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Human and Peoples Rights
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COMMUNICATION 604/16
Dr. Bushra Gamar Hussein Rahama
V
The Republic of Sudan
A.dopted by the
African Commi.fsion 011 H111111111 and Peoplu' Rights
During the 84"' Ordinary Sesrion held virtually from 21 to 30 July 2025
Banjul. The Gambia
AJ, O,g•n of the
African 1
Union
The African Cornmms1011 on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombe, North District, West Coast R~gion
Phone- (720) 230 4361 f-a)( (/20) 1 1 05 04
En,a1I au-banjul @africanunion.org
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Communication 604/16 - Dr.
Bushra Gamar Hussein Rahama v.
The Republic of The Sudan
I.
Summary of the Complaint:
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat), received on 24 April 2015, a Complaint1 from the African Centre for
Justice and Peace Studies (ACJPS) (the author, on behalf of Dr. Bushra Gamar
Hussein Rahama (the Victim).
2. The Complaint is submitted against the Republic of The Sudan (the Respondent
State), State Party to the African Charter on Human and Peoples' Rights (the
African Charter). 2
3. The Complainant submits that the Victim is a Sudanese national of Nubian
ethnicity, from South Kordofan - an X-ray technician and founder and Executive
Director of Human Rights and Development Organisation (HUDO) - which
organisation reported the events that occurred as a result of the war in South
Kordofan and the Blue Nile, to various international human rights organisations.
4. The Complainant avered that after realizing that he could no longer stay in South
Kordofan, the Victim had fled from South Kordofan to a relative's home in
Omdurman, in the outskirts of Khartoum, where he was arrested on 26 June 2011,
by four men in plain clothes, who identified themselves as officers of the National
Security Services (NSS), after they had examined his identity document, and taken
some of his belongings including a laptop, mobile phone, camera, flash drive and
clothes. The Complainant claims that the Victim also noticed once led outside, that
his house was surrounded by various NSS personnel and had parked in front of it,
four (4) civilian cars, one of which he was taken in.
5. The Complainant alleges that the Victim was arrested without an arrest warrant
and being told why he was arrested, detained without charge, held incommunicado
in an unknown location, denied access to legal representation, and subjected to
torture, cruel, inhumane, or degrading punishment and treatment while in
detention.
6.
Specifically, the Complainant claims that upon the Victim's arrest and during the
drive to the detention facility, he was blindfolded and insulted with remarks such as
"you are a slave, and you have to remain a slave" and was also beaten once on
1
This Communication is however dated 05 October 2011 , and evidence was provided by the Complainant of the reitious._
transmittals to the Commission by email in 2011 and 2012. Please see for details, paragraph 22 under 'Pree
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clarifies the gap between the date on the Communication and the date on which it was received by the Comm· J>R§ee1 cifs~ 7 'o,..
paragraphs 45 and 77 of this decision, concerning the evidence provided by the Complainant which are o • ", ~rt • •
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the dates of the submission and receipt of the Communication, and the Commission's analysis thereof.
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2 The Republic of The Sudan ratified the African Charter on 18 February 1986.
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his back. Also, on arrival at the detention facility, the Victim was allegedly dragged
along a staircase, handcuffed, and ordered to sit on the ground and hit on his back
and chest. He was also ordered in excruciating pain to put up his hands and stand
on his toes facing a wall and was beaten on the back of his head if he rested on
his feet, which caused him to fall into the wall, for approximately two hours. In the
process of being hit, the Victim struggled to catch his breath and confirmed to the
officers when he was asked that he was asthmatic.
7. The Complainant further submits that the Victim was thereafter taken by security
personnel to a room where one of the security personnel who had arrested him
was present, and another officer who had the Complainant's laptop open in front
of him and was going through it, questioned him about the contents of his laptop
and the whereabout of a certain flash disk, and ordered him to open his camera.
The Complainant claims that the Victim tried to answe.r their questions and do their
bidding, but the security personnel were not satisfied, and so they beat his feet and
back with a water hose pipe, for approximately 20 minutes.
8. After this, the Victim was allegedly taken to another room where his personal
details and those of his family and friends were taken, and he was again,
blindfolded and hand-cuffed, with his feet chained, and was taken to another
destination which he was informed was a clinic to undergo medical consultation
and record his medical status - and at this place, the Complainant claims that the
Victim informed the doctor upon enquiry about any chronic diseases, that he had
cardiac problems and was asthmatic, whereafter his blood sample was taken.
Following the medical consultation, the Victim was allegedly taken again,
blindfolded, to another prison cell, which he later learnt was at Kober Prison, where
he was held together with five other people.
9. Furthermore, the Complainant alleges that on 27 June 2011, the Victim was again
blindfolded, handcuffed , chained and taken to a room, at the NSS premises, where
one of the officers who arrested him and identified himself as Thu al Noon,
interrogated him for three hours about the contents of the reports that he wrote,
and his relationships with Amnesty International, Human Rights Watch, the
International Criminal Court, human rights officials of the United Nations Mission in
Sudan (UNMIS), the Sudan Peoples' Liberation Movement and the war in the Nuba
Mountains, among others; after which the Victim was returned to Kober Prison.
10. The Complainant submits further that on 11 July 2011 , the Victim was taken to the
'Office of Crimes against the State Prosecutor', where he was detained in a cell,
and the following day, on 12 July 2011, he was presented before the Prosecutor
who accused him of 'establishing contacts with hostile organisations and compiling
reports for them'. the Victim was accused, among others, of sending information
about events in South Kordofan to international organisations such as Amnesty
International and the UNMIS. After this, the Victim learnt that the President of the
Republic of the Sudan had declared a general pardon but that he was excluded.
Nonetheless, the Victim was let out of his cell and allowed to see his family for the
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first time since his arrest, as he was visited by his brothers.
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11. It is also alleged that on 14 July 201 1, a lawyer's network in Kha rt
before the Prosecutor for Detainees of Security Service to gain acces
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but the application was ignored, and that on that same day, he was taken to the
Central Khartoum Criminal Court, where he was presented before a judge who
extended his detention for two weeks. The Victim was repeatedly taken back to
Kober Prison and presented to the same Court for the extensions of his detention:
for another one week on 27 July 2011 and again on 3 August 2011; and for three
days on 10 August 2011. During this period, his family allegedly needed permission
to visit him, and only on Mondays.
12. The Complainant avers further that on 14 August 2011, the Victim was again taken
to the Office of Crimes against the State Prosecutor where he was told that he
would be released the same day or the next, after he signed some papers, which
he did. The Victim was however reportedly taken by NSS officials immediately he
left that Office to the NSS Political Affairs Department, where he was told that he
was needed to discuss a matter. The Victim was again allegedly blindfolded and
handcuffed, with his feet chained, and on arrival at the NSS Political Affairs
Department, was taken back to Kober Prison, without any explanation. The
Complainant claimed that the Victim was initially barred from contacting his family,
but however subsequently permitted on 24th August 2011 and 2nd September 2011,
and thereafter once a month, for only ten minutes, in the presence of security
personnel who recorded the discussions which had to be in Arabic and not relate
to political or social matters.
13. The Complainant further avers that on 26 September 2011, the Victim informed the
officer-in-charge at Kober Prison of his decision to carry out a hunger strike, after
which he was blindfolded and handcuffed, with his feet chained, and taken to the
NSS Political Affairs Department. On arrival, the Victim was initially put in solitary
confinement, but later that day, brought before a security personnel whom he
informed that he had been unlawfully detained for 44 days without charge or trial,
released by the Office of the Crimes against the State Prosecutor and re-arrested
by NSS, and that he would continue with the hunger strike unless he was released
or transferred to Office of the Crimes against the State Prosecutor. Following this,
the Victim was assured by the security personnel that he would be released soon
and should therefore not proceed with the hunger strike, which was considered a
suicide attempt, for which the NSS would not be responsible.
14. The Complainant alleges that on 27 September 2011, the Victim was taken back
to Kober Prison and placed in solitary confinement handcuffed with his feet
chained. the Complainant also submitted that the Victim was let out of the prison
cell five times a day to pray, and that the cell was bare, and he slept on the floor.
In addition, the Complainant avered that the health of the Victim deteriorated as he
was only drinking water, and on 28th September 2011 , the doctor checked him and
injected him with sodium and glucose drips, for which the prison guard escorted
him from his solitary cell handcuffed and with his feet chained to and from the clinic
within the prison premises, each time the drips were administered. the Complainant
added that the drips were administered on the Victim with his feet still chained.
Complainant claimed that the Victim was again promised by an investigation officer
on 11 October 2011 that he would be released within ten days, which did not
materialize. As the security personnel did not fulfil their promises of releasing the
Victim, the Complainant alleged that the Victim staged two more hunger strikes,
for which he was rather threatened with a charge of attempted suicide instead of
being released. Within this period, the Complainant submitted that the Victim was
treated for low blood sugar level, back pain, and tingling foot, among others, but
was still not released but moved from one cell to another. The Complainant aver
that the Victim's access to medical care, which was paid for by his family, was also
delayed on many occasions, and he was denied hospital admission which was
recommended for his recovery.
16. Following the expiration of his detention extension on 16 June 2012, the
Complainant submits that the Victim again protested his continued detention with
another hunger strike on 20 June 2012, as a result of which prison authorities
transferred him to the Office of Crimes against the State Prosecutor on 21 June
2012, where he was taken to see the Prosecutor. The Complainant avers that by
this time, a crowd made up of the Victim's family and several human rights activists
had started a protest outside the premises of the Office of Crimes against the State
Prosecutor, demanding his release. Upon the presentation of the Victim, the
Complainant claims that the Prosecutor indicated that he was unaware that the
Victim had been re-detained by NSS on 14 August 2011, and then allowed him to
see his family without restriction for an hour, as well as his lawyer for the first time,
before he was returned to his cell.
17. The Complainant further submits that the Victim was brought before another
prosecutor on 24 June 2012, who demanded that he call off another protest for his
release which was ongoing outside the Office of the Prosecutor, which, through his
lawyer, he agreed to, on the condition that he should either be released on bail or
be tried, and that he should be transferred to a hospital due to his deteriorating
health. The prosecutor allegedly agreed, and the Victim was transferred to a
hospital.
18. Finally, the Complainant alleges that the Victim was eventually released on bail on
27 June 2012 on the condition that he would obtain one guarantor, would not leave
the country, and would report to the State Prosecutor's Office once a week,
accompanied by his guarantor. Following this, the guards watching the Victim were
withdrawn from the hospital where he had been admitted, and he was discharged
from the hospital on 03 July 2012.
19. The Complainant contends that the Victim should not be required to exhaust local
remedies due to several factors that hinder access to effective domestic remedies,
such as legislative limitations, fear of reprisal, and the lack of any action by the
Respondent State despite being aware of his allegations of torture.
21. The Complainant submit that the Victim was arrested on many occasions between
the years of 1991 and 2006.
22. The Complainant argues that the Victim fled Sudan in a bid to seek medical care
in Germany and later resettled in Uganda. He was however, arrested in 2018 in
Uganda and transferred to El Fashir airport by a number of NISS agents. At the
airport, he was verbally abused. He was later accompanied by two armed and
uniformed NISS officers on the flight to Khartoum.
23. The Complainant aver that on arrival at Khartoum airport, the Victim saw a tinted
vehicle parked outside. He was then blindfolded and put in the vehicle. They
travelled for about one hour until he was removed from the car and taken into a
building. When the blindfold was removed, he found himself in an empty room with
no windows or ventilation. He was kept in that room for 10 days and permitted to
go to the toilet rarely.
24. The Complainant state that the Victim was detained by the NISS in Khartoum
without access to his family or lawyers until his release two months later. Whilst
detained in Khartoum he was interrogated regularly and subjected to a range of
acts causing mental and physical harm. the Victim was subjected to electric shocks
and hit on his head and feet with iron rods. His head was shaved and a chemical
solution was applied to his head, causing a large circular bald spot. During one
incident.the Victim was taken to a dark room that had puddles of blood on the floor
and a bad stench. At that point he was told that he had 72 hours to admit to their
accusations or he would be thrown into a hole in that room and left there. According
to the Complainant, the Victim felt very unwell for the entire period he was detained
but was denied access to a doctor.
25. The Complainant aver that prior to his release, the Victim was forced to sign, with
his finger-prints a document that he was not permitted to read and did not know
the content of that document. He was released shortly after and ordered to stop
advocating on the issue of human rights or any issues related to IDPs and
refugees; refrain from giving any information or meeting any organisation about his
arrest or his experience in detention; and was informed that he would not be
permitted to travel outside.
26. The Complainant states that after his release , the Victim fled Sudan fearing for his
safety. He was deeply traumatised owing to the physical and mental pain and
suffering he had been subjected to. After his release , he experienced temporary
memory losses.; he was in severe pain from the beatings and other torture
methods; and also had a terrible back pain and skin condition. He was very afraid
for the safety of his family members.
