Decision of the African Commission on Human and Peoples' Rights on Merits
Communication 470/14 - Ibrahim Almaz Deng & 6 Others (Represented by the
Institute for Human Rights and Development in Africa) v. Republic of the Sudan
Summary of the Complaint:
1. The Secretariat received a Complaint on 29 May 2014 on behalf of Ibrahim Almaz
Deng & 6 Others (the Victims), from Institute for Human Rights and
Development in Africa (the Complainant).
2. The Complaint is made against the Republic of the Su dan, State Party to the
African Charter on Human and Peoples' Rights (African Charter).
3. The Victims were identified as Prisoners 1 to 7, namely Ibrahim Almaz Deng
(Prisoner 1), Al Sir Jibreel Teya (Prisoner 2), Mahgou b Ahmed Mohammed Ali
(Prisoner 3), Ibrahim Abdulrahman Safi-Elnour (Prisoner 4), Mohammed
Khamis Dawood Ismail (Prisoner 5), Yahya Abakar Musa Alnur (Prisoner 6) and
Eltoum H amid Tutu Malik (Prisoner 7).
4. The Complainant alleges that Prisoners 1 to 4 were members of a Justice and
Equality Movement (JEM) and were travelling within Darfur in connection with
the peace process and ceasefire agreement that had been signed in Qatar.
Prisoner 5 and 6 were prior to their arrest by the Sudan Armed Forces (SAP),
held by JEM as Prisoners of War. They had been released and were being
transported by a JEM convoy in the same company with Prisoners 1 to 4.
Prisoners 1 to 6 were arrested on 11 January 2011.
5. The Complainant avers that Prisoner 7 was a JEM Commander and Political
Supervisor. He had received Sudan People's Liberation Army (SPLA)
permission to travel in an SPLA vehicle through SPLA controlled areas of South
Kordofan to locate and evacu ate his immediate family from a zone of conflict
between the SPLA and SAP near Boram and Kaduli, Sou th Kordofan. He was
arrested on 11 July 2011.
6. The Complainant states that Prisoners 1 to 6 claim they were tortured by Military
Intelligence of the SAP and that they were interrogated primarily about JEM
military leaders and their locations, the available military supplies of JEM,
logistic details and perceived connections with Colonel Gaddafi of Libya and the
Sudanese leader of the Popular Congress Party.
7. The Complainant alleges that Prisoners lto 6 were later handed into the custody
=---~
of the National Intelligence and Security Services (NISS) in Khartoum wh~
/,, 1,:1' ()'H L«A~
0
I/,/"•,•
1
(.-'
•
•
~ECREt.J,.. .f1,t 4 •
~(i:;=v1
:--,~·,;
'
I
\;!
:>'
• I
-,;,
r
t!: :1, .
.;-,
•
If
1/ .
they claim they were subjected to extreme forms of psychological abuse and
physical torture. They were also subjected to racial insults. Prisoner 1 in
particular, was whipped at least two hundred (200) times a day. They were also
allegedly allowed only three (3) hours or less of sleep and they were forced to
stand with their hands raised.
8. According to the Complainant, Prisoners 1 to 6 were later prosecuted before
Combating Terrorism Courts where they were allegedly denied the proper
environment to defend them selves including presenting defence witnesses of
their choice. On 20 March 2012, Prisoners 1 to 6 were convicted and sentenced
on all charges brought against them with the death penalty.
9. The Complainant avers that on 25 March 2012, an appeal was lodged at the
Tenorism Crimes Appeal Court on the grounds that the Prisoners were not able
to properly present their defence; that the Court did not obser ve the rules
applicable to Prisoners of War; and that the m ajority of witnesses whom the
Court relied on were the soldiers who arrested the Prisoners. According to the
Complainant, on 31 March 2012, the appeal was dismissed and the Court
ordered that the decision be sent to the President of the Republic for approval.
The Complainant alleges that the appeal's Cowt failed to examine the matters
brought before it.
10. The Complainant further avers that on 12 July 2012, an urgent request was
submitted to the Constitutional Court, the highest judicial authority in the
Sudan, to stay the execution of the applicants. Concurrently, the defence
submitted a constitutional challenge on the grounds that the Sudan was a State
Party to the Geneva Conventions of 1948, whose provisions are binding on tl1e
Sudanese Government; and that the trial was not fair because the applicants
were not given a chance to properly present their defence. The Complainant
submits that on 12 July 2012, the Constitutional Court stayed the executions
awaiting its d ecision.
11. The Complainant alleges tl1at on 11 July 2011, Prisoner 7 was arrested in Eltee
village. He was wounded in his head and was unconscious at the time of his
arrest due to injuries sustained following an en counter with the SAF. He was
taken to the Military H ospital in Kaduli, South Kordofan for surgery to remove
shrapnel from his head and body while under military guard. After five (5) days
he was transferred from the Military Hospital and d etained by the Military
Intelligence in Kaduli pending full recovery. The Complainant alleges that the
doctors had ingj.cated that he will require blood transfusion which was denied
by the Mill~
~
'~
"
~E.:.""P-'
•. •":,,;•
,
4
~
I
.,,,,---- .._
/ I · ."
1
:v·\
•
~ , _1 •__ • ~i ,',' :~
6,
..,.,' J
.--~-✓
•
2
12. The Complainant further alleges that while in detention, Prisoner 7 was
allegedly subjected to intense torture and interrogations while standing, despite
his ailing condition. In particular, he was subjected to electric shock, alh;nla-gnmat
or "airplane-takeoff' ,1 racial insults, and application of force including applying
force with pliers on his sexual organs and body. According to the Complainant,
the above treatment coupled with the previous injuries he suffered dwing his
arrest, every beating and torture resulted in him severely bleeding and passing
out. TI1e Complainant states that he lost a lot of blood and continued to be in
immense pain without being afforded any medical treatment care.
13. The Complainant avers that around 21 August 2011, prisoner 7 was transferred
to Police custody, where he was also interrogated in the presence of the Military
Intelligence Officers. The Complainant states that the Police did not review any
of the evidence brought by the Military Intelligence nor introduce a fresh
recording of his statement and witness statements.
14. The Complainant alleges that on 23 August 2011, Prisoner 7 was presented to
Kadugli Criminal Court and was convicted after three (3) days on various
charges and sentenced to death. Prisoner 7 was not allowed proper defence
because he only met his Defence Lawyer on the first day of his Court appearance
for only ten (10) minutes before the trial commenced. The Defence Lawyer
requested for a postponement of the case to allow for preparation and the court
again refused the request. According to the Complainant, for these reasons, the
Defence Lawyer withdrew from the case.
15. The Complainant huther alleges that a hastily continued team of Defence
Lawyers for prisoner 7 on 6 September 2011, submitted an appeal to the Court
of Appeal in South Kordofan State, which only nullified one conviction on
technical gronnds and confirmed all the other convictions including the
imposition of the death penalty. The Complainant submits that the Court of
Appeal failed to follow any proper procedure by immediately transmitting their
appeal decision directly to the Supreme Court for confirmation witl1out
informing the Defence Lawyers. According to the Complainant, the Supreme
Court confirmed the convictions and sentences of the Court of Appeal. A request
for review by the of Defence Lawyers before the same Court was subsequently
rejected on 12 April 2012. The Supreme Court rejection was sent directly to the
President for endorsement, which endorsement was further sent to the Execution
Unit within the High Court to be enforced on 24 May 2012.
16. The Complainant states that on the intended day of the execution, of the Defence
Lawyers presen ted a request to the Supreme Court to stay the execution, which
- j7-.-.
.
/
~
;.
I This involves being raised to the ceiling and concurrently being questioned about supervisory role ' vfEM \,~. ~·
,,,,,.- --
.
3
1·' ~
!
l
\,l
j
•..
j. . :· '
'
!'lt"
- /'',}
•
-: .... ·;
request was granted and the execution delayed for three (3) weeks to allow the
Defence Lawyers to obtain the decision of the Supreme Court and submit the
order from the Constitutional Court stopping the execution. The constitutional
challenge was submitted on 10 June 2012 and the Constitutional Court issued a
decision temporarily staying the execution of Prisoner 7 pending its decision.
17. The Complainant submits that Prisoners 1 to 7 encountered continuous
subjection to cruel and inhuman conditions of post-conviction detention at
Kober Prison. Specific complaints include severe congestion, being restrained by
heavy shackles weighing approximately two (2) kilogrammes, poor sanitation
and lack of medical attention for chronic illness including those recovering from
torttue and beatings, while in the Milita1y Police Custody.
Articles alleged to have been violated:
18. Th e Complainant alleges violation of Articles 1, 2, 3, 4, 5, 6, 7(1) and 26 of the
African Charter.
Prayers:
19. The Complainant requests the Commission to recommend that
a) The Government of the Sudan conducts new trials and that it duly
compensate the applicants for any losses that they have suffered as a result
of torture; detention; and cruel, inhuman and degrading treatment.
b) The Government of the Sudan takes necessary measures to ensure that law
enforcement authorities do not engage in torture and acts that are cruel,
inhuman and degrading.
c) The Government of the Sudan takes necessary measures to reform and
rehabilitate all places of detention and prisons to meet acceptable standards
as provided in the Charter.
d) The Government of the Sudan takes necessary measures to ensure the
independence of the Judiciary.
Procedure:
20. The Secretariat received the Complaint and a request for Provisional Measures
from the Complainant on 29 May 2014, and acknowledged receipt of the same
on 2 June 2014.
21. On 5 June 2014, the Commission informed both parties of its decision to be seized
of the Communication and granted the Provisional Measures. It also requested
the Complainant__to submit its arguments on Admissibility of the
Communica;n~ •• --:- ~~ ,
I
.~.
•
.,,,-·· - .
I
,
'
- ~)} r):
11
{ •t
/ •~ IJ
.....
-·
,
:· .• - /
'---~
4
22. Admissibility submissions were received by the Commission on 20 August 2014
and an acknowledgment letter and a Note Verbale transmitting the submissions
to the Respondent State for its observations were dispatch ed on 25 August 2014.
23. On 19 March 2015, after the 17th Extra-Ordinary Session held from 19 - 28
February 2015, the Commission through a letter and a Note Verbale informed
both parties of its decision to grant a gen eral extension of 30 days to all
Respondent States who had pending submissions before the Commission.
24. On 5 May 2015, the Respondent State submitted on Admissibility, which was
acknowledged and transmitted to the Complainant on 12 May 2015.
25. On 9 June 2015, the Respondent State made its observations on the Admissibility
of the Communication. The observation s of the Respondent State were
transmitted to the Complainant for its observations on 24 June 2015.
26. On 10 July 2015, the Secretariat received the Complainant's observations and
acknowledged receipt of the same and transmitted it to the Respondent State.
27. On 26 August 2015, both parties were informed about the deferral of the
consideration of this Communication on Admissibility at the 18th Extra-Ordinary
Session.
28. On 25 November 2015, both parties were informed about the deferral of the
considera tion of this Communication on Admissibility at the 57th Ordinary
Session.
29. On 12 July 2016, the Commission informed both parties of its Admissibility
decision. It also requested the Complainant to submit its arguments on the
Merits of the Communication.
30. By letter dated 27 October 2016, the Complainant submitted its arguments on the
Merits and by Note Verbale dated 22 November 2016, the submissions were
forwarded to the Respondent State.
31. On 5 Ma1·ch 2018, the SeCl'etariat informed the parties that the Respondent State
had been granted an extension of thirty (30) days within which to submit on the
Meli ts, failing which the Commission would proceed to determine the matter on
the basis of the available informa;i,~
~
I
~
';.t
..,
r
•
.. .. .
- ...... ,
J
( ./ , . .).l t
i"'
,,
5
/
',.
h'Jj
1
32. On 9 October 2018, the Secretru.iat informed the pru.·ties that the Respondent
State's allocated time for submission had expired and the Commission's decision
on the Merits once taken, will be com.mwlicated to both parties.
33. A decision on the Merits was deferred from the 59th to 70th Ordinary Sessions.
Request for Provisional Measures
34. On 29 May 2014, the Complainant at the time of filing the Complaint, also
requested for Provisional Measures on the basis among other things of torture,
breach of fair trial guarantees and the imposition of the death penal ty on the
Victims. On 5 June 2014, the Commission in accordance with Rule 98 of its Rules
of Procedure considered the request and decided to grant the provisional
measures.
35. The Provisional Measures requested the Respondent State to inter alia suspend
the execution of the death sentences imposed on the prisoners while the matter
was being considered by the Commission.
36. The Provisional Measures also requested the Respondent State to report on the
implementation of the Provisional Measures witllin fifteen (15) days of receipt of
the Request, in accordance with Rule 98(4) of its Rules of Procedure.
37. On 3 December 2015, the Commission re-issued the Provisional Meastues after
the Respondent State failed to report back in accordance with Rule 98(4) of the
Commission's Rules of Procedures.
The Law on Admissibility
Arguments of the Complainant on Admissibility
38. The Complainant submits that all the criteria under Article 56 of the African
Charter have been satisfied. TI1e Complainant submits that:
a) Article 56(1) of the African Charter has been satisfied since the identity and
the full address of the Complainant has been furnished to the Commission;
b) Ar ticle 56(2) of the African Charter has been satisfied since the
Communication is compatible with the Constitutive Act of the African
Union and with the provisions of the African Ch arter;
c) Article 56(3) of the African Char ter has been satisfied since the
Commwucation has been written in clear, simple and precise language with
no intended or actual disparaging language against the Respondent State,
its institutions or the African Union and its institu!j_o.Ai~
/'
..
