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Human Rights our
Collective Responsibility
Human and Peoples' Rights
Communication 476/14
MAGDY MOUSTAFA EL-BAGHDADY
V
REPUBLIC OF THE SUDAN
.Adopted by the:
.African Commission on Human and Peoples' RlghtB
During the 8f1" Ordinary Seasion held virtuallyfrom 24 July to 2 .August 2024.
...........
Hon. C
oy Lumbu
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on Human and Peoples, Rights
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31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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DECISION ON MERITS
COMMUNICATION 476/14 - MAGDY MOUSTAFA EL
BAGHDADY V. REPUBLIC OF THE SUDAN
Summary of the Complaint:
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a Complaint on 25 October 2013 from Magdy Moustafa El
Baghdady (the Complainant), represented by REDRESS (the Representative).
2. The Complaint is submitted against the Republic of Sudan (Respondent State),
a State Party to the African Charter on Human and Peoples' Rights (the African
Charter)1.
3. The Complainant submitted that he is a British citizen whose father is of
Egyptian descent and his mother is of Polish descent. The Complainant stated
that on 17 August 2009, he relocated from Britain to Egypt and that on 27
January 2011, he flew to the Respondent State from Egypt with a Sudanese
friend, Omar al-Mahdi, to invest in a restaurant business, as well as venturing
into a telecommunications business. He stated that he and his friend took
telecommunications equipment to Sudan, which they declared to the Customs
Officers.
4. The Complainant submitted that on 14 February 2011, his apartment was
raided by National Intelligence and Security Services (NISS) officers, who
arrested him without a warrant and confiscated his passport and business
goods. He submitted that he was accused of being a British/Israeli spy, was
blindfolded, hand and foot cuffed, and taken to an unknown location, which
he later learned was the NISS Headquarters. His friend, Mr. al-Mahdi, was also
arrested on the same day.
5. The Complainant added that he was interrogated in Arabic upon his arrest,
although he only speaks English and Polish, and his hair was removed during
the interrogation. The following day, he and Mr. al-Mahdi were transferred to
1
The Republic of Sudan ratified the African Charter on 18 February 1986.
1
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Kober Prison, where they suffered torture in the form of severe beatings, were
injected with a sedative-like substance, and were humiliated and insulted.
6. The Complainant submitted that he was denied medical attention for injuries
resulting from torture and diseases caused by poor detention conditions. He
submitted that he was taken to NISS Headquarters for interrogation at least
four times while at Kober Prison.
7. The Complainant submitted that on either 19 or 20 February 2011, he, Mr. al
Mahdi, and other prisoners experienced a mock execution whereby prison
officers placed guns at the back of their heads and the call of a high-ranking
officer, the officers cocked their guns as if to shoot. The Complainant submitted
that mock executions are common at Kober Prison and that political prisoners
faced a firing squad in this manner, with some being shot on occasion. He
added that this experience has left him with psychological trauma.
8. The Complainant alleged that Kober Prison is in a secret location, and prisoners
are not called by their names to make tracing them difficult in case of death.
The Complainant added that the conditions of detention are poor, and torture
is rampant. Prisoners were suspended from the ceiling and beaten; made to
squat on glass bottles until the bottles were half full of blood from their anus;
others had their penis tied to prevent them from urinating until their kidneys
burst; some were injected with a substance which made them insane to prevent
them from speaking of the horrors; and Darfurian prisoners were forced to sign
confessions under threat of violence, death and rape of their families. The
Complainant claimed that even after the Darfurian prisoners signed the
confessions, they were executed.
9. The Complainant alleged that he and Mr. al-Mahdi were compelled at
gunpoint to sign documents stating that they were never to mention what
happened while in detention or face re-arrest and imprisonment.
10. The Complainant stated that on 13 March 2011, the day of their release from
Kober Prison, he and Mr. al-Mahdi were blindfolded, handcuffed, driven
around for six hours, then finally taken to a National Security Office, labeled
'Crimes against Sudan,' where they were remanded for three to four weeks,
without access to toilet or water, worsening the Complainant's kidney pains.
The Complainant averred that they were then transferred to 'Information
Police,' also known as 'Mubalis,' where they spent approximately fifteen days
with minimal food. The Complainant alleged that torture was
Mubalis, occasionally involving children, including some aged
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were arrested for breakdancing. The Complainant averred that they were
finally transferred to 'Omdurman Prison,' where they spent ten days before
being released.
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11. The Complainant alleged that upon release from Omdurman Prison, following
78 days of incommunicado detention. During this period, he suffered severe
physical and psychological harm, losing approximately 37kg of his original
weight; he was forced to remain in Sudan for eight months because both he and
Mr. al-Mahdi faced charges under ' Article 23 of the Electronics Act/Informatic
Offences (Combating) Act.'2, which prevented them from leaving the country
until the charges were adjudicated. The Complainant averred that he could not
afford his legal representative and relied on Mr. al-Mahdi's lawyer to represent
him in the case.
12. The Complainant stated that on 06 December 2011, the judge found Mr. al
Mahdi not guilty, while he was found guilty under the Act and was ordered to
either pay a fine of 5000 Sudanese Pounds (SDG) or return to Omdurman
Prison for six months. The Complainant refused to pay the fine and was taken
into custody. Mr. al-Mahdi's lawyer appealed the guilty verdict on the same
day on behalf of the Complainant. However, on the same day, Mr. al-Mahdi's
mother paid the fine, and the Complainant was released. Upon his release, the
Complainant left the Respondent State and arrived in London on 31 December
2011. In February 2012, the Court stated in the Complainant's absence that the
appeal, which was filed on 06 December 2011, "... had been canceled, not
denied".
13. The Complainant submitted that upon leaving Sudan on 31 December 2011, he
could not raise a complaint about his treatment as he faced threats of re-arrest
and imprisonment while in Sudan. To this end, the Complainant stated that he
has repeatedly called on the Respondent State to investigate his case through
the Government of the United Kingdom (UK). The Complainant added that the
Respondent State, in a letter dated 26 May 2013 and received by the
Complainant on 02 June 2013, acknowledged the Complainant's arrest but
failed to mention the Complainant's allegations against the Respondent State
nor any investigations into these allegations.
Articles alleged to have been violated:
14. The Complainant alleged that the Respondent State violated Artie
7, 14, and 16 of the African Charter.
2
Complainant's statement of fact para 105; See also Representative's facts, para 42.
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Prayers:
15. The Complainant prays for the African Commission on Human and Peoples'
Rights (the Commission) to:
a. Find that the Respondent State has violated Articles 1, 2, 5,6, 7, 14 and
16 of the African Charter;
b. Request the payment of adequate compensation to the Complainant for
the violations of his Charter rights, including:
i. Material damages for cost of medical treatment, psychological
and social services;
11. legal and other expert assistance;
iii. loss of earnings and loss of earnings potential;
iv. lost opportunities, including employment and education;
v. special damages in the form of moral damages/ non-pecuniary
damages;
c. Request the Respondent State to commence an effective and impartial
investigation into the circumstances of the Complainant's arrest and
arbitrary detention and his subsequent torture and ill-treatment,
including:
Lifting existing immunities with regards to any officer suspected
of being responsible for any of the violations listed herein;
ii. Providing adequate protection for witnesses in the course of the
investigation and thereafter if needed, such as guaranteeing
anonymity, escorts, and relocation;
111. Where sufficient evidence of misconduct or criminal conduct is
found, the suspected perpetrators should be tried and adequately
punished if found guilty;
1.
d. Request a public acknowledgment and apology to the Complainant for
the violations suffered.
e. Request the Respondent State to amend relevant legislation that is
incompatible with the African Charter, in particular,
Security Act of 2010 (NSA), to:
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i. Provide protection, either by removing the powers of arrest and
detention altogether or by granting a right to prompt access to a
lawyer and a doctor and a right to habeas corpus;
ii. Repress violations, such as making torture a criminal offence by
using the internationally recognised definition of torture and by
making it subject to adequate punishment; and
m. Effectively counter impunity and provide effective remedies.
This entails the repeal of immunity provisions and the provision
of an explicit right to a remedy and reparation for victims of
serious human rights violations, including torture and arbitrary
arrest and detention.
f.
Request the Respondent State to undertake institutional and practical
reforms to ensure that anyone alleging to have been subjected to torture
or other ill-treatment can effectively pursue complaints, which are
subject to a prompt, impartial, and effective investigation, including:
Ensuring the confidentiality of and protection of victims at the
time of making complaints, investigation and prosecution;
ii. The provision of adequate medical care and access to physicians
able to produce medical reports in line with recognised
standards;
111. Designing and implementing policies for the confidential storage
of medical records of torture victims in hospitals and the
provision of such records to a victim on request;
iv. Training members of the NISS on relevant standards concerning
adherence to custodial safeguards, the prohibition of torture, and
any form of discrimination in exercising their functions; and
v. Establishment of an independent complaint mechanism with
powers to investigate actions and complaints against law
enforcement personnel, including the NISS.
1.
Procedure:
16. The Secretariat received the Complaint on 25 October 2013.
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1 7. The Complainant wrote to the Secretariat following up on the status of the
Complaint on 29 May 2014. The Secretariat responded on 05 June 2014.
18. At its 16 th Extra-Ordinary Session, the Commission decided to be seized of the
Complaint, which was registered as Communication 476/14 - Magdy Mostafa
El-Baghdady v. Republic of Sudan and both parties were duly informed of the
decision on 28 August 2014. The Complainant was invited to submit its
Submission on Admissibility within two (2) months.
19. On 03 November 2014, the Complainant's submissions on Admissibility were
received at the Secretariat, which was subsequently forwarded by Note Verbale
Ref: ACHPR/COMM/ 476/14/SUDAN/ 1807/ 14 to the Respondent State on
10 November 2014, requesting the latter to submit their written submissions on
Admissibility within two (2) months.
20. The Commission deferred consideration of the Communication between the
56th Ordinary Session and the 19th Extra-Ordinary Session of the Commission.
21. On 07 April 2016, following the 19th Extra-Ordinary Session of the Commission,
the
Secretariat
by
Note
Verbale
Ref:
Ref:
letter
and
ACHPR/COMM/476/14/SUDAN/594/16
ACHPR/COMM/ 476/14/SUDAN/595/16 informed the parties that the
Respondent State had been granted an extension of thirty (30) days within
which to make its overdue submissions on Admissibility, failing which the
Commission will proceed to adopt a default decision.
22. On 10 April 2016, following the non-receipt of the Respondent State's
submissions on Admissibility, the Secretariat, by email, re-transmitted the Note
Verbale of 07 April 2016 Ref: ACHPR/COMM/476/14/SUDAN/594/16 to the
Respondent State for the second time imploring the State to make its overdue
submissions within the extended timeline granted by the Note Verbale.
23. On 06 May 2016, both parties were informed of the Commission's decision to
defer the consideration of the Communication during the 58 th Ordinary Session
pending submissions on Admissibility by the Respondent State.
24. Again, between its 59 th Ordinary Session and the 23 rd Extra-Ordinary Session,
the Commission deferred consideration of the Communication.
25. At its 62nd Ordinary Session, held from 25 April to 09 May in Nouakc
Islamic Republic of Mauritania, the Commission considered and
the Admissibility of the Communication.
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26. Both Parties were notified of the Admissibility decision on 22 June 2018. The
Complainant was instructed to submit arguments on the merits within 60 days
from the notification date of the decision.
27. In September 2018, the Secretariat received the Complainant's submissions,
which were relayed to the Respondent State on 09 October 2018, with a 60-day
timeframe for providing feedback on the Complainant's submissions.
28. A reminder and the Admissibility decision were dispatched to the Respondent
State on November 26, 2018.
29. The decision on the Merits was postponed from the 63rd to the 79th Ordinary
Sessions of the Commission, with repeated prompts for the Respondent State
to present its arguments on the Merits.
30. The Commission deliberated and adopted a decision on the Merits during its
80 th Ordinary Session, conducted virtually from July 24 to August 2, 2024.
Admissibility
The Complainant's Submissions on Admissibility
31 . The Complainant submitted that the Communication satisfies all the
Admissibility requirements set out in Article 56 of the African Charter and
presents arguments supporting that submission.
32. In relation to Article 56(1) of the African Charter, the Complainant averred that
the organisation representing the Applicant, REDRESS, is the author of the
Communication and is identified in the Communication in accordance with
Article 56(1) of the African Charter.
33. Regarding Article 56(2) of the African Charter, the Complainant submitted that
the Communication proffers several provisions of the African Charter, which
were violated by the Respondent State. The Complainant further
the alleged violations occurred after the ratification of the Afri
the Respondent State.