Articles alleged to have been violated:
Prayers:
28. The Complainant requests the African Commission on Human and Peoples' Rights
(the African Commission) to:
a. Recognise the violation of articles 1, 5, 6 7 and 9 of the African Charter;
b. Request payment of adequate compensation for the violations of the rights
above-mentioned, and the amount awarded by the Commission should reflect
the following elements of damages in line with international standards set out
in the Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law4 and the jurisprudence of international
human rights treaty bodies and regional human rights courts: 5
i.
material damages, including costs for medical treatment, medical,
psychological and social services, legal or other expert assistance;
ii.
loss of earnings and loss of earning potential;
iii.
lost opportunities, including employment and education, which
damages are sometimes referred to as special damages;6 and
iv.
Moral damages.7
The amount of compensation sought would be specified in a later
submission.
c. Request the commencement of an effective and impartial investigation into the
circumstances of his arrest and detention and the subsequent treatment. In that
regard, existing immunities should be lifted with regards to any offlcer
suspected of being responsible for any of the violations, and adequate
protection to witnesses, such as grant of anonymity, escorts, and relocation, as
necessary, should be provided during the investigation and thereafter if needed.
Also, where sufficient evidence of misconduct or criminal conduct is found, the
suspected perpetrators should be tried and adequately punished if found guilty;
d. Request public acknowledgment and apology to the Complainant for the
violations suffered;
e. Request amendment of the legislation of the Respondent State that are
incompatible with the African Charier so that Sudanese laws, in particular the
National Security Act: (i) provide protection, either by removing the powers of
arrest and detention altogether [guaranteeing] a right to habeas corpus; (ii}
repress violations, such as making torture a criminal offence by using the
internationally recognized definition of torture and by making it subject to
adequate punishment; and (iii) effectively counter impunity and provide
effective remedies. This should entail the repeal of immunity provisions and the
provision of an explicit right to a remedy and reparation for victims of serious
human rights violations, including torture and arbitrary arrest and detention; and
f. Request the training of members of the security services on relevant standards
concerning adherence to custodial safeguards and the prohibition of torture.
4 UN General Assembly Resolution .AJRES/60/147, 16 December 2005, Principle 20.
5 The Complainant cited: Mikhejev v. The Russian Federation, Application No.77617/01 , European Court of Human Rights,
Judgment of 26 January 2006 & Case ofthe Miguel Castro-Castro Prison v. Peru, (Merits, Reparations and Costs), ln!:#1] ~
HR, Judgment of 25 November 2006, Series C No.160.
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6 On this, he relied on Chief Ebrimah Mar,neh v the Republic of Gambia, Suit No: ECW/CCJ/APP/04/07, Judg ,,, nt of:S',9une ' 1
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2008, para.29.
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7 Citing as above, paras.30 & 40, and the Case of the Miguel Castro-Castro Prison v. Peru, (Merits, Reparatf_pns a Co~~).
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Int-Am Ct HR, Judgment of 25 November 2006, Series C No.160, psra.50 e.
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II.
Procedure:
29. Based on the records and evidence provided by the Complainant, the Complaint,
was originally submitted to the Commission by email and fax on 5th October 2011 8
and by email on 25 July 20129 , but due to technological challenges, it was only
received physically by the Secretariat on 24 April 2015 during the 56th Ordinary
Session held from 21 April - 07 May 2015. 10 Upon request by the Secretariat on
1O November 2015, 11 additional information on the Complaint was provided on 9
February 2016, receipt of which was acknowledged on 11 February 2016.
30. During its 58th Extra-Ordinary Session held from 6-20 April 2016, the Commission
examined the Complaint and decided to be seized thereof.
31. On 26 April 2016, the parties were notified of the Commission's decision, with a
request to the Complainant to file written arguments and evidence on the
Admissibility of the Communication within two months of notification in terms of
Rule 105(1) of the Commission's 2010 Rules of Procedure.
32. On 16 May 2016, the Complainant forwarded his submissions on Admissibility, and
this was transmitted to the Respondent State on 26 May 2016, by which
correspondence the Respondent State was also requested to forward its
submission on Admissibility within 2 months o·f notification, in accordance with Rule
105(2) of the Commission's 2010 Rules of Procedure.
33. At its 20th Ordinary Session, the Commission deferred consideration of the
Communication, pending submission on Admiss.ibility by the Respondent State
within the prescribed timeline, and on 27 June 2016, both parties were duly
informed of this decision. On 7 September 2017, the Secretariat of the Commission
resent to the Respondent State, the correspondence of 26 May transmitting the
Admissibility Submission, together with the said submissions. However, the
Respondent State failed to make the required submissions within the deadline or
at all.
34. Between the 59th Ordinary Session held from 21 October to 4 November 2016 and
its 73rd Ordinary Session held from 21 October to 10 November 2022, the
Commission deferred consideration of the Communication.
35. During the 74th Ordinary Session, held in Banjul, The Gambia, from 21 February
to 07 March 2022, the Communication was declared admissible.
8
Email evidence provided as Annex II to the Admissibility submission.
9 Follow-up emails are attached as Annex IV to the Admissibility submission.
10 Minuted physical copy available on file in the Secretariat's record.
11
Letter Ref. ACHPR/COMPT/1707/15, dated, 1Q1t1 November 2015.
7
37. On 29th May 2023, the Complainant submitted arguments on Mertis which were
transmitted to the Respondent State on 23rd June 2023, for Reply within sixty (60)
days, and the Respondent State failed to do so.
Ill.
Parties' Submissions on the Admissibility of the Communication
A.
Complainant's Submission on Admissibility
38. The Complainant submits that the present Communication satisfies all the
Admissibility requirements set out in Article 56 of the African Charter and presents
arguments in support of that submission.
39. As regards Article 56(1) of the African Charter, the Complainant submits that the
Communication clearly indicates its author -ACJPS, which submitted the
Communication on behalf of, Dr. Bushra Gamar Hussein Rahama, the Victim, and
that the Victim did not request that his identity be withheld from the Respondent
State.
40. Concerning Article 56(2) of the African Charter, the Complainant submits that the
Communication is compatible with the African Charter and the Constitutive Act of
the African Union (AU) for the reasons that: it has been filed against a State Party
to the African Charter since 1986 - Republic of The Sudan; it alleges prima facie
violations of the Complainant's rights protected by the African Charter12: to
protection from torture, cruel, inhuman or degrading treatment or punishment; to
personal liberty and security of person; to have his cause heard; to freedom of
expression; and to be protected from the Respondent State from the violation of
his rights by taking requisite measures, as provided for under Articles 5, 6, 7, 9(2)
and 1 of the African Charter respectively; and it is brought in respect of violations
that occurred after The Sudan's ratification of the African Charter, as the alleged
violations occurred between 2011 and 2012, more than 24 years after the
ratification of the African Charter by the Respondent State.
41. Furthermore, on Article 56(3) of the African Charter, the Complainant submits that
the Communication is not written in disparaging or insulting language directed
against either the Respondent State or the African Union (AU), and that the
language used is respectful and balanced.
42. The Complainant also submits regarding Article 56(4) of the African Charter that
the facts of the Communication are not based exclusively on news disseminated
in the mass media, and that the facts presented in the initial Complaint and relevant
to the Communication were gathered from an interview conducted by the ACJPS
with the Victim atthe ACJPS offices in Kampala in January 2016.
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43. On the requirement of exhaustion of domestic remedies under Artic}8 _5~ 6fot1:h'e ""~
African Charter, the Complainant requests to be exempted from hay_tng t x"!?u
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domestic remedies because they were unavailable.
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12 Relying on Communication 306105 - Muzerengwa and 110 Others v Zimbabwe (ACHPR)(2011).
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44. In that regard , the Complainant recalled the Commission's jurisprudence in Dawda
Jawara v The Gambia where it held that a remedy is: "considered available if the
petitioner 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"13 ; and in Article 19 v Eritrea, where it elaborated that exhaustion of
domestic remedies under Articles 56(5) of the African Charter, " ... presupposes: (i)
the existence of domestic procedures for dealing with the claim; (ii) the justiciability
or otherwise, domestically, of the subject-matter of the complaint; (iii) the existence
under the municipal legal order of provisions for redress of the type of wrong being
complained of; and (iv) available effective local remedies, that is remedies
sufficient or capable of redressing the wrong complained of' .14
45. To support this submission, the Complainant submits, firstly, that, the Victim could
not challenge his arbitrary detention because it is lawful under Sudanese law,
despite being prohibited by the African Charter. The Complainant submits that
while the African Charter protects the right to liberty under Article 6 thereof and its
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in
Africa (the Guidelines) require that arrests should be carried out by competent
authorities pursuant to a warrant, which should contain, 'reasonable grounds to
suspect that a person has committed an offence or is about to commit an arrestable
offence', 15 Article 50 (1) (e) of the National Security Act, 2010 (NSA 2010) of the
Respondent State, on the other hand, vests the NSS with the power to detain any
suspected person, and does not require that an arrest warrant be issued before an
individual is arrested. It was reiterated that in the present case, the Victim was
allegedly arrested on 26 June 2011 , without an arrest warrant.
46. Also, the Complainant submits that while the Guidelines require that all individuals
in pre-trial detentions should, "either personally or through their representative,
take proceedings before a judicial authority, without delay, in order to have the
legality of their detention reviewed", Article 50 of the NSA 2010, permits the NSS
to detain an individual for four and a half months without judicial review to
determine the legality of their detention.16 In light of this, the Victim was allegedly
presented on numerous occasions before a judge simply to extend his detention
and not to review the legality of his detention.17
47. Secondly, the Complainant avers that the Victim was allegedly deprived access to
his lawyer, and in this regard, indicates that Article 51 (2) of NSA 2010 provides
that a detained person can have access to their lawyer, "only if it does not prejudice
the progress of interrogation, enquiry and investigation", for which reason the
decision whether a detainee should or should not have access to his lawyer is left
to the NSS without judicial oversight. Consequently, the Complainant argues that
the Victim was allegedly only able to access his lawyer on, 21 June 20~ 3l-y~ar
after his detention, and was therefore unable to challenge his arbit~ry~ ~tentig.h '",
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13 Communication 147/95-149/96, (2000) ACHPR, para.32.
14 Communication 275/2003, para.47.
15 Guideline 3 (a}.
1s Article 50 {e}, (n, (g), (h)
17 See details of the extension of the Complainant's detention, as set out in para. 11 above.
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lawful under Sudanese law. The Complainant therefore submits that the Victim is
pursuing redress for these alleged violations of his rights through the African
Commission because the actions committed by the NSS contravene Sudan's
obligations under the African Charter.
48. Thirdly, the Complainant submits that NSS officials enjoy broad powers of immunity
and so cannot be prosecuted for any wrongdoing domestically, unless the immunity
has been lifted. It is averred that Article 52 (3) of NSA 2010 provides that, "no civil
or criminal procedures may be brought against a member or associate unless upon
the approval of the Director". is the Complainant therefore argues that the Director
holds sole discretion over whether NSS immunities are to be lifted, and ultimately
decides whether a case can be brought against any security personnel. For this
reason, the Complainant alleges that no transparent and effective remedies are
available to challenge inaction or refusal to lift the immunity. The Complainant
supports this allegation with an extract from the Concluding observations of the
United Nation's (UN) Human Rights Committee on Sudan. 18
49. In relation to the above, the Complainant recalled the African Commission's
position in Monim Elgak, Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) v Sudan that:
"This kind of remedy [as envisaged under Article 52 (3) of NSA] is purely
discretionary and even worse is not subject to judicial oversight and hence is
final. In several instances, the Commission has made its position clear that
when a remedy is discretionary, extraordinary remedy of a non-judicial nature,
then the Complainants are not required to pursue it as part of the requirement
of exhaustion of local remedies."19
50. Based on the foregoing, the Complainant concludes that the Victim was unable to
bring any legal action against the NSS for the human rights violations that were
committed against him due to the blanket immunities.
51. Finally, and in addition to the above, the Complainant submits that the Victim was
unable to pursue legal action in Sudan after release from detention due to a
genuine risk of further human rights violations. The Complainant submits that the
Victim had to flee from Sudan in 2012 out of genuine fear of further violation on his
human rights and has not been back to Sudan since.
52. In this regard, the Complainant recalled that the African Commission had held in
Sir Dawda K. Jawara v The Gambia that:
.)
'Therefore, if the applicant cannot turn to the judiciary· of his
of a generalized fear for his life (or even those of his relative ,
would be considered unavailable to him". 20
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18 UN Human Rights Committee: Sudan, UN Dec. CCPR/C/SDN/CO/3/CRP.1, 26 July 2007, para.9.