6
--J;\ ..
·:)·;:·~~~
4
-
I.,,,
{
.J (
:
...
'. , .,
.J.
•
~;Ji-
-
_:,, ..1/J
:~ I/
-· /
-----
d) Article 56(4) has been satisfied since the Communication is not based
entirely on news disseminated through mass media but also via information
obtained from court decisions, court affidavits and written statements from
the P1·isoners and their lawyers;
e) Article 56(6) has been satisfied since the Communication was brought within
a reasonable time from the time local remedies were exhausted, or from the
date the Commission was seized with the matter;
f) Article 56(7) has been satisfied since the Complaint has not been submitted
before any other procedure of international investigation or settlement.
39. With regards to A1ticle 56(5) of the African Chartel', the Complainant makes two
main contentions, namely that fair trial guarantees are lacking and thus the local
remedies are unavailable, ineffective or insufficient; and that local remedies are
unduly prolonged.
40. The Complainant submits that local remedies ai·e unavailable, ineffective or
insufficient because: (a) in the Respondent State, the independence of the
judiciary is in question especially in matters that are considered political, as the
Executive has continued to intel'fere with the operations of the judiciary; and (b)
in accordance with the jurisprudence of the Commission, the available remedies
are not effective due to the absence of fair trial guarantees.
41. The Complainant submits that the Anti-Terrorism Act of 2001 establishes the
special crimes courts and its Judges are politically aligned with the Respondent
State or affiliated to the NSIS. The Complainant further submits that according
to the report by Amnesty International, since the establishment of the special
crimes comts in 2001, the trial are usually summary in nature and that the target
have been persons from the Darfur region. 2
42. The Complainant submits that the rules of procedure under the Anti-Terrorism
Act (82/2008) are in breach of fair trial procedures, including rule 6(d) which
allows the court to convict the accused person even when not represented by a
lawyer; Rule 18(a) which requires prior submission of witness statements before
the witnesses can appear before the cowt;3 Rule ll(b) which allows for the
admission of self-incriminating evidence before the court; Rule 20(c) which
empowers the court to accept hearsay evidence dming the trial process; Rule 21
allowing for only 7 days appeal period, which is shorter compared to the 15day
appeal period of a normal criminal proceedings; and Rule 25 which exempts the
court from ~~wing the 1991 Criminal Procedure Act and Sudanese Law of
Evidence~:: - ,~---,~
/
• '
-
....t(k";
1 •'
.,
.
,"'
'
2 Amnesty lntemational,'Sudani;Speclal Courts in Darfor, page 1, 2014
3 Out of 18 witnes es proposed by: ti e ,~~rnce team only one witness was allowed to testify by the court in tlte present
~
case
I
-,· l
/
1
43. The Complainant submits that the remedies are not effective in the Respondent
State since there is lack of procedural fairness and lack of equality of arms.
44. The Complainant submits that the Terrorism Crime Appeal Court failed to
consider the grounds of appeal raised by the defence lawyers and endorsed the
procedure, conviction and sentences imposed on the prisoners as having been
compliant with the Anti-Terrorism Act and the extraordinary rules of procedure.
45. The Complainant submits that since the anti-terrorism courts deny ordinary
courts the jurisdiction to determine cases in the Respondent State's jurisdiction,
local remedies are n on-existent, ineffective and illusory as was determined
under the Constitutionnl Rights P1'oject v Nigeria4 .
46. The Complainant submits that with regards to Prisoner 7, since he had no legal
representation, he had no knowledge about the status of his case as it sailed
through the Court of Appeal, the Supreme Court for confirmation and to the
President for assent.
47. The Complainant submits that given the trial history of the prisoners, the appeals
pending before the Constitutional Court are unlikely to be successful since the
right to fair trial has been violated which should be applied concomitantly with
the provision to exhaust local remedies as was determined in Amnesty
International, Comite Loosli Bachelard, lawyers' Conzmittee for Human Rights,
Association of members of the Episcopal Conference of East Africa/Sudan.
48. The Complainant further submits that, in practice, once a decision is reached by
the Constitutional Court, the President has to first ratify it. The Complainant
further submits that the process of ratification by the President is discretionary
and in principal should not be exhausted in accordance with Constitutional
Riglzts Project v Nigeria,s where the Commission declared such discretionary
remedies to be neither adequate nor sufficient.
49. Lastly, from records filed by the Complainant, the current cases have been
pending before the Constitutional Court of the .Re~:eondent State since July 2012
for Prisoners 1-6 and June 2012 for Priso;9 ~ T _'t ..'' -:
/,
\
)
-
--·
~ ACHPR Communication 60/91
s ACHPR Communication 60/91
8
~)/\.
,., .,
~~
/
I
Arguments of the Respondent State on Admissibility
50. The Respondent State submits that the Victims were accused and convicted by
an ordinary court of law under the Criminal Act 1991 and Anti-Terrorism Act
2001 on various offences including sabotage and terrorism.
51. The Respondent State submits that the Communication is inadmissible since
Article 56(5) of the African Charter on the exhaustion of local remedies had not
been satisfied because the present Communication is currently pending before
the Constitutional Court in accordance with Article 122(1) of the Interim
Constitution of the Respondent State.
52. The Respondent State submits that pursuant tc Article 119(1) of t:he Interim
Constitution of the Respondent State, the Judges sitting at the Constitutional
Court, which has a.heady stayed the execution of the Prisoners, are selected on
the basis of sufficient experience, proven competence, integrity, credibility and
impru.- tiality. The Constitutional Court is therefore independent from the
Legislature and the Executive, and separate from the National Judiciary.
53. The Respondent State submits that all justices of the Constitutional Court are
appointed by the President of the Republic following the recommendation of the
National Judicial Service Commission and subject to the approval by a twothirds majority of all the representatives at the Council of States, the Upper
House of Parliament.
54. The Respondent State su bmits that no fair trial guarantees were breached and
that the trials were conducted in accordance with the relevant laws and that the
accused were defended by a lawyer.
55. The Respondent State submits that the allegations of human rights violations are
currently under consideration before the Constitutional Court.
56. Th e Respondent State submits that the Complainants could also exhaust another
remedy which is available - that of petitioning the President to use his
prerogative power of pardon available under section 208 of the Criminal
Procedw·e Act, 1991. According to section 209, this power includes the
suspension of sentence or the dropping of conviction. The Complainants have
yet to choose this direction.
Additional Submissions of the Complainant on Admissibility
57. The Complainant concedes that the current cases are still pending before the
Constitutional Cou1t but reiterates that they have been pending since Jul¥_,2Q',l~
/
I
9
.
t"•'
,
,,,.,
:--..,
, ......
. -•·-·-... .• ... )
and that the execution of the Prisoners 1-7 will happen immediately a decision
is taken by the Constitutional Court.
58. The Complainant submits that the above scenario is more probable since the
authorities in the Respondent State executed on 13 April 2009 9 Darfw·is despite
appeals emanating from the international community.
59. The Complainant reiterates that fair trial guarantees were not observed by the
Respondent State particularly with regards to the special crimes courts
established under the Anti-Terrorism Act of 2001.
60. The Complainant also submits that the presidential pardon available under
Section 208 of the Criminal procedure Act is a prerogative power and therefore
discretionru:y or non-judicial and as such n eed not be exhausted in accordance
with Article 56(5) of the African Charter.
Analysis of the Commission on Admissibility
61. Article 56 of the African Charter sets out seven requirements that a
Communication brought under Article 55 of the African Charter must satisfy in
order to be declared Admissible for consideration by the Commission. Those
requirements apply conjunctively and cumulatively. 6 Failure to satisfy any one
or more of those requirements renders the Communication inadmissible, unless
the Complainant provides sufficient justifications as to why any of the
requirements could not be met.7
62. Having reviewed all the su bmissions from both parties, the Commission
considers that the requirements under Article 56(1), (2), (3), (4), (6) and (7) have
been satisfied.
63. There.fore, the Commission will focus its analysis on Admissibility on the
requirement under Article 56(5) on the exhaustion of local remedies. In Sir Dawda
K. Jawarn v. The Gambia, the rule on exhaustion of local remedies was established
by the Commission as consisting of three main criteria, namely: the remedy must
be available, effective and sufficient. 8 Consequently, 'a remedy is considered
available if the petition er can pursue it without impediment, it is deemed
effective if it offers a prospect of success, and it is found sufficient if it is capable
of redressing the complaint.'9
6
Rule 106, Rules of Procedure of the Commission, 2010; Communication 304/05 - FJDH & Others v Senegal (2006)
ACHPR
7 Conunw1ication No. 275/2003 - Article 19 vs. Eritrea (2007) ACHPR
8
Communication H7./2.5:aiw 149/96 - Sir Dawda K. Jawara v. The Gambia (2000) para 31
•
9 As above, pai:a'32 ••
. • ',
/
I
..,.•
.
- ,
'
/-: - / ),j:
) :, ,
\
- .. /
--·,../
10
64. First, local remedies should be exhausted it they are available. The Respondent
State observes that both the Constitutional Court and the Presidential Pardon are
available and that the Complainants are free to exhau st them. On its part, the
Complainant concedes that the current cases are currently pending before the
Constitutional Court. The Constitutional Court remedy is therefore available,
but as will be shown later its effectiveness has been challenged by the
Complainant.
65. On Presidential Pardon, pursuant to sections 208 and 209 of the Criminal
Procedure Act, 1991, the President of the Respondent State may pardon any
person convicted of a crime by either suspending or dropping the conviction.
While this remedy is available, the fact that it usually entails discretionary
exercise of power by the Executive makes it eligible for exemption as constituting
part of the remedies contemplated under Article 56(5) of the Charter. Indeed, as
pointed out by the Complainant, in Constitutionnl Rights Project v Nigeria,10 the
Commission declared the discretionary powers of the Governor under the
Robbery and Firearms Act 'to confirm or disallow the conviction of the Special
Tribw1a1', even though available, are not contemplated for exhaustion under
Article 56(5) of the African Charter.11 Accordingly, the Commission also finds
that the Presidential Powers of Pardon available under the Criminal Procedure
Act, 1991, are discretionary and therefore are exempted from exhaustion.
66. Local remedies should be exhausted if they are effective. As seen above, the
Constitutional Court remedy is available. However, the Complainant has
challenged its effectiveness arguing that the judicial system in the Respondent
State lacks fair trial guaran tees and independence. The evidence adduced by the
Complainant however touches on the rules of procedure enacted under the AntiTerrorism Act of 2001. In effect, according to the Complainant, these rules
introduce irregular court procedures bereft of fair hial standards in the context
of anti-terrorism. Relying on the fact that the Victims right to fair trial had been
violated at the trial stage, the Complainant argues that the Constitutional Court's
remedy is unlikely to be effective.
67. The Respondent State on its par t has refuted the above claims noting that the
recruitment of Judges in its territory is subject to the participation of the National
Judicial Service Commission and approval by two-thirds majority of
representatives at the Council of States, the Upper House of Parliament. The
Constitutional Court is also established outside the judiciary but is independent
from the Executive and the Legislaty,re: .~~>,
/
/' • •) ,
10 ACHPR Communication 60/91
11
~.. ~•-: . ...,,~.)
,,,.,. -,
ACHPR Communication 60/91
11
-#
--- ___ ,
/
l'J
,., ;;/
··, I
68. It appears to the Commission that the problem lies principally at the special
crimes court in terms of its independence and rules of procedure. But, as
observed above, the remedy that is available is the Constitutional Court. While
allegations of fair trial violations have been made at the trial s tage, the
Complainant has not presented any evidence touching on the Constitutional
Court In the absence of enough evidence to support the allegations of
effectiveness at the Constitutional Court, the Commission has no basis to find
the forum not effective. In An.uak Justice Council v. Ethiopia, the Com.mission
clarified that the ' underly ing question is wh ether the case is a subject matter of
the proceedings before the African Com.mission and whether it is aimed at
granting the same relief the Complainant is seeking before this Commission. As
long as a case still pending before a d omestic court is a subject matter of the
petition before this Commission, and as long as this Commission believes the
relief sou ght can be obtained locally, it will decline to entertain the case.'
69. The third criterion is whether the remedy is sufficient. In order for the remedy
to be sufficien t, it must be capable of redressing the Complaint. From the
submissions of both the Complainant and the Respondent State, it appears that
the Constitutional Court has powers to overturn the d ecision of the subordinate
courts if it finds that appropriate. Moreover, it h as already issued a stay of
execution and as such the remedy is d eemed sufficient.
70. In this respect, local remedies were available, effective and sufficient; and the
Complainant failed to exhaust local remedies.
71. Before the failure of n ot exhausting local remedies can be used as a basis for
declaring this Communication Inadmissible, Article 56(5) of the Charter also
requires the Commission to satisfy itself that the local remedies should not be
unduly prolon ged.
72. From the facts of the present case, the Prisoners filed two cases before the
Constitutional Court of Sudan in July 2012, whose d ecisions are still pending.
The Respondent State has confirmed in its submissions the existence of the
Constitutional Court cases in its jurisdiction. The question before the
Commission is whether the local remedies have been unduly prolon ged.
73. The Commission h as in the past considered that the remedies wer e unduly
prolonged after diverse periods of time such as: one year eight months in the
case of Knbambi v. tlze Democratic Republic ofCongo;12 ten years in the case of Modise
v. Botswann; 13 and five years in the case of Association of Victims of Post Electoral
12 As above, para 47
-:,
13 Communication 185/2002 - Modise v. Botswana (2000), ACHPR, para 69
,,
12
\
Violence and Interights v. Cameroon. 14 The time frame therefore may vary from case
to case.
