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Human Rights our
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Human and Peoples' Rights
Communication 402/11 & 420/12
Sudanese Civilians in South Kordofan and
Blue Nile (represented Sudan Democracy
First Group, REDRESS, Human Rights
Watch, INTERIGHTS and Enough Project)
V
Sudan
Adopted by the
African Commission on Human and Peopla' Rights
During the 7.f' Ordinary Seuion done virtually from 21 February to 07 March 2023.
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Communication
402/11
&
420/12:
Sudanese
Civilians in South Kordofan and Blue Nile
(represented Sudan Democracy First Group,
REDRESS, Human Rights Watch, INTERIGHTS and
Enough Project) v Sudan
Summary of the Complaint:
1. This Complaint was received separately at the Secretariat of the African
Commission on Human and Peoples' Rights ("the Secretariat") on 21 July 2011 and
23 April 2012, respectively. It was subsequently consolidated during the 12th ExtraOrdinary Session of the Commission held in Algiers, Algeria, from 30 July to 4
August 2012.
2. The Complaint was submitted by Sudan Democracy First Group, REDRESS,
Human Rights Watch, INTERIGHTS and Enough Project (the Complainants), on
behalf of Sudanese Civilians in South Kordofan and Blue Nile (the Victims) against
the Republic of Sudan (the Respondent State).
3. The Respondent State is a State Party to the African Charter on Human and
Peoples' Rights 1981 (African Charter), having ratified the same on 18 February
1986.
4. The Complainants claimed that starting on 5 June 2011, the Sudanese Armed
Forces (SAF) and militia groups, under the control of the Government of the
Republic of Sudan, launched a series of assaults against civilians in South
Kordofan. On 1 September 2011, a similar pattern of attacks began against civilians
in Blue Nile State.
5. The Complainants stated that more than 31 attacks have been documented since
the assaults began. Among them are the 26 June 2011 bombing of the market in
Kurchi, South Kordofan, which killed 13 civilians and injured more than 20 others,
most of whom were women and children.
6. According to the Complainants, eyewitnesses in Tilo, South Kordofan, reported
that the SAF sealed the doors of civilian homes and then set fire to the buildings,
burning alive the civilians who were trapped inside. Further reports, ~w·!;J,.l,..~ i..._
corroborated by satellite imagery, showed that on or about 8 June ,_O 9~~¥,o,
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removed the bodies of slain Sudanese Civilians from the Tilo and El Gardud
villages in South Kordofan and placed them in mass graves that had been freshly
dug for that purpose.
7. The Complainants claimed that the pattern has been the same in Blue Nile State.
On 1 September 2011, SAF forces attacked Damazin, the capital of Blue Nile.
Refugees recounted that Government war planes targeted civilian areas and armed
soldiers chased, captured, and killed civilians fleeing from the attacks. Agents of
the Government reportedly captured and killed some of the civilians. The
Complainants submitted that the precise casualty numbers are unavailable,
because the Respondent State has prevented independent observers from
accessing the war zones in either South Kordofan or Blue Nile.
8. The Complainants submitted that, as of January 2012, the United Nations (UN)
Office for the Coordination of Humanitarian Affairs (OCHA) estimated that
approximately 366,000 individuals had been internally displaced or severely
affected by the violence in the two States. Since June 2011, more than 140,000
refugees fled South Kordofan or Blue Nile to either Ethiopia or South Sudan.
9. The Complainants alleged that the victims do not necessarily find safety in refugee
camps. This is because, in November 2011, the SAF bombed the Yida refugee camp
in Unity State, South Sudan, which is home to many of those displaced from South
Kordofan.
10. The Complainants further submitted that the Respondent State has justified its
assaults under the guise of targeting the Sudan People's Liberation MovementNorth ("SPLM-N"), an organised armed group that has been active in these two
areas.