19 Communication 379/09 (2015) ACHPR, para. 67.
20 Fn 13 above, para. 35.
10
,.,
53. Furthermore, the Complainant
recalled that the African Commission also
recognized in Alhassan Abubakar v Gambia, that, it would not be logical to require
an individual to return to the state where he has allegedly suffered violations of his
fundamental rights and from which he had fled, in order to pursue a complaint
and/or bring a claim for reparation. 21
54. Regarding Article 56(6) of the African Charter, the Complainant submits that the
Communication was lodged within a reasonable time. The Complainant avers that
the African Charter does not explicitly describe what a reasonable time entails and
so the African Commission "treats each case on its own merits". 22 The Complainant
also submits that cases where remedies were exhausted are treated differently
from cases where remedies are found unavailable, ineffective or insufficient, as in
the present case, and that in such cases, the African Commission estimates the
timeliness of a communication "from the date of the complainant's notice thereof',
23 taking into account the circumstances of the case. 24 The Complainant cites such
relevant circumstances to include: a victim's security situation, forcing a victim to
flee his or her country of origin and settle elsewhere;25 the complexities of getting
a representation before an international body; 26 and the challenges of
communications system in Africa. 27
55. It is averred that in the present case, the Complainant
submitted the
Communication and request for Provisional Measures to the African Commission
on behalf of the Victim who was still in NSS detention at the time, through email
and fax on 5th October 2011, 28 and also physically during the 50th Ordinary Session
of the Commission, which was held from October 24 to November 05, 2011, in
Banjul, Gambia.29 The Complainant further submitted that the it never received
any acknowledgement of receipt from the African Commission and so re-submitted
the Communication by email on 25 July 201230 and subsequently in person on 24
April 2015 during the 56th Ordinary Session, with follow up emails requesting
acknowledgement of receipt sent on 28 April 2015. 31
56. Furthermore, the Complainant submitted that it did not hear from the African
Commission about this case until, 1O October 2015, through a letter
(ACHPR/COMPT/1707/15) requesting additional information on the complaint
submitted. The Complainant avers that it then furnished the African Commission
with the additional information and updated the Complaint on 08 February 2016.
21 Communication 103/93 (1996) at par. 6. Also cited Communication 205/97: Kazeem Aminu v. Nigeria, (2000) at para. 11.
22 Citing Communication 310/2005: Darfur Relief and Documentation Centre v Sudan, Communication 310/05, ~
5.
23 Citing Communication 322/2006: Tsikata v Ghana, para.37.
~:-.,
24 Relying on fn 21 above para. 75; Communication 288/04: Gabriel Shumba v Zimbabwe, para. 44; & Com~Oic[ ~n-300105:
',., c.
Socio-Economic Rights and Accountability Project v Nigeria, para.42.
_,, e:,
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25 Safia /shaq Mohammed Issa (represented by Tha Redress Trust and the African Centre for Justice fRd Pea e Stud~s) v
Sudan, Admissibility Decision, Communication 443/13, para.67.
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26 Citing Communication 334/06: Egyptian Initiative for Personal Rights and /nterights v Egypt, para. 99.
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27 As above.
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28 Email evidence provided as Annex II to the Admissibility submission.
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31 As above, on pg.2.
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57. Considering all the above, the Complainant claims that the Communication was
submitted within a reasonable time since the original Communication was
submitted on 05 October 2011.
58. Finally on Article 56(7) of the African Charter, the Complainant submits that this
matter has not been submitted to any other procedure of international investigation
or settlement and has therefore 'not been settled in accordance with the principles
of the Charter of the United Nations, or the Charter of the Organisation of African
Unity, or the provisions of the present Charter'.
59. Based
on the above submissions, the Complainant contends that the
Communication meets all the cumulative Admissibility criteria under Article 56 of
the African Charter and urged the African Commission to find the Communication
Admissible.
B.
Respondent State's Submissions on Admissibility
60. The African Commission notes that while the Complainant provided arguments on
the Admissibility of the Complaint, the Respondent State did not provide any
arguments, within the stipulated deadline which expired on 26 July 2016, and
despite the notifications and reminders sent by the Secretariat of the
Commission. 32
IV.
The African Commission's Analysis on Admissibility
61. Article 56(1 )-(7) of the African Charter sets out seven requirements that a
Communication brought under Article 55 of the African Charter must satisfy to be
admissible for consideration by the Commission. Those requirements apply
conjunctively and cumulatively, and failure to satisfy any one or more of those
requirements renders the Communication inadmissible, 33 unless the Complainant
provides sufficient justifications on why any of the requirements could not be met.
62. The Complainant proffers arguments that the present Communication satisfies all
the requirements for Admissibility in Article 56 of the African Charter.
63. The Respondent State has not made any submission on Admissibility despite
repeated requests addressed to it in that regard. 34 In the present circumstances,
the African Commission will have no option but to proceed to its analysis and
determination of the Admissibility of the Communication based on the information
at its disposal, in accordance with its practice and jurisprudence. 35
32 See paras 26 & 27 above on procedure. These were sent respectively by: Notes Verbales Ref:
ACHPR/COMM/604/16/SU D/1023/16 dated 26 May 2016, Ref: ACHPR/COMM/604/16/SUD/1179/16 dated 23 June 2016,
ACHPR/COMM/604/16/SUD/1718/16 dated 14 November 2016, ACHPR/COMM/604/16/SUD/180/17 dated 16 March 2017,
ACHPR/COMM/604/16/SUD/370/17 dated 31 May 2017, ACHPR/COMM/604/16/SUD/700/17 dated 25 August 2017,
ACHPR/COMM/604/16/SUD/952/20 dated 04 December 2020; and email of? September 2017.
33 Rule 106, Rules of Procedure of the Commission, 2010 & Comm. 275/2003, fn 14 above, para 43.
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34 See paras 25, 26 & 50 above.
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35 See Communication 292/04: Institute for Human Rights and Development in Africa (on behalf of EsmaQ
a~8a.mtat~fi1&rt 3 .c..,
others) v Angola (2008) ACHPR para. 34. See also Communication 159/1996: Union Inter Africaine des-Droitfcf,,j/,/,,j'1mrr,..., & '1
Ors. v Angola (2017) ACHPR; and Communication 276/03 : Centre for Minority Rights Development j Ano . (on pehalf o "' \\
Endorois Welfare Council) v Kenya (2009) ACHPR.
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64. This established position was enunciated in Institute for Human Rights and
Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola,
where the African Commission stated that in situations where a State Party fails to
address itself to the complaint filed against it, the African Commission "has no
option than to proceed with its consideration of the Communication in accordance
with its Rules of Procedure ... on the basis of the submission of the Complainants
and information at its disposal ... "36
65. Accordingly, the African Commission must give due weight to the Complainant's
allegations insofar as these have been adequately substantiated, and hereby
proceeds to undertake its analysis on Admissibility based on the information
supplied by the Complainant.
66. The African Commission would also like to emphasize that the absence of a
reaction from the Respondent State does not absolve the latter from the decision
that it may arrive at in the consideration of the Admissibility of this Communication,
as the relevant State had, by ratifying the African Charter, indicated its commitment
to cooperate with the African Commission and to abide by all decisions taken by
the latter.37
67. In view of the above-stated rules, principles, and jurisprudence, and given that the
Respondent State has not made any submissions to dispute or accept whether the
Complainant has fulfilled any of the requirements of Article 56 of the African
Charter, the African Commission will analyse the arguments of the Complainant
based on the entire provisions of Article 56 of the African Charter.
68. Article 56( 1) of the African Charter states that "Communications ... received by the
Commission shall be considered if they ... indicate their authors even if the latter
requests anonymity." The African Commission notes that the reasons for the
requirement under Article 56( 1) of the African Charter are" ... that the Commission
must receive communications with adequate information with a certain degree of
specificity concerning the victims"38 and to ensure that the "Commission must be
in communication with the author, to know his identity and status, to be assured of
his continued interest in the communication and to request supplementary
information if the case requires it". 39 In this case, the Communication received by
the African Commission clearly indicates that the Victim is Dr. Bushra Gamar
Hussein Rahama and that the author/representative who filed it on his behalf is the
African Centre for Justice and Peace Studies (ACJPS) i.e. the Complainant. The
requirement under Article 56(1) of the African Charter is therefore duly satisfied.
69. Article 56(2) of the African Charter states that 11Communications ... received by the
Commission shall be considered if they... are compatible with the Charter of the
Organization of African Unity or with the present Charter." The Commission has
expounded that compatibility with the African Charter entails four main aspects,
-
36 Communication 292/04 {above), para. 34.
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37 See Communication 227/99 - DRC vs. Burundi, Rwanda, Uganda (2003) ACHPR, paras 51-53.
/j:; ~,.,;
38 Communication 104/94-109/94_126/94 - Centre of the Independence of Judges and Lawyers vs-~Alge • , (1995) AC
R,
para 3.
39 Communication 108/93 - Monja Joana vs. Madagascar (1997) ACHPR para 6.
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namely: (i) the persons involved as parties to the complaint - the Communication
must be filed by a rights-bearer under the African Charter against a State party to
the African Charter; (ii) the subject matter of the complaint - in that the
Communication must allege prima facie violations of rights protected by the African
Charter; (iii) the time the impugned events occurred relative to the time the African
Charter became applicable to the Respondent State - pursuant to which
Communications must allege violations that occurred after the respondent State's
ratification of the African Charter, or where the violations began before the State
Party ratified the African Charter, the violations must have continued after such
ratification; and (iv) the location or territorial jurisdiction where the impugned events
occurred - which requires that the alleged violations must have taken place in the
State/under the effective control or authority of the Respondent State. 40
70. In light of the above requirements, the Commission observes that the present
Communication alleges violations of the Victim's rights: to dignity and consequent
protection from torture, cruel, inhuman or degrading treatment or punishment; to
personal liberty and security of person; to have his cause heard; to freedom of
expression; and to be protected from the Respondent State from the violation of
his rights by taking requisite measures; thus setting out, prima facie, that Articles
5, 6, 7, 9 and 1, respectively, of the African Charter, have been violated. The
substantive determination of whether the alleged facts do, in fact, amount to a
breach of the referenced Articles of the African Charter, is not a matter for
Admissibility but for the Merits stage. 41
71. Article 56(3) of the African Charter states that "Communications ... received by the
Commission shall be considered if they... are not written in disparaging or insulting
language directed against the State concerned and its institutions or to the
Organisation of African Unity [now African Union)." The Commission has
interpreted these terminologies in its jurisprudence, stating that "... disparaging
means "to speak slightingly [sic] of... or to belittle and insulting means to abuse
scornfully or to offend the self-respect or modesty of... ". The language must be
aimed at 1.mdermining the integrity and status of the institution and bring (sic) it into
disrepute"42 and "insulting means to abuse scornfully or to offend the self-respect
or modesty of... "43
72. In view of the above interpretation, the African Commission finds that the
Communication does not contain disparaging or insulting language directed
against the Respondent State nor its institutions, and therefore satisfies the
requirement under Article 56(3) of the African Charter.
73. Article 56( 4) of the African Charter states that "Communications ... received by the
Commission shall be considered if they ... are not based exclusively on news
disseminated through the mass media". The African Commission has explained in
the case of Dawda K Jawara vs. The Gambia44 that the rationale for this
requirement is to determine whether the facts of a Communication are based
"exclusively" on news disseminated through the mass media, without more.
Consequently, having reviewed the Communication and supporting documents,
the African Commission observed in particular that: (i) the supplementary facts
presented in addition to the initial Complaint are indicated to have been gathered
from an account provided by the Complainant of the Victim's personal experiences
which formed the basis of the alleged human rights violations in the
Communication; (ii) the Communication is also supported by a signed written
testimony of the Complainant dated 12 December 2012,45 and medical reports that
reflect the injuries claimed to have been inflicted on him during the alleged beatings
in detention. 46
74. Consequently, the facts of this Communication are not primarily nor exclusively
based on news disseminated through the mass media, but rather on alleged
personal experiences of the Complainant pertaining to his alleged: arbitrary
detention; torture, cruel, inhuman or degrading treatment or punishment;
deprivation of access to a lawyer of choice; inability to challenge his arbitrary
detention and attendant deprivation of procedural safeguards; denial of freedom of
expression; and denial of protection from the Respondent State from the violation
of his rights by taking requisite measures; in violation of the referenced provisions
of the African Charter. 47 Therefore, in the Commission's view, the Communication
meets the requirement of Article 56(4) of the African Charter.