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34. On Article 56(3) of the African Charter, the Complainant submitted that the
Communication is presented using respectful language and does not contain
disparaging or insulting language.
35. In relation to Article 56(4) of the African Charter, the Complainant submitted
that the allegations proffered in the Communication are substantiated using
eyewitness testimony, medical and psychological reports, official documents,
as well as reports of non-governmental organisations and are not exclusively
based on news disseminated through the media.
36. Regarding Article 56(5) of the African Charter, the Complainant submitted that
it does not need to exhaust local remedies because the exceptions to exhaust
local remedies apply to this Communication on the grounds that the remedies
within the Respondent State do not meet the Commission's requirements of
availability, effectiveness, and sufficiency.
37. The Complainant adduced three arguments on the grounds that the local
remedies within the Respondent State are not available or effective.
38. First, the Complainant argued that the exhaustion of domestic remedies
requirement is premised on the principle that the Respondent State should
have the first opportunity to redress an alleged wrong. The Complainant
contended that the Respondent State had ample opportunity to redress the
alleged violations but failed to do so. The Complainant averred that he brought
the allegations to the attention of prison staff wherever he was detained, and
through the UK officials made multiple representations to the Respondent State
calling for a prompt investigation into the allegations of torture and arbitrary
detention to no avail.
39. Citing the Commission's decision in multiple Communications, including
Centre on Housing Rights and Evictions v The Sudan, the Complainant argued
that the exhaustion of domestic remedies is not required in cases where it can
be shown that the State failed to remedy a situation despite ample notice and
time to do so and further that failure on the part of the State in this regard
means that domestic remedies are either not available or if they are, they are
not effective or sufficient to redress the alleged violations3•
40. Secondly, the Complainant submitted that he was unable to access domestic
remedies on the basis that he was held in incommunicado detention, where he
was denied access to a lawyer, the British Embassy, and his f
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Communication 296/05, (2000) ACHPR, para 32.
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41. Thirdly, the Complainant argued that he could not access these remedies even
after his release due to fears that there was a real threat to his life and safety if
he sought to pursue domestic remedies while in Sudan. Citing threats of re
arrest and imprisonment, amongst other factors to buttress this argument, the
Complainant further argued that the threats and harassment had forced him to
leave the Respondent State, creating a further impediment to his accessing
domestic remedies.
42. On the ground that local remedies are not sufficient, the Complainant argued
that the legal system in the Respondent State fails to provide effective and
sufficient remedies for victims of torture, noting particularly that the definition
of torture in the Sudanese Constitution and the Criminal Act of 1991(CPA) does
not align with internationally recognised standards nor provide adequate
punishment for perpetrators. The Complainant argues further that NISS
officials, the perpetrators in this regard, enjoy immunity from criminal and civil
procedures in terms of the NSA. The Complainant further alleged that
notwithstanding the NISS Director's prerogative to lift immunity, there is no
practice indicating that this prerogative has been exercised nor any judicial
remedies around the immunity provision. As a result, the Complainant
contended there is no realistic prospect of successfully redressing the complaint
in the Respondent State.
43. Regarding Article 56(6) of the African Charter, the Complainant submitted that
the Communication had been submitted within a reasonable time from when
he realized that local remedies were not available, effective, or sufficient. The
Complainant noted that the African Charter does not provide for the exact
timeframe of a "reasonable period of time" and thereby treats each case
individually, explicitly differentiating between cases where remedies could
and were exhausted and those cases where they could not and were not
exhausted. Arguing that the present Communication falls within the latter
category and citing the Commission's decision in Tsikata v Ghana, the
Complainant submitted that the Commission estimates the timeliness of a
Communication within the latter category from the date where a Complainant
becomes aware that local remedies are unavailable, ineffective or insufficient4.
Flowing from that premise, the Complainant averred that he realized local
remedies were insufficient and ineffective around 05 August 2013 on recei t of
the UK Foreign and Commonwealth Office's (FCO) letter and,
months thereafter, filed his Complaint with the Commission.
4
Communication 322/2006, (28 April to 1 2 May 2014) ACHPR, para 37.
9
African Comm,
31 Bijilo Annex Layo
orth District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 OS 04
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44. Regarding Article 56(7) of the African Charter, the Complainant declared that
the Communication has not been submitted to any other procedure of
investigation or settlement and thus accords with Article 56(7) of the African
Charter.
<n:rJJ.L• •
Analysis of the African Commission on Admissibility:
45. As indicated above, the Respondent State has not submitted its observations on
Admissibility despite the opportunity accorded it in terms of Rule 105 of the
Commission's Rules of Procedure.
46. In the present circumstances, and in accordance with the jurisprudence of the
Commission as articulated in the case of Institute for Human Rights and
Development in Africa v. Republic of Angola, "in the face of the State's failure
to address itself to the complaint filed against it, the African Commission has
no option but to proceed with its consideration of the Communication in
accordance with its Rules of Procedure." Additionally, " . . . it would proceed to
consider Communications based on the submission of the Complainants and
information at its disposal, even if the State fails to submit." 5. Accordingly, the
Commission must consider the Complainant's allegations insofar as these have
been adequately substantiated.
47. The Commission recalls that Article 56 of the African Charter provides seven
admissibility requirements, in which a Communication submitted under
Article 55 of the African Charter must comply cumulatively to be Admissible.
48. Regarding Article 56(1) of the African Charter, the Commission notes that the
Communication identifies the author as REDRESS and is, therefore, in
accordance with the requirement under Article 56(1) of the African Charter.
49. In relation to Article 56(2) of the African Charter, the Communication is
compatible with the provisions of the African Charter and the Constitutive Act
of the African Union as it details a prima Jacie violation of Articles 1, 2, 5, 6, 7, 14
and 16 of the African Charter; it is submitted by a Complainant competent to
do so against the Republic of Sudan, a State Party to the African Charter; the
alleged violations occurred at a time when the African Charter was i
in the State Party and within its territory.
5
Communication 292/04, (2008) ACHPR, para 34; See also Communication 25/89, 47/90, 56/9 1 , 1
Assistance Group and Others I Zaire, (1995) ACHPR, para 40.
10
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31 Bijilo Annex Layout, Kombo North District,
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50. The Communication complies with Article 56(3) of the African Charter as it
does not contain disparaging or insulting language directed against the
Respondent State or its institutions.
51. Concerning Article 56(4) of the African Charter, the Commission notes that the
Communication contains eyewitness testimony of the alleged violations,
medical and psychological reports, official documents, as well as reports of
non-governmental organisations. Consequently, there is no evidence that any
of the information provided is based on news disseminated through the media,
and therefore, the Communication accords with Article 56(4) of the African
Charter.
52. Article 56(5) of the African Charter requires that Communications be submitted
after exhausting local remedies, if any, unless it is evident that this procedure
is unduly prolonged.
53. The Commission has expounded extensively on the exhaustion of local
remedies provision, most prominently in the case of Sir Dawda Jawara v
Gambia, where the Commission held that for the domestic remedies referred
to in Article 56(5) of the African Charter to be exhausted, they must be
available, effective and sufficient, establishing further that a Communication is
considered available i£ the Complainant can pursue it without impediment,
effective if it offers a prospect of success, and sufficient if it is capable of
redressing the complaint6.
54. In the present Communication, the Complainant submits that he should be
exempted from the requirement to exhaust local remedies on the grounds that
the remedies within the Respondent State are not available, effective, or
sufficient.
55. The first submission of the Complainant contests the availability and
effectiveness of domestic remedies within the Respondent State. In support of
this submission, the Complainant proffers three arguments.
56. Firstly, the Complainant argues that he is exempted from the requirement to
exhaust local remedies because the Respondent State failed to redress the
alleged violations even though it had ample notice and time to do so. Therefore,
as a result of its failure to conduct a prompt and effective investiga · 0
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57. Regarding the first argument, pertaining to prompt and effective investigation,
the primary concern in the instant case is whether representations made by UK
officials to political organs of the Respondent State on behalf of the
Complainant and allegations laid by the Complainant to police officers while
in detention are sufficient for satisfying Article 56(5) of the African Charter
considering that they are not judicial proceedings. In Monim Elgak, Osman
Hummeida, and Amir Suliman (represented by FIDH and OMCT) v Sudan, the
Sudanese Government argued likewise, namely that representations made
outside the legal or judicial process do not constitute legal proceedings
required for the purpose of satisfying the requirements of Article 56(5) of the
African Charter7. Citing, in particular, Article 34(2) of the Sudanese Criminal
Procedure Act of 1991 (CPA) provides that persons can approach the
Prosecution Attorney to initiate criminal cases.
58. The Commission recalls that the rationale for the exhaustion of local judicial
remedies is to ensure that prior to initiating proceedings before an international
body, the State concerned must have the opportunity to remedy the matter
through its own domestic system8• However, this requirement is not absolute
and contains exceptions to ensure that Complainants will not be hindered from
submitting Complaints to the Commission due to procedural impediments
arising from unjust laws or practices.
59. Accordingly, the Commission's jurisprudence has on several occasions
recognised that a State may become aware of a particular violation of rights
occurring within its territory through means other than a formal legal process.
In the case of A mnesty International and Others v Sudan, the Commission
found that " even where no legal action has been brought by the alleged victims
at the domestic level, the government has been sufficiently aware to the extent
that it can be presumed to know the situation within its own territory as well
as the content of its international obligations. "9. Furthermore, in Article 19 v
Eritrea, the Commission held that "if it is shown that the State has had ample
notice and time within which to remedy the situation, even if not within the
context of the domestic remedies of the State . . . the State may still be said to
have been properly inform[ed] and is expected to have taken appro ,_, , �(,RE
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Communication 379/09, (2014) ACHPR, para 57.
s Elgak case para 58.
9 Communication 48/90, 50/9 1 , 52/91 , 89/93, (1 999) ACHPR, para 33.
1 ° Communication 275/03, (2007) ACHPR, para 77.
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3 1 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-ba n jul@africa-union.org
https:/achpr.au.,nt/O 0 a
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60. In the present case, the correspondence between the State and the UK officials,
primarily the admission by the State that it was aware of the Complainant's
arrest, means that the State was aware of the violations alleged and had ample
notice and time to investigate these allegations. Based on this, the Commission
finds that the failure of the Respondent State to take any action indicates that
domestic remedies are either not available or, if they are, not effective or
sufficient to redress the violations alleged11 .
61. The second and third arguments of the Complainant aver that even if he was
required to exhaust local remedies, he could not do so. The question arises
whether the Complainant could have attempted to exhaust local remedies
during his detention and/ or upon his release.
62. Regarding exhaustion of local remedies during his detention, the Complainant
submits that he was held in incommunicado detention, where he was denied
access to a lawyer, the British Embassy, and his Family and could, therefore,
not factually access domestic remedies. The Commission has noted in previous
Communications that incommunicado detention of victims without charge and
without legal or other representation effectively bars Complainants from
accessing domestic remedies, if any12. Thus, during his incommunicado
detention, which lasted for approximately 78 days, the Complainant could not
factually access domestic remedies.
63. Regarding exhaustion of local remedies after his release, the Complainant
submits that due to threats of re-arrest and re-imprisonment, the Complainant
was afraid to access domestic remedies while in Sudan. In the Elgak case, the
Commission noted that the question of availability of domestic remedies refers
to whether the Applicant may use the domestic remedy "in the circumstances
of their case." 13. In the instant case, based on the Complainant's allegations of
torture, the document he was forced to sign preventing him from discussing
his treatment while in Kober prison, his conviction, and the threats of re-arrest
and imprisonment, the general environment of impunity surrounding torture
in Sudanese prisons. 14; all expounded by the lack of investigation into his
allegations of torture and the concerted effort by officials to prevent the
4,\surfacing of information on conditions in prisons, the Commission · 00
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United Nations Human Rights Committee (UNHRC), Report of the Independent Expert on the situation o �umaf), ·
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the Sudan, A/HRC/36/63, 11-19 September 2017, hit s://daccess-ods.un or rTMP/16531 58.0686569 . ml· (..JI\(
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UNHRC, Concluding observations on the fourth periodic report of the Sudan, CCPR/C/SDN/CO/4, 19
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13
An Organ of the
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African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombe North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr au.int/0 0 a
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view that the Complainant could not be expected to access domestic remedies
in the circumstances of his case. In the case of Gabriel Shumba v. Zimbabwe,
the Commission took cognisance of the particular fear that torture victim's
harbor when deciding to institute a case within a State. 15 Consequently, the
Commission believes that domestic remedies were unavailable, and even if
they were, the Complainant would face impediments in attempting to access
them.