74. In order to guide itself on this issue, the Commission has further developed three
criteria to be applied in this context, namely: the legal time limits prescribed by
the d omestic law; the facts of the case; and the specific circumstances of the
Complainants.15 For instance, in Abubnker Ahmed Mohamed nnd 28 others
(represented by X and Y) v. tire Federal Democratic Republic of Ethiopia, since the legal
system provided for a one month period for the consideration of cases by the
Council of Constitutional Inquiry before they were submitted to the House of
Fed eration for a d ecision the eight months in the case delay was W1tenable. 16
75. The Constitutional Court is establish ed under Article 105(2) (b) of the
Constitution with the mandate to, amon g others, ' decid e upon claims by
aggrieved persons for the protection of liberties and rights which are guaranteed
by the Constitution .' Under Article 105(3) of the Constitution, the court
procedures are to be determined by a separate law. The relevant law is The
Constitutional Court Act of 1998. Section 21 of the Act dealing with the
Judgments of the Constitutional Court also fails to provide for time frame with
regards to the conclusion of matters before it. It also fails to mention expedien cy
or similar words. In conclusion, therefore, the legal framework is silent on the
issue of timeframe. It is therefore important to rely on the other criteria before
concluding on this issue.
76. Factually, the cases filed at the Constitutional Court were more than two years
old when the Complainants approached the Commission . The period is now
cumulatively over three years. In the absence of evidence explaining on e way or
the other the delay of over two years, the Commission considers the delay
appearing on record could and should in the present circumstances be
considered as amounting to prima facie evidence of W1due delay by the
Respondent S tate.
77. Lastly, the circumstan ces of the Prisoners are such that, as explained in the
Provisional Measures, there are allegations of continuous subjection to cruel and
inhuman conditions including: congestion; being restrained by heavy shackles
weighing approximately 2 kilogrammes; poor sanitation; lack of medical
attention for chronic illness and those recovering from torture; and bea tings
while in military police custody. While the Commission is not able to reach a
14 Communication 272/03 - Association of Victims of Post Electoral Violence and lnterights v. Cameroon (2009),
ACHPR, para. 47
1s Communication 408/11- Jose Alidor Kabambi Beya Ushiye and others v. Democratic RepubUc of Congo, ACHPR,
para 40
16 Communication 455/13, para ~?-4
--,
,.
13
conclusion as to the above claims it seems that there is a probability that the
circumstances under which the Prisoners are being held are not desirable. The
fact that Prison er 7 was injured in the head during arres t also compounds the
situation faced by th ese Prison ers.
78. Since local rem edies have been unduly prolonged at the Constitutional Court,
the Commission grants the Complainant an exemption from the requirem ent to
exhaust local remedies. Accordingly, the Commission finds tha t the requirement
of Article 56(5) has also been fulfilled.
79. For these reasons, the Commission declares this Communication Admissible.
Merits
The Complainant's submission on the Merits
Alleged Violation of Article 4 of the African Charter
80. The Complainant submits that if the Sudan canies out the death penalty on
Prisoners 1 to 7, it would amount to a violation of their rights to life as protected
under article 4 of the African Charter. The Complainant cites the Commission's
decision in Communication 277/03 Spilg and Mack & DITSHWANELO (on behnlf of
Lehlohonolo Bernard Kobedi) v. Botswan a,17 where the Commission held that the
imposition of capital punishment in breach of the due process guarantees under
article 7 of the African Charter constitutes a viola tion of the right to life. The
Complainant also refers to Co11111111uicntiou 137/94-139/94-154/96-161/97
lnternationnl PEN, Constitutional Rights Project, Civil Liberties Organisation and
lnterig/Jts (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, wh ere the Commission held
that if the trials which ordered the execution, is itself in violation of the fair
hearing standards in article 7, any subsequent implementation of sentences
renders the resultin g deprivation o( 1ife arbitrary and in violation of article 4 of
the Africa11 Charter.
81. The Complainant argues that international law requires that the death penalty
when applied W1der a legal system should only be imposed as a result of a fair
trial. The Complainant submits that the trial which resulted in the sen tences
passed on Prisoners 1 to 7 fell grossly short of the fair trial guarantees in article
7 of the African Charter and the Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa (The Principles and Guidelines on Fair Trial).
TI1us any executions carried out pursuant to the judgmen t in those trials would
amoun t to a violation of the rights to life of Prisoners 1 t0'7. ---...,,
//'
..,
17 Para 201
14
.
. '
Alleged violation of Article 5 of the African Charter
82. The Complainant submits that Article 5 of the African Charter provides for every
individual to have the right to the respect of the dignity inherent in a human
being. It further provides that all forms of exploitation and degradation of man,
particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited. The Complainant further submits
that the International Covenant on Civil and Political Rights (ICCPR) also
provides in article 7 that no one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishmen t.
83. According to the Complainant, neither the African Charter nor the ICCPR
contains a definition of torture. However, the Convention against Torture (CAT)
defines torture as:
"nny net by which severe pain or suffering, whether physical or
mentnl, is intentionally inflicted on a person for such purposes as
obtaining from him or n third person information or a confession,
punishing him for nn net he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in nn official cnpncihJ. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions. ''18
84. The Complainant states that this definition is regarded as the customary law
definition of torture and has been accepted and applied by the Commission.19
The Complainant argues that the right to freedom from torture is a nonderogable right and the duty not to subject individuals to torture, is universally
recognized that it constitutes an ergnonmes obligation. Accordingly, it is an
obligation owed to the whole world. 20 The Complainant argues that in the
context of criminal procedures, human rights law recognizes that suspects of a
crime should not be tortured to obtain a confession.
85. Consequ ently, confessions obtained by using torture should be inadmissible in
the courts of law. 21 Accordin g to the Complainant, despite these legal safeguards
against using torture on suspects, the agents of the Government of Sudan acting
1
3Article 1(1) Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment
Communication 279/03-296/05 Sudan Human Rights Organization & Centre on Housing Rights and Evictions
(COHRE) v Sudan. At para 155
20 368/09 Abdel Hadi, Ali Radi& Others v Republic of Sudan
21
Article 29, Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa; Article 15 ~T
19
15
..
I
in official capacity tortured prisoners 1 to 7, for the purpose of forcing them to
make a confession to having participated in terrorist activities. The Complainant
submit that the acts carried out by the Respondent State's agent meet the
tlu-eshold of constituting torture.
86. The Complainant states that the torture inflicted by the Milita1y Intelligence on
Prison ers 1 to 6 included the prisoners' hands, arms and legs being tightly bound
behind tl1eir backs; physical and psychological abuse including racial insults and
continual beatings with sticks and hippo-hide whips. According to the
Complainant, wih1esses testified to h aving seen signs of torture on the prisoners
including that Prisoner 1 had a broken arm and a severely inflamed eye while in
State custody and was put in solitary confinement for ten (10) months, despite
there being no indication that he was a threat to other inmates; and Prisoner 3
had bruises on his ear and h e complained of pain in his stomach. The
Complainant submits that the torture resulted in severe health consequences for
the prisoners. Accordingly, the health condition for Prisoners 1, 2, and 3
deteriorated significantly; Prisoner 1 suffers from problems with the kidneys and
inflammation of the eyes; Prisoner 2 suffers from gout, his legs a1·e swollen and
he h as heart problems. The Complainant further submits that despite these
health conditions, tl1e prisoners were not provided access to medical care.
87. The Complainant states that while Prisoner 7 was in the custody of the Military
Intelligence at Kaduli, he was subjected to intense torture and interrogation,
including being forced to talk for lon g hours while standing despite his severe
injuries for more than four (4) days; subjected to electric shock on his body and
extensively flogged with a hippo-hide whip; use of a method called alh;arn-gamat
"airplane-takeoff', with Prisoner 7 raised to the ceiling and concurrently being
questioned on his role as a JEM supervisor; use of force with pliers on his sexual
organs and body; and subjection to racial insults of his family and tribe such as
being told that black Sudanese people were slaves and inferior to Sudanese
Arabs.
88. The Complainant submits that these acts of beating or torture on Prisoner 7
resulted in bleeding and losing consciousness under immense pain with n o
medical h·eatment. The Complainant argues that the Commission has previously
fow1d that some of the acts that Prisoners 1 to 7 were subjected to constitute
torture. For instance, beating individuals and forcing them to make a
confession,22 keeping suspects in chains and locked up in overpopulated cells
22379;09 MonimElgak, Osman Hummeida ai,d Amir Stillman (represented by FIDH and. OMCT) v Sudan, paras98101; 368/09 Abdel Hadi, Ali Radi& Others v Republic of Sudan, paras 70- 73 • • ·' • ..
t•
16
•
,,
"'
lacking hygiene,23 and denial of access to medical care,24 have all been held by
the Commission to constitute acts of torture.
89. Furthermore, the Complainant submits that the conditions of d etention (postconviction) amount to cruel and inhuman treatment and punishment as per
Article 5 of the African Charter. The Complainant argues that all of the prisoners
were tortured, not allowed contact with their families or lawyers for about nine
(9) months and refused medical attention. The Complainant submits that this
extreme form of punishment, is in clear violation of Article 5 guarantees. For
these reasons, the Complainant submit that the Republic of the Sudan has
violated the rights of Prisoners 1 to 7, to freedom from torture under article 5 of
the African Charter.
90. The Complainant states that human rights law also imposes an obligation on the
Sta te to investigate all allegations of torture by State officials and even private
actors. 25 The Complainant submits that Article 1 of the African Charter read
together with article 5 imposes an obligation on the State to investigate violations
of the right to freedom from torture. In support of its argument, the Complainant
refer to the Resolution on Guidelines and Meastues for the Prohibition and
Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment
in Africa ( Robben Island Guidelines) which provide that States are to ensure the
establishment of readily accessible and fully independent mechanisms to which
all persons can bring their allegations of torture and ill-treatment;26 States should
investigate all claims of torture that come to the knowledge of State authorities;
and that such investigations shall be conducted promptly, impartially and
effectively. 27 The Complainant also refers to General Comment No. 2 of the
United Nations Committee against Tmture, which also provides for States to
carry out investigations into claims of torture by both State officials and nonState actors and to ensure that such perpetrators of torture are punished
accordingly. 28
91. The Complainant submits that despite the govenlment's knowledge of the
claims of torture made by Prisoners 1 to 7, it did not take any steps to investigate
the acts of torture that the prisoners were subjected to. Consequently, no one has
been held responsible or punished for torturing the prisoners, and this according
2364/92-68/92-78/92._8AR Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton
and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) / Malawi, para 7; 137/94-139/94154/96-161/97 lnternational PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on
behalf of Ken Saro-Wiwa Jnr.) v. Nigeria. Paras 80- 81
24 Ibid
25368/09 Abdel Hadi, Ali Radi& Others v Republic of Sudan, para 76
26Articles 17 -18 and 40
27 Article 19
28 Paras 15 and,18
/
17
to the Complainant, is a violation by the Government of the Sudan of the rights
of Prisoners 1 to 7, under article 5 read together with ,uticle 1 of the African
Charter
Alleged Violation of Article 7 of the African Charter
92. The Complainant submits that Article 7 of the African Charter guarantees for
everyone the right to have his/her cause heard. This includes:
n. The right to nn appeal to competent nationnl organs agninst acts
of v iolating his ftmdatnentnl riglzts ns recognized and
guaranteed by conventions, laws, regulntions and customs in
force;
b. The right to be presumed innocent until proved guilti; by n
competent court or tribunal;
c. The right to defence, including tlze right to be defended by
counsel of his choice;
d. The right to be tried within n 1·easonable time by nn. impartial
court or tribunal."
93. The Complainant refers to Article 14 (1) and 14 (3) of the ICCPR and the
Principles and Guidelines on Fair Trial which lay down essential elements of the
right to a fair t:.tial29, noting that the present case discloses several violations of
these fair trial gu arantees.
Prisoners 1 to 6
94. Regarding Prisone.rs 1 to 6, the Complainant argues that one of the fundamental
elements of a fair trial is to be tried before an impa.rtial and independent court.
According to the Complainant, Prisoners 1 to 6 were b·ied under Anti-Terrorism
laws and in coUJ·ts established under the Anti-Terrorism Act (2001). The
Complainant states that the cou rts are crimes courts and the judges selected for
these courts are well-known to be politically aligned with the Governmen t of
Sudan or affiliated with the National Security and Intelligence Services. The
Complainant cites the Amnesty International report about the Special Courts in
29 " [i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shaU be entitled to a fair and public hearing by a competent, independent and impartial tribw,al
established by law." These include that respect for lhc inherent d ign ity of the human persons, espedally of women
who pc1rlicipale in legal proceedings as complainc1nts, wiLnesses, victims or accused; adequate 01,portunity lo prrpare
a c,1s1>, prrsenl ,H·gum<>nts and rv idence and lo challenge or respond lo opposing arguments or evidence; an
entillemenl to consult a.nd be represenl~d by a leg,tl representative or otl1er qualified persons chosen by the pMI)' al
all st<1ges of Jhe proceedings; an entitlement lo have a party's rights illld obligations affecl-cd onlr by a decision based
solely on evidence presented lo U,e judiciill body; an enlillcmenl to a delerminalion of their rig hts and oblig,Hions
without undue dewy and with adequate notice of and rt>asons for the decisions; and .=tn entitlement to an .ippeal to"
higher judicial body,"
18
Darfw· which states that, "the presence of members of securittJ ns judges' calls into
question the independence of the judiciary. Trials in these courts are s11mmnnJ and death
sentences have been Jumded down in trials which lasted only an hour."30 The
Complainant submits that since being established in 2001, all accused persons
who have been arraigned before these special courts are from Darfur, JEM, and
other military movements. Despite the fact that other Sudanese have committed
similar offences, they were not tried before these courts, which is an obvious
selective application of the law.