75. Article 56(5) of the African Charter states that "Communications ... received by the
Commission shall be considered if they ... are sent after exhausting local remedies,
if any, unless it is obvious that this procedure is unduly prolonged." The exhaustion
of local remedies rule, codified under Article 56(5) of the African Charter, is a
principle under international law of permitting a State to have an opportunity to
redress the wrong that has occurred there, within the framework of its own
domestic legal order, before its international responsibility is called into question at
the international level. It is a well-established rule of customary international law
that before international proceedings are instituted, the various remedies provided
by the State should have been exhausted. 48
76. The African Commission has expounded on this principle in its jurisprudence49 and
has held that "the generally accepted meaning of local remedies, which must be
exhausted prior to any communication/complaint procedure before the African
Commission, are the ordinary remedies of common law that exist in jurisdictions
and normally accessible to people seeking justice"50 , and that "the internal remedy
44 Fn 13 above, paras 23-27.
45 Appendix 2 to the Complaint. Also attached to the Admissibility submission.
4sAppendix 1 to the Complaint. Also attached to the Admissibility submission.
See, paras. 1-17 of the supplemental information, as well as paras. 6, 8-9 of the Admissibility submission of the
Complainant.
46 See Article 19 vs. Eritrea, fn 14 above, para 45.
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49 There is a plethora of decisions of the Commission on this subject. See generally the Compitati'o.o 'e'f Decisib'ns on_,
Communications of the African Commission on Human & Peoples' Rights: 1994-2001', (2002) lnstitl:lle for man I s &
Development, p.429-430; Decisions of the African Commission on Human & Peoples' Rights on Comrnuni lio~s! ·2002-20 7' ~ 1
(2008) Institute for Human Rights & Development, p.421-424.
:
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so Communication 242/01- Institute of Human Rights and Development in Africa & lnterights vs. , ",. q_
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(to) which article 56(5) refers entails remedy sought from courts of a judicial
nature ... "51 Furthermore, "[t)he author [of a Communication) must have taken the
matter to all the available domestic legal remedies. That is, he or she must have
taken the case to the highest court of the land." 52 However, when a remedy is a
discretionary, extraordinary remedy of a non-judicial nature, then the Complainants
are not require.d to pursue it as part of the requirement of exhaustion of local
remedies."53
77. The import of the foregoing is that Article 56(5) of the African Charter contemplates
the exhaustion of the ordinary remedies of common law that exist in the judicial
courts of the Respondent States. The remedies required to be pursued must also
be 'available, effective and sufficient". 54
78. Furthermore, in Monim Elgak, Osman Hummeida and Amir Suliman (represented
by FIDH and OMCT) v. Sudan, 55 the African Commission held that Complainants
are required to exhaust local judicial remedies in accordance with the laws of the
country concerned, which include laws that govern procedural matters. However,
the requirement of exhaustion of local remedies is not an absolute rule, it has
exceptions put in place to ensure that complainants will not be hindered from
bringing potential human rights violations before the African Commission as a
result of procedural impediments emanating from unjust laws or practices.
79. In light of the above-cited jurisprudence of the African Commission in relation to
this requirement, and having reviewed the submissions of the Complainant, the
African Commission in this case upholds the Complainant's claim for exemption
from exhaustion of local remedies in relation to alleged violations of Articles 6 and
7 of the African Charter for the reasons that local remedies are unavailable to
challenge the arbitrary detention in alleged violation of Article 6 of the African
Charter, because under Sudanese law, the detention is lawful and permitted, and
cannot be routinely challenged in court, in view of:
(i)
Article 50(1)(e) of the NSA 2010 of the Respondent State, which vests the
NSS with the power to detain any suspected person without an arrest
warrant, 56 as opposed to the African Charter guarantees of the right to
personal libert.y under Article 6 of the African Charter and the subsidiary
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial
Detention in Africa (the Luanda Guidelines) which require that arrests
Mauritania (2004) ACHPR, para 27.
51 Communication 221/98 - Alfred B. Cudjoe vs. Ghana (1999) ACHPR, para 14.
s21nformation
Sheet
No.
3
on
the
Communications
Procedure,
available
at
<http://www.achpr.org/communications/procedure/>.
53 Communication 379/09 (fn 19 above), para. 67
54 Communications 147/95-149/96, fn 13 above, & Communication 155196: The Social and Economic Rights Action Centre
(SERAC) v Nigeria, para. 37.
ss Communication 379109 (fn 19 above), para 58.
56 See generally, S, 50(!), _NSA 201 0 (available at https://sgbv-ihrda.uwazi.iolen!entity/0jlrotxryodk). See als.9..~ .s,~6~ 1 &
66 of the African Comm1ss1on's Concluding Observations on the 41h & 5th Periodic State Report of Sudan..(2©2)1(ava1table.,aj
https://www.achpr.org/public/Document/file/English/concluding_observation_.pdD; and para. B of Ar;njfrst_tcfritJfnitftfnal's u""
submission on The Sudan to the UN Universal Periodic Review 11th session of the UPR Working Groop..,"May
ava1fsb.!e --~
at
https://www.ohchr.org/sites/defau11/filesnib-docs/HRBodies/UPR/Documents/Session11/SD/A1~)¥nn tyl ntern_a\ionah) :. ~
eng.pdij.
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should be carried out by competent authorities pursuant to a warrant, which
should contain, 'reasonable grounds to suspect that a person has committed
an offence or is about to commit an arrestable offence';57
(ii)
Article 50(1) of the NSA 2010 which permits the NSS to detain an individual
for four and a half months without judicial review to determine the legality of
their detention,58 as opposed to also, the Luanda Guidelines, which require
that all individuals in pre-trial detentions should, "either personally or through
their representative, take proceedings before a judicial authority, without
delay, in order to have the legality of their detention reviewed" 59;
(iii)
Article 51 (2) of the NSA 2010, which gives the NSS unfettered powers to
take the decision whether or not a detainee should have access to his/her
lawyer, without judicial oversight, as a result of which the Complainant could
not access his lawyer until a year after his detention, and was therefore
unable to challenge his arbitrary detention and deprivation of procedural
safeguards; and
(iv)
Article 52(3) of the NSA 2010 which prohibits civil or criminal procedures
being brought against a member or associate of the NSS unless upon the
approval of the Director of NSS, for which reason NSS officials enjoy broad
powers of immunity and cannot be prosecuted for any wrongdoing
domestically, unless the immunity has been lifted at the sole discretion of
the Director of NSS. This power of the Director of NSS to lift the blanket
immunities from prosecution had earlier been found by the African
Commission in another CommunicaJion60 to be "purely discretionary", and
thus not a remedy that a Complainant is required to pursue in exhausting
local remedies.
80. In relation to exhausting domestic remedies as concerning Articles 5, ?and 9 of the
African Charter, in addition to the inhibitions to legal redress for the acts of the NSS
officials created by the blanket immunity as discussed immediately above, the
African Commission takes note of the submissions of the Complainant that the
Victim was unable to pursue legal action in Sudan after release from detention due
to a genuine risk of further human rights violations. The African Commission
understands that the Victim fled Sudan in 2012 out of genuine fear of further
violation on his human rights and has not been back there since then.
81. The Respondent State has not disputed the allegation by the Complainant that the
Victim was tortured, nor has it responded to the Communication at all. The issue
for determination by the African Commission then is whether the Victim's
apprehension of fear for his life, would qualify as an exception to Article 56 (?} of
the_ African Charter for purposes of all~ged violati?ns of Articles 5, ( a~/;f ~~.-'11:\f , ..
African Charter. based on the constructive exhaustion of local remeo,~ s ruf
'-::
57 Guideline 3(a).
58 Article 50 (1) (e), (~, (g), (h), NSA 2010.
59 Guideline 35, Luanda Guidelines.
60 Communication 379/09, fn 19 above.
17
82. In this regard, the African Commission, relying on its jurisprudence, takes the view
that it would not be logical to require an individual to return to the State where he
has allegedly suffered violations of his fundamental rights and from which he had
fled, in order to pursue a complaint and/or bring a claim for reparation, 61 and also
that if a Complainant cannot turn to the judiciary of his country because of a
generalized fear for his life, local remedies would be considered unavailable to
him. 62
83. In the African Commission's considered view, the Complainant was justifiably
apprehensive of the integrity of the Respondent State's ability to render justice,
especially because facts were also presented by the Complainant, which have not
been refuted by the Respondent State, to show that there was considerable
publicity and widespread campaign by international organizations such as
Amnesty International about the Victim's case,63 and that the Respondent State
was therefore, aware of the unlawfulness of the Victim's detention but did not carry
out any investigations.
84. The African Commission therefore considers that the Respondent State was
notified of the violations, failed to act on them and as a consequence, loses its
prerogative to settle the matter domestically, especially bearing in mind its primary
obligations under the African Charter in respect of allegations of torture to, among
other things, initiate a prompt, impartial and effective investigation, establish readily
accessible mechanisms to which victims can bring their complaints and above all,
ensure that acts of torture are distinct offences under the law; in addition to
ensuring that there is no immunity from prosecution for torture suspects. 64
85. The African Commission considers that the various impediments outlined above
are a significant bar to access to local remedies and upholds the exemption of the
Communication from exhaustion of local remedies.
86. On its part, Article 56(6) of the African Charter provides that the African
Commission shall consider Communications which "are submitted within a
reasonable period from the time domestic remedies are exhausted or from the date
the Commission is seized of the matter." The African Charter does not define what
constitutes "a reasonable period" of time, and for this reason, the African
Commission adopts a flexible approach and treats each case on its own merits,
and on a case-by-case basis.65 The purpose of this provision is to require a
complainant to be vigilant and to discourage tardiness. Where local remedies are
available, the timeline is considered from the delivery of final judgement issued
from the highest domestic court regarding a Complainant's claim,-66 and if no local
effective or sufficient remedies are available, the time starts once the Complainant
realizes that there are no local effective and sufficient remedies available. 67
61 See Communication 103/93, para. 6 & Communication: 205/97 (fn 21 above).
62 Communication 147/95-149/96 (fn 13 above), para 35.
63 Pg. 9-10, supplementary submission of the Complainant on file.
~o
64 See Articles 4, 16 (b), 17 and 18 of the Robben Island Guidelines and Measures for the Prohipit~ ~ ~Pfeverrtion of;
Torture, Cruel, Inhuman or Degrading Treatment or Punishment, which is an authoritative interpreta~_o'n of't
• • ns of ..,
Article 5 of the African Charter in respect of torture and other forms of ill-treatment.
_
.
.
..., _
65 Communication 310105 (fn 22 above) ACHPR, para 75 & Communication 300/05 (fn 54 above) . ...,
'-~'l,)
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66 Communication 333/06, (fn 41 above), para 73.
;;i ii:
67 Communication 386/10, Dr. Farouk Mohamed Ibrahim v Sudan (2013), para 71.
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87. In this case, the Complainant was able to sufficiently demonstrate, with supporting
evidence, that the Complaint was first submitted with a request for Provisional
Measures, on 5 October 2011, whilethe Victim was still in detention and the alleged
violations were ongoing, having realized that no local remedies were available to
stop the alleged violations. The African Commission notes particularly that the
Complaint indicated that a lawyer's network in Khartoum had applied on 14 July
2011 before the Prosecutor for Detainees of Security Service to gain access to the
Victim, but the application was ignored, and that on 14 August 2011, the Victim
was re-arrested by the NSS despite his release by the Office of Crimes against the
State Prosecutor. The Complaint was submitted shortly thereafter.
88. As the African Commission has already confirmed above that the Communication
is exempted from the requirement of exhaustion of domestic remedies, it is
considered that the filing of the Communication whilst the Victim was in detention
and upon realization of unavailability of local remedies, was within "a reasonable
period", in satisfaction of Article 56(6) of the African Charter.
89. Finally, Article 56(7) of the African Charter states that "Communications
received by the Commission shall be considered if they... do not
deal with cases which have been settled by those States involved in accordance
with the principles of the Charter of the United Nations, or the Charter of the
Organisation of African Unity or the provisions of the present Charter." This
requirement would apply if the matter in contention, which must relate to the same
facts and parties, has been "settled" - that is, it must no longer be under
consideration under an international dispute-settlement procedure. 68 Also, the prior
settlement of the matter must have been by a body "capable of granting declaratory
or compensatory relief to victims, not mere political resolutions and declarations"69 ;
that is, "an international adjudication mechanism, with a human rights mandate". 70
90. In relation to this requirement, the African Commission does not find any evidence
that the issues and claims in the Communication have been settled by any other
international forum. Accordingly, the African Commission finds that Article 56(7) of
the African Charter has been satisfied.
91. For these reasons, the African Commission declares this Communication
Admissible.
C. Merits
I.
lihe Complainant's submission on the Merits
92. The Complainant submits that in its original request for provisional measures
submitted whilst the Victim was detained incommunicado, the Complainant alleged
violations of Article 1(the right to legal protection of the rights guarant'?.ed in the
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se See Communication 40/90 - Bob Ngozi Njoku V. Egypt (1997) ACHPR, paras 54-56. See also Frans'vili9z:en
,\ ie:na;ional ""-,
Human Rights Law in Africa (2012), p320.