64. The second submission of the Complainant is that local remedies are
insufficient. The Complainant argues that the legal system in the Respondent
State fails to provide effective and sufficient remedies for victims of torture,
citing particularly the provisions of the NSA, which provides NISS officials,
some of whom the Complainant alleges tortured him, with immunity from
criminal and civil procedures thereby ensuring that there is no realistic
prospect of successfully redressing the Complaint in the Respondent State. The
Complainant notes further that although the NISS Director may lift this
immunity, past practice indicates that this has never happened.
65. The Commission will look at the provisions of the NSA and the CPA to
determine the extent of immunity provided to NISS officials and the nature of
the power granted to the NISS Director to lift such immunity:
Section 52(3) of the NSA provides that: Without prejudice to the provisions
of this Act and any right to claiming compensation against NSS, no civil or
criminal procedures may be brought against a member or associate unless
upon the approval of the Director. The Director shall give such approval
whenever it appears that the subject of such accountability is not related to
official business, provided that the trial of any staff or associates shall be
before a closed criminal court, during their service or after its termination,
concerning acts committed by them.
Section 34 and 35 of the CPA, in the Elgak case, the Sudanese government
argued that notwithstanding the provisions of Section 52(3)
complainant may file a petition to the NISS Director to lift t
terms of section 35 of the CP A. 16.
1 5 Communication 288/04, (2012) ACHPR, para 75.
1 6 Elgak case para 34. In this case, the Sudanese Government argued that a petition may be filed with Pr
to proceed with Director of the NISS to lift the immunity of the alleged perpetrator, however, the Commission
that the only person who may lift the immunity is the NISS Director.
14
An Ogan or the
Afri�an tr�1,
Union V...';r;r,il.
African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 F ax: (220) 441 OS 04
Email: au-baniul@africa-union.org
https:/achpr au.,nt/0 0 a
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Human a;ghts ou,
Human and Peoples' Rights
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66. Drawing from the above provisions - noting that they are still in force in Sudan
- an inference can be made that the Complainant had no legal recourse within
which he could successfully submit a claim before the domestic remedies
within the Respondent State. Additionally, the Complainant could not be
expected to approach the domestic remedies in the hopes that the NISS Director
would choose to waive the immunity of the suspected officials. This kind of
remedy is purely discretionary and is not subject to any judicial oversight, thus
making it a final decision17. As noted by the Commission in its jurisprudence,
a Complainant cannot be expected to exhaust a ". . . discretionary,
extraordinary remedy of a non-judicial nature". Consequently, Complainants
are not required to pursue such remedies if they are neither adequate nor
effective.
,mu.t' ,
67. Lastly, the Commission notes that Article 35 of the Interim National
Constitution of Sudan 2005 provides for the right to litigation1 8. As such, the
question arises whether the Complainant could have submitted a case through
a representative to the Constitutional Court of Sudan. 19 alleging a violation of
his right to litigation in light of the State's failure to investigate and the
immunity provided to NISS officials. In the Elgak case, the Commission held
that where local remedies are not accessible, effective, or adequate to
Complainant or their representatives, as is the instant case, "it would be an
affront to justice to expect them or anyone else for that matter to approach the
Constitutional Court for the later to protect their right to litigation as enshrined
under Article 35 of the 2005 Interim National Constitution of Sudan."20.
68. For the above-listed reasons, the Commission considers that local remedies are
not available, effective, or sufficient. Hence, the Complainant has
constructively exhausted local remedies pursuant to Article 56(5) of the African
Charter.
69. Concerning Article 56(6) of the African Charter, the Commission recalls that
the African Charter does not provide a fixed period for submitting Complaints
within "a reasonable period of time"; this is determined on a case-by-case basis.
Additionally, the initial period from which the "reasonable period" is
11
Elgak case para 57; see also Communication 87/93 - Constitutional Rights Project (in respect of Zamani Lakwot and 6
Others) v Nigeria, (1994) ACHPR, para 8; Communication 60/91 - Constitutional Rights Project (in respect of Wahab
Akamu, G. Adega and Others) v Nigeria, (1994) ACHPR, para 10.
1s "The right to litigation shall be guaranteed for all persons; no person shall be denied the right to resort to justice'.
19 Art 122(1) (b) of the 2005 Interim National Constitution of Sudan: The Constitutional Court shall " . . . ...s-11:1�t11:
jurisdiction to decide disputes that arise under this Constitution at the instance of government, juri
individuals"; Art 122(1) {d) of the 2005 Interim National Constitution of Sudan: The Constitutional Co :/c..0
human rights and fundamental freedoms·.
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determined in a particular case depends on whether the case concerns an
instance where domestic remedies could and were exhausted, and the converse
applies. In the latter instance, as in the present Communication, the initial
period is when the Complainant becomes aware that domestic remedies are not
available, effective or sufficient, or unduly prolonged. In the instant case, the
Complainant avers that he realized domestic remedies could not be exhausted
after correspondence from UK officials indicated as much on 05 August 2013.
The Communication was subsequently submitted to the Commission on 25
October 2013, approximately two to three months after the initial awareness.
70. Consequently, the Commission considers that the Communication was
submitted within a reasonable time after the Complainant realized domestic
proceedings were impossible.
71. There is no information at the Commission's disposal to the effect that the
subject matter of the Communication has been settled through other
international procedures in terms of Article 56(7) of the African Charter. This
reqt:.irement is accordingly met.
Decision of the Commission on Admissibility
72. In view of the foregoing, the Commission declares this Communication
Admissible in accordance with Article 56 of the African Charter.
The Merits
The Complainant's Submissions on Merits
73. The Complainant asserted that the Respondent State acted arbitrarily by
apprehending and imprisoning him without substantial evidence. The
Complainant was accused of being a British or Israeli spy, purportedly to
instigate revolution during his stay in Sudan. Additionally, the Complainant
contends that he endured various forms of torture, leading to considerable
physical and psychological damage that surpasses the limits of medical
i ntervention. These lingering effects continue to have a substantial and
detrimental impact on the Complainant's overa ll well-being and q ·
Alleged violation of Article 1 of the African Charter (The Duty to G
African Charter)
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74. The Complainant argued that the Respondent State should have exercised due
diligence in enacting legislation, conducting investigations, and providing
effective remedies to uphold the principles of the African Charter. According
to the Complainant, the existing Sudanese legislation inadequately addresses
and prevents human rights violations, particularly concerning arbitrary arrest,
detention, and torture, as well as safeguarding rights such as legal
representation, medical consultation, and habeas corpus.
mrr.rx: •
75. The Complainant asserted that the laws of the Respondent State do not impose
a clear obligation on the Prosecution Attorney to initiate investigations into
allegations of torture either ex officio or following a complaint. He further
highlighted that initiating a criminal case against a member of the NISS
necessitates lifting legal immunity, typically authorized by the head of the
NISS. However, in practice, such authorization is rarely granted, leading to a
lack of investigations and a culture of impunity in cases involving torture.
76. The Complainant contended that the Respondent State failed in its positive
obligation to conduct an effective investigation. According to the Complainant,
despite the violations occurring in May 2011, there was no apparent progress
in terms of investigative measures, and a substantial delay of over two years
occurred before an investigation was even initiated. This delay is seen as a
violation of the duty to promptly, effectively, and impartially investigate
allegations of torture. The Complainant further argued that there are no
apparent or compelling reasons for the authorities' failure to initiate an
investigation despite being fully aware of the allegations.
Alleged violation of Article 2 of the African Charter (Right to non-discrimination)
77. The Complainant alleged that he was subjected to derogatory labeling based
on his perceived Jewish background. Additionally, he was questioned about
his ancestry and subjected to interrogation due to his inability to speak Arabic
despite being fluent in Polish. The Complainant further claimed that certain
mistreatment directed at him seems to be rooted in his part-Polish ethnicity,
which raised suspicions about his potential Jewish identity and potentially
associated him with being either a British or Israeli spy.
78. In regard to the interrogation at the NISS headquarters, t
asserted that he was subjected to targeted questioning conce
; ,:
Poland, his proficiency in Polish instead of Arabic, and his ass -
Afri�an f1.)'\
Union 'i�,:1.
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17
West Coast Region, The G ambia
Phone: (220) 230 4361 Fax: (220) 441 OS 04
Email: au-banjul@africa-union.org
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Poland, Israel, and Jewish heritage. The Complainant contended that this
discriminatory treatment amounts to a violation of Article 2 of the African
Charter.
Alleged violation ofArticle 5 of the African Charter (Right to dignity and prohibition
from Torture and ill-treatment)
79. The Complainant alleged that officials of the Respondent State intentionally
subjected him to severe pain and suffering through two means: (a) deliberate
acts of torture and (b) subjecting the Complainant to inhumane conditions with
the purpose of punishment, instilling fear, extracting a confession, and
engaging in discriminatory practices.
80. Furthermore, the Complainant asserted that he endured a period of
incommunicado detention lasting between 71 and 78 days. Throughout this time,
he was denied the right to communicate with his family, obtain legal
representation, or contact the British Embassy despite repeated requests to do
so.
81. The Complainant alleged that he suffered repeated and brutal physical assaults
at the hands of the NISS. The Complainant claimed that on 15 February 2011,
he was subjected to violent strikes to the throat, crushing of a nail with a
metallic object, forceful stomping on the feet, and kicks to the genitals.
Furthermore, between 14 and 15 February 2011, he was allegedly forcibly
restrained at gunpoint, and his head was violently shaken, resulting in the
forceful tearing of hair from his scalp. Additionally, the Complainant asserted
that he endured prolonged sleep deprivation, inadequate and irregular access
to food and water, and intentional cigarette burns at both the National Security
Offices and Omdurman Prison, as well as a traumatic mock execution.
According to the Complainant, these sustained acts of mistreatment led to him
experiencing hunger, dehydration, anxiety, and psychological distress.
82. The Complainant further contended that he was held in an overcrowded cell
with insufficient access to bedding (and never provided a separate bed), a toilet,
a bath, or necessary medical treatment. In support of this claim, the
Complainant cites the case of Kalashnikov v. Russia, where the European
Court of Human Rights (ECtHR) emphasized that prison ove
potentially lead to a violation of the prohibition against torture
of cruel, inhuman, or degrading treatment or punishment.
18
An Ogan of the
Afri�an �� )"
Union ,.mi
Rights
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
https:/achpr.au.int/0 0 a
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83. The Complainant further alleged that on 16 February 2011, the officers
assaulted him with plastic pipes, specifically targeting his right shoulder, the
right side of his ribs, and his thighs during his transfer from Kober Prison to
NISS headquarters. He also stated that between 1 6 and 23 February 2011, his
head was forcefully struck against a metal bar in the transit vehicle, and he was
subjected to physical assaults, accompanied by derogatory references to him as
a "Lebanese Dog. 11 Additionally, the Complainant asserted that he was forcibly
injected with unknown substances while being threatened, with the
Respondent State Agent pointing a gun at his genitals.
ccrox(•
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84. The Complainant further alleged that on or around 24 February 2011, the
guards at Kober Prison subjected him to severe mistreatment. This
mistreatment included stomping on his right foot, burning his foot with
cigarettes, crushing his finger with a padlock, and kicking him in the genitals.
As a result of these acts, he experienced difficulty walking properly and
suffered damage to a fingernail.
85. Furthermore, the Complainant submitted that the treatment inflicted upon him
by the officials of the Respondent State, with the intention of punishment,
intimidation, extracting a confession, and discrimination, amounts to torture.
As such, the Complainant contended that these actions violate Article 5 of the
African Charter, which prohibits torture and other cruel, inhuman, or
degrading treatment or punishment.
Alleged violation ofArticle 6 of the African Charter (Right to Liberty and Security)
86. The Complainant asserted that the manner in which he was arrested by NISS
officers, along with the subsequent interrogation characterized by beatings and
insults, indicates that the arrest and detention were arbitrary in nature. The
Complainant contended that this pattern of arbitrary arrests and detentions is
evident in his treatment.
87. Furthermore, the Complainant submitted that he was not charged with any
criminal offense throughout the 71 to 78 days of his detention. He asserted that
this lack of formal charges suggests a lack of prima facie evidence o
suspicion of his having committed an offense. The Complain
the deprivation of his liberty, primarily based on his perceiv
the regime, coupled with the manner of his arrest and dete
19
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: {220) 441 05 04
Email: au-banju l@africa-union. org
https:/achpr.au.int/0 0 a
c, fJ 6�tLE�
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Human Rights our
<umr.' � Human and Peoples' Rights
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inappropriate, and fundamentally incompatible with the principle of due
process.