95. The Complainant states that these Anti-Terrorism cowts operate under the Rules
of Procedw·e of Anti-Terrorism Act (82/2008), which established procedures
contrary to those applied in normal courts. Regulations in these courts have
deprived the p risoners of the right to effective defense counsel as only one
lawyer is allowed to represent them; these cow-ts are hll'ther empowered to
decide on the witnesses who testify on behalf of the accused persons, and if the
court decides on a procedural issue, that decision is final and not appealable.
96. The Complainant submits that the rules of procedure under the Anti-Terrorism
Act (82/2008) are in breach of fair trial procedw·es, including rule 6(d) which
allows the court to convict the accused person even when not represented by a
lawyer; Rule 18(a) which requfres prior submission of witness statements before
the witnesses can appear before the court;31 Rule ll (b) which allows for the
admission of self-incriminating evidence before the cowt; Rule 20(c) which
empowers the court to accept hearsay evid ence during the trial process; Rule 21
allowing for only 7 days appeal period, which is shorter compared to the 15 day
appeal period of a normal criminal proceedings; and Rule 25 which exempts the
court from following the 1991 Criminal Procedw·e Act and Sudanese Law of
Evidence.
97. The Complainant avers that during the trial of Prisoners 1 to 6 at the Court of
first instance, the presiding judge continued with the trial proceedings and
convicted the prisoners in the absence of their Defense Lawyers; the prisoners
brought fifteen (15) witnesses to testify but the presiding judge only afforded one
(1) defense witness to present a statement; Prisoner 2's statements given while
under d w·ess were used to convict him and h is co-accused; the court depended
on one witness who came and testified that he heard that Prisoners 1 to 6 had
hijacked vehicles; the court did not subpoena nor hear the testimony of several
JO Amnesty International Press Release, "Sudan: Incommunicado Detentions, Unfair Trials, Torture and Ill-treatmentThe Hidden Side of the Darfur Conflict"', available at
hllps:// www .amnesty.org/ downlo11d / Docu ments/92000/c1fr540642004en.pdf, accessed on 19 September 2016.
3 1 Outof18 witnesses proposed by the defence team only one witness was allowed to testify by the court in the
case
present
,.·
19
'
.I'
witnesses, but instead relied exclusively on the statements by the police without
provision of oral testimony; and the Cow-t convicted the accused without any
evidence to corroborate the police witnesses testimonies. The Complainant
submits that the appeal for prisoners 1 to 6 had to comply with the 7 days appeal
pe1·iod despite the fact that the trial record had over 200 pages that the Defense
Lawyers had to read.
98. The Complainant ai·gues that in addition to all the aforementioned rules of the
Anti-Terrorism Court that breaches the standard court rules of evidence and
criminal procedw-e, Rule 25 explicitly gives the Anti-Terrorism Court powers not
to follow the 1991 Criminal Procedw·e Act and Sudanese Law of Evidence which
provide for better fair trial gua1·antees. The Complainant submits that the AntiTerrorism Courts in which the prisoners appeared did not take into account the
conditions of treatment, the forced confessions, and the torture of the prisoners,
nor the procedural irregularities in court against the prisoners. The Complainant
ru·gues that the prisoners were denied a fair trial and no effective remedy could
have existed in light of the pervasive procedw·al unfairness of the trials.
99. Additionally, the Complainant submits tl1at contrary to the Article 7(1) of the
African Charter and Principle 2(£) of the Principles and Guidelines on Fair Trial,
the Defense Lawyers for Prisoners 1 to 6 were only able to see the prisoners for
the first time at their initial appearance before the special Combating Terrorism
Courts on October 18, 2011, nine (9) months after their arrest. The Defense
Lawyers argued for needing additional time to consult with the prisoners and
prepare the details of their defense, especially when there was a possibility of
severe punishment, however the Court only granted a one (1) week
postponement to the start of the trial The Complainant submits therefore that
the prisoners' right to consult with their legal representatives was therefore
violated.
100.
The Complainant states that the Court issued the Defense Lawyers a letter
authorizing them to meet with Prisoners 1 to 6 every Wednesday. However, in
practice, legal visits with the Prisoners 1 to 6 were permitted only for one (1) to
two (2 hours each week and every meeting between the prisoners and their
Defense Lawyers were held under close supervision by tl1e National Intelligence
ru1d Security Service (NISS), contrary to Principle M (2) (e) (g) and N (3) (e) of the
Principles and Guidelines on Fair Trial. The Complainant further states that the
prisoners' families were also only permitted to visit the prisoners once a week.
The Complainant submits that the prisoners' lawyers should also be present
during questioning, in particulru· to ward against involuntary confessions.
20
101.
The Complainant fwther submits that the Human Rights Committee states
in its General Comment 32 on the Right to Equality before Courts and Tribunals
and to a Fair Trial that:
Tlze right to communicate with counsel requires that the accused
is granted prompt access to counsel. Counsel should be able to meet
their clients in private and to communicate with the accused in
conditions that fully respect the conftdentinlihJ of their
comnwnicntions. Furthermore, lawyers should be able to advise and
to represent persons charged with a criminal offence in accordance
with generally recognized professional ethics without restrictions,
influence, pressure or undue interference from any quarter.
11
11
102.
The Complainant also refer to the UN Basic Principles on the Role of
11
II
Lawyers which provide for special safeguards in criminal justice matters, in
which principles 5 and 8 give more d etails on the requirements in regard to
access stating that:
Governments shall ensure that all persons are immediately
info1·med by tlze competent authorihJ of their right to be assisted by
a lawyer of their own choice upon arrest or detention or when
charged with a criminal offence. All arrested, detained or imprisoned
persons shall be provided with adequate opportunities, time and
facilities to be visited by and to comnmnicate and consult with a
lawyer, without delay, interception or censorship and in full
confidentiality. Such consultations may be within sight, but not
within the hearing, of law enforcement officials"
11
103.
The Complainant states that Principle 7 of the UN Basic Principles on the
Role of Lawyers also proposes a specific time limit wherein Governments shnll
further ensure that all persons arrested or detained, with or without criminal charge,
shall have prompt access to a lawyer, and in any case not later than forti;-eight hours
from the time of arrest or detention". The Complainants submit that by denying
Prisoners 1 to 6 access to their lawyers, the Government of Sudan violated their
fair trial rights to adequate legal representation under article 7 of the African
Charter.
II
104.
The Complainant argues that at the Terrorism Crimes Appeal Court, the
Defense Lawyers for Prisoners 1 to 6 clearly stated their grounds of appeal
against the convictions by the court of first instance against the accused persons.
According to the Complainant, the appeals court did n ot apply itself to the
grounds of appeal raised by the Defense Lawyers, rather the appeals court
endorsed the procedure, conviction and sentences imposed on the prisoners, as
having been compliant with the Anti-Terrorism Act and the extraordinary rules
of procedure. The Complainant further states that during the prepru:ation of
21
appeals to the Constitutional Court, the Defense Lawyers did not have sufficient
time to can vass all the issues in respect of the decisions of the lower cowts due
to the urgency of staying the prisoners' executions. In preparing their urgent
appeals, the Complainant submit that the Defense Lawyers did not enjoy the
cooperation from the Sudanese government and judicial authorities.
105.
The Complainant further argues that the defense lawyers submitted an
urgent request to the Constitutional Court to stay the executions of the
applicants. Concurren tly, they also submitted a constitutional challenge on th e
fact that the trial at the lower court was not fair, because the applicants were not
given a chance to properly present their defense; the applicants were tried in
contravention of the Su dan Interim Constitution 2005 and the internationallyrecognized stand ards of fair trials enslu·ined in Article 14 of the ICCPR. The
Complainant submits that the Constitutional Court dismissed the challenge.
106.
According to the Complainant, by not affording Prisoners 1 to 6 the fair b.ial
guarantees under the African Charter, the Government of the Sudan violated
article 7 of the African Charter.
Prisoner 7
107.
The Complainant submits that Prisoner 7 was only afforded the
opportunity to meet with his Defense Lawyer on the first day of court
appearance for only ten (10) minutes before the trial commenced. The Judge did
not afford the Defense Lawyer time to interview the prisoner before trial.
Furthermore, the Defense Lawyer requested a postponement of the case to allow
preparation and that the Defense Lawyer was sick, but the cowt again refused
to indulge this request.
108.
The Complainant further submits that the Defense Lawyer withdrew from
the matter on the second day of trial citing reasons of limited time to prepare, his
ill health and refusal by the court to allow cross-examining of prosecution
witnesses and that he was also harassed and intimidated during the trial.
According to the Complainant, considering the gravity of the case against
Prisoner 7, upon withdrawal of his lawyer, in terms of the Sudanese law the
government was supposed to appoint a lawyer to d efend him, but this did not
happen.
TI1e Complainant submits that remarkably the Appeal Court also failed to
109.
follow any proper or standard procedw-e by immediately forwarding its appeal
decision regarding Prisoner 7, directly to the Supreme Court for confirmation
without providing the Defense Lawyers for Prisoner 7 any notice or information
of their decision. Only after the Supreme Court confirmation did Prisoner 7 learn
22
about the prior Appeal Court decisions and his Defense Lawyers immediately
submitted a review request to the Suprem e Court, which was rejected on April
12, 2012.
110.
The Complainant submits that in addition, Prisoner 7's case was subjected
to intense media coverage. The statements in the media were tantamount to b:ial
by the media and public, as newspaper (Altayar) and television station (Alshrouq)
produced video and picture evidence of Prisoner 7, while in custody including
the evidence against him, before it was produced in court.
111.
The Complainant refers to the Commission's decision in Communication
224/98 Media Rights Agendn v Nigerin32where the Commission found a violation
of the right to be presumed innocent based on a State's negative pre-trial
publicity33 and the Commission's P1inciples and Guidelines on Fair Trial which
states that "Public officials shall maintain a p resumption of innocence and Public
officials, including prosecutors, m ay inform the public about criminal
investigations or charges, but shall not express a view as to the guilt of any
suspect."
112.
The Complainant reiterate its arguments in para 60 to 72 above on the right
to fair trial for ptisoners 1 to 6 above, as they also apply to the case involving
Prisoner 7. The Complainants therefore submits that by not affording Prisoner 7
the fair trial guarantees under the Charter, the Government of Sudan has
violated his right to a fair trial under article 7 of the Charter.
Use of Torture to obtain confessions from Prisoners 1 to 7
The Complainant argue that in addition to the above, confessions obtained
113.
by the use of torture should not be admissible in the Court of law.34 According
to the Complainant, to obtain self-incriminating statements and confessions from
Prisoners 1 to 7, Military Intelligence severely tortured the prisoners. The
Complainant argues that the evidence relied on in the trials were either
statements and confessions so obtained or statements fabricated by the Military
Intelligence or the Security with no third-party supporting evidence.
114.
The Complainant reaffirms its arguments on violations of article 5 above
and submits that because the agents of the Republic of Sudan tortured Prisoners
1 to 7 for the purposes of forcing them to make a confession in contravention of
the principles enumerated above, the confessions made were used against the
32 At para 54
l3 See also 301/05 HaregewoinGebre-Sellaise& IHRDA (on behalf of former Dergue officials) v Ethiopia, paras 189 -
195.
34 Article 29, Robben Island Guidelines; Article 15 CAT
/
.'23
Prisoners in their trials, therefore amounting to a violation of article 7 of the
African Charter.
Alleged violation of Article 1 of the African Charter
115.
The Complainant submits that Article 1 of the African Charter obliges
States to recognize the rights, duties and freedoms enshrined in the African
Charter and to undertake to adopt legislative or other m easw·es to give effect to
them.
The Complainant states that the Commission decided in Communication
368/09 Abdel Hndi, Ali Radi& Others v Republic of Sudan that "if a State Party fails
to respect, protect, promote or fulfill any of the rights guaranteed in the African
01arter, this constitutes a violation of Article 1 of the African Charter." Thus,
any violation of any of the rights in the African Charter is a violation of article 1
of the African Charter.35 The Complainant submits that the Government of the
Sudan has violated the rights of Prisoners 1 to 7 under articles 4, 5 and 7 of the
African Charter, and urge the Commission to find a violation of article 1 of the
Charter.
116.
Prayers
117.
The Complainant urges the Commission to find that the Republic of the
Sudan has violated the rights of Prisoners 1 to 7 w1der articles 1, 4, 5 and 7 of the
African Charter on Human and Peoples' Rights.
118.
The Complainant further asks for the following:
a) That the Commission should w·ge the Republic of the Sudan to commute
the d eath sentences that h ave been imposed on Prisoners 1 to 7 and to either
conduct a retriaJ of the prisoners, according them all fair trial guarantees,
or to release them unconditionally.
b) That the Commission should urge the Republic of the Sudan to provide
compensation and rehabilitation to Prisoners 1 to 7 for the torture they were
subjected to by the NISS.
c) That the Commission should urge the Republic of the Sudan to effectively
investigate the allegations of torture made by Prisoners 1 to 7 and to
prosecute and punish all officers responsible for the torture.
d) That the Commission should urge the Republic of the Sudan to close its
An ti-Terrorism Cou rts and allow all terrorism related cases be tried by the
35 Comm. 279/03-296/05 - Sudan Human Rights Organization& Centre on Housing Rights and Evictions (COHRE) v.
Sudan (2010), para 227
24
ordinary criminal courts as provided by the Constitution of the Republic of
the Sudan.