,.
69
Communication 279/03, 296/05 Uoined), Sudan Human Rights Organisation and the Centre on Housfryg Ri[ ts and~Evic~
vs. Sudan (2010) ACHPR, para 105. See also, Viljoen, fn 70 above, p321 .
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Africa Charter), Article 4 (Right to life), Article 5 (Prohibition of torture, cruel,
inhumane and degrading treatment), Article 6 (Right to personal liberty and
protection from arbitrary arrest) and Article ?(Right to fair trial) of the African
Charter.
93. The Complainant further submits that the full facts of the case, obtained following
the Victim's release, reveal serious violations of additional human rights
guaranteed in the African Charter, and hereby also allege violations of the right to
freedom of movement and right to leave and return to a country including one's
own (Article 12 (1) and 12 (2)), the right to health (Article 16) and, the right to legal
protection of the rights guaranteed in the Africa Charter (Article 1).
Alleged Violation of Article 4 of the African Charter
94. The Complainant submits that the Commission has held that it would be a narrow
interpretation of the right to life to think it would only be violated when one is
deprived of it. 71 The Complainant states that in that case, the Commission
concurred with the Complainant that the series of arrests and detention suffered
by the victim, and his subsequent going into hiding for fear of his life, violated Article
4 of the African Charter.
95. The Complainant argues that the Victim was detained and tortured by the NISS on
two occasions, first from 1991 up to 2006 and again in 2011. During the period of
the Victim's detention in 2011 , he was systematically beaten, whipped and
deprived of sleep, as well as being forced to stand in painful positions for hours at
a time. According to the Complainant, the Victim was verbally insulted, repeatedly
called a slave and a spy, and threatened with death. The Victim was also told that
he would be killed if he told anyone about what had unfolded while in custody. After
his release, the Complainant states that the Victim received threatening phone
calls from individuals claiming to be NISS officials, who told him that the next time
he was arrested, he would be killed.
96. The Complainant avers that after the Victim's release, he was closely followed by
NISS officers when going about his daily activities, making him increasingly
anxious for his safety, and that nine (9) days before his eventual arrest, he
relocated from his own home. On another arrest in 2006, live ammunition was shot
intensively and at close range by the arresting officers and while in detention, the
NISS threatened to kill the Victim and on one occasion. When he was first detained,
the head of the NISS ordered another officer to take him outside and "kill him in
front of the office", but he luckily survived. The Complainant argues that for over
two months, the Victim was subjected to severe mental and physical harm, and on
his release, he fled the country, fearing for his life.
97. The Complainant submits that the constant fear for the safety of his life, on account
of the death threats and treatment meted out by the NISS while the Vj~im. was
in
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detention, violated his right to life as guaranteed under Article 4 of the African
Charter.
Alleged Violation of Article 5 of the African Charter
98. The Complainant submits that in interpreting the prohibition of torture under Article
5 of the African Charter, the African Commission has referred to Article 1 of the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which defines torture72 . According to the ECHR, torture is
characterised by "deliberate inhuman treatment causing very serious and cruel
suffering."73. The Complainant states that Article 5 of the African Charter explicitly
includes a prohibition for cruel, inhuman or degrading punishment or treatment and
the African Commission has held that this includes actions which not only cause
serious physical or psychological suffering, but which humiliate the individual or
force him or her to act against his will or consciousness. 74
Beatings
99. The Complainant submits that, whilst in the custody of the NISS in Khartoum, to
extract information from the Victim, the NISS officials subjected him to a series of
acts and punishment that singly and in combination, caused severe physical and
mental pain and suffering, which amounted to torture.
100.According to the Complainant, during the raid on his uncle's home in 2006 and
2011 , and his subsequent arrest and transfer to the NISS office, the Victim was
slapped and beaten repeatedly by the arresting NISS officers with the butts of their
guns, that caused permanent injury to his back and broke his spine. On one
occasion, he was lashed many times for over 2 hours until his skin began to bleed.
101.The Complainant avers that on more than one occasion, the Security officers used
electric shock devices on the Victim's chest to punish him for shouting for help and
resisting assault. The Victim's nails and shoulders were subjected to electric
shocks, water was poured into his eyes and a bright laser light was shone into his
eyes. After his release, the Complainant states that the Victim experienced
temporary memory loss and was in severe pain from the beatings and other torture
methods. He also had an itchy skin condition on his scalp from the chemical
solution that was applied to his hair.
Threats
102.The Complainant indicates that the Victim received a series of death threats from
individuals claiming to be NISS officials via telephone before his arrest in 2011 and
in person, when detained incommunicado in the custody of the NISS in Khartoum.
72 any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing himor a third person, or for any reason based on discrimi~ tion
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquieJifElncil of a public
official or other person acting in an official capacity. It does not include pain or suffering arising only frem, innireht in of
incidental to lawful sanctions.
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of Ken Saro-W1wa Jr. and C1v1I L1bert1es Organisation v N1gena, decided at the 24th ordinary session, .Oct 1'a98, 'F2tfl Arpual Activity Report.
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103.The Complainant refers to the UN Committee against Torture, indicating that it has
determined that "a threat could constitute torture". The UN Human Rights
Commission and its successor, the UN Human Rights Council, has resolved that
"intimidation and coercion, ... , including serious and credible threats, as well as
death threats, to the physical integrity of the victim or of a third person, can amount
to cruel, inhuman or degrading treatment or to torture." The Complainant argues
that the Victim received a series of death threats from individuals claiming to be
NISS officials via telephone prior to his arrest in 2011 and in person when detained
incommunicado in the custody of the NISS in Khartoum.
104.The Complainant avers that the Victim was forced to sign unknown documents
prior to his release in July 2018, and the safety of his family was threatened. The
Complainant states that from the moment of his arrest, the Victim was subjected
to a pervasive climate of fear in NISS custody, and he was told at the time of arrest
that it would be the last day of his life. The Complainant states that the Victim was
threatened with the safety of his family in Darfur. On his release, he was told that
if he failed to obey the orders of the NISS, including, if he ever spoke to anyone
about his treatment in detention, members of his family would be killed.
105.The Complainant submits that each of the threats made to the Victim by the NISS
officials concerned the infliction of serious harm and caused extreme mental
anguish and suffering. The Complainant submits that the pervasive nature of the
threats and the circumstances in which they were made were so serious that both
singly and in combination, they caused severe mental pain and suffering and
amounted to torture.
Incommunicado Detention
106.The Complainant stated that the African Commission has held that "prolonged
incommunicado detention and/or solitary confinement could be held to be a form
of cruel, inhuman or degrading punishment and treatment."75 The Complainant
referred to the African Commission's decision in Article 19 v Eritrea,76 where it held
a violation of Article 5 owing to the incommunicado detention of the victims. The
Complainant submits that the Victim was detained incommunicado and denied
access to his family and a lawyer for the entire period of his detention by the NISS,
for over a year. The Complainant submits that the incommunicado detention of the
Victim for over one year, constitutes a violation of Article 5 of the African Charter.
Denial of Medical Treatment
107.The Complainant referred to the African Commission's Resolution on Guidelines
and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or
Degrading Treatment or Punishment in Africa (The Robben Island Guidelines),
which sets out that the right to an independent medical examination is a basic
procedural safeguard for the prevention oftorture77 and that states should "LeJnsure
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2003, 17th Ann~al Activity Report, para 55
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76 Article 19 v. Eritrea, Communication 275/2003, para 101-102.
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Treatment or Punishment in Africa (The Robben Island Guidelines). Part II: Prevention ofTorture, .A;_r!, le 20 (.l~). ,J"
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that all persons deprived of their liberty have access to medical services and
assistance".78 The Complainant further referred to other bodies such as the
European Court of Human Rights which elaborated on the duty to provide access
to adequate health care, finding that failure to do so constitutes inhuman treatment
if not torture. 79
108.The Complainant submits that the Victim made repeated requests, to be seen by
a medical doctor during his detention, that were not authorised. According to the
Complainant, the, prolonged denial of access to a medical doctor and lack of
adequate medical treatment was in breach of Article 5 of the African Charter.
Alleged Violation of Article 6 of the African Charter
109.The Complainant argues that the African Commission elaborated that[A]n arrest or
detention may be legal according to the letter of domestic law, but arbitrary and
therefore illegal by reason of its inappropriate, unjust or unpredictable nature. The
Complainant referred to the African Commission's Resolution on the Right to
Recourse Procedure and Fair Trial, and the Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa (Principles and Guidelines on Fair
Trial) which provides that States must ensure that no one shall be subject to
arbitrary arrest or detention, and that arrest, detention or imprisonment shall only
be carried out strictly in accordance with the provisions of the law and by competent
officials or persons authorized for that purpose, pursuant to a warrant, on
reasonable suspicion or for probable cause. 80
110.The Complainant submits that the Victim was detained for over a year. During that
time, he was accused of a number of activities, including some that carry heavy
criminal penalties in Sudan, but at no point was he informed of any formal charges
against him, and he was eventually released without charge. At no point was the
Victim shown a warrant for his arrest or any other document relating to the charges
under which he was detained. The Complainant further submits that the Victim was
also accused of being an "American spy", an agent for the United States Embassy
and European Embassies in Sudan, and providing false information to
humanitarian and human rights organisations about the situation in Internally
Displaced Persons Camps, and information to the ICC about crimes committed in
Darfur. The Complainant avers that the Victim's arrest and detention was not based
on a reasonable suspicion and at no point was it made clear on what evidence or
on what grounds he was suspected of having committed an offence. The
Complainant submits that the arrest and detention of the Victim without charge was
therefore arbitrary on several counts.
renewal) and a possible total of four and a half months without the possibility of
judicial review81 . Article 51 of the NSA 2010, setting out the rights of the arrested
person, also provides that (1) Upon arresting, detaining or putting a person in
custody, he/she shall be informed of the reasons why he/she is arrested, detained
or put in custody.
112.The Complainant referred to the African Commission's jurisprudence, in
International PEN et al. (on behalf of Ken-Saro Wiwa Jnr.) v. Nigeria, where the
African Commission held that a Decree that permitted the authorities to detain
people without charge for as long as three months without the opportunity for the
detainees to challenge their arrest and detention before a court of law, presented
a prima facie violation of the right not to be arbitrarily arrested or detained under
Article 6 of the African Charter.
113.The Complainant submits that there is no explicit requirement for the NISS to issue
specific criminal charges under the NSA 2010, and therefore, the domestic
legislation lacks the specificity required under the African Charter and renders
arrests and detention unpredictable.
Alleged Violation of Article 7 of the African Charter
114.The Complainant alleges that Article 7 of the African Charter was violated on
several counts, including a) the denial of habeas corpus, b) the failure to provide
information on the reasons for arrest and any charges brought, and c) the denial
of access to a lawyer.
Denial of habeas corpus
115.The Complainant states that Article 7 (1) (d) of the African Charter provides that
every individual has "the right to be tried within a reasonable time by an impartial
court or tribunal". According to the Complainant, the African Commission has not
defined the meaning of "reasonable time" or "promptness" about the right to judicial
oversight of the lawfulness of detention. The Complainant referred to Article 19 v
Eritrea, in which the African Commission set out that "[t]he question of what is
reasonable cannot be expressed in terms of a blanket time limit which will apply in
all cases, but rather must depend on the circumstances. The Complainant argues
81 . It sets out that any NISS member may:
(e) Arrest or detain any suspected person for a period not exceeding thirty days provided that his/her relatives are immediately
informed.
(0 After elapse of the thirty days mentioned in Para (e) above, and if there are reasons that require more investigation, enquiry
and maintaining the detained person in custody, NSS member shall refer the issue to lhe Director and make the
recommendations he deems appropriate.
(g) The Director may renew the detention period for not more than fifteen days with the purpose of oompleting investigation
and enquiry.
(h) If it comes to the knowledge of the Director that maintaining any person in custody is necessa(y fo(oompieti0n Qf
investigation and enquiry in case of an accusation related to a factor threatening the security and- safetyt of-the'•peopfe;.
intimidating society by way of armed robbery, racial, religious sedition or terrorism: disrupting peace; exer • •
·tical ~<>
violence; or plotting against the country, he shall refer the issue to the Council which may extend th~deten • n pe iod for t ,1
more than three months.
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that this approach has also been adopted by the European Court of Human Rights,
which held that the, reasonableness of the length of proceedings is to be assessed
under all the circumstances of a case."
116.The Complainant avers that the Victim was detained for months without being
charged or brought before a judge and there are no circumstances that would have
prevented the Sudanese authorities from doing so. The Complainant states that
the pertinent domestic legislation, namely the National Security Act 2010, itself
violates Article 7 of the African Charter, as Article 50 of the NSA 2010 permits the
NISS to detain an individual for up to four and a half months without judicial review
(45 days and an additional three months if sanctioned by the National Security
Council), depriving the individual of any judicial protection.