88. The Complainant asserted that he, despite being informed in general terms of
suspicion related to inciting revolution using telecommunication materials and
being labeled as a British or Israeli spy, was not officially notified of the specific
reasons for his arrest. The Complainant emphasized that he was denied the
right to know the precise grounds for his arrest, which violates his right to be
informed promptly and in detail of the charges against him.
89. Additionally, the Complainant contended that he was denied the right to
contact his family, lawyer, and relevant diplomatic and consular
representatives, alleging that the arrest and subsequent treatment violates
Article 6 of the African Charter.
Alleged violation of Article 7 of the African Charter (Right to a Fair Trial)
90. The Complainant asserted that he was denied access to a lawyer throughout
his detention and was not brought before a court. This resulted in him being
held incommunicado for 71 to 78 days, which, according to the Complainant,
constitutes a violation of his right to a fair trial. He asserted that the denial of
legal representation and the absence of a timely judicial review deprived him
of the opportunity to challenge the lawfulness of his detention and present his
case before a competent tribunal.
9 1 . The Complainant also asserted that Article 51(2) of the NSA of 2010 states that
individuals arrested or in custody have the right to notify their family, mother,
or employer about their detention. They can also communicate with their
family or advocate, provided it does not hinder the interrogation, inquiry, or
investigation progress. However, the Complainant argued that this provision
only grants access to a lawyer or family under certain conditions. Access is
permitted if it does not impede the ongoing interrogation, inquiry, and
investigation processes. Consequently, the NISS appears to possess
unrestricted discretion to deny access when deemed detrimental to the
investigation. The Complaint further contended that this practice v
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92. The Complainant submitted that his property, including clothing, standard
electronics, and books, which had been cleared for entry into Sudan by customs
officials, was subjected to a search and seizure. He further asserts that some of
the confiscated property was not returned, and some returned items were
found to be broken or damaged.
mm:o
•
93. The Complainant argued that he was not provided with any evidence or
justification for the search and seizure of his property, nor was he provided
with any explanation of the public need or community interest that would have
justified such actions. Additionally, the Complainant contended that the
subsequent destruction of the confiscated property without offering any
reimbursement or compensation further compounds the violation.
94. Based on these circumstances, the Complainant alleged that the confiscation
and damage to his property violate Article 14 of the African Charter.
Alleged violation of Article 16 of the African Charter (Right to Health)
95. The Complainant asserted that he was denied access to medical care and
subjected to the injection of an unknown substance by the Respondent State,
thereby violating his right to enjoy the best attainable state of physical and
mental health.
96. The Complainant argued that the resulting deterioration in his health, as a
direct consequence of the torture inflicted upon him, can be attributed to the
Respondent State as the perpetrator of the torture.
97. The Complainant asserted that his deteriorating health, which resulted from
acts of torture, the denial of access to medical care, and the injection of an
unknown substance, constitutes a violation of Article 16 of the African Charter.
Commission's Analysis of the Merits
98. The Respondent State has failed to respond to the Secretariat's requests for
submissions on the Merits. In this circumstance, the Commission will make
decisions based on the information provided by the Complainant. 21 To do so
entails reviewing the evidence and/ or submissions put forward by the
Complainant and ascertaining the veracity of the evidence/ or s
21 Communication 105/93, 1 28/94, 1 30/94, 1 52/96 - Media Rights Agenda & Others v Nigeria para 86
232/99 - John Ouko v Kenya para 21.
An O!gon of the
Afriqan ((\;»
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A lleged violation of Article 2 of the Charter (Right to non-discrimination)
99. Article 2 of the African Charter provides that:
" EvenJ individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter ·without distinction of any kind such
as race, ethnic group, color, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status. "
100.
Non-discrimination is a fundamental pillar in ensuring equal treatment
and opportunities for all individuals, regardless of race, ethnicity, origin,
gender, religion, disability, or other characteristics. 22
101.
The Complainant asserts that he endured derogatory labels, inquiries
regarding his heritage, and discriminatory questioning due to his inability to
speak Arabic despite being proficient in Polish. It is contended that the
mistreatment directed at him possibly stemmed from his mixed Polish heritage,
sparking unwarranted suspicions about his potential Jewish background and
unjust connections to British or Israeli espionage. Additionally, he was
reportedly referred to as a "Lebanese Dog."
102.
The Complainant's argument raises concerns about discriminatory
treatment based on his ethnicity and potential Jewish identity. The labeling,
questioning, and inquiries directed at him during the interrogation at the NISS
headquarters appear to focus on his connections to Poland, Israel, and Jewish
heritage rather than relevant factors such as the nature of the alleged offense.
103.
In evaluating whether there is a violation of Article 2 of the African
Charter, it is essential to consider the provisions and interpretations of the
African Charter, which guarantees the right to equality and prohibits
discrimination on various grounds, including ethnicity and religion.
104.
In Communication Zimbabwe Lawyers for Human Rights & Institute
for Human Rights and Development in Africa (on behalf of Andrew Barclay
Meldrum) v Zimbabwe, the Commission provided a comprehensive definition
of discrimination. According to the Commission, discrimination encompasses
any action seeking to differentiate, exclude, limit, or favor individuals based on
race, color, or other status. Such discriminatory acts are deemed to have the
22 Communication 443/13 - Safia lshaq Mohammed Issa (represented by The REDRESS Trust) v. R
161 Application 006/2012 - African Commission on Human and Peoples' Rights v Kenya, Judgment,
138
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intention or consequence of invalidating or impeding the acknowledgment,
enjoyment, or exercise of all rights and freedoms by all individuals on an equal
basis. 23 By encompassing various grounds, such as race, color, and other status,
the definition acknowledges the multifaceted nature of discrimination and the
diverse characteristics that can become the basis for discriminatory acts.
105.
Furthermore, the Commission's definition recognizes that
discrimination can take various forms, including acts aimed at distinction,
exclusion, restriction, or preference. This broad understanding ensures that all
manifestations of discrimination, regardless of their specific nature, are
encompassed within the definition. By doing so, the Commission
acknowledges the complexity of discrimination and the need to address it
comprehensively.
106.
In the case of Kenneth Good v. Republic of Botswana (the Kenneth Good
Case), the Commission established three pivotal criteria for assessing instances
of discrimination, setting a comprehensive framework for such evaluations. 24
1.
11.
iii.
Differential Treatment of Equal Cases: Discrimination manifests
when individuals or groups in identical or similar circumstances face
disparate treatment. It signifies that individuals who should receive
equal treatment are instead subjected to differing standards based on
specific traits like race, gender, or nationality.
Lack of Objective and Reasonable Justification: Discrimination
necessitates that the differential treatment lacks a valid and
reasonable rationale. This implies that no legitimate explanation can
justify the different treatments. When the variance in treatment lacks
a justifiable basis, discrimination concerns are raised, particularly
when motives do not align with safeguarding public welfare or
advancing a significant state interest.
Lack of Proportionality: The principle of proportionality is critical in
discrimination assessments. It demands a rational correlation
between the desired objective and the means employed to achieve it.
Essentially, the actions taken must be proportionate an\A;:l���
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23 Communication 294/04 - ZLHR & IHRDA v. Zimbabwe (2006) ACHPR, para 91
24
Communication 313/05- Kenneth Good v. Republic of Botswana (2010) ACHPR para 219
23
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attaining a lawful goal. If the methods used to validate differing
treatment are excessive or disproportionate, it may indicate
discriminatory practices.
107.
The Commission emphasized that these three criteria for evaluating
discrimination are cumulative, meaning that meeting any of these conditions
suffices to establish a violation of the right to non-discrimination.
108.
The contentions raised by the Complainant imply mistreatment and
discriminatory behavior directed towards him. While definitively proving
differential treatment without specific details or contrasting evidence among
individuals in similar circumstances poses challenges, it is crucial to question
whether demonstrating varying treatment towards others in comparable
situations is a prerequisite when subjected to treatment based on lineage or
faith.
109.
In situations where treatment seems correlated to one's status - such as
beliefs, lineage, or nationality - discriminatory behavior can be reasonably
inferred. This inference stems from the notion that the treatment stems from
specific characteristics like faith, creed, lineage, or nationality. In the present
Communication, the assertions concerning being identified as a Jew,
reprimanded for not speaking Arabic, or subjected to derogatory epithets like
"Lebanese dog" potentially signify discriminatory conduct directed at the
Complainant based on these specific attributes. The Commission opines that
the act of mislabeling tied to his ethnicity and the imposition of a linguistic
requirement that is unfamiliar to him not only exacerbated his distress but also
underscored the discriminatory essence of the treatment he endured. In this
context, the Commission, as evidenced in the case of Institute for Human
Rights and Development in Africa (acting on behalf of Sierra Leonean refugees
in Guinea) v. Guinea, underscored that although States retain the right to
prosecute individuals they deem as security risks, the extensive human rights
transgressions targeting Sierra Leoneans due to their origin contravene Article
2 of the Charter2s.
25 Communication 249/02-lnstitute for Human Rights and Development in Africa (acting on behalf of
refugees in Guinea) v. Guinea, para 72
24
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1 10.
Furthermore, the Complainant faced allegations of being a British or
Israeli spy solely based on his part-Polish heritage, with no substantial evidence
to substantiate these claims. The treatment of the Complainant, grounded in
ethnic stereotypes rather than factual evidence, exemplifies a discriminatory
practice that infringes upon the right to freedom from discrimination. In the
case of Union Interafricaine des Droits de ['Homme et a l. v. Angola, the
Commission emphasized the duty of State Parties to ensure that all individuals
within their jurisdiction, whether citizens or non-citizens are entitled to the
rights guaranteed in the Charter, regardless of their origin. 26
1 1 1.
The Commission asserts that the utilization of derogatory language
aimed at the Complainant's ethnic heritage not only heightened the
discrimination but also played a role in the mistreatment he experienced. These
baseless suspicions and actions, devoid of factual and legal support, resulted
in unjust conduct infringing upon his entitlement to be treated without
discrimination.
1 12.
Therefore, considering the lack of submissions to the contrary by the
Respondent State, it can be concluded that there is a violation of Article 2 of the
African Charter, particularly as the outlined criteria for discrimination have
been met without rebuttal.
Alleged violation ofArticle 5 of the African Charter (Right to dignity and prohibition
from Torture and ill-treatment
1 13.
Article 5 of the African Charter stipulates that every person:
11
shall have the right to respect the dignihJ inherent in a human being and to
recognize his legal status. All forms of exploitation and degradation
. . .
26 Communication 1 59/96: Union lnterafricaine des Droits de l'Homme et al. v. Angola, para 18
25
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particularly slavery, slave trade, torture, crnel, inhuman or degrading punishment,
and treatment shall be prohibited. "
Article 5 of the African Charter guarantees the right to respect inherent
1 14.
human dignity and the recognition of one's legal status. It explicitly prohibits
all forms of exploitation and degradation, including slavery, slave trade,
torture, and cruel, inhuman, or degrading punishment or treatment. This
interpretation indicates that Article 5 of the African Charter does not allow for
any restrictions or limitations on the right to be free from torture and cruel,
inhuman, or degrading punishment or treatment. The language in the Article
indicates that this right is absolute and cannot be derogated under any
circumstances.
The Complainant asserts that the officials of the Respondent State
1 15.
deliberately inflicted severe pain and suffering upon him through acts of
physical assault and incommunicado detention. According to the Complainant,
he endured severe mistreatment while in custody, which involved instances
such as stomping on his right foot, burning his foot with cigarettes, forcibly
crushing his finger with a padlock, and subjecting him to genital kicks. As a
consequence of these acts, the Complainant encountered challenges in walking
normally and suffered damage to one of his fingernails. The Complainant
argues that these actions amount to acts of torture, thus violating Article 5 of
the African Charter.
1 1 6.
In the Article 19 case, the Commission held that the right to freedom
from torture and cruel, inhuman, and degrading treatment cannot be subject to
derogation. 27 This means that States cannot justify any actions that would
infringe upon this fundamental right, regardless of the circumstances or
reasons invoked.
1 17.
The Commission's interpretation and jurisprudence reinforce the
understanding that the right to be free from torture and cruel, inhuman, or
degrading punishment is an absolute right protected by Article 5 of the African
Charter. It is a non-derogable right that must be upheld and respected without
any exceptions.
1 1 8.
In assessing whether the alleged incommunicado detention and physical
assault amount to torture, the Commission will carefully examine t
and arguments presented by the Complainant. The Comrnissio �w'iJic,�HMyz1-<:--0
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whether the actions inflicted upon the Complainant meet the threshold of
severe pain and suffering and whether they fall within the definition of torture
as defined in international human rights standards.