Submission of the Respondent State on Merits
119.
In accordance with the provisions of Rule 105(1) of its Rules of Procedure,
the Parties shall each have sixty (60) days to make their submissions on the
Merits. They shall also have at their express request, an additional period of time
not exceeding thfrty (30) days per party at each stage of the proceedings, to make
their submissions. TI1e Secreta1·iat ensm·es the exchange of written submissions
and compliance with these various deadlines.
In the present case, the Commission notes that the above procedural
120.
requirements have been complied with. In addition, due to time constraints, the
Commission deferred the examination of the Communication to its successive
sessions and the Secretariat sent Reminder Notes Verbales to the Respondent on
each occasion. Despite these correspondences, the Respondent State did not
submit its submission on the Merits nor did it provide any justification for its
failure to do so.
As such, the Commission decides to examine the Communication on the
121.
basis of the information in its possession, in accordan ce with its own practice.
The Commission is therefore called upon to determine whether the actions of the
Respondent State as described by the Complainant constitutes a violation of
Article 1, 4, 5 and 7 of the African Charter.
Analysis of the Commission on the Merits
' Facts' and Applicable Law
Considering the issues identified from the case file and the submissions
presented on the alleged violations of rights guaranteed in the African Charter,
the Commission now turns its attention to engage, using applicable legal
methods of analysis, in an examination of the legal arguments and the
evidentiary materials presented relative to the relevant provisions of the African
Charter and other relevant laws for determining th e existence or otherwise of the
alleged violations.
122.
123.
This Communication is about violations allegedly committed following the
arrest and detention of members of or individuals in the custody of the Justice
and Equality Movement (JEM), an organization that is engaged in armed
struggle in the Darfur region of Sudan. The context in which the alleged ,
violations took place and the identity of the victims lend themselves to the
,\
25
\
) ..
I
question of the legal status of the situation in which the events leading to the
violations happened. Accordingly, before proceeding with the analysis on
alleged violations of rights, one of the issues that needs to be dealt with is the
nature of the context giving rise to the occurrence of the alleged violations as the
basis for making a determination on the question of whether international
humanitarian law. 36
124.
Particularly, we have to determine wh ether the events leading to the
alleged violations took place in a context of conflict and whether the conflict
situation meets the threshold of armed conflict for purposes of international law.
Depending on our determination on this issue, the Commission will consider on
whether it should resort to using relevant rules of international humanitarian
law and the legal consequences that flow from it as part of its assessment of the
existence or otherwise of the alleged violations of rights guaranteed in the
African Charter.
125.
In order to establish the nature of the context in which the events leading to
the alleged violation of rights happened, the Commission will review both the
submissions made in the case file and other relevant sources including those
from the government of Sudan, the African Union (AU) and the United Nations
(UN) which furnish relevant data for the issue at hand. A good starting point for
examining this line of inquiry is the case file of this Communication. As such, the
Commission now reviews the submission of the parties.
126.
It emerges from the submission of the Complainant that the first, second,
third, fourth, fifth and sixth prisoners were captured by the Military Intelligence
of the Sudan Armed Forces (Military Intelligence) in the Darfur region. At the
time of their arrest, Prisoners 1 to 4 and 7 were members of the Justice and
Equality Movement OEM), while the others were in JEM's custody as prisoners
of war. Various reports including from international organizations notably the
AU and the UN show that, JEM is one of the armed rebel groups established in
Dai·fur in the early 2000s and has been one of the major armed opposition groups
that have been engaged in armed fighting against the army of the Respondent
State in what is known as the Darfur conflict. The Darfur conflict erupted in 2003
following an attack by two Darfur based armed groups Sudan Liberation
Movement/ Army and JEM on Sudan ese sec1u ity forces. 37 Despite various peace
process efforts and the end of major hostilities, the Darfur conflict involving the
36 As the African Commission discussed in details in its Study on 'Addressing Human Rights Issues in Conflict
Situations', distinction is made on the applicable law between cases of international armed conflicts and noninternational armed conflicts on the one hand and domestic situations of tensions or cli,slurbances on the other hand.
37
See Report of the AU High-Level Panel on Darfur, AU Doc PSC/ AHG/2(CCVD)
26
armed rebellion of JEM continued to drag on until final agreement was
concluded in 2020.
127.
JEM is one of the arm ed groups in Darfur that held various territories in
North and South Darfur at various points in time since it started the armed
fighting in 2003. According to the AU's High-Level Panel on Darfur, ' [d]uring
2007-08, JEM em erged as the principal military force in opposition to the Sudan
Government in Darfur. It mounted a series of offensives, culminating in a bold
attack on the national capital in May 2008. [tis rep orted that ' [i]n mid-2010,
before a government offensive that led to heavy casualties on both sides, JEM
was the strongest insurgent force in Darfur, estimated to h ave more than 5,000
men armed with mounted anti-aircraft guns, rocket-propelled grenades, heavy
machine guns, AK-47s and several hundred vehicles.'38
128.
It is one of the armed groups with whom th.e Government of Sudan signed
various peace agreements in relation to the conflict in Darfur since the signing of
the 2004 humanitarian ceasefire agreement signed in Ndjamena, Chad, as part of
the peace processes for resolving the conflict in Darfur.
In its submission on Admissibility, the Respondent State observed that the
129.
Prisoners, whose membership in JEM it did not contest, ' themselves are armed
militias or paramilitaries.' It further stated that ' the prisoners were charged with,
among others, ' wagging war against the State' .39 It is clear from these
characterizations of the prisoners by the Respondent State that they are members
of an armed group. Most notably, the Resp ondent State affirmed that they were
engaging in 'war' against the state.
It emerges from the foregoing that it was in a context of the Darfur conflict
130.
that the events that led to the occurrence of the alleged violations took place. Not
only that the existence of this conflict is not contested by the Respondent State
but also that the Respondent State considered the conflict that the prisoners have
been engaged in as 'war'. For purposes of international law, the characterization
by the state of the situation as 'war' by itself alone is not enough. As such, the
Commission has to determine the question of whether the conflict in question is
of such a nature that is governed by the rules of International Humanitarian Law
(IHL).
131.
As discussed in the Commission' s comprehensive Study on 'Addressing
Human Rights Issues in Conflict Situations' prepared and adopted by the
Commission within the framework of its Resolution 332, for purposes of IHL,
38 http://www.smallarmssurveysudan.org/ fileadmm/ docs/ arcl1ive/, sudan/ darfur/ armed-groups/ armed-
opposition-groups/ JEM/ HSBA-]EM-20-Marcll-2011.pdf
39 See the submission of the respondent State on admissibility.
27
there are two types of armed conflicts: international armed conflicts (IACs) and
non-international armed conflicts (NIACs). The first type of conflicts, IACs,
involves conflicts between the armed forces of two states.40 This is not the kind
of conflict in the case at hand. The second type of conflicts, NIACs, relate to those
identified under IHL as constituting 'armed conflicts that are not of an
international d1aracter' or simply non-international armed conflicts.41 Given that
in the case at hand the conflict concerns the armed forces of Sudan and a rebel
group, JEM, it is clear that this is not an IAC. However, the Commission has to
determine whether this conflict is of such a n ature that constitutes a n oninternational armed conflict to which rules of IHL pertaining to such type of
armed conflicts apply.
132.
Additional Protocol II of tl1e Geneva Conventions in its Article 1(1)
provides that, for a conflict to constitute NIAC, the armed opposition forces m ust
be" under responsible command, exercise such control over a part of its territory
as to enable them to carry out sustainable and concerted military operations and
to implement this Protocol". Based on this definition and drawing on the
jurisprudence of the Commission in Thomas Kwoyelo v. Uganda42 and that of the
International Criminal Tribunals for Rwanda and the former Yugoslavia, the
Commission's Study identified four cumulative elements that should be met to
find the existence of NIAC. 43 First, the conflict has to be between armed forces of
a state and dissident or other organised armed groups. Second, the conflict takes
place in the territory of the state. Third, the dissident or the armed opposition
group has to be organised with a command-and-control structure and exercises
control over a part of the territory of the state. Fourth, the conflict has to be a
situation of regulai· and intense armed confrontation and hence involving direct
hostilities between the armed forces of a state and the dissident or opposition
armed group.
133.
It has been established above from the submissions of the parties and from
reports of the AU and the UN that the conflict in Darfur involved armed fighting
between non-state groups who launched armed rebellion and the Sudan Armed
forces. JEM was one of the major non-state armed groups involved in the armed
rebellion and fighting against the Government of Sudan. The context in which
the events that led to the alleged v iolations is accordingly a conflict situation that
meets the first requirement of a NIAC. Concerning the second requirement, the
territory where the conflict took place is the Dai-fm region of Sudan.
40 Common Article 2 of the Geneva Conventions of 1949 defines lACs as "all cases of declared war or of any armed
conflict that may arise between two or more High Contracting Parties, even if the state of war is not recognised by one
of them."
41 This definition is provided for in Common Article 3 of the 1949 Geneva Conventions
42Communication 431/12 -Thomas Kwoyelo v. Uganda.
·'
43 Ibid 25
..
28
1
' ) ;'. •
_/J
134.
The third requirement concerns the qualities that the non-state armed
group should possess for the conflict in which it is engaged to be considered as
NIAC, namely level of organization and control of territory. As one of the major
armed rebel groups in Sudan, JEM mobilized and maintained a fighting force
that operated as an organized group with a discemable leadership structure and
command and control.44 In the same way the Commission considered the Lord's
Resistance Army in Thom.ns Kwoyelo v. Uganda45 as a dissident armed force or
other organized group under Protocol Il of the Geneva Conventions, the level of
organization that enabled JEM to prosecute an armed rebellion over a long
period of time qualifies it to be such a group for purposes of IHL. As the report
of the UN Commission of Inquiry observed the rebels, JEM included, also
exercised 'e facto control over some areas of Darfur.'46
135.
Finally, the conflict was also of such a nature that involved hostilities
between JEM and the Sudan Armed Forces over an extended period of time. The
intensity and protracted nature of the conflict can be gathered not only from the
duration of the conflict but also from the human suffering and the material
destruction it caused. According to various estimates, the conflict at its most
violent in 2003-2004 claimed the lives of people in the range from 70,000 to
400,000.47 It also led to 1.65 million internally displaced persons in Darfur, more
than 200,000 refugees from Darfur in neighboring Chad and large-scale
destruction of villages tlu·oughout the tlu-ee states of Darfur. 48
136.
In the light of tl1e foregoing, the Commission upholds the conclusion of the
UN Commission of Inquiry on Darfur that ' [t]he conflict therefore does not
merely amount to a situation of internal disturbances and tensions, riots, or
isolated and sporadic acts of violence. Rather, the requirements of (i) existence
of organized armed groups fighting against the central authorities, (ii) conh·ol by
rebels over part of the territory and (iii) protracted fighting, in order for this
situation to be consider ed an .internal armed conflict under common Article 3 of
the Geneva Conventions are met.' 49 The consequence of this conclusion is that
the determination of whether violations were perpetrated against the prisoners
has to be based not only on the provisions of the African Charter but also is done
so by reference to the relevant rules of IHL that govern the detention and
treahnent in detention of d etainees in NIACs based on Articles 60 and 61 of the
African Ch arter on Human and Peoples' Rights.so
44 See for more, The Report of the UN Commission of Inquiry on Darfur (2005) p. 39, paras. 133-136
4 5 fbid 48
46 Report of the UN Commission of lnquiry on Darfur (2005), p26
47 Malunood Mamdaru, Saviors and Survivors: Darfur, Politics and tile Wa r on Terror (2009) 5
◄S Report of the UN Commission of inquiry on Darfur (2005) 3.
49 Ibid, 26-27.
socommunication 431/12 - Thomas Kwoyelo v. Uganda, para. 148; Also see the ACHPR Study p. 28.
29
137.
However, the Commission makes reference to the relevant provisions of
IHL only to make a finding of violation of the African Charter rights and not IHL
rules as such. IHL rules serve only as a standard by refe1·ence to which the nature
of the treatment to which the prisoners have been subjected would be
determined for making a finding of violation of the rights allegedly violated.51
Consequently, as the Commission held in Thomas Kwoyelo v. Ugandn,5 2 for the
instance case as well, the Commission applies the standard of treatment specified
in Common Article 3, specifically its reference among others to persons in
detention, and Articles 4 and 6 of Additional Protocol II specifically relating to
persons deprived of liberty. In the analysis below of alleged violations of specific
rights, the Commission accordingly reso1ts to relevant provisions of IHL based
on Article 60 and 61 of the Charter for assessing the existence of violations of the
particular rights.
138.
Against the background of the foregoing, the Commission now turns its
attention to investigating the specific provisions of the African Charter that are
alleged to have been violated in this Communication.
Alleged Violation of Article 4
139.
Article 4 of the African Charter provides that:
"lnmum beings nre inviolable. Every humnn being shnll be
en.titled to respect for his life nnd the integrity of his person. No
on.e slmll be arbitrary deprived of this right".
140.
In its submissions, the Complainant alleges that the trials which resulted in
the sentences passed on Prisoners 1 to 7, fell grossly short of the fair trial
guarantees in article 7 of the African Charter and the Commission's Principles
and Guidelines on Fair Trial and as such, any executions carried out purnuant to
the judgment in those trials would amount to a violation of the right to life of
Prisoners 1 to 7.
141.