Failure to provide information on the reasons for arrest and any charges brought
117.The Complainant states that the Resolution on the Right to Recourse and Fair Trial
adopted by the Commission sets out that Persons who are arrested shall be
informed at the time of arrest, in a language which they understand of the reason
for their arrest and shall be informed promptly of any charges against them82 . The
Complainant also refer to the jurisprudence of the African Commission in Abdel
Hadi, Ali Radi & Others v. Sudan in which it held that the "lack of information about
the grounds for arrest ... constituted a violation of Article 7(1) read in conjunction
with Article 6 of the African Charter". 83
118.The Complainant submits that the Victim was detained for months without being
informed of any criminal charges against him. At no point was he shown a warrant
for his arrest or any other document relating to the charges under which he was
detained. No charges were brought in the course of his detention or after his
release and this violated his right to be promptly informed of any charges against
him.
Denial of access to a lawyer
119.The Complainant states that Article 7 (1) (c) of the African Charter stipulates that
every individual shall have ... the right to defence, including the right to be
defended by Counsel of his choice. The Complainant argues that the African
Commission has held in its jurisprudence, including in Media Rights Agenda,
Constitutional Rights Project v. Nigeria, that "to be denied access to a lawyer is a
violation of Article 7(1 )(c)."
120.The Complainant submits that the Victim was denied access to a lawyer, in
violation of Article 7(1 )(c), as he, was detained incommunicado with no access to
the outside world, and approaches to the NISS by family members and lawyers
seeking access to the Victim were rebuffed. Furthermore, the Complainant states
that a lawyer known to ACJPS approached the NISS Prosecutor in Khartoum to
seek authorization to me.et the Victim and ascertain if any charge n."if'd:6eeqJiJed,
but his requests were ignored.
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82 Resolution on the Right to Recourse and Fair Trial, The African Commission on Human and People
Eleventh Ordinary Session, in Tunis Tunisia, from 2 to 9 March 1992, para. 2(b).
83 Abdel Hadi, Ali Radi & Others v. Republlc of Sudan, Communication 368/09, para 88.
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121.The Complainant further submits that the applicable domestic legislation, i.e. the
NSA 2010, itself violates Article 7(1 )(c) of the African Charter. The Complainant
argues that Article 51 (2) of the NSA 2010 provides that the arrested, detainee or
person in custody shall have the right to inform his/her family or employer of his/her
detention and shall be allowed to communicate with his/her family or advocate if
this does not prejudice the progress of interrogation, enquiry and investigation. The
Complainant states that the right to communicate with family members or a lawyer
is thus conditional upon the contact not prejudicing the investigation. According to
the Complainant, NISS may therefore still hold detainees without contact to the
outside world (incommunicado) where it sees fit, as in the Victim's case.
Alleged Violation of Article 12(1) and (2) of the African Charter
122.The Complainant states that Article 12(1) and (2) of the African Charter stipulate
that every individual shall have the right to freedom of movement and residence
and the right to leave any country, including his own, and to return to his country.
The Complainant cites the African Commission's decision in Rights International v.
Nigeria, in which the African Commission held a violation of Article 12 (1) and (2)
in the case of an individual who fled his country fearing for his life, after being
detained and tortured at a Nigerian military detention camp. In that case, the
complainant attested that his plight was based on a well-founded fear of
persecution by the Nigerian government, as evidenced by the granting of refugee
status to him by two countries i.e. Republic of Benin and the United States.
123.The Complainant submits that in the present Communication, the Victim
experienced persecution at the hands of the NISS between 2011 and 2018 based
on his outspoken and public condemnation of human rights violations taking place
in Darfur. The Victim was detained without charge or being brought before a judge
on two occasions in 2011 and 2018 respectively, and tortured whilst in detention.
At no point was the Victim informed of any criminal charges against him and prior
to his release, the NISS threatened to kill members of his family if he were to return
to her home in Darfur. The Complainant avers that after his release in 2011 and in
2018, the Victim was forced to flee the country owing to a well-founded fear of
persecution oy the Sudanese authorities. This fear of persecution has prevented
him from returning to Sudan. The Complainant submits that the Victim's right to
freedom of movement and residence, as well as his right to return to his country,
guaranteed under Articles 12(1) and (2) of the African Charter, have been violated.
Alleged Violation of Article 16 of the African Charter
125.The Complainant states that the Commission in its jurisprudence has elaborated
that the State's responsibility in the event of detention is even more evident to the
extent that detention centres are its exclusive preserve, hence the physical integrity
and welfare of detainees is the responsibility of the competent public authorities.84
According to the Complainant, the right to health indicates a right to be free from
torture and a positive obligation to provide access to adequate medical treatment
in detention.
126.The Complainant submits that under the submissions related to the violation of
Article 5 of the African Charter above, the Victim was denied access to medical
treatment for the entire duration of his detention. The Victim was subjected to a
range of acts of torture that caused extreme physical and mental pain and anguish
in violation of Article 16 of the African Charter.
Alleged Violation of Article 1 of the African Charter
127.The Complainant states that Article 1 of the African Charter provides that Member
States parties to the present Charter shall recognise the rights, duties and
freedoms enshrined in the African Charter and shall undertake to adopt legislative
or other measures to give effect to them. The Complainant further states that the
African Commission has held that Article 1 of the African Charter gives the latter a
legally binding character and that a violation of any provision of the African Charter
automatically means a violation of Article 1.85
128.The Complainant avers that the African Commission's jurisprudence has also set
out clearly that under Article 1, State Parties have an obligation to respect, protect,
promote and fulfil the rights guaranteed in the African Charter, 86 thus states have
not only a negative obligation to refrain from interfering in the enjoyment of all
fundamental rights (respect) but also positive obligations to protect, promote and
fulfil rights. This includes the positive obligation to protect right-holders against
violations through the adoption of appropriate legislation and policies, the effective
investigation of any allegations of violations, and ensuring the availability of
effective remedies in the event of a breach of fundamental rights in the African
Charter.87 The Complainant aver that the African Commission held that where
abuse does occur, States Parties to the African Charter are also under an
obligation to initiate a prompt, impartial and effective investigation in order to bring
the perpetrators to justice as well as to afford redress to the victims". 88
129.The Complainant submits that in addition to a failure to respect the rights outlined
in the present Communication, the Respondent State also failed in its positive
84 Malawi African Association, Amnesty International, Ms. Sarr Diop, Union interafricaine des droits de l'Hom~
nd..AADDHO,
Collectif des veuves et ayants-Droit, Association mauritanienne des droits de !'Homme V. Mauritania, Comntrife'ati\jtf•5~i 9it;
61/91-96/93-98/93-164/97_196/97-210/98, para 122.
;i, '""~(' i?i~, < '.o
ss Lawyers of Human Rights v. Swaziland, Communication 251/02, Para 272. See also Abdel Ha?k :>Ali R
Republic of Sudan, Communication 368/09, para 91 .
86 Zimbabwe Human Rights NGO Forum/ Zimbabwe, Communication 245/02, para 151.
87 Zimbabwe Human Rights NGO Forum / Zimbabwe, Communication 245/02, paras 151 , 159.
88 Abdel Hadi, Ali Radi & Others v. Republic of Sudan, Communication 368/09, para 76.
obligation under Article 1 to exercise due diligence and effectively prevent and
respond to violations of the rights enshrined in African Charter.89
130.Specifically, according to the Complainant, the Respondent State failed to put in
place adequate legislative framework to protect individuals within its jurisdiction
from arbitrary detention, torture, and other ill-treatment by the NISS or to ensure
the right to fair trial or the availability of effective remedies and sanctions in the
event of a breach. The Complainant further submits that the Respondent State has
also failed to investigate allegations of wrongdoing by its agents and took no
measures to ensure the availability of an effective remedy for the Victim.
II.
Submission of the Respondent State on Merits
131.ln accordance with the procedure established by the African Commission, and
despite the considerable time that has elapsed beyond the deadlines prescribed
under the African Commission's Rules of Procedure 2020, the Respondent State
has failed to submit its observations on the Merits of this Communication.
132.Consequently, the African Commission shall proceed with its analysis of the Merits
based solely on the submissions and evidence presented by the Complainant90 .
Ill.
Analysis of the African Commission on the Merits
Alleged Violation of Article 4 of the African Charter
133. Article 4 of the African Charter provides that:
'human beings are inviolable. Every human being shall be
entitled to respect for his life and the integrity of his person.
No one shall be arbitrary deprived of this right'.
134. The Complainant submits that the constant fear experienced by the Victim for the
safety of his life on account of the death threats and treatment meted out on him
by the NISS officers while in detention, violated his right to life as guaranteed under
Article 4 of the African Charter.
135.The Complainant states that the Victim was detained and tortured by the NISS in
1991 up to 2006 and in 2O11.During the period of the Victim's detention, he was
systematically beaten; whipped and deprived of sleep; forced to stand in painful
positions, verbally insulted, called a slave and spy; and threatened with death. The
Complainant further stated that the Victim was told by NISS Officers that he would
be killed if he told anyone about what had unfolded and on one occasion, the Head
of the NISS ordered an officer to take the Victim outside and "kill him in front of the
office", but he survived. According to the Complainant, because of the severe
mental and physical harm meted on the Victim, on his release, he fled the country,
fearing for his life.
136.The African Commission in its General Comment No 3 on the right to life have
pronounced that 'where a State or its agent ... has unlawfully threatened the life of
a person ... a violation of the right to life has occurred.'91 The African Commission
refers to the United Nations Human Rights Committee's General Comment No. 36
which states that "the right to life encompasses the right of persons to be free from
acts and omissions intended to cause or expected to cause, their unnatural or
premature death, and to live with dignity."92
137.The African Commission remain guided by its position in the Malawi African
Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits
de !'Homme and RADDHO, Collectif des veuves et ayants-Driot, Association
Mauritanienne des droits de l'Homme vs Mauritania, 93 where it held that it is a
violation of Article 4 of the African Charter when individuals were denied food and
medical attention, subjected to torture that culminated in death, or forced to go into
hiding due to fear for their lives.
138.The African Commission also considers the decision of the European Court on
Human Rights in Makaratzis v. Greece94, where it held that irrespective of whether
or not the police actually intended to kill the applicant, the applicant was the victim
of a conduct which by its very nature, put his life at risk, even though in the event
he survived, violated article 2 of the European Convention.
139. ln line with the above reasoning, the African Commission finds that the constant
threats by NISS officers to the life of the Victim, as well as the acts of abuse, lack
of medical attention, which put his life at risk and eventually resulted in the Victim
fleeing the country for fear of his life, violated Article 4 of the African Charter.
Alleged Violation of Article 5 of the African Charter
140.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'
141.Freedom from torture is one of the cardinal rules in international law that is absolute
and cannot be derogated under any circumstance. This indicates that Article 5 of
the African Charter does not allow for any restrictions or limitations on the right to
be free from torture and cruel, inhuman, or degrading punishment or treaJment.
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142.The African Charter does not define the meaning of the words or the phrase "torture
or degrading treatment or punishment." However, the African 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) 95 .
The African Commission also adopted the interpretation of the United Nations
Committee against Torture 96 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 victim for
real or alleged acts, and be attributable to a public official or person acting in that
capacity.
143.The African Commission refers to the positions adopted by the African Court on
Human and Peoples Rights and the European Court on Human Rights in John K.
Madise v Botswana97 and in Campbell and Cosans v UK98 respectively, that the
acts of inhuman and degrading treatment "not only cause serious physical or
psychological suffering but also humiliate the individual while exposing them to
personal suffering and indignity, and can be interpreted to extend to the widest
possible protection against abuses, whether physical or mental".
144. In assessing whether the alleged physical assault, incommunicado detention, and
denial of medical attention to the Victim in the present Communication amounts to
torture, cruel, inhumane and degrading treatment and punishment, the African
Commission will proceed to examine the evidence and arguments presented by
the Complainant, to determine whether the actions meet the threshold of severe
pain and suffering, to fall within the definition of torture.
145.First, the Complainant asserts that the pervasive nature of the threats and the acts
inflicted on the Victim to obtain information were so serious that both singly and in
combination, not only caused serious harm but also severe physical and mental
pain and suffering, amounting to torture. The Complainant narrated and gave
examples of a a series of acts of beatings, lashes and threats by the NISS officers
during arrest and detention of the Victim, as referenced in paragraph 96 to 105
above, which according to the Complainant, amounts to torture, cruel and inhuman
treatment and punishment.