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Incommunicado Detention
119.
The Complainant alleges that the Respondent State subjected him to
incommunicado detention for 71 to 78 days. During this time, despite repeated
requests, he was denied the right to contact his family, seek legal
representation, or establish communication with the British Embassy. The
Complainant argues that regardless of their legal status, all detainees are
entitled to basic human rights standards, including prompt access to legal
representation and the ability to communicate with their families.
120.
Through its jurisprudence, the Commission has held that secret
detentions are not permissible, and States must allow prisoners to maintain
contact with their lawyers and families. In the Article 19 case, the Commission
reiterated that holding an individual without allowing them to have contact
with their family and refusing to inform the family of the detainee's location is
considered inhuman treatment, affecting both the detainee and their concerned
family. 28 The Commission further emphasized that no political situation or
circumstances can justify holding detainees incommunicado, as the right to be
free from torture is an absolute right.29
121.
Furthermore, The Commission, in the case of Zegveld and Ephrem v.
Eritrea, emphasized that prolonged incommunicado detention and/ or solitary
confinement alone could be considered a form of cruel, inhuman, or degrading
punishment and treatment. 30 This was also echoed in Law Ghazi Suleiman v.
Sudan, where the Commission explicitly stated that the act of detaining
individuals without permitting them to have contact with their families and
. withholding information about the detention from their families amounted to
inhuman treatment. 31 This ruling emphasized that such treatment affected not
only the detainees themselves but also their families, who are left in a state of
uncertainty and distress. The Commission recognized the profound impact of
this practice on the well-being and dignity of the detainees and their loved
ones, underscoring the obligation to uphold the right to family co. o"'
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29 Ibid
30 Communication 250/02 : Liesbeth Zegveld and Mussie Ephrem v Eritrea, para 55
31 Communications 222/98 and 229/99- Law Office of Ghazi Suleiman v Sudan
32 ibid
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122.
The Commission, therefore, recognizes that incommunicado detention,
which prevents a person from accessing legal representation, family, or
relatives, constitutes a severe violation of human rights, as it creates an
environment conducive to the perpetration of torture. The Commission also
notes that such isolation not only deprives individuals of their fundamental
rights but also increases the risk of abuse and mistreatment, thereby
undermining the principles of justice and human dignity. This aligns with the
Commission's decision that complete isolation of imprisoned individuals and
detainees can amount to acts of torture, inhuman treatment, and degrading
treatment.33
123.
Additionally, the Robben Island Guidelines explicitly prohibit
incommunicado detention and deem it an offense to detain individuals in
undisclosed or unofficial detention facilities. Furthermore, these Guidelines
outline specific safety measures that must be observed when initiating
detention, such as notifying a family member or a known third party about the
detainee's situation. The Robben Island Guidelines also emphasize that States
guarantee access to legal and medical services for all individuals deprived of
their liberty and uphold their right to receive visits from and correspond with
their family members.
124.
Considering the specific circumstances presented in the current case,
where the Complainant endured a prolonged period of incommunicado
detention lasting between 71 and 78 days, during which period he was utterly
cut off from communication with the outside world, including his lawyers,
family, and the British Embassy, the Commission determines that the
Complainant's rights under Article 5 of the African Charter have been violated.
The incommunicado detention deprived him of his fundamental rights,
subjected him to mistreatment, and caused immense psychological distress and
suffering.
Physical Assaults by NISS
1 25.
The Complainant alleges that he endured numerous instances of severe
and brutal physical assaults while under the control of the NISS. The alleged
acts of violence include forceful strikes to the throat, intentional crushing of his
nail using a metallic object, stomping on the feet with force, kicks to the
genitals, deliberate cigarette burns, and various other forms of
as previously mentioned. Furthermore, it is claimed that the C
subjected to being forcefully restrained at gunpoint, violently s
33 Communication No. 458/199 1,-Mukong v. Cameroon, para 28
28
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of sleep for prolonged periods, injected with unknown substances, held in
overcrowded conditions, deprived of regular and adequate food and water,
and exposed to a traumatic mock execution. The Complainant asserts that these
horrifying acts inflicted intense suffering · upon him, resulting in extreme
hunger, dehydration, heightened anxiety, and profound psychological distress.
The Commission upholds that the prohibition of torture represents an
126.
absolute right, acknowledged as a peremptory norm Qus cogens) in
international law. The detailed account of the physical assaults endured by the
Complainant serves to underscore the extreme severity and cruelty of the
treatment inflicted upon him. The absolute prohibition of torture highlights the
profound gravity of such actions and imposes a definite and compelling
obligation on all States to prevent and prohibit torture in any manifestation.
127.
Several international and regional instruments, including the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules),34 the Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa,'.15 International Covenant on Civil and Political
Rights (lCCPR),36 Convention on Torture and other Cruel, Inhuman, or
Degrading Treatment or Punishrnent, 37 and Body of principles for the
Protection of All Persons under Any Form of Detention or Imprisonment38
acknowledges the inherent power imbalance created by the deprivation of
liberty and emphasizes the obligation of States to ensure the protection and
humane b·eatment of individuals throughout their period of detention.
128.
Principle 1 of the UN Body of Principles for the Protection of All Persons
under Any Form of Detention or I mprisonment firmly establishes the following
fundamental principle: "Ez,ery individunl held in any form of detention or
imprisonmeJLt must be treated in a manner thnt upholds their l1ul/lanihJ and recognizes
the inherent dignihJ of even; human being. " This principle emphasizes the
imperative to ensure that the treatment of detainees or prisoners respects their
fundamental rights and preserves their inherent worth as human beings.
129.
Principle 6 of the same body of principles reinforces this fundamental
principle by stating that "No person in nnyform of detention or imprisonment should
be subjected to torture or any form of cruel, inhuman, or degrading treatment or
punishment." I t explicitly rejects any justification or circumstan
34 United Nations Standard Minimum Rules for the Treatment of Prisoners Rules 1
35 the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
36 International Covenant on Civil and Political Rights (ICCPR) under Article 7
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African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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invoked to justify engaging in torture or any other form of cruel, inhuman, or
degrading treatment or punishment. This principle underscores the absolute
and non-negotiable prohibition of such practices, emphasizing the
uncompromising stance against any form of mistreatment or abuse towards
individuals in detention or imprisonment.
�rrmw •
A crucial aspect to highlight is that the term "cruel, illhuman or degrnding
1 30.
treatment or punishment " should be interpreted in a manner that provides the
broadest possible safeguard against any form of abuse, whether it be physical
or mental in nature (as outlined in the UN Body of Principles). 39 This
interpretation emphasizes the importance of comprehensive protection against
acts or conditions that may inflict unnecessary suffering, ensuring the utmost
respect for h uman rights and dignity.
131.
Furthermore, as demonsh·ated in the Commission's jurisprudence,
f
particularly in the case of Media Rights Agenda v the Federal Republic o
Nigeria, 40 the terms "cruel, inhuman, or degrading punishment or treatment"
should be interpreted in a manner that affords the broadest possible protection
against any form of abuse, whether it manifests as physical or mental harm.
This encompasses a wide range of acts that violate human dignity, including
but not limited to denying individuals contact with their families, subjecting
them to overcrowded prison conditions, physical assault or beatings, depriving
them of adequate lighting, with11olding su fficient food and water, denying
access to necessary medicine or medical care, and inflicting other forms of
physical and psychological torture. The Commission recognizes the need for a
comprehensive and inclusive understanding of these terms to ensure the
utmost protection against all forms of mistreatment.
It is, therefore, crucial to comprehend that the interpretation of the terms
132.
"cruel, inlLu111nn, or degrading punishment or treatment" must be broad and all
encompassing, aiming to provide the most comprehensive protection against
any type of abuse. This interpretation ensures that individuals are shielded
from acts that inflict needless pain, suffering, or humiliation. By adopting this
inclusive interpretation, the Commission recognizes and upholds every
individual's inherent dignity and rights, emphasizing the imperati1t.e:Fmffii�-,;i
and prohibit any misb·eatment that may result in physical or rY'l litr> t-,:, i
39 Communication 225/98-Huri-Laws v. Nigeria, para 40
40 Communication 224/1998 Media Rights Agenda v Federal Republic of Nigeria
30
An Or�Jn of the
AfriGan f◄' . �)
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African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 OS 04
Email: au-baniu1@africa•union.org
https:/achpr.au.int/0 0 a
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African Commission on
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1 33.
The Conunission has consistently affirmed this position, as exemplified
in the case of HuriLaws v. Nigeria, 41 where it ruled that the " treatment meted out
to the victim " constituted a violation of Article 5 of the African Charter. This
ruling further reinforces the Commission's commitment to upholding the
rights and well-being 0£ individuals. It emphasizes the need to hold States
accountable for any actions that breach the prohibition of cruel, inhuman, or
degrading punishment or treatment.
134.
The detailed account of the physical assaults and their profound
repercussions on the Compla inant's well-being underscores the gravity of the
circumstances. The medical evidence not only corroborates the Complainant's
assertions regarding the torture endured by the Complainant but also
u nderscores the severity of the physical attacks detailed in his medical
assessment. This report affirms that the physical and psychological
ramifications align with the defining traits of torture, as per established
standards. Consequently, this medical documentation bolsters the
Complainant's claims that he was subjected to acts of torture.
135.
Upon thorough scrutiny of the facts and evidence presented by the
Complainant, the Commission decisively concludes that the treatment meted
out to the Complainant unequivocally meets the criteria for torture, thereby
constituting a clear violation of Article 5 of the African Charter.
Alleged violation of Article 6 of the African Charter (Right to Liberty and
Security)
136.
Article 6 of the African Charter provides that:
EvenJ individual shall h.ave the right to liberhJ and the securihJ of his person. No one
may be deprived of his freedom except for reasons and conditions previously laid down
by law. ln particular, no one may be arbitrarily arrested or detained.
1 37.
According to the Complainant, his arrest by NISS officers and the
subsequent interrogation were marked by beatings and insults, sug e
the u nderlying p urpose of the arrest and detention aligns with
arbitrary arrests and detentions. The Complainant argues that d
41
n 39 above.
An Organ or the
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31 Bijilo Ann
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78 days of his detention, no criminal charges were brought against him,
indicating a lack of sufficient prima facie evidence or reasonable suspicion of his
involvement in any offense. Furthermore, the Complainant contends that his
deprivation of liberty, primarily based on his perceived opposition to the
regime, along with how he was arrested and detained, renders the situation
unjust, inappropriate, and fundamentally incompatible with the principle of
due process.
�<m»:(•
.
138.
In the case of Patrick Okiring and Agupio Samson (represented by
Human Rights Network and ISIS-WICCE) v. Republic of Uganda, the
Commission held that the right to liberty functions as a significant safeguard,
ensuring that every arrest or detention is conducted in a manner that is neither
unlawful nor arbitrary. 42
139.
The Commission has also held that the right to liberty is a significant
guarantee that any arrest or detention should not be unlawful or arbitrary.43
Therefore, any deprivation of liberty that occurs without due process, the legal
safeguards of a fair trial, or for unacceptable or arbitrary reasons constitutes a
violation of Article 6 of the African Charter. The Commission affirms that the
right to liberty entails more than just physical freedom - it encompasses the
fundamental principle that individuals should not be subjected to arbitrary or
unlawful deprivation of their liberty. The right to liberty includes the right to
due process and fair treatment in accordance with the law. 44
140.
Therefore, any act depriving individuals of their liberty without proper
legal justification or violating their right to a fair trial violates Article 6 of the
African Charter. The Commission's stance emphasizes the critical importance
of upholding the principles of due process, fair trial, and non-arbitrary
detention to protect individuals' rights to liberty and shield them from
unlawful or arbitrary deprivation of their freedom.
141.
Moreover, the Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa further underscore the obligations of State Parties
42 Communication 339/2007 - Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS
WICCE) v. Republic of Uganda para 107.
43 In the case of Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISi
of Uganda,
44 Communication 339/2007 - Patrick Okiring and Agupio Samson (represented by Human Rights N
WICCE) v. Republic of Uganda para 107.
44 Communication 379/09 - Monim Elgak, Osman Hummeida and Amir Suliman (represented by Fl
para 103.
An O!gan orlhe
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32
African Com
31 Bijilo n
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ri"f,1 ACH PR
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African Commission on
Human Rights our
Human ancl Peoples' Rights
Collective Responsibility
under Article 6 of the African Charter. They emphasize that States must ensure
that no one is subjected to arbitrary arrest or detention. Any arrest, detention,
or imprisonment act should strictly adhere to the provisions of the law and be
carried out by competent officials or authorized individuals based on a
warrant, reasonable suspicion, or probable cause. These Guidelines highlight
the need to adhere to legal safeguards and procedures to safeguard individuals'
rights and liberty.