Common Article 3 of the Geneva Conventions proscribes, among others
'the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees.' The determination of whether violations of Article 4 on the right
to life would therefore depend on ru1 assessment of the existence of the passing
of sentences or/and carrying out of executions without affording all judicial
guarantees. The Commission has held in International Pen nnd Others (on. behalf of
.... ..
--
51 Ibid 41, paras 150-151,.
52 Ibid 41, para. 151.
30
Ken Saro- Wiwn) v. Nigeria53 that given that the trial which ordered the executions
itself violates article 7, any subsequent implementation of the sentences renders
the resulting deprivation of life arbib·ary and in violation of Article 4. What led
to the finding of violation of Article 4 is the fact that the death sentence was
reached at on the basis of a trial conducted in violation of Article 7 of the African
Charter.
142.
As outlined in the analysis dealing with Article 7 of the African Charter, the
Commission held in the instant Communication below that the trial of prison ers
1 to 7 violated Article 7 of the African Charter. Given that this does not meet the
standard set in Common Article 3 cited above, it follows that the death sentences
passed by the court of first instance on prisoners 1 to 7 took place in conditions
that did not afford ' all the judicial guarantees.' As such the passing of the
sentence in breach of such 'judicial guarantees' and the accompanying placement
on prisoners 1 to 7 on death row represent a threat of an arbitrary deprivation of
life and, hence a violation of Article 4 of the African 01arter.
It is worth recalling that the Complainant informed the Commission that
143.
prisoners 1 to 7 were released from pdson, after being granted an official pardon
by the govemment.54 In assessing the fact that prisoners 1 to 7 were subsequently
released from prison and not executed, the Commission draws on its
jw·isprudence and the jurispru dence of other similar bodies. One such authority
that the Commission wishes to refer to is General Comment No 36 of the UN
Human Rights Committee, which states that the obligation of State Parties to
respect and ensure the right to life extends to reasonably foreseeable threats and
life-threatening situations that can result in the loss of life. States Parties may be
in violation of article 6 of the ICCPR, even if such threats and situations do not
result in loss of lifeSS.
144.
The European Commission on Human Rights has also held in several cases
the viola tion of the right to life of individuals who did not die as a consequence
of the violating acts. In Acnr and others v. Turkey56, the European Court held that
they were victims of a behavior that due to its n ature, represented a serious risk
to their lives, despite the fa ct that they survived the attack. In Mnkamtzis v.
Greece57, the European Court also held that in espective of whether or not the
police actually intended to kill the applicant, the applicant was the victim of a
53 Communication 137/94-139/94-154/96--161/97 lntemational PEN, Constitutional Rights Project, Gvil Liberties
Organisation and Lnterights (on behalf of Ken Saro-Wiwa Jnr.)/ Nigeria, para 103
5-1 See letter of complainants dated 11 January 2019.
ss General Comment No 36 of the UN Human Rights Comntittee, para 7
56 Cf. Eur.C.H.R, Acar et al. v. Turkey, Judgment of May 24, 2005, App. No. 36088/97 and 38417
,
57
Eur.C.H.R, Makaratzis v. Greece [GC), Judgment of December 20, 2004, App. No. 50385/99, para. 51 and 55:-
a.
31
conduct which by its very nature, put his life at risk, even though in the event he
survived, violated article 2 of European Convention.
145.
The African Commission also pointed out in its General Comment No 3 on
the right to life that 'where a State or its agent ... has unlawfully threatened the
life of a person ... a violation of the right to life has occurred.' 58 The Commission
applies the same reasoning to this present case. Having found that the trial which
ordered the sentencing to death of prisoners 1 to 7 fell short of the standard of
' all judicial guarantees' in Common Article 3 of the Geneva Conventions and
hence the fair trial guarantees in article 7 of the African 01arter, it logically
follows as noted above that the sentence to death under such conditions
constitutes an unlawful serious threat to the lives of prisoners 1 to 7. The fact that
they remained in death row and were later released by a pardon of the
government, was merely fortuitous. The pardon represents an affirmation of the
flawed trial conducted in breach of Article 7 of the Charter rather than its
rectification. The pardon did not reverse the death senten ce passed without
'affording all judicial guarantees' or due process rights under Article 7 of the
Charter. The pardon d oes not question the validity of the sentence. It merely
halts its execution. As such the pardon did not remove the unlawful threat that
the death sentence constituted to those on whom it was directed.
146.
For these reasons, the Commission finds that the Respondent State has
violated article 4 of the African Charter.
Alleged Violation of Article 5
147.
Freedom from torture is on e of the cardinal rules in international law that
cannot be derogated from at any time and under any circumstances including in
times of war and emergency.
148.
Article 5 of the African Charter provides for:
"every individual to have the right to the respect of the dignity
inherent in a lmmnn being. It further provides that all forms of
exploitation and degradation ofman, particularly slavery, slave
trade, tortute, cruel, inhuman or degrading punishment and
treatment shall be prohibited"
149.
Common Article 3 of the Geneva Conventions of 1949 and Article 4(1), (2)
(a), (e), (f) and 13 of Additional Protocol II of the Geneva Conventions guarantee
- -'
58 ACHPR General Comment No 3, para 8.
:\
.
' ) ., 32
.,/ ,
_/'
absolute freedom from torture, inhumane and degrading treatment. These rules
are known as rules for the treatment of detainees,' and the protection these IHL
rules provide include prohibition of murder, mutilation, torture, cruel,
inhumane and degrading treatment, medical or scientific experiments, as well as
all forms of violence to life and health. Therefore, both IHL rules (in Common
Article 3 of the Geneva Conventions and Article 4 of Addition al Protocol II to the
Geneva Conventions) and Article 5 of the African Charter prohibit acts of torture,
inhumane and degrading punishment under any circumstance.
The Complainant alleges that the agents of the government of the Sudan
150.
while acting in their official capacity tortured prisoners 1 to 7 for the purpose of
forcing them to make confessions to having participated in terrorists' activities.
The Complainant refers to some of the acts of torture exacted by the Military
Intelligence on Prisoners 1 to 6 to include: the prisoners' hands, arms and legs
being tightly bound behind their backs, n ot being allowed to sleep for multiple
days on end; subjection to physical and psychological abuse including racial
insults and continual beatings with sticks and hippo-hide whips; Prisoner 1 kept
in solitary conferment for ten (10) months without any justification; and all of
the prisoners were not allowed contact with their families or lawyers for about
nine (9) months.
151.
The Complainant states that as a result of the torture, the health conditions
of Plisoners 1, 2, and 3 deteriorated significantly. Prison er 1 had a broken arm
and a severely inflamed eye while in custody and he was in solitary confinement
for ten (10) months, as a result he suffers from problems with his kidneys and
inflammation of the eyes. Prisoner 2 suffers from gout, swollen legs and heart
problems. Prisoner 3had bruises on his ear and complains of pain in his stomach.
Despite these health conditions, the prisoners were not provided access to
medical care.
152.
With regards to prisoner 7, the Complainant alleges that the Military
Intelligence Officers used electric shock on his body and flogged him with a
hippo- hide whip extensively; nltyara-gamat "airplane-takeoff" method was used on
him whereby he was raised to the ceiling and concurrently being questioned on
his role as a JEM supervisor; he was subjected to racial insults and force with
pliers applied on his sexual organs and body. As a result of the injuries suffered,
he continued to lose blood, consciousness and was left in immense pain with no
access to medical treatment. The Complainant argues that the above-mentioned
acts meted on prisoners 1 to 7 by the Military Intelligence amounts to a violation
of Article 5 of the African Charter.
153.
The Com.mission has held that Article 5 of the African Charter is aimed at
the protection of both human dignity and the physical and mental int~ity o.f .
I
33
the individual.s9 The African Cha1ter does not define the meaning of the words
or the phrase "torture or degrading treatment or punishment." However, the
Commission in its interpretation of Article 5 of the African Charter adopted the
definition of torture contained in Article 1 of United Nations Convention against
Torture (UNCAT) which states that60:
[T]lze term "torture" means any net by which severe pain or
suffering, whether physical or mental, is intentionnlly inflicted
on n person for such purposes as obtaining from him or a third
person information or a confession, punishing him for nn net lie
or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or
for any reason based on discrinzination of any kind, when such
pain or suffering is inflicted by or at the instigation of or witlz
the consent or acquiescence of a public official or otlzer person
acting in nn official capacity.
154.
The Commission also adopted the interpretation of the United Nations
Committee against Torture 61 in its General Comment No. 2, which states that
"for torture to have occurred, the incriminated acts must intentionally cause severe
suffering, be intended to obtain information or a confession, punish the victrm for renl or
alleged nets, and be attributable to a public official or person acting in that cnpaciti/'.
155.
At this juncture, the question to be addressed by the Commission is whether
the alleged acts stipulated in paragraph 115 to 117 above, do constitute acts of
torture or cruel, inhuman or degrading treatment and punishment, in violation
of Article 5 of the African Ch arter?
156.
The Commission recalls its decision in Sudan Human. Rights Organization. and
Center for Housing Rights and Evictions v Sudan 62in which it set out the principal
elements that constitute torture under the African Charter, namely that, severe
pain or suffering has to have been inflicted for a specific pw·pose, such as to
obtain information, as punishment or to intimidate, or for any reason based on
discrimination; by or at the instigation of or with the consent or acquiescence of
state authorities. The Commission in the same Communication held that where
the victims were subjected to a series of acts that, singly and in combination,
caused severe physical and mental pain and suffering63 inflicted by officials with
59 Communication 279/03-296/05 para 155
60
ibid
6 1 Ibid 19 & See Article 4 of the Resolution on Guidelines and Measures for the Prohibition and Prevention ofTorlure,
Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) adopted by the
Commission in October 2002
62 Communication 279/03 - 296/05 Sudan Human Rights Organization and Center for Housing Rights and Evictions
v Sudan (2009) ACHPR para 255 [sic!] &156
63 Sustained and severe beatings, punched and hit with a_pjpe_and wooden cane on their feet and soles, sleep
' ' '
deprivation and denjed access to medical treatment ••
,. •
34
.: ) ., ~)J
<)
the purpose of extracting information and inflicting punishment, the acts
committed amounted to torture.
Furthermore, the Commission in E~;ptian Initiative for Personal Rights and
lnterights v E~;pt64 held that 'when a person is injured in detention or while
under the control of security forces, there is a strong presumption that the person
was subjected to torture or ill-treatment. In Abdel Hndi, Ali Rndi & Others v
Sudrm 65, the victims went through va1·ious forms of physical torture during their
detention ranging from severe beating with whips and sticks, doing the Arannabb
Nut (rabbit jump), heavy beating with water hoses on all parts of their bodies,
death threats, being forced to kneel with their feet facing backwards in order to
be beaten on their feet and asked to jump up immediately after. The Commission
held that this treatment and the surrounding circumstances were of such a
serious and cruel nature that it attained the threshold of severity as to amount to
torture.
157.
The Commission in determining acts that constitute torture also held in
Malawi African Association, AmneshJ International, Ms Sarr Diop, Union
internfricaine des droits de l'Homme and RADDHO, Collectif des veuves et aynntsDroit, Association mnuritanienne des droits de l'Homme v Mauritnnin 66, where the
detainees were beaten and forced to make statements; denied the opportunity of
sleeping and being held in solitary confinement, that these acts details instances
of torture, and cruel, inhuman and degrading trea tments. In Krishna Achuthan
(on behalfof Aleke Banda), Amnesty lnterna.tion.nl (on behalfof Orton. and Vern Chirwa),
Anmesti; International (on belznlf of Orton and Vern Chinvn) v Mnlnwi67, that asp ects
of the treatment of Vera and Orton Chirwa such as excessive solitary
confinem ent, shackling within a cell, extremely poor-quality food and denial of
access to adequate medical care, were in contraven tion of Article 5 of the African
Charter.
158.
Turning to the facts of th.is Communication and based on the relevant IHL
rules identified in paragraph 114 above and its jurisprudence on instances of
torture highlighted above, it is the Commission's view that the acts stated in
paragraphs 115 to 117 including deprivation of sleep, beatings, being held in
solitary confinement for a prolonged period of time, denial of medical care,
applying force on sexual organ and body all done by agents of the state are
similar to the acts which the African Commission in the vru·ious communica tions
159.
64 Communication 334/06- Egyptian lnitiative for Personal Rights and lnterights v Arab Republic of Egypt para 168.
65 Communication 368/09- Abdel Hadi, Ali Radi & Others v Sudan, para 71-77
66 Communications 54/91-61/91-%/93-98/93-164/97_196/97-210/98 Malawi African Association, Amnesty
International, Ms Sarr Diop, Union interafricaine des droits de !'Homme and RADDHO, Collectif des veuves et
ayants-Droit, Association mauritanienne des droits de !' Homme v Mauritania
67 Communication 64/92-68/92-78/92._8AR- Krishna Achuthan (on behalf of Aleke Banda), Amnesty International
(on behalf of Orton and Vera Oiirwa), Amnesty International (on behalf of Orton and Vera Chirwa) / M~lawi- pa-i:a
35
listed above determined to be acts of inhumane and degrading treatment and
torture. The Commission is thus of the view that all the acts Prisoners 1 to 7 were
subjected to under the control of the Military Intelligence acting in their official
capacity to obtain confessions details such a serious, cruel and inhumane nature
that it attains the threshold of severity to constitute torture, which are contrruy
to Common Article 3 of the Geneva Conventions and Article 4(1), (2) (a), (e), (f)
and 13 of Additional Protocol II to the Geneva Conventions and hence constitute
violation of Article 5 of the African Charter.