146.The African Commission recalls its decision in Sudan Human Rights Organization
and Center for Housing Rights and Evictions v Sudan99in 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 purpose, such as
95 (T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having committed, or intimidating or coercing him~ third person, or
for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or atjpe i~_s!Tgation qtor,~ith
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96 Ibid 19 & See Article 4 of the Resolution on Guidelines and Measures for the Prohibition and Prevention ~J'ortu'feyCf
Degrading Treatment or Punishment in Africa (Robben Island Guidelines) adopted by the Commission in Octobr 2002
97 Communication 97/93 Para 71
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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 African Commission in the same vein, held that where the
victims were subjected to a series of acts that, singly and in combination caused
severe physical and mental pain and suffering, 100 inflicted by officials with the
purpose of extracting information, the acts committed amounted to torture.
147.ln Abdel Hadi, Ali Radi & Others v Sudan 101 , in which the victims went through
various 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, the African
Commission held that the treatment and the surrounding circumstances were of
such a serious and cruel nature that it attained the threshold of severity to amount
to torture.
148.The African Commission turns to the facts in paragraphs 96 to 105 above which
indicate among others that for the purposes of extracting information, the Victim
received several death threats; slapped and beaten repeatedly with butts of guns
causing injury to his back and broke his spin; punched whipped and beaten with
various objects including an iron and metal wires; lashed for over two hours until
his skin bleed; and electric shock devices placed on his chest, nails and shoulders;
which subsequently resulted in itchy scalp from the chemical solution poured on
his hair; temporary memory loss; and severe pain and suffering 102.
149.Considering these circumstances, the African Commission finds that the physical
assaults and their profound repercussions on the Victim's health and wellbeing
constitute a serious and cruel nature that amounts to torture, inhumane and
degrading treatment or punishment.
150.Second, the Complainant argues that the Victim was detained incommunicado by
the NISS and denied access to his family or a lawyer for the entire period of his
detention for over a year, and was subjected to terrible prison conditions such as
overcrowded and unsanitary prison cells; detention in close proximity to mentally
ill death row inmates; and being held in solitary confinement with handcuffs and
chained feet. The Complainant further argues that the Victim made repeated
requests to be seen by a Medical Doctor while in detention, and the prolonged
denial of access to his family, a lawyer and medical doctor was in breach of Article
5 of the African Charter.
151.As demonstrated in the African Commission's jurisprudence, particularly in the
case of Media Rights Agenda v the Federal Republic of Nigeria,103 the terms "cruel,
inhuman, or degrading punishment or treatment" should be interpreted in a manner
that affords the broadest possible protection against any form of ~9t;1s~.,vr,ihether it
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102
(Medical reports attached as annexures showing the injuries suffered by the victims and his healtncondit~~
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manifests as physical or mental harm. This includes a wide range of acts that
violate human dignity, including but not limited to denying individuals contact with
their families, subjecting them to overcrowded prison conditions, physical assault
or beatings, depriving them of adequate lighting, withholding sufficient food and
water, denying access to necessary medicine or medical care, and inflicting other
forms of physical and psychological torture.
152.The African Commission in determining acts that constitute torture also remain
guided by its position in Malawi African Association, Amnesty International, Ms Sarr
Diop, Union interafricaine des droits de l'Homme and RADDHO, Collectif des
veuves et ayants-Droit, Association mauritanienne des droits de l'Homme v
Mauritania 104,where the detainees were beaten and forced to make statements;
denied the opportunity of sleeping and being held in solitary confinement, detailed
instances of torture, cruel, inhuman and degrading treatments. In 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) v
Malawi 105, the African Commission held that aspects of the treatment of victims
such as excessive solitary confinement, shackling within a cell, extremely poorquality food and denial of access to adequate medical care, violated Article 5 of the
African Charter.
153.Furthermore, the African Commission's Resolution on Guidelines and Measures
for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa (The Robben Island Guidelines) sets out that
the right to an independent medical examination is a basic procedural safeguard
for the prevention of torture 106 and that states should "[e]nsure that all persons
deprived of their liberty should have access to medical services and assistance". 107
154.Given the above, it is the African Commission's view that the lengthy
incommunicado detention of the Victim for the entire duration of his detention,
including, the prolonged denial of access to family and denial of medical care and
treatment, constitutes torture, inhuman and degrading treatment or punishment.
155.The African Commission, therefore, holds that the Respondent State violated
Article 5 of the African Charter.
Alleged Violation of Article 6 of the African Charter
156.Article 6 of the African Charter provides that:
'Everyone has the right to liberty and security of person. No one shall be
deprived of their liberty except on such grounds and under such conditions as
104 Communications 54/91-61 /91-96/93-98/93-164/97_196/97-210/98 Malawi African Association, Amnesty ln~ation_
al, Ms
Sarr Diop, Union interafricaine des droits de l'Homrne and RADDHO, Collectif des veuves et ayants~c0il/'~~ion
mauritanienne des droits de l'Hornme v Mauritania
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105 Communication 64/92-68/92-78/92_8AR- Krishna Achuthan (on behalf of Aleke Banda), Amnes,ty lntetnauorfar('On ehalf\
of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) I Malawi- para /
, . u]
10s Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, lnhf~~n or De9radi ~ ~
Treatment or Punishment in Africa (The Robben Island Guidelines), Part II: Prevention of Torture, Article !20 (b).
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107 The Robben Island Guidelines, Part II: Prevention of Torture, Article 31.
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are determined by law. In particular, no one shall be arbitrarily arrested or
detained'.
157.The African Commission notes that Article 6 of the African Charter protects two
fundamental rights. The first right is composed of several aspects, which can be
summarised in two parts: the right not to be detained or imprisoned by public
authorities, except for reasons and under conditions prescribed by law, and the
right not to have one's freedom restricted or to be confined within a specific space,
without reasons and under conditions prescribed by law.
158.The Complainant argues that the Victim was detained for over a year and accused
of a number of activities, including some that carry heavy criminal penalties in
Sudan, but at no point was he informed of any formal charges against him, and he
was eventually released without charge. The Complainant further argued that at
no point was the Victim shown a warrant for his arrest or any other document
relating to the charges under which he was detained and at no point was it made
clear on what evidence or on what grounds he was suspected of having committed
an offence, thus the arrest and detention without charge was arbitrary.
159.The African Commission recalls the importance of Article 6 of the African Charter
in its Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial
Detention in Africa (Luanda Guidelines), which state that no one shall be deprived
of their liberty except on grounds and in accordance with procedures established
by law. 108 Also, its Principles and Guidelines on the Right to a Fair Trial provide
that States must ensure that no one shall be subject to arbitrary arrest or detention,
and that arrest, detention or imprisonment shall only be carried out strictly in
accordance with the provisions of the law and by competent officials or persons
authorized for that purpose, pursuant to a warrant, on reasonable suspicion or for
probable cause. 109
160.The African Commission in Patrick Okiring and Agupio Samson (represented by
Human Rights Network and ISIS-WICCE) v. Republic of Uganda, held that the right
to liberty functions as a significant safeguard, ensuring that every arrest or
detention is conducted in a manner that is neither unlawful nor arbitrary. 110 The
African Commission echoes its decision in Constitutional Rights Project/Civil
Liberties Organisation vs Nigeria, in which it observed that "where individuals are
detained without charge, [... ] this constitutes an arbitrary deprivation of their liberty
and therefore a violation of Article 6 of the African Charter".
161.The above emphasize the critical importance of upholding the principles of due
process, fair trial, and non-arbitrary detention to protect individuals' rights to liberty
and shield them from unlawful or arbitrary deprivation of their freedom . Accordingly,
based on the above, vis a vis the arguments put forth by the Complainant- including
the lack of a warrant, information on the reasons for the Victims arrest and the
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prolonged detention without charge, the African Commission finds that the arrest
and detention of the Victim was arbitrary and in breach of Article 6 of the African
Charter.
162.Moreover, the Complainant argues that the applicable domestic legislation, namely
the National Security Act 2010 is itself in breach of Article 6 of the African Charter,
as Article 50 (e-h) of the National Security Act (NSA) 2010 gives NISS members
wide powers to arrest and detain a person on vague grounds for an initial period of
up to thirty days ( 45 days upon renewal) and a possible total of four and a half
months without the possibility of judicial review111 .
163.The African Commission reiterates its decision in International PEN et al. (on behalf
of Ken-Saro Wiwa Jnr.) v. Nigeria, where it held that a Decree that permitted the
authorities to detain people without charge for as long as three months without the
opportunity for the detainees to challenge their arrest and detention before a court
of law, presented a prima facie violation of the right not to be arbitrarily arrested or
detained under Article 6. 112
164.ln line with the same reasoning, the African Commission conquers with the
Complainant that the applicable domestic legislation i.e. the National Security Act
2010, which allows for a person to be detained for four and a half months without
judicial review, is itself in breach of Article 6 of the African Charter.
165.Accordingly, the African Commission finds a violation of Article 6 of the African
Charter by the Respondent State.
Alleged Violation of Article 7 of the African Charter
166.Article 7 of the African Charter provides that:
(1) 'everyone has the right to have their case heard, including:
a) the right to bring an action before the competent national courts
against any act infringing the fundamental rights recognized and
111 It sets out that any NISS member may:
(e) Arrest or detain any suspected person for a period not exceeding thirty days provided that his/her relatives are immediately
informed.
(Q After elapse of the thirty days mentioned in Para (e) above, and if there are reasons that require more investigation, enquiry
and maintaining the detained person in custody, NSS member shall refer the issue to the Director and make the
recommendations he deems appropriate.
(g) The Director may renew the detention period for not more than fifteen days with the purpose of completing investigation
and enquiry.
(h) If it comes to the knowledge of the Director that maintaining any person in custody is necessary for com~tion of
!n~estig~tion an~ enquiry in case of an accusatio~ related to a fac'.or threateni~g the_ secu_rity and s~ tY"'c3f!he: ~ l~
intIm1dating society by way of armed robbery, racial, rel1gIous sed1t1on or terrorism; d1srupt1ng peace~ ite~.t.Sin'g t,'ohticaf ,.-,. ,
violence: or plotting against the country, he shall refer the issue to the Council which may extend the de.tentiotl eno·~
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112 International PEN, Constitutional Rights Project. Civil Liberties Organisation and lnterights (on b~~alf o Ken Saro·
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VI
guarante.ed by the conventions, laws, regulations, and practices in
force;
b) the right to be presumed innocent until proven guilty by a competent
court;
c) the right to a defence, including the right to be assisted by a lawyer
of one's choice;
d) the right to be tried within a reasonable time by an impartial tribunal.
No one may be convicted of an act or omission which did not constitute,
(2)
at the time it was committed, an offence punishable by law. No penalty may
be prescribed if it was not prescribed at the time the offence was committed.
The penalty is personal and concerns only the offender'.
167.The Complainant alleges that Article 7 was violated in the present Communication
on several counts, including a) the denial of habeas corpus b) the failure to provide
information on the reasons for arrest and any charges brought; and c) the denial
of access to a lawyer. The African Commission will proceed to assess the
Complainants arguments in relation to the alleged violation of the Victim's right
under Article 7 of the African Charter.
168.Regarding the denial of habeas corpus, the Complainant argues that the Victim
was detained for months without being charged or brought before a judge and there
are no circumstances that would have prevented the Sudanese authorities from
doing so.
169.The right to he heard is a clearly established norm that anyone who is deprived of
his/her liberty through arrest and detention is entitled to initiate proceedings before
a judicial body, in order that the judicial body may decide without delay on the
lawfulness of the arrest and detention. The African Commission's Principles and
Guidelines on the Right to a Fair Trial provides that ... anyone who is deprived of
his or her liberty by arrest or detention shall be entitled to take proceedings before
a judicial body, in order that, that judicial body may decide without delay on the
lawfulness of his or her detention and order release if the detention is not lawful .113
The Principles and Guidelines on Fair Trial also provide that "judicial bodies shall
at all times hear and act upon petitions for habeas corpus ... or similar procedures.
No circumstances whatever must be invoked as a justification for denying the right
to habeas corpus ... " Furthermore, the African Commission's Luanda Guidelines
provides that "all persons in police custody and pre-trial detention shall have the
right, either personally or through their representative, to take proceedings before
a judicial authority, without delay, in order to have the legality of their detention
reviewed" 114 .
170.The African Commission in its jurisprudence has held in Abdel Hadi, Ali Raqi and
Others v. Republic of Sudan 115 and Purohit v. The Gambia116 hi:l\!~.•~~Lo~l,1at4he
denial of habeas corpus which prevented the victims from ha'{ing thc.e 13 rtunity
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Nigeria,
CommunicaUon No. 225/98 (2000), para.46.
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35
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of inquiring into the lawfulness of their detention, violated Article 7(1 )(d) of the
African Charter.
171.ln light of the above findings, the African Commission in the present
Communication, finds that the denial of harbeas corpus to the Victim violates
Article 7(1 )(d) of the African Charter.