142.
This signifies that the security personnel in the Respondent State are
obligated to abstain from conducting arrests, detentions, or imprisonments in
a manner that disregards the principles of due process or lacks legal
justification. In the Article 19 Case context, the Commission noted that even if
arrests and detentions are deemed lawful under domestic legislation, they can
still be regarded as arbitrary and thus unlawful if they are inappropriate,
unreasonable, unjustified, or unpredictable. 45
Based on the arguments presented and the applicable jurisprudence of
143.
the Commission, it is evident that the Complainant's arrest and subsequent
detention by NISS officers raise serious concerns regarding the violation of his
right to liberty and due process. The allegations put forth by the Complainant,
including the use of physical violence, insults, and the absence of criminal
charges, strongly suggest a pattern of arbitrary arrests and detentions.
Furthermore, the absence of any prima facie evidence or reasonable
144.
suspicion to justify the prolonged detention of the Complainant further
undermines the legitimacy of his arrest and confinement. The lack of
transparency and legal justification for his continued deprivation of liberty for
71 to 78 days raises questions about the adherence to fundamental principles
of justice and the rule of law. Moreover, the Complainant rightly emphasizes
that his perceived opposition to the regime should not serve as a basis for his
arrest and detention without due process. Such actions, coupled with how he
was apprehended and held, highlight the unjust and inappropriate nature of
the situation, which is fundamentally incompatible with the principle of due
process.
145.
Drawing from the Commission's established jurisprudence, it is clear
that the arbitrary arrest and detention of individuals without r
justifications or in violation of their right to a fair trial constitute
Article 6 of the African Charter. The principles and guidelines o
45 Ibid 1 1 , para 98
33
An Organ of�It'
Afriqan ( -��
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31 Bijilo A
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fair trial further emphasize the obligation of State Parties to ensure that arrests,
detentions, and imprisonments are conducted in accordance with the law,
avoiding arbitrariness and upholding due process.
146.
In light of these considerations, that is. the circumstances surrounding
his apprehension, the absence of criminal charges, and the perceived political
motives behind his confinement underscore the urgent need for a thorough
investigation into this matter. It is imperative to ensure that the principles of
justice, fairness, and the right to liberty are respected and that accountability is
upheld to safeguard individuals' fundamental rights and dignity.
147.
Accordingly, the Commission, finds a violation of Article 6 of the
African Charter by the Respondent State.
A lleged violation ofA rticle 7 of the African Charter (Right to a Fair Trial)
148.
Article 7 of the African Charter guarantees the right to a fair trial,
encompassing several essential components. These include:
A. The right to appeal to competent national organs against acts
that violate one's fundamental rights as recognized and
guaranteed by applicable conventions, laws, regulations, and
customs;
B. The right to be presumed innocent until proven guilty by a
competent court or tribunal;
C. The right to a defense, including the right to be represented by
counsel of one's choice; and
D. The right to be tried within a reasonable time by an impartial
court or tribunal.
149.
The Commission has reaffirmed the importance of fair trial rights by
adopting key frameworks such as the Robben Island Guidelines and the
Principles and Guidelines on Fair Trial and Legal Assistance in Africa. These
frameworks highlight the essential nature of access to free legal assistance and
the right to a fair and public hearing before a competent, independent, and
impartial judicial body. They aim to ensure that individuals have the necessary
means to defend their rights and interests effectively.
1 50.
Furthermore, the Resolution on the Right to Recourse an
conjunction with the Principles and Guidelines on the Right to a
34
African Commis
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Human and Peoples· Rights
Legal Assistance in Africa, emphasizes the fundamental nature of the right to
a fair trial. This includes vital elements such as access to legal counsel and the
courts.
151.
These comprehensive guidelines and resolutions recognize the
significance of safeguarding fair trial rights as a fundamental aspect of
upholding justice and protecting human rights. They stress the need for
individuals to have access to legal representation, ensuring a fair and public
hearing and timely resolution of cases. Failing to uphold these rights not only
undermines the principle of fairness but has broader implications for the
overall enjoyment of human rights in any society.
152.
In the current case, the Complainant has alleged that he was denied the
right to legal representation and was not presented before a court, resulting in
a prolonged period of isolation lasting between 71 and 78 days. According to
the Complainant, this deprivation of access to legal counsel, his incommunicado
detention, the failure to be brought before a competent court within a
reasonable time, and the absence of a fair trial violates his right to a fair trial as
guaranteed by Article 7 (1)(C) of the African Charter.
153.
Furthermore, the Complainant highlights a concern regarding Article
51(2) of the NSA of 2010. This provision grants individuals arrested or in
custody the right to notify their family, mother, or employer about their
detention. However, the Complainant points out that this right is conditional,
as the NISS appears to have unrestricted discretion to deny access if it is
considered detrimental to an ongoing investigation.
154.
Article 7 (1)(C) of the African Charter encompasses a comprehensive set
of rights, including the right to adequately prepare a defense, timely and
confidential consultations with the counsel of one's choice, and the right to be
tried within a reasonable timeframe by an impartial court or tribunal. These
rights are fundamental aspects of ensuring a fair trial. It is essential to recognize
that the right to legal representation and access to the court should be available
to all individuals deprived of their liberty, regardless of their nationality or the
severity of the offense they are suspected of.
155.
The jurisprudence of the Commission has held the fundamental
importance of the right to counsel for individuals deprived of their liberty. This
right serves as a crucial procedural safeguard, playing a vital role i
maltreatment throughout the various stages of detention. By en
legal representation, the right to counsel becomes a powerful
35
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the rights of individuals in custody and upholding the principles of justice. The
Commission's acknowledgment of this right highlights its unwavering
commitment to shielding individuals from abuse and promoting fairness
throughout the detention process.
�,urnc
156.
A notable example illustrating the Commission's emphasis on the
significance of legal representation is the case of the Egyptian Initiative for
Personal Rights and Interights v the Arab Republic of Egypt, where the
Commission identified a clear violation of Article 7(1)(c) of the African
Charter.46 The violation stemmed from the victims being denied access to legal
counsel during their detention, which significantly impeded their ability to
defend themselves effectively. The Commission firmly acknowledged that
access to legal counsel is a fundamental prerequisite for individuals to exercise
their right to a fair trial. The Commission underscored that depriving the
victims of this access for an extended period hindered their capacity to prepare
their defense adequately. This denial of legal representation undermined their
ability to present their case effectively and safeguard their rights throughout
the proceedings.47 The Commission also stressed that access to legal
representation should be guaranteed at all stages of criminal proceedings,
encompassing preliminary investigations, evidence collection, periods of
administrative detention, and trial and appeal proceedings. This recognition by
the Commission demonstrates its understanding of the pivotal role legal
representation plays as a crucial safeguard in protecting individuals' rights.
157.
Moreover, the case of Abdel Hadi, Ali Radi & Others v Republic of
Sudan stands as yet another significant illustration of the Commission's
acknowledgment of the pivotal role of legal representation in ensuring a just
trial. In this instance, the Commission identified a clear breach of Article 7(1)(c)
of the African Charter. 48 The violation arose from the victims being denied the
opportunity to consult with legal counsel during their detention, severely
hampering their capacity to mount an effective defense. The Commission
recognized that access to legal representation is a fundamental prerequisite for
individuals to exercise their right to a fair trial. It stressed that denying this
access for an extended duration significantly impeded the victims' ability to
prepare their defense adequately and that depriving them of legal assistance
<c,C,
46 Communication 334/06 - Egyptian Initiative for Personal Rights and lnterights v Arab Republic of Egyp
41 Ibid
48
Communication 368/09 - Abdel Hadi, Ali Radi & Others v Republic of Sudan, para 90
36
AJ1 Olgan of the
Afriqan (' -�)
Union \-;, //
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African Commission
31 Bijilo Annex Layout, Kombo No11h District,
West Coast Region. The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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would compromise their capacity to present their case proficiently and
safeguard their rights throughout the legal proceedings.49
158.
In addition to the guarantees provided in Article 7 of the African
Charter, which protects the right to legal representation and a fair trial, it is
noteworthy that the 2019 Constitution of Sudan reinforces these rights. Article
52(6) of the Sudanese Constitution explicitly acknowledges that " the accused has
the right to defend himself personally or through an attorney he selects." so The
inclusion of this provision in the Sudanese Constitution serves as a testament
to the country's dedication to upholding the rights of individuals within the
criminal justice system. It recognizes the accused's entitlement to present their
defense personally or by their chosen legal counsel. This constitutional
prov1s1on underscores the significance of ensuring effective legal
representation and that individuals can actively participate in their defense. It
emphasizes autonomy and the right to make informed choices in safeguarding
one's rights during legal proceedings. By enshrining this provision, Sudan
demonstrates its commitment to the principles of fairness, justice, and ensuring
the proper administration of the criminal justice system.
The Sudanese Constitution aligns with the principles articulated in
159.
Article 7 of the African Charter by explicitly acknowledging the right to self
defense or legal representation. Both legal instruments underscore the
fundamental importance of the right to legal counsel and the freedom to choose
one's defense strategy. These provisions are crucial for safeguarding
individuals' rights and upholding the principles of fairness and justice within
the legal process. The Sudanese Constitution demonstrates its commitment to
ensuring a fair and equitable legal system by recognizing and upholding these
rights.
After careful consideration of the allegations and analysis presented, it
160.
is evident that denying access to legal representation during the Complainant's
incommunicado detention for an extended period raises significant concerns.
The Commission recognizes that this deprivation hampered the Complainant's
ability to consult with his chosen counsel and undermined his ri
trial. Moreover, it exposed him to a heightened risk of potent'
other forms of ill-treatment by prison officials.
i
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49 Ibid
50 The 2019 Constitution of Sudan, Article 52(6).
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African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The G ambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banju l@africa-union.org
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Furthermore, the Commission acknowledges that the NSA of 2010, with
161.
its restrictions and conditions on access to legal representation, indeed grants
discretionary powers to deny individuals the right to a lawyer. This broad
discretion raises concerns regarding the right to a fair trial and the ability of
individuals to defend themselves effectively. It allows the NISS to potentially
restrict access to legal assistance arbitrarily and without clear guidelines or
safeguards of the rights of suspects or accused persons.
1 62.
This situation violates Article 7(1)(c) of the African Charter, as well as
the Resolution on the Right to Recourse and Fair Trial Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, and the
Commission's jurisprudence. In the Zegveld and Ephrem case, the Commission ·
ruled that detained individuals must have prompt access to a lawyer and the
ability to contact their families. Furthermore, their physical and mental health
rights must be protected, and they are entitled to proper detention conditions. 51
The Commission notes that the Respondent State has shown progress in
163.
making multiple amendments to the NSA of 2010, with the latest amendment
taking place in 2024. 52 However, it is essential to note that these amendments
have not adequately addressed the limitations or drawbacks found in the
original 2010 version of the Act. As a result, the provisions and discretionary
powers granted to the NISS continue to undermine the rights guaranteed by
the African Charter and established principles.
164.
Ensuring timely and meaningful access to legal representation for
detained individuals, as well as their well-being and fair treatment during
detention, is of utmost importance. Although the Commission acknowledges
the willingness of the Respondent State to make amendments, it is evident that
the provisions under dispute remain essentially unchanged, with only minor
syntactical and non-substantive modifications. For example, Article 51(2) in the
2024 amendment states, "The Detainee has the right to inform their family or the
entity they belong to of the detention and is allowed to contact their family or lawyer if
it does not harm the investigation." While the wording has been slightly altered,
the substantive content remains unchanged.
165.
These observations highlight the need for comprehensive and
substantive changes to the NSA to ensure the protection of individuals'
and align with the principles of the African Charter. Mere
modifications without addressing the underlying issues do not pr�,�
·�=�......
51 n 59 above, para 55
52 Amendments were made to the NSA in 2011, 2017, 2019, 2021, 2022, and 2024
38
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31 Bijilo A n nex Lay
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https:/achpr.au.int/0 0 a
ACH PR
African Commission on
Human Rights our
• Human and Peoples' Rights
Collective Responsibility
necessary safeguards for detainees and their access to legal representation. It is
essential for the Respondent State to address these concerns and make
substantive amendments that genuinely improve the protection of human
rights within the framework of the NSA.
1 66.