160.
In determining whether the physical injuries were indeed inflicted on the
prisoners by State agents, the Commission has noted that the prompt access to
medical personnel becomes critical68. Article 5 (2) (d) of Additional Protocol II to
the Geneva Convention and Article 30 of Common Article 3 of the Geneva
Convention also provides that persons whose liberty have been restricted shall
have the benefit of medical examination and may not be prevented from
presenting themselves to the medical authorities for examination.
161.
In the present Communication, the Complainant submits that following the
acts of torture the prisoners were subjected to and the severe injuries sustained,
they were denied access to medical care. The Complainant further submits that
because the prisoners were held incommunicado ru1d denied medical access by
the Military Intelligence, they were not given an opportunity to be medically
examined to obtain a medical report. As such, the Complainant could not submit
medical reports to affirm that the physical injuries sustained and the
psychological trauma suffered, were inflicted on them by the Militru·y
Intelligence while in detention. However, in the absence of such medical reports,
the Complainant attacl1ed witness statements from the prisoner's relatives,
spouses and lawyers attesting that when they saw the prisoners on Sudanese
Satellite Television and during their visits to the prisoners at Kabur prison, there
were visible signs of injuries from torture on all the prisoners69.
162.
Pursuant to the circumstru1ces of the case and in light of the above
aTguments of the Complainant, the Commission will proceed to determine
whether the absence of a medical evidence is sufficient proof that the prisoners
were tortured by State agents?
68 lbid62
69 Prisone_r 1- 6: When the prisoners we_re shown on Sudanese Satellite Television newscast, one of them had his hand
wrapped in white gauze and suspended in a sling around his neck, another had a bandage on his ea_r, which indicated
an injwy. When the witnesses visited the prisoners at Ka bur Prison, all the prisoners were shackled at the wrists aJ1d
feet with heavy iron chains. The Witnesses found indicators that they had been beaten and tortured including swollen
hands and face, seve_rely inflamed eyes and signs of beating all over theiI back, when they lifted their shirts, including
bruises on their ears amongst others
Prisone_r 7: The effects of beating and torttue were clearly visiblej>y just looking at him. During the trial, he had been
injured in the head (gunshot wound) and it had not yet healed •
163.
It is the practice of the Commission to rely on sworn testimonies and a
medical certificate as proof of torture. In Monim Elgak, Osman H111nmeida and Amir
Suliman (represented by FIDH and OMCT) v Sudan, the Commission relied on
sworn testimonies and a medical certificate in establishing a case of torture.7°
Similarly, in Egtjptian Initiative for Personal Rights and INTERIGHTS v Egypt71 , the
Commission went one step further and relied solely on the Complainants'
submission of testimonies of the victims to prove sexual molestation which
qualified as a violation of Article 5 of the Charter.
164.
At the level of the European Court on Human Rights (the European Court),
in M .B and Others vs. Slovakia 72 the Court held that the lack of medical evidence
or other material evidence is not to be the decisive proof that torture has n ot
occurred. The Court, instead, relied on the circumstantial behavior of the
authorities who initially charged and prosecuted the accused officers. Moreover,
in flascu and Others vs. Moldova and Russia 73, the European Court accepted
corroborative witness statements, although in this case the governments
involved did not deny the facts. Moreover, in Alpar v. Turkey74, the Ew·opean
Court h eld that the State was obligated to conduct an effective investigation into
the claims of the victim, and that having not done so, it violated Article 3
prohibiting tortu.re.
165.
Furthermore, the lsta nbul Protocol on the Standard of Prooffor Cases of Torture
under tile Manual on the Effective Investigation and Docwnentntion of Torture and
Other Cmel, Inhuman or Degrading Treatment or Punishnzent75 provides that
"witness and survivor testimony ai-e necessary comp onents in the
documentation of torture. To the extent that physical evidence of torture exists,
it provides important confirmatory evidence that a person has been to.rtured.
However, the absence of such physical evidence should not be construed to
suggest that torture did not occur, since such acts of violence against persons
frequently leave n o marks or p ermanent scars".
166.
In the instant case, th e.re is no doubt that the.re are physical signs of torture
on the victims. Thei-e is however no medical evidence that shows that the inju.ries
suffered were from the acts of torhu-e, inhuman and degrading treatment meted
70 lbid 22. Communication 379/09, Monim Elgak para 100.
11 Ibid 67 para. 131-136; 197 - 202
72 Case of M.B and Others vs. Slovakia before the European Court of Human Rights (Application no. 45322/17) al
para 62
73 Case of nascu and Others vs. Moldova and Russia before the European Court of Human Rjghts {Application No.
48787/99)
74 Case of AJpar v. Turkey before the Eltropean Court of Human Rights ( Application 22643/07)
75 The IstanbuJ Protocol on the Standard of Proof for Cases of Tortu re under the ManuaJ on the Effectjve lnvesti~tion
and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,.Para'l61-
37
•
out by security agen ts of the Sudan ese state. Where the circu mstances are such
that the victims could not have been able to obtain medical certificate linking
their injuries to the treatment to which they were subjected while in custody,
such as where prisoners are held incommunicado or denied medical attention, it
is legally acceptable for the Commission to rely on circumstantial evidence.
Accordingly, in the present case, given that the prisoners were held
incommunicado and denied access to medical care by the State agents, the
Commission cannot satisfy itself that the lack of medical evidence or report to
prove that the injuries were sustained through torture means that torture has not
occurred. As such, the Commission, in relying on ·the testimonies of the prisoners
and that of their relatives and lawyers, is minded to find that the injuries
sustained by the prisoners were as a result of torture, inhumane and degrading
punishment mitted on them by the Military Intelligence while in custody.
167.
Regarding the Complainant's allegation that all of the prisoners while in
custody, wel'e not allowed contact with their families or lawyers for about nine
(9) months, Additional Protocol II of the Geneva Convention and the African
Commission's Principles and Guidelines on Fair trial provide for persons
arrested or detained to receive visits from families and friends.76 The
Commission recalls its decision in Amn.eshJ International, Comite Loosli Bachelnrd,
Lnwyers' Committee for Human Rights and the Association of Members of the Episcopal
Conference of East African Bishops' Conference v. S11da11 and Law Office of Ghazi
Suleinmn v . Sudan, where it held that detaining persons without allowing them
any contact with their families and refusing to inform the families of the fact and
place of their detention, constitutes inhuman treatment of both the detainees and
their families. TI1e Commission adopts the same reasoning in this case and finds
that the refusal by the Military Intelligence of family or lawyers visits for the
prisoners while in custody amow,ts to inhuman treatment of both the detainees
and their families, in breach of Additional Protocol II of the Geneva Conventions
and the Principles and Guidelines on Fair Trial, hence contrary to Article 5 of the
01arter in terms of dignified treatment.
168.
On the issue of the Complainant's allegations that the Respondent State
despite its knowledge of the claims of torture, did not take any measures to
investigate the acts of torture Prisoners 1 to 7 were subjected to, the Commission
refers to the Robben Island Guidelines, which provides that states parties are under
an obligation to establish fully independent mechanisms to which allegations of torture
are brought; ensure t/zat wlzere claims of torture or ill-treatment a1'e brought before the
competent autlwrities, an investigation slzall be initiated; investigations shall be
conducted promptly, impartially and effectively and reparations are offered to victims
76 ~rtide 4(3)(b) Additional Protocol Il to the Geneva Convention & M2(g) of the Principles and Guidelines•o\
Trial.
Fair '
.
-, •• ..,;
38
irrespective of whether a successful criminal prosecution can or has been brought.77
These provisions are also reinforced in the Commission's Guidelines on Arrest,
Police Custody and Pre-trail Detention in Africa (Luanda Guidelines), which
provides that states shall ensure prompt investigations into allegations torhtre78. The
Commission in Monim Elgak, Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) V Sudan 79 where allegations of torture were duly brought to
the attention of the authorities of the Respondent State held that because it took
no measures to investigate the allegations and bring the perpetrators to justice,
the State violated article 5 of the African Charter. Similarly, the European Court
of Human Rights in Alpar v Turkey80 held that the State was obligated to conduct
an effective investigation into the claims of the victim on torture, and having not
done so, they violated Article 3 prohibiting torture.
169.
In this regard, the Commission finds that because the Respondent State did
not take any measures to investigate the acts of torture Prisoners 1 to 7 were
subjected to, it violated Article 5 of the African Charter.
In light of the above findings, the Commission holds that the Respondent
170.
State violated Article 5 of the African Charter.
Alleged Violation of Article 7
171.
Article 7 of the African Charter guarantees for everyone the right to have
his/her cause heard. This includes the right to:
1
(a) an appeal to competent national organs against acts of
violating his fundamental rights as recognized and guaranteed
by conventions, laws, regulations and customs in force;
(b) The right to be presumed innocent until proved guilty by a
competent court or tribunal;
(c) The right to defence, including the right to be defended by
Counsel of his choice;
(d) The right to be tried within a reasonable time by an
impartial court or tribun.nl."
172.
The Complainant submits that by n ot affording prisoners 1 to 7 the fair b.-ial
guarantees under the African Charter, the Respondent State violated their rights
under article 7 of the African Charter. According to the Complainant, one of the
77Article 17,18, 19 and 50 of the Robben Island Guidelines
78 See Article 22 of the Luanda Guidelines
--=~
.. ........,
.. .
so Case of Alpar vs. Turkey (22643/07) before the European CourtofHuman)ligh~,...,,
,,,.,,,, -
79 Ibid 22
~
;
39
.'.) ;~
/.
•
_
..,
I
_/✓
'
fundamental elements of a fair trial is to be tried before an impartial and
independent court, but prisoners 1 to 6 were tried under Anti-Terrorism laws in
Special Crimes Courts established under the Anti-Terrorism Act (2001), which
established procedures contrary to those applied in normal courts81 .
173.
As stipulated in the Principles and Guidelines on the Right to Fair Trial
"military courts are required to respect fair trial standards enunciated in the
African Charter and in the Guidelines"82. Therefore, the Commission will assess
the Complainants arguments in relation to the violation of the rights of prisoners
1 to 7 under Article 7 of the African Charter.
The Commission will start by assessing the right to counsel of one's choice
174.
as enshrined in Article 7 (1) (c) of the African Charter, which is an important
right as it encompasses several other rights such as freedom of ill treatment and
the right to prepare a defence83.
175.
Article 105 of Common Article 3 of the Geneva Convention provides that a
prisoner of war shall be entitled to assistance to defence by a qualified advocate
or counsel of his choice and Article 99 of same convention provides that no
prisoner of war may be convicted without having had an opportunity to present
his defence and the assistance of a qualified advocate or counsel. Common
Article 3 of the Geneva Conventions proscribes, among others ' the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial
guarantees.' Simila1· guarantees have been referenced in the UN Basic Human
Rights reference Guide on Right to a Fair Trial and Due Process in the context of
Countering Terrorism, which also provides for the right to counsel of one's
choice and confidential consultations with counsel84.
176.
The Commission has considered in its Principles and Guidelines on Fair
Trial that in proceedings 1·elating to criminal charges, legal representation is the
81 TI,e right to effective defense counsel as only one lawyer is allowed to represent them; the absence of the defense
lawyer does not prevent the COUit from going ahead with the proceedings and issuing a final decision on the case even
if the accused is charged with an offence punishable by death; the coUits are further empowered to decide on the
witnesses who testify on behalf of the accused persons; rf the court makes a decision ona procedur al issue, U,at decision
is final and not appealable.; U,e Court allows self-incriminating evidence to be adduced in court and if there are several
individuals accused of the same offence the court can accept 111,y statement by any of U,e accused persons to convict
him and another accused person in U,e same group; . the court to accept hearsay information lo convict U,e accused;
the court is authorized to rely on the inquiry of the police during the tria.l; the Act provides only 7 days for the defense
lawyers to prepare and file an appeal as oppose to the 15 day to appeal requirement under the Criminal ProcedUie Act
of Sudan; the coUit has powers not to follow the 1991 Criminal ProcedUie Act and Sudanese Law of Evidence which
provide for better fair trial guarantees.
s2 Ibid Principle L (b)
83 Amnesty lnternational 1111d oU,ers v. Sudan (above, n. 27), para. 64.
84 Article 8 and 9 of the UN Basic liuµ1an Rights reference Guide on Right to a Fair Trail and Due Process in the
context of Countering Terrorism ··,
•
/.
40
best means of legal defence against infringements of human rights and
fundamental freedoms85 . It also provides for an entitlement to consult and be
represented by a legal representative or other qualified persons chosen by the
party at all stages of the proceeding including periods of administrative
detention, trial and appeal proceedings; and to have adequate opportunity to
prepare a case86. The Guidelines further give States an obligation to ensure that
any arrested or detained person is provided with the necessary facilities to
communicate with his lawyer, doctor, family and friends.87
177.
In the present case, the Defense Lawyers of Prisoners 1-6 were only able to
see the prisoners for the ffrst time at their initial appearance before the special
Combating Terrorism Court and argued for needing additional time to consult
with the prisoners and prepare the details of their defense, but the Cowt only
granted a one-week postponement to the start of the trial. Furthermore, the
Court issued the Defense Lawyers a letter authorizing them to meet with
Prisoners 1 to 6 for only 1 to 2 hours each week, however these visits always
under full observation by the NISS officials. Between 28 December 2011 and 5
March 2012, the presiding Judge summoned the prisoners to appear in the
absence of their Defense Lawyers and present a new list of defence witnesses.