172.Regarding the failure to provide information on the reasons for arrest and any
charges brought; the Complainant allege that the Victim was detained for months
without being informed of any criminal charges against him; at no point was he
shown a warrant for his arrest or any other document relating to the charges under
which he was detained; and no charges were brought in the course of his detention
or after his release; in violation of Article 7(1 )(d) of the African Charter.
173.The African Commission has established in its Principles and Guidelines on Fair
Trial and Robben Island Guidelines that "anyone who is arrested shall be informed,
at the time of arrest, of the reasons for his/her arrest and shall be promptly
informed, in a language he/she understands, of any charges against him/her; and
ensure that all persons deprived of their liberty are brought promptly before a
judicial authority" 117 . The Luanda Guidelines also provide that all persons under
arrest have the right to be informed of the reason for their arrest and any charges
against them. 118
174.The African Commission is of the view that lack of information for the reasons for
the Victims arrest at the time of arrest for the reasons for the Victim's arrest and no
charges brought against him during his detention, violates Article 7(1 )(d) of the
African Charter.
175.Regarding the denial of access to a lawyer, the Complainant argues that the Victim
was denied access to a lawyer, in violation of Article 7(1 )(c) of the African Charter,
as he was detained incommunicado with no access to the outside world and
approaches to the NISS by family members and lawyers seeking access to the
Victim were refused. Furthermore, the Complainant states that a lawyer known to
ACJPS approached the NISS Prosecutor in Khartoum, to seek to meet the Victim
and ascertain if any charges had been filed, but his requests were ignored. The
Complainant also argues that the applicable domestic legislation, i.e. Article 51 (2)
of the National Security Act 2010, itself violates Article 7(1)(c) of the African
Charter119.
176.The African Commission has considered in its Principles and Guidelines on Fair
Trial that in proceedings relating to criminal charges, legal representation is the
best means of legal defence against infringements of human rights and
fundamental freedoms 120 . The Principles and Guidelines on Fair Trial also provides
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118 Luanda Guidelines para 4b
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detention and shall be allowed to communicate with his/her family or advocate if this does net pre
interrogation, enquiry and investigation.
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120 N2(a) Principles and Guidelines on Right o Fair Trial
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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 case121 . It further gives 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. 122 The Luanda
Guidelines provide that arrested persons have the right of access, without delay to
a lawyer of his or her choice, or if the person cannot afford a lawyer, to a lawyer or
other legal service provider, provided by state or non-state institutions123 .
177.The African Commission has acknowledged the pivotal role of the right to legal
representation in its jurisprudence and recalls its decision in Malawi African
Association and Others v. Mauritania 124 and in Krishna Achuthan (on behalf of
Aleke Banda), Amnesty International (on behalf of Orton and Vera Chinua),
Amnesty International (on behalf of Orton and Vera Chinua) v Malawi 125 where
the accused either had no access or only restricted or delayed access to a lawyer,
held that the Respondent State violated article 7(1) (c) of the African Charter. In
Media Rights Agenda, Constitutional Rights Project v. Nigeria, the African
Commission held that "to be denied access to a lawyer is a violation of Article
7(1 )(c)."12a
178.The African Commission's acknowledgment of this right highlights its unwavering
commitment to protecting individuals from abuse and promoting fairness
throughout the detention process. In line with these findings, the Commission of
the view that the denial of the Victim to have access to a lawyer during his
detention, constitutes a violation of Article 7(1 )(c) of the African Charter.
179.Furthermore, the African Commission notes the Complainant's argument that the
applicable domestic legislation, i.e. Article 51 (2) of the National Security Act 2010,
itself violates Article 7(1 )(c) of the African Charter, as the right to communicate with
family members or a lawyer is thus conditional upon the contact not prejudicing the
investigation, and the NISS may therefore still hold detainees without contact
(incommunicado) where it sees fit. The African Commission has elaborated on this
matter extensively in its decision in Magdy Moustafa El Baghdady v, The Sudan
127 and expressed the view that even though the Respondent State has shown
progress in making multiple amendments to the NSA of 2010, with the latest
amendment taking place in 2024,128 it is essential to note that these amendments
121 Articles 20 (c) and 31 of the Robben Island Guidelines and Principle A2 (e) (D of the Principles and Guidelines on the Right
to a Fair Trial.
122Ibid Principle M (2) (e}.
123 Luanda Guidelines para 4d &14c.
124 Communications No 54/91,61/91 ,98/93,164-196/97, 210/98- Malawi African Association and Others v. Mauritania.
125 Communication 64/92-68/92-78/92 Krishna Achuthan (on behalf of Aleke Banda},Amnesty International (on behalf of Orton
1
and Vera Chinua), Amnesty International (on behalf of Orton and Vera Chinua} v Malawi
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275/03, para. 103 where the Commission held that, "[t]here had been a violation of Article 7(1)(c), ~ince1 etaine have'
been allowed no access to legal representation, contrary to the right to be defended by counsel which • protect~d by aJ _
provision of the Charter."
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127 Communciation 476/14- Magdy Moustafa El Baghdady v, The Sudan, para.1 57-162.
5. r,,/
128 Amendments were made to the NSA in 2011 , 2017, 2019, 2021 , 2022, and 2024.
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have not adequately addressed the limitations or drawbacks found in the original
2010 version of the Act.
180.The African Commission highlighted the need for comprehensive and substantive
changes to the NSA to ensure the protection of individuals' rights to align with the
principles of the African Charter. Mere cosmetic modifications without addressing
the underlying issues do not provide the necessary safeguards for detainees and
their access to legal representation. It is essential for the Respondent State to
address these concerns and make substantive amendments that genuinely
improve the protection of human rights within the framework of the NSA. 129
181.The African Commission therefore holds that the Respondent State violated article
7 (1) (c) and (d) of the African Charter.
Alleged Violation of Article 12(1) & 12(2) of the African Charter
182.Article 12 of the African Charter provides:
(1) 'Every individual shall have the right to freedom of movement and
residence within the borders of a State, provided he abides by the law,
(2) Every individual shall have the right to leave any country including his
own, and to return to his country. This right may only be subject to
restrictions, provided for by law for the protection of national security, law
and order, public health or morality',
183.The African Commission's General Comment No 5 on the Right to Freedom of
Movement and Residence provides that Article 12(1) and 12(2) of the African
Charter includes an array of rights and freedoms. While 12 (1) provides for freedom
of movement and residence in any part of the State unimpeded, provided that one
abides by the laws of the land; 12 (2) it is clear that every individual has the right
to leave their country and to return to the same. 130
184.The Complainant argues that the Victim experienced persecution at the hands of
the NISS between 2O11and 2018 and after his release, he was forced to flee the
country owing to a well-founded fear of persecution by the Sudanese authorities.
The Complainant aver that this fear of persecution has prevented the Victim from
returning to Sudan, which violates his right to freedom of movement and residence,
as well as his right to return to his country, as guaranteed under Articles 12 (1) and
12(2) of the African Charter.
185.The African Commission recalls its position in John D. Ouko v. Kenya 131,
concerning an individual who was arrested and detained without trial and
subsequently forced to flee the country for fear of persecution based on his;.Pu9.lit~ al
opinions, and in Rights International v. Nigeria 132, concerning an ingM c14:~l ~i&no
7 ,'<:,'<-1.,'
ft-129 Communication
476/14- Magdy Moustafa El Baghdady v, The Sudan, para.161 .
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t3o See, General Comment No.5 on the African Charter on Human and Peoples' Rights: The Right \o'Free om o'f..Mo~ men .:i
and Residence adopted in 2019.
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131 Communication 232/99 John D. Ouko v. Kenya, para 31 .
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132 Communication 215/98 Rights International v. Nigeria, paras 30-31.
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38
.
fled his country for fear of his life after being detained and tortured in a detention
camp. The African Commission in both communications held that Articles 12(1 )
and 12(2) of the African Charter were violated.
186.ln the same vein, the African Commission in the present Communication, finds that
the Victim fleeing the country and not returning to Sudan due to fear of persecution,
violates his right to freedom of movement and residence. Accordingly, the African
Commission finds that the Respondent State violated Article 12(1) and 12(2) of the
African Charter.
Alleged Violation of Article 16 of the African Charter
187.Article 16 of the African Charter guarantees that:
1. "Every individual shall have the right to enjoy the best attainable state of
physical and mental health.
2. State Parties to the present Charter shall take the necessary measures to
protect the health of their people and to ensure that they receive medical
attention when they are sick'.
188.The Complainant submits that the Victim was denied access to medical treatment
for the entire duration of his detention and was subjected to a range of acts of
torture that caused extreme physical and mental pain and anguish in violation of
Article 16 of the African Charter.
189.The right to the highest attainable standard of health encompasses the availability,
accessibility, acceptability, and quality of health care, services, and conditions. This
right imposes an obligation on the State: to respect, fulfil, and protect it, ensuring
that individuals can effectively exercise their right to health without discrimination
or undue restriction. The African Commission's Robben Island Guidelines provide
that states should "[e]nsure that all persons deprived of their liberty have access to
medical services and assistance". 133 The Luanda Guidelines also provide that
arrested persons have the right to urgent medical assistance, to request and
receive a medical examination and to obtain access to existing medical facilities.
190.The African Commission in Malawi African Association and Others vs Mauritania
and Monim Elgak, Osman Hummeida and Amir Sulivan (Represented by FIDH and
OMCT) v Sudan 134 and in International PEN and Others (on behalf of Ken SaroWiwa Jnr) v Nigeria 135 held that the State has an obligation to respect the right to
health in detention and emphasized that the responsibility for the physical integrity
and welfare of detainees lies with the competent State authorities.
Alleged Violation of Article 1 of the African Charter
192.Article 1 of the African Charter provides that:
'The member states of the Organization of African Unity parties
to the present Charter 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'.
193.The Complainant submits that in addition to a failure to respect the rights outlined
in the present Communication, the Respondent State also failed in its positive
obligation under Article 1 to exercise due diligence and effectively prevent and
respond to violations of the rights enshrined in African Charter; the Respondent
State failed to put in place adequate legislative framework to protect individuals
within its jurisdiction from arbitrary detention, torture, and other ill-treatment by the
NISS or to ensure the right to fair trial or the availability of effective remedies and
sanctions in the event of a breach; and the Respondent State also failed to
investigate allegations of wrongdoing by its agents and took no measures to ensure
the availability of an effective remedy for the Victim.
194.The African Commission remains guided by its decision in Sir Dawda Jawara v.
The Gambia,136 that a violation of any provision of the African Charter automatically
means a violation of Article 1, hence, if a State Party to the Africa Charter fails to
recognise the provisions of the same, there is no doubt that it violates this Article
1of the African Charter.
195.ln light of the foregoing and having found that the Respondent State in the present
Communication violated Articles 4, 5, 6 and 7, 12(1) and 12(2) and 16 of the African
Charter, the African Commission finds that the Respondent State has also violated
Article 1 of the African Charter.
IV.
Decision of the African Commission on the Merits
196.For these reasons , the African Commission:
i.
finds that the Respondent State is in violation of Articles 1, 4, 5, 6,
7(1 )(c) and (d), 12(1) and (2) and 16 of the African Charter;
ii.
recommends that the Respondent State should:
a) assess and pay the appropriate compensation to the Victim-to-;fl~dr:~ s
the moral and material damages and harm suffered by the
Victim;,l~"'th~0
,_ :1"" e,>r-•
amount of which shall be determined through the domes't1e'i)r: w re; ~
b) conduct prompt and impartial investigations int~ ;-t he allegatio s.., "'~
O
including the arrest, detention, and torture and ill treatrf,en of he..-'1icti
:;
and bring the perpetrators to justice;
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136 Comm. Nos. 147/95 and 149/96, para 46
40
c) issue a public apology as an acknowledgement of the violations of
Victims' rights under the African Charter;
d) adopt and implement procedural safeguards for the prevention of torture
and other forms of ill-treatment as required under the Robben Island
Guidelines;
e) conduct reforms of the National Security Act 2010, and policies and
practices of the NISS which are incompatible with the African Charter
and other regional and international human rights instrument, to bring
them in line with the African Charter and other international standards;
f) provide comprehensive training to NISS personnel on pertinent
guidelines concerning custodial protections, the absolute prohibition of
torture, and the imperative of non-discriminatory practices in the
discharge of their responsibilities;
g) establish an Independent Complaint Mechanism with the authority to
investigate actions and complaints against law enforcement officers,
including the NISS;
h) improve detention conditions, ensuring access to food, clean water,
sanitation facilities, appropriate cell occupancy, and humane treatment
of detainees to align with international legal requirements;jlr1fi_ _
i) inform the Commission, in accordance with Rule 12--5' (1) ·o f Jhe
Commission's Rules of Procedure (2020), within ohe-:J:itrndri cr aiict
eighty days (180) of the notification of the present de ·sion o the u
measures taken to implement the present decision.
'5 _
Done during the 84th Ordinary Session held virtually from 21
2025.
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