In light of these findings, the Commission concludes that denying access
to a lawyer and court during the Victim's detention constitutes a clear violation
of Article 7 (1) (c) of the African Charter. This provision guarantees the right to
be defended by counsel of one's choice. In this case, denying that right has
transpired, undermining the Complainant's prospects of receiving a fair trial
and leaving him vulnerable to potential human rights abuses.
167.
In addition to the above, the Complainant alleges that he was not
brought before a Court during his 71 to 78 days of detention.
168.
The right to a fair trial encompasses being tried within a reasonable time
by an impartial court or tribunal, which holds significant importance in
international human rights law, including Article 7(d) of the African Charter.
This Commission notes that the right to be tried by an impartial court or
tribunal within a reasonable time is a well-established international norm. It
guarantees individuals deprived of their liberty through arrest or detention the
opportunity to initiate proceedings before a judicial body.
169.
It is worth noting that the interplay between the right to a fair trial, the
right to be tried within a reasonable time, and the right to legal representation
highlights the essential nature of these rights in protecting individuals against
arbitrary detention and ensuring that their cases are heard in a timely and
impartial manner. Upholding these rights is vital for safeguarding the
principles of justice, the rule of law, and the protection of individual liberties.
The Commission firmly asserts that the right to a fair trial encompasses
170.
the principle of access to appropriate justice. It emphasizes that individuals
should have their cases adjudicated by competent and impartial courts capable
of delivering efficient and unbiased judgments. This ensures that the legal
process is conducted to uphold the principles of fairness, justice, and the rule
of law. The Commission recognizes the crucial role of competent and unbiased
courts in safeguarding the rights of individuals and maintaining pu
the j udicial system. Upholding the right to access appropriate justic
Afri�an r:1;1,
Union \--,"..1'2
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39
African Commissio
31 Bijilo Ann
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Human Rights ou,
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for ensuring the effective protection of individuals' rights and promoting the
overall integrity of the legal process. 53
171.
The Commission, therefore, acknowledges that the right to a fair trial
extends beyond procedural safeguards, emphasizing the significance of access
to appropriate justice. This entails that individuals competent in legal matters
who demonstrate impartiality in decision-making can present their cases
before courts. By underscoring the importance of access to appropriate justice,
the Commission highlights the need for a comprehensive understanding of fair
h·ial rights, which encompasses procedural guarantees and the fundamental
requirement of an impartial and competent judiciary. This ensures that
individuals are afforded a genuine opportunity to have their cases heard in a
manner that upholds the principles of fairness, justice, and the rule of law.
Upholding the right to access appropriate justice is essential for maintaining
public trust in the legal system and safeguarding the integrity of the judicial
process.
172.
In the case of Marcel Wetsh'okonda Koso and others v Democratic
Republic of Congo, the Commission underscored the comprehensive nature of
the guarantee of sound justice, as outlined in Articles 7 and 26 of the African
Charter. The Commission identified two primary obligations encompassed
within this guarantee. Firstly, it entails providing an accessible and appropriate
court system for individuals seeking justice. Secondly, it comprises the right to
a fair trial, which includes the fundamental entitlement to have one's cause
heard fairly and unbiasedly. 54 These obligations reflect the importance of
ensuring that individuals have meaningful access to justice and are afforded a
fair opportunity to present their case before a competent and impartial tribunal.
By recognizing and upholding these obligations, the Commission reinforced
the principles of fairness, justice, and the rule of law within the legal framework
of the Democratic Republic of Congo.
173.
Article 7 of the African Charter embodies the spirit of safeguarding
individuals' rights to a timely and efficient legal process, ensuring that justice
is not unduly delayed or denied. The obligation to establish an accessible and
appropriate court entails that individuals should have reasonable access to a
court or tribunal capable of effectively addressing their legal matt
obligation encompasses factors such as physical accessibility, avai
53 Communication 281/2003 - Marcel Wetsh'okonda Koso and Others v Democratic Republic of Congo para 7
Communication 151/96 - Civil Liberties Organisation v Nigeria,
54 Marcel Wetsh'okonda Koso and others v Democratic Republic of Congo, para 76
M Otganof Uie
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31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
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legal assistance, and procedural mechanisms that enable individuals to present
their cases before a competent judicial body.
mm,, •
174.
The Commission's recognition of these obligations underscores the
comprehensive nature of the right to sound justice. It goes beyond mere access
to a court and encompasses the guarantee of a fair trial. By emphasizing the
importance of providing individuals with both an accessible and appropriate
court and the opportunity to have their cause heard fairly, the Commission
ensures that justice is effectively served. This approach reinforces the principles
of fairness, equality, and the rule of law, which are fundamental to realizing
the right to sound justice as enshrined in Article 7 of the African Charter.
1 75.
The Commission underscores that the right to a timely and impartial
trial holds immense significance in upholding the fairness and integrity of legal
proceedings. It encompasses two crucial elements: timeliness and impartiality,
essential for ensuring justice. It is important to emphasize that no
circumstances can justify the denial of the right to be brought before a court, as
it serves as a foundational principle for the realization of a fair trial.
1 76.
In the case of Purohit v The Gambia, the Commission established a
precedent that individuals subjected to detention should, at the very least, have
the opportunity to challenge the lawfulness of their detention before competent
jurisdictions.55 This ruling highlights the fundamental principle that those
detained must be granted the right to contest their deprivation of liberty and
have their cases reviewed by independent and competent courts.
1 77.
By recognizing the significance of timely access to justice and the
requirement of impartiality, the Commission reaffirms the essential nature of
these elements in upholding the principles of fairness, equality, and the rule of
law. Upholding the right to a timely and impartial trial ensures that individuals
have the necessary safeguards to contest their detention and have their cases
heard by competent and independent courts. This approach is vital for
safeguarding individual rights, promoting transparency and accountability,
and maintaining public trust in the justice system.
Upon thorough examination of the facts and analysis, it is evident that
178.
the failure to present the Complainant before a court during his 71 to 78 da s
of detention gives rise to significant concerns regarding the Respon
compliance with the requirement of a timely trial. It is crucial to en}'Jmt�
55 Communication 241/2001 Purohit and Moore v. The Gambia (May 2003) ACHPR.
41
An OrQan of U>e
AfriGan ( · �'\
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African Commis
31 Bijilo An
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African Commission on
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the right to a fair trial encompasses the actual trial proceedings and the pre
trial phase, which includes the prompt presentation of the accused before a
court.
179.
Therefore, the prolonged period of detention without being brought
before a court signifies a failure on the part of the Respondent State to fulfill its
obligation of ensuring a timely trial. This failure violates the right to a fair trial
as enshrined in Article 7(1)(d) of the African Charter.
Alleged violation of Article 14 of the Charter (Right to Property)
1 80.
Article 14 provides that:
The properhJ right shall be guaranteed. It may only be encroached upon in the interest
of public need or in the general interest of the communih; and in accordance with the
provisions of appropriate laws.
1 81.
According to the principles outlined in Article 14 of the African Charter,
individuals have a rightful expectation to own and enjoy their property
without arbitrary interference. The principle of non-arbitrariness provides that
any search, seizure, or deprivation of property must be grounded in lawful
reasons, serve the interest of the community, be reasonably justified, and
adhere to due process. Actions that are arbitrary and lack legal basis or proper
justification would consequently violate Article 14 of the African Charter.
182.
In the case of Sudanese Civilians in South Kordofan and Blue Nile
(represented by Sudan Democracy First Group, REDRESS, Human Rights
Watch, INTERIGHTS, and Enough Project) v Sudan, the Commission
emphasized the importance of Article 14 of the African Charter. The
Commission specifically stated that this article guarantees the right to property
and peaceful enjoyment of property and prohibits arbitrary deprivation of
property. 56
As per the Complainant, his belongings, including clothing, standard
183.
electronics, and books, were searched and seized by customs officials upon
entering Sudan. However, certain items were not returned, and others were
handed back in a damaged condition. The Complainant argues that no
evidence was provided to justify the search and seizure of his prope!��mk
grounds of public need or community interest. Moreover, the
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56 Communication 402/11 - 420/12: Sudanese Civilians in South Kordofan and Blue Nile (represente(Sud� effiqcra.�
First Group, REDRESS, Human Rights Watch, INTERIGHTS and Enough Project) v Sudan, para 1 75 ' \ \ \\ ··�� .\.IA
42
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Phone: (220) 230 4361 Fax: (220) 441 05 04
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African Commission on
Human Rights our
Human and Peoples· Rights
Collective Responsibility
form of compensation constitutes a violation of Article 14 of the African
Charter.
184.
The allegations put forth by the Complainant raise concerns regarding
the arbitrary nature of the search and confiscation. Moreover, the fact that
certain items were not returned and others were returned in damaged
condition appears to undermine the Complinant's fundamental right to
peacefully enjoy his property.
185.
The Commission notes that in the absence of submissions from the
Respondent State, it is conceivable to argue that a legitimate public need or
community interest might have justified the search and seizure of the
Complainant's property. Factors such as national security concerns or
preventing illicit activities could potentially explain the actions taken.
However, since the Respondent State has not provided any submissions, the
Commission will solely rely on the facts presented by the Complainant.
186.
The Commission's jurisprudence has established that the destruction of
property should be accompanied by compensation; otherwise, it is deemed
arbitrary.
187.
Within the context of the Institute for Human Rights and Development
in Africa (IHRDA) v Angola, the violation of Article 14 of the African Charter
was established by the Commission through the search and seizure of the
Complainant's personal effects, including electronic devices, clothing, and
timepieces upon their entry into Sudan. This act, where certain items were
either not returned or were returned damaged, was deemed by the
Commission as a breach of the Charter's provisions under Article 14.57
188.
The Commission's ruling in the IHRDA Case emphasized the critical
absence of justification provided to the Complainant for the confiscation,
failing to demonstrate public necessity or communal interest grounds.
Moreover, the subsequent destruction of the seized belon ·
compensation was identified as the crux of the alleged violation
the Complainant's property rights. While acknowledging tha
57 Communication 292/04: Institute for Human Rights and Development in Africa v Angola, para 72
43
West Coast eg,on, The Gambia
Phone; (220) 230 4361 Fax: (220) 441 OS 04
Email: au-banju!@africa-union.org
https:/achpr.au.mt/O 0 a
AC H PR
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property under the African Charter is not absolute, the Commission also
highlighted the Respondent State's failure to substantiate the necessity of its
actions based on public interest or communal welfare. In light of this absence
of justification and the neglect to provide adequate compensation to the
Complainant, the Commission concluded that the actions of the Respondent
State contravened the right to property enshrined in Article 14 of the African
Charter.58
Furthermore, drawing parallels with the precedent set in the Social and
189.
Economic Rights Action Center and Center for Economic and Social Rights
(SERAC v. Nigeria, although distinct from the present matter, the Commission
explicitly underscored the significance of compensation. It ruled that the forced
eviction of individuals without adequate recompense violated their property
rights, as delineated in Article 14 of the African Charter.59 The SERAC case
emphasized the importance of fair compensation to mitigate the harm caused
by the deprivation of property.
190.
Within the context of the current Communication, the absence of
compensation for the damaged or confiscated property of the Complainant
mirrors the concerns elucidated in both the IHRDA and the SERAC case. The
failure to provide suitable restitution dismisses the foundational principle of
equitable and just treatment, negating the indispensable compensation that
should accompany any infringement upon property rights. This glaring
absence of compensation in the current Communication further compounds
the potential violation of the Complainant's property rights. It emphasizes
disregarding the well-established principles of fair treatment, adequate
compensation, and due process when intervening in individuals' property
rights.
191.
The Commission emphasizes that although encroachments on property
rights may be acceptable when serving a genuine public necessity or communal
benefit, such interventions must adhere to the principle of proportionality. This
entails that they should be essential in a democratic society, pursued through
legal channels, and constrained within reasonable and justifiable limits.
192.
In the present case, no information indicates that the interference was
proportionate. Additionally, when property rights are infrin
individuals are entitled to certain procedural safeguards. The
may include being informed of the reasons for the interference, t
ss Ibid, para 73
59 Communication 294/2004 -Social and Economic Rights Action Center and Center for Economic and
Nigeria
44
An 0-gan of the
Afriqan f(1;')'\
Union ,'ia,;','2
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African Commiss,
--.:::::::�;:;:::!'::.>""�
31 Bijilo Annex Layout, Kombo North District,
West Coast Regi on, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@yfrica-union.org
https;/achpr.au.int/0 0 a
(, �) 6�ttE,R
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Human A;ghts ou,
Collective Responsibility
Human and Peoples' Rights
to challenge the interference before an impartial authority, and the right to seek
compensation for any damage or loss suffered. Unfortunately, the submissions
before this Commission do not indicate the presence of these safeguards.
