considers that the Respondent State must improve the victim's conditions of
detention, taking into account his state of health and age. This, if the
Respondent State does not release him.
/
'" \\. ,-'
u..»
c.,. ~ ,
J
oA
General Comment No.4 on the Right to Reparation for Victims of Tortu~' i!l:J.arr~~adopted'~t the
21st Extrao.rd.in..ary Session of the African Commission on Human and P¢of1es' Rfghy; :...hNfro .23
February to 4 March 2017 in Banjul, The Gambia, § 37.
'is i:\1
92
mu
1~
~:(
~01
,«
'I
if4
o
An Organ of !he
African ('~j)
Union
,~.
The African Cj,,\i~.!P
",-.=.
II)
on""U.lM~n)m~ieg;;,'es' Rights
31 Bijilo Annex Layout
om~ Mtl..Distrl~&N~
Coast Region
Ph6
:«f.2~JDc4'3'6't F?f<':'(220)441 0504
Emal ;~b~balflitJf@~frica-union.orl<
-:~~
hUps:/achpr.au.intlO
0
a
,,'"H~t AC H P R
,
African Commission 011
Human and Peoples' riights
Human HigtltS OUf
Collective Hespon~;ibility
186. With regard to regular and unhindered communication with and access to
the family, the Commission considers that this request would be the natural way
to redress the incommunicado detention. Similarly, the request for regular and
unhindered access to medical treatment of the victim's choice, would be the
natural way to put an end to the deprivation of his access to doctors and medical
treatment. Lastly, the Commission considers that the request for regular and
unhindered access to a lawyer would be the natural way to remedy the violation
of the right to be assisted by a lawyer. Therefore, these four (4) requests for
reparations are granted.
187. With regard to the request for release, the Commission recalls the principle
according to which reparation aims to put the victim in the situation they would
have been in had the violation not occurred'". In this case, the best way to rectify
the arbitrary placement of the victim in incommunicado detention without trial,
is his immediate release, therefore, the request for the victim's release is granted.
If the Respondent State decides td':bring the victim to justice, it must guarantee
respect for her right to a fair trial, including access to a lawyer of her choice, or
to legal aid if she is unable to hire her own lawyer, and to an independent and
impartial court.
Commission's decision on Merits
188.
In light of the foregoing, the African Commission:
a. Declares that:
a. Articles I, 2, 3, 4, 5, 6, 7, 9(2), 12(1)(2),13(1) and 16(1) of the African
Charter on Human and Peoples' Rights have been violated;
b. The African Commission further calls on the Respondent State to:
i.
Immediately release the Victim from arbitrary detention and ensure that
he enjoy full due process rights, in case the Respondent States de2_iresto
take further legal action against him;
Email: au-ban iul (ci)africa-union.ore
https:/achpr.au.intlCJ
ua
Human Rights our
Collective Responsibility
ii.
111.
access to medical treatment
of his
preference;
Urgently ensure the payment of adequate compensation of the Victim,
for violation of his rights.
b. The African Commission further urges the Respondent State to report on the
steps it has taken to implement these decisions in accordance with Rule 112(2)
of its Rules of Procedure, within one-hundred and eighty (180) days.
Adopted during the 78th Ordinary Session, held virtually from 20 February to 8
March 2024.
An Ol'gan of the
(~»
African
UnIOn~~iil