The Prisoners presented a list of fifteen (15) d efence witnesses but the Judge
accepted only two (2) witnesses. Moreover, even though the Prisoners protested
the continuation of their trial without their Defense Lawyers present, the trial
Judge continued w ith the trial and convicted the prisoners in the absence of their
Defense Lawyer s.
178.
Regarding prisoner 7, he was only afforded the opportunity to meet with
his Defense Lawyer on the first day of Court appearance for 10 minutes before
the trial commenced. His Defense Lawyer requested for a postponement of the
case to allow for adequate preparation but the Court again refused to grant this
request. Accordingly, the Defense Lawyer withdrew from the case and the
Respondent State did not appoint a lawyer to defend him.
179.
The Commission recalls its decision in Malawi African Association and Others
v . Mauritania 88 and in Krishna Achu.than (on behalf of Aleke Banda), Amnesty
International (on behalf of Orton and Vera Chinua), AmneshJ international (on behalf
of Orton and Vera Chinun) v Malawi 89 where it held that where the accused either
ss N2(a) Principles and Guidelines on Right o Fair Trial
86 Articles 20 (c) and 31 of the Robben Island Guidelines and Principle A2 (e) (f) of the Principles and Guidelines on
the Right to a Fair Trial.
87 Ibid Principle M (2) (e)
ss Communications No 54/91,61/91,98/93,164-196/97, 210/98 - Malawi African Association and Others v.
Mauritania
89 CommU11ication 64/92-68/92-78/92 Krishna Adm than (on behalf of Aleke Banda),Am.nesty lntemational (on
behalf of Orton and Vera Chinua), Amnesty international (on behalf of Orton and Vera Chinua) v Ma:la\lli
41
had no access or only restricted or delayed access to a lawyer, the Respondent
State violated article 7(1) (c) of the African Charter. The Commission therefore
finds that the denial of access to counsel before the commencement of the trial;
the restrictive access granted for the lawyers to consult with the prisoners and
prepare their defense; the summoning of the prisoners to appear in the absence
of their Defense Lawyers; the acceptance of tow(2) witnesses out of the fifteen
denfence witnesses presented and the continuation of the trial without the
presence of their lawyers; goes against fair trial guarantees and impeded the
ability of prisoners 1 to 7 to adequately assure their defense. The Commission
thus finds a violation of Article 7(1) (c) of the African O1arter.
180.
The Commission will proceed to address the Complainant's submission
that prisoners 1 to 7 were tortured for purposes of forcing them to make
confession which were used against the prisoners during their trials.
181.
The Commission in interpreting Article 7 of the African Charter has stated
in its Principles and Guidelines on Fair Trial that ' any confession or other
evidence obtained by any form or coercion or force may not be admitted as
evidence or considered as probative of any fact at tJial or in sentencing' 90.
Similarly, IHL rules in Article 6 (f) of Additional Protocol to the Geneva
Conventions states that 'no one shall be compelled to testify against himself or
to confess guilt'. Other international human rights norms have also addressed
the issue of torture as a means to obtain confession. The United Nations
Committee against Torture has stated that" states shall ensure that any statement
which is established to have been made as a result of torture shall not be invoked
as evidence in any proceedings, except against person accused of torture as
evidence that the statement was made" 91 .
182.
The European Court of Human Rights in Harutyunyan v. Armenia held that
'the use of evidence obtained in violation of Article 3 in criminal proceedings
raises serious issues as to the fairness of such proceedings, whether in the form
of a confession or real evidence obtained as result of torture, should never be
relied on as proof of the victim's guilt, irrespective of its probative value,92. All
the above principles also apply in the Sudanese Evidence Act 1994 which states
that "in criminal matters, a confession shall not be proper when it comes as a
result of inducement or coercion". 93
183.
In light of the foregoing, the Commission finds that the confessions
obtained from prisoners 1 to 7 through torture and admitted as evidence against
90 Principle N(6)(d)(1) Principles and Guidelines son Right to Fair Trial
9 1 Article 15 Convention Against Torture
92 Harutyunya11 v. Armenia, para 63
93 Sudanese Evidence Act 1994, d1apter IV rule 20 (2)
,.
'
42
them during their trial; and the reliance on such eviden ce by the Judge as
forming part of the basis for their convictions, contravenes the standards in the
Geneva Conventions and Additional Protocol II and the principles of fair trial.
As sud1, these amount to a violation of Article 7 of the African Charter.
184.
The Commission will also proceed to assess the Complainant's argument
relating to undue delay in bringing prisoners 1 to 7 before a judicial authority,
following their arrest and detention. The Complainant submits that Prisoners 1
to 6 were arrested on 11 January 2011 and charged by the Prosecuting Attorney
of Crimes against the State four (4) months after their arrest on 14 May 201194 •
According to the Complainant, their first Cowt appearance took place on 18
October 2011, nine (9) months after their date of arrest. Regarding Prisoner 7, the
Complainant submits that he was arrested on 11 July 2011 and had his first court
appearance on 23 August 2011, one (1) month and half after his arrest.
185.
The Commission has established in its Principles and Guidelines on Fair
Trial and the Robben Island Guidelines that "nnyone who is arrested shnll be
infonned, at the time of arrest, of the reasons for his/her mTest nn.d shnll be promptly
in.formed, in a language he/she understands, of nuy charges against him/her; and ensure
that all persons deprived of their liberty are brought promptly before a j udicial
autltoritij''95 . Furthermore, the Luanda Guidelines provides that "nil persons in.
police custody and pre-trial detention shall have tlze right, either personnlly 01' through
their representative, to take proceedings before n judicial a11thorif:IJ, without delay, in
order to have the legalihJ of their detention reviewed"96.
186.
The IHL rules in Article 103 of Common Article 3 of the Geneva Convention
provides that judicial investigations relntin.g to a prisoner of war shall be conducted as
rapidly as circwnstances permit so that his trial shall take place ns soon as possible. It
further provides that a prisoner of war awaiting trial shall not be confined for a period
exceeding three (3) months. Article 6 of Additional Protocol II to the Geneva
Convention also provides that an accused person is to be informed without delay of
the particulars of the offence alleged against him and shall afford the accused before and
during his trial all necessary rights and means of defence. Consequently, the
Commission notes that the length of detention without charge of prisoners 1 to
7 exceed ed the prescribed duration under the Sudanese Criminal Procedure
Code, which provides for a maximum of two (2) weeks of detention without
charge97.
94 Case No. 447/ meem/2011
95 See M2 (a)(b) and 3 (A) of the Principles and Guidelines on Fair Trial & Article 25, 26 & 27 of the Robben Island
Guidelines
96 Principle 35 of Guidelines on Arrest, Policy Custody and Pre Trail Detention (Luanda Guidelines)
97 Section 79(3) of the Sudanese Criminal Procedure Act 1991
• t•.
•'
187.
Therefore, it is the Commission's view that the delay in detaining Prisoners
1 to 6 for fotu- (4) months and prisoner 7 for one (1) month and half after their
arrest; and the delay of nine (9) months and a month and few weeks respectively,
in bringing them to Court, contravenes not only the provisions of the Sudanese
Criminal Code, but also fair trial guaTantees laid down in IHL rules and other
international norms and standru:ds. The Commissions accordingly finds that the
Respondent State violated article 7(1) (d) read together with article 6 of the
African Charter.
188.
The Commission will briefly address the issue of the irregularities in the
appeals process for prisoners 1 to 7 at the Terrorism Appeal process, Comt of
Appeal and Suprem e Court respectively. The Commission notes the argument
of the Complainants that the Terrorisms Appeals Court held no public hearing
on the appeal for prisoners 1 to 6 n or hear oral arguments from their Defense
Lawyers, prior to issuing its decision affirming the reasoning of the lower court;
and that Prisoner 7 had no legal representation or knowledge about the status of
his case, as it sailed through the Court of Appeal, the Supreme Court and to the
President for assent.
189.
The Principles and Guidelines on Fair Trial guarantee that the right to
appeal shall provide a genuine and timely review of the case, including the facts
and the law98. Moreover, Article 14(5) of the ICCPR also guarantees the right for
everyone convicted of a crime to have his or her conviction and sentence
reviewed. The UN Human Rights Committee fUI"ther provides that to comply
with the overall right to a fair trial in article 14(1) of the ICCPR, an appeal must
be conducted in a fair manner and with due process. This means for example,
that an appellant must be provided with adequate facilities for the preparation
of the appeal; the appeal must be undertaken in a timely manner; and the
appellant must enjoy the right to self-representation or representation by counsel
at the appeal hearing99_
190.
The Human Rights Committee went on to emphasize that in the case of
trials that may lead to the imposition of the death penalty, scrupulous respect for
the guarantees of fair trial is particularly important including in the context of
the right to appeal and the exercise of that right1DO_ Moreover, the UN Basic
Human Rights Fair Trial Guide also details the right to fair trial in the context of
countering terrorism and states that the right to appeal is equally applicable to
persons convicted by a court of having carried out terrorist acts and any review
98 Principles and Guidelines on the Right to Fair Trial in Africa , Principle N(lO)(a)
99 Human Rights Conunittee, General Comment 32 (Article 14: Right to equality before the courts and tribunals and
to fair trial), paras. 45--51. See further Lega l Digest of lnternationaJ Fair TriaJ
Rights, pp. 221-~ - . ,
100 Ibid para 59.
. • • .:'--)
,,,,.
-
,)
I
/
0 ;,
•
I
_.//
44
of conviction or sentence must be genuine, meaning that the appeal tribunal
must be able to conduct a thorough analysis or examination of all the issues
debated and analyzed in lower courts101_
191.
In the present case therefore, the fact that the Terrorism Appeal Court did
not hold a public hearing nor hear oral arguments from the Defense Lawyers for
prisoners 1 to 6 prior to issuing its decision on the appeal, and due to the fact
that Prisoner 7 had n o legal representation or no knowledge about the status of
his case as it sailed through the Court of Appeal, the Supreme Court and to the
President for assent, the Commission is of the view that the Terrorism Appeals
Comt, the Cotu-t of Appeal and the Supreme Court did n ot follow due process
in the appeals process for prisoners 1 to 7, nor did it conform to the fair trial
procedures stipulated above. The Commission finds that the Respondent State
violated Article 7(1) (a) of the African Charter.
192.
The Commission therefore holds that the Respondent State violated article
7 (1) (a) (c) and (d) of the African Charter.
Violation of Article 1
193.
Article 1 of the African Charter provides that:
'The member states of the Organization ofAfrican UnihJ parties
to the present Chnrter shall recognize the rights, duties and
freedoms enshrined in this Charter and shall -undertake to adopt
legislative or other measures to give effect to them.
194.
The Complainant submits that the Respondent State having viola ted the
rights of prisoners 1 to 7 under articles 4, 5 and 7, have violated article 1 of the
African Charter. The Commission concurs with the Complainant, having held in
numerous Communications that the violation of any of the provisions of the
African Charter automatically means a violation Article 1. The African Comt also
reached the same conclusion in the Thomas v. Tanzania where it held that the
obligation under section 1 of the African Charter is not complied with or is
violated when any of the rights, duties or freedoms set out in the African Charter
have been restricted, violated or not applied.
101 United Nations Counter Terrorism Tmplementat:ion Task Force: Basic Human Rights Reference Guide: Right to Fair
Trail and Due Process in the Context of Countering Terrorism paragraph 89. Report of the Special Rapporteur on the
promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin
(A/ 63 / 223), para. 15. See, for exam pie: Human Rights Committee, Fema ndez v. Spain, Communication No. 1007/2001,
UN Doc CCPR/C/78/D/1007/2001 (2003), para. 7; and Inter-American Court of Human Rights, Herrera Ulloa,Series
C No. 107 (2004), paras. 157-168 ,t
---- .
":."
'-~
/. /1
)
45
i.
/::"::,
____ __/
I
195.
In light of the foregoing and having found that the Respondent State in the
present Communication violated Articles 5, 6 and 7 of the African Charter, the
Commission finds that the Respondent State has also violated Article 1 of the
African Charter.
Decision of the Commission
196.
In view of the above reasoning, the African Commission on Human and
Peoples' Rights:
(i)
Finds the Respondent State is in violation of Articles 1, 4, 5 and 7 (1)
(a), (c) and (d) of the African Charter;
(ii)
Recommends reforms of the Respondent State's Anti-Terrorism Act
(2001), policies and practices of the States security agents
incompatible with the African Charter and other regional and
international human rights and IHL legal instruments, to bring it in
line with the African Charter and such other international standards;
(iii) Urges the Respondent State to compensate and rehabilitate prisoners
1 to 7 for prejudices suffered in relation to the violations found;
(iv) Urges the Respondent State to conduct prompt ?J1d impartial
investigations into the allegations of torture and ill b·eatment of
prisoners 1 to 7 and to bring the perpetrators to justice;
(v)
Requests the authorities responsible for these violations to apologize
to prisoners 1 to 7, as an acknowledgement of violation of their
rights, and ensure non-repetition of their actions.
(vi) Train security officers on relevant standards concerning adherence
to custodial safeguards and the prohibition of torture;
(vii) Adopt and implement procedtual safeguards fo r the prevention of
torture and other forms of ill-treatment as required w1der the
Robben Island Guidelines; and
(viii) Inform the Commission, in accordance with Rule 112 (2) of the
Commission1s Rules of Procedure (2010), within one hundred ru.1d
eighty days (180) of the notification of the presen t decision of the
measures taken to implement the present decision.
Done at the 71st Ordinary Session, held virtually, from 21 April to 13 May 2022 --. _
·, \ "I
I ~• .•
)
'!
/
------✓
46