1 93.
Based on the preceding analysis, the Commission concludes that there
has been a violation of the Complainant's right to property, as enshrined in
Article 14 of the African Charter.
Alleged violation ofArticle 16 of the African Charter (Right to Health)
1 94.
Article 16 of the African Charter guarantees that "[e]very individual shall
hnve the right to enjoy th.e best attainable state ofphysical and mental health."
1 95.
In the present Communication, the Complainant asserts that his health
significantly deteriorated as a result of torture, lack of safe drinking water and
electricity, denial of access to medical care, and the injection of an unknown
substance. These allegations raise concerns regarding the potential violation of
the Complainant's right to health, as guaranteed by Article 16 of the African
Charter.
The right to heal th encompasses the responsibility of States to u ndertake
1 96.
measures aimed at safeguarding the health of their citizens and ensuring that
they receive suitable medical care when they are ill. The right to the highest
achievable standard of physical and mental health also includes a dual
obligation on the part of the State. Firstly, it involves a positive duty to
gradually fulfill the right of individuals to access fundamental prerequisites for
good health, including food, water, and healthcare. Secondly, i t entails a
negative duty to refrain from obstructing the civilian population 1s access to
these essential provisions.6ll
The right to health also encompasses various aspects, including both
1 97.
physical and mental well-being. States are obligated to establish conducive
conditions that guarantee access to vital healthcare services, prevention
measu res, treatment options, and rehabilita tion programs. Additionally, it is
the responsibility of States to safeguard individuals from any form of harm that
could have adverse effects on their health.
1 98.
The Preamble of the World Health Organization (WH
emphasizes that the highest achievable standard of health is
60 n 51 above, para 181
45
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;:;;::;:;=�-:;
West Coas
10n, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banju l@africa-union.org
31 Bijilo An
https:/achpr.au.int/0 0 a
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Human Rights ou,
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r ight of every human being, irrespective of race, religion, political beliefs,
economic or social status. This right is closely interconnected with various
other human rights, such as the rights to life, food, water, non-discrimination,
privacy, and the prohibition of torture.
crn».l' ,
1 99.
Furthermore, it is important to recognize that human rights are inherent,
universal, and indivisible. Consequently, the right to health of individuals,
including prisoners, is critical to human rights, ensuring that individuals
within the criminal justice system receive humane and dignified treatment.
Like any other individuals, the Commission firmly believes prisoners possess
the right to enjoy the highest attainable physical and mental health standards,
as guaranteed under Article 1 6 of the African Charter.
200.
This perspective acknowledges that individuals should not be deprived
of their right to health solely due to their incarcerated status. Rather, it
emphasizes the importance of upholding the right to health for all individuals,
irrespective of their circumstances, including those within the criminal justice
system. This approach is consistent with the principles of dignity, non
discrimination, and the promotion of well-being.
201 .
l n the present case, the Complainant alleges that officials of the
Respondent State deliberately i nflicted severe pain and suffering on him,
amounting to acts of torture that have had significant adverse effects on his
health. Furthermore, despite the Complainant's repeated pleas, access to
necessary medical care was unjustly denied. These allegations find support in
the Medical Report, which documents scars on his body consistent with torture
and indicates the presence of Post-traumatic stress d isorder (PTSD) as a result
of the traumatic experiences endured.
202.
The Commission recognizes the seriousness of these allegations, which
raise substantial concerns regarding violating the Complainant's right to
health. The deliberate infliction of severe pain and suffering, coupled with the
denial of access to medical care, not only poses risks to the Complainant's
physical and mental well-being but also undermines core principles such as
human dignity and the prohibition of cruel, inhuman, or degrading h·eatment
as already established by the C01m11ission.
203.
ln the case of Free Legal Assistance Group et al. v Democrati
of Congo, the Commission highlighted that the failure to provide
services, including access to safe drinking water and medicine w
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violates prisoners' right to health. 61 This position underscores the
Commission's recognition that the State is obligated to provide adequate
healthcare and essential services to prisoners. Denying prisoners access to basic
necessities and medical treatment not only undermines their right to health but
also contravenes principles of human dignity, non-discrimination, and the
prohibition of cruel, in.human, or degrading treatment.
The significance of ensuring adequate healthcare, sufficient food, and
204.
proper hygiene within the correctional system was prominently emphasized in
the decision of the Commission in the case of Malawi African Association et
al. v Mauritania. In this particular case, the Commission held the Respondent
State responsible for the deaths of prisoners resulting from a lack of medical
attention, as well as the worsening health conditions of numerous prisoners
due to insufficient provisions of food and inadequate hygiene practices. 62 The
Commission's ruling in the Malawi African Association et al. case underscores
the importance of fulfilling the State's obligation to protect the well-being of
individuals in its custody. It recognizes that the failure to provide necessary
medical attention to prisoners can have dire consequences, including loss of
life. The State has a duty to ensure that prisoners receive timely and appropriate
medical care to address their health needs and mitigate potential risks to their
lives.
205.
Furthermore, the Commission emphasized that inadequate food and
poor hygiene conditions within correctional facilities can significantly impact
prisoners' health. It recognized that access to sufficient and nutritious food and
proper hygiene practices are essential for maintaining good health and
preventing the spread of diseases in custodial settings. Neglecting these aspects
not only infringes upon prisoners' right to health but also diminishes their
dignity and overall well-being.6'.1
206.
The decision in the Malawi African Association et al. case also serves
as a testament to the Commission's commitment to holding states accountable
for the conditions and treatment of individuals within the correctional system.
It reinforces the imperative of upholding prisoners' rights to health, access to
medical care, adequate nutrition, and proper hygiene.
61 Communication No. 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers' Committe
Union lnterafricaine des Droits de /'Homme, Les Temoins de Jehovah v DRC (October 1995) ACHPR
62 Communications No. 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association,
Ms Sarr Diop, Union interafricaine des droits de /'Homme and RADDHO, Co/lee/if des veuves et a
mauritanienne des droits de /'Homme v Mauritania (11 May 2000) ACHPR.
63 ibid
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The Commission's established jurisprudence provides valuable
207.
guidance for interpreling and implementing the right to health concerning
prisoners. They emphasize that individuals should not be denied their right to
health simply because they are incarcerated. Furthermore, they highlight the
State's responsibility to ensure that prisoners have access to appropriate
healthcare and essential services without any form of discrimination.
208. The Commission's recognition of the significance of providing basic necessities,
such as safe drinking water and medicine, reinforces the understanding that the
right to health applies to all individuals, including those within the criminal
justice system. This recognition underscores the State's obligation to safeguard
prisoners' right to health, thereby preserving their dignity and overall well
being.
209.
Based on the preceding, the Commission concludes that the torture
inflicted upon the Complainant by officials of the Respondent State had a
profound and detrimental impact on his physical and psychological well
being. Moreover, the Respondent State's failure to provide the Complainant
with necessary healthcare exacerbated the situation, worsening his condition
and resulting in further adverse physical and psychological health effects.
Consequently, the Commission declares that the actions of the Respondent
State contravene the Complainant's fundamental rights to health, as protected
under Article 16 of the African Charter.
Alleged Violation of Article 1 of the African Charter
2 1 0.
Article 1 of the African Charter stipulates: "The Member States . . . parties to
the present Charter shall recognize the rights, duties, and freedoms enshrined in the
Charter and shall undertake to adopt legislative or other measures to give effect to
them."
21 1 .
The Complainant asserts that the Respondent State failed to initiate
investigations into the allegations of torture against him. The Complainant
contends that this failure on the part of the Respondent State to provide
sufficient protection and redress for the violations amounts to a violation of
Article 1 of the African Charter.
212.
The Commission refers to its ruling in the Jawara v The Ga
wherein it held that Article 1 of the African Charter grants the Ch
binding nature similar to that of international treaties. Conseque
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Email: au-banjul@africa-union.org
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any provision within the African Charter inherently constitutes a violation of
Article 1 itself.64
Furthermore, in the case of Commission Nationale des Droits de
213.
['Homme et des Libertes v Chad, the Commission highlighted that Article 1 of
the African Charter requires States not only to recognize the rights, duties, and
freedoms outlined in the African Charter but also to take measures to
effectively implement them. 65 This implies that if a State fails to ensure the
rights protected by the African Charter, it would constitute a violation, even if
the State or its agents are not the immediate cause of the violation.
214.
Consequently, the Commission conclusively determines that by
neglecting its duty to investigate the alleged acts of torture, the Respondent
State demonsh·ates a lack of commitment to upholding justice and
accountability. The failure to initiate a proper investigation denies the
Complainant the opportunity for justice and perpetuates a culture of impunity.
Such inaction violates the fundamental principles of the African Charter, which
require State Parties to recognize and protect the rights of individuals within
their jurisdiction.
This Commission also opines that a breach of the duty of upholding the
215.
rights, duties, and freedoms outlined in the African Charter constitutes a clear
violation of Article 1 of the African Charter. This opinion underscores the
fundamental significance of State Parties adopting and implementing measures
to ensure the comprehensive recognition and protection of the rights delineated
in the African Charter. The Commission firmly holds that the Respondent
State's disregard for this obligation undermines the principles and objectives
set forth by the African Charter, and failure to conduct investigations and
address allegations of torture directly contradicts this obligation and
undermines the integrity and purpose of the African Charter.
Decision of the Commission on the Merits
2 1 6.
Based on the aforementioned considerations, the Commission declares
the following:
A. The Respondent State has violated Articles 1, 2, 5, 6, 7, 14,
and 16 of the African Charter;
64 Communication 147/1 995, 149/1996 - Sir Dawda K. Jawara v The Gambia para 46.
ss Communication 74/92 - Commission Nationale des Droits de /'Homme et des Libertes v Chad p
49
s' Rights
h District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 OS 04
Email: au-banju l@africa-union.org
31 Bijilo
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B. The Respondent State must promptly investigate, prosecute, and punish the
individuals responsible for the victim's ordeal;
C. The Respondent State should assess and determine the
appropriate compensation to address the harm suffered by
the Victim;
D. The Respondent State should undertake institutional and
practical reforms to ensure that individuals alleging
torture or ill-treatment can effectively pursue complaints.
This includes:
i. Safeguarding the confidentiality and
protection of victims during the
complaint,
investigation,
and
prosecution processes;
11.
Providing adequate medical care and
access to qualified physicians who can
produce medical reports in line with
recognized standards;
iii. Implementing protocols for the secure
retention of medical records of all
detainees and inmates subjected to
torture in detention facilities and
ensuring accessibility to these records
upon request by the victims;
iv. Offering comprehensive training to NISS
personnel on pertinent guidelines
concerning custodial protections, the
absolute prohibition of torture, and the
imperative
of
non-discriminatory
practices in the discharge of their
responsibilities.
iii. Establishing policies for the secure storage of
medical records of torture victims in hospitals
and providing such records to victims upon
request;
iv. Providing training to members of the NISS
on relevant standards regardin
safeguards, the prohibition of tor
discrimination in carrying out their
so
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African Commission on
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v. Establishing an independent complaint
mechanism with the authority to investigate
actions and complaints against law enforcement
personnel, including the NISS.
E. The Respondent State should improve detention
conditions, ensuring access to clean water, food, proper
sanitation facilities, appropriate cell occupancy, and
humane treatment of detainees to align with international
legal requirements.
217.
Despite multiple amendments to the 2010 National Security Act of
Sudan in 2011, 2017, 2019, 2021, 2022, and 2024, the concerns raised by the
Complainant have not been adequately addressed. Therefore, further
amendments are necessary to align the legislation with the provisions of the
African Charter. The Respondent State should consider the following specific
amendments:
1.
ii.
iii.
Protection and access: Either remove arrest and detention
powers entirely or ensure the right to prompt access to legal
representation, medical assistance, and the right to habeas
corpus.
Criminalization of torture: Explicitly criminalize torture in
accordance with internationally recognized definitions and
establish appropriate penalties for such heinous acts.
Combatting impunity and providing remedies: Take effective
measures to combat impunity by repealing immunity provisions
to ensure that victims receive justice and adequate redress for the
harm they have suffered.
218.
The Respondent State should report on the steps it has taken to
implement these decisions in accordance with Rule 125 (1) of its 2020 Rules of
Procedure within one hundred and eighty (180) days.
Done in Banjul, The Gambia, during the 80th Ordinary Session held vir , :
24 July to 2 August 2024.
//
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31 Bijilo Annex Layout, Kombo North District,
West Coast Region, The Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: i!,!!.-baniu l(wafrica-union.or:g
https:/achpr.au.,nt/0 0 a