11. The Complainants alleged that the assaults on Sudanese Civilians have nothing to
do with military operations and that agents of the Respondent State have
deliberately bombed civilian homes, schools and medical facilities, causing untold
loss of life, massive displacements, injuries and damage to property.
12. The Complainants further alleged that in addition to civilian dwellings, schools
and hospitals, the SAF also targeted fields used for civilian food cultivation. Since
these assaults took place during the planting season, the Victims will be left
without a harvest, creating grave food insecurity. In certain parts of Blue Nile State,
it is estimated that only 15% of arable land was planted. When Amnesty
International reportedly visited South Kordofan in Au gu st 2011, it founs;i that
many of those displaced by the conflict had abandoned their fields r b of;i;ff,,_,,. ttJnni£
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cultivation time, and were faced with impending starvation. On 14 February 2012,
the UN Security Council warned that if food insecurity in some areas of Southern
Kordofan and Blue Nile States were not addressed immediately, it could reach
emergency levels.
13. The Complainants further alleged that the Respondent State has refused to allow
international organisations to deliver humanitarian aid, including food and
medical supplies, into the affected areas. According to the Complainants, in
November 2011, the Famine Early Warning Systems Network estimated that areas
of southern Blue Nile and South Kordofan were approaching emergency levels of
food insecuri ty - one level short of famine.
14. The Complainants alleged that the predominantly Arab Government in the
Respondent State has made clear its intention to cleanse South Kordofan and Blue
Nile States of the ethnic and racial groups w ho live there. The Complainants made
reference to a video published by Al Jazeera of the governor of South Kordofan,
Ahmad Haroun, telling SAP soldiers deployed to the Nuba Mountains, in South
Kordofan, to "take no prisoners ... hand over the place swept, rubbed, crushed ."
Articles alleged to have been violated
15. The Complainants submitted that the Respondent State violated the Victims' rights
under Articles 1, 2, 3, 4, 6, 7(1)(a), 12(1), 14, 16, 18, 19, 20, 21 and 23 of the African
Charter.
Prayers of the Complainants
16. The Complainants jointly prayed the Commission:
1. To recognise violations of Articles 1, 2, 3, 4, 5, 6, 7(1)(a), 9(1), 12, 14, 16, 18, 19,
20, 21 and 23 of the African Charter;
2. To requ est the Respondent State to gu arantee all the violated rights detailed in
this Submission;
3. To accept a separate submission on remedies and reparation and to allow for a
hearing on reparation if it has found the Respondent State to be in violation of
the African Charter in order to address the:
i.
appropriate forms of reparation as provided for by the UN Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and S
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of International Humanitarian Law, including restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition for the victims
of these violations, including for the next of kin of those who were
unlawfully killed by SAF, PDF, or other sta te forces and authorities, or who
suffered harm as a result of the failure of the sta te to provide adequate
protection against violations and to request the Government of Sudan to
give effect to such findings;
ii. appropriate collective measures of reparation to repair collective or group
harm caused by the Respondent State's campaign of massive and serious
human rights violations;
4. In addition, to request the Respondent State to set up an independent inquiry
to carry out prompt, effective and impartial investigations into the
circumstances of the abovementioned violations, and ensure that w here
sufficient evidence exists, the perpetrators are brought to justice and held
accountable for any violations;
5. To call on the Respondent State to:
(a) immediately release all arbitrarily detained civilians and ensure that those
detained on a lawful basis enjoy full due process rights;
(b) urgently facilitate unimpeded access by humanitarian aid groups to deliver
assistance to civilians in all parts of Southern Kordofan and Blue Nile;
(c) allow full and effective access for international monitors, including human
rights officers, to Southern Kordofan and Blue Nil e States;
(d) provide appropriate housing and basic needs to the displaced persons in
accordance w ith the UN Guiding Principles on Internal Displacement and
the AU Convention for the protection and assistance of internally displaced
persons in Africa;
(e) ensure the safe return of the displaced persons to their communities after
the unrest has ceased;
(£) reform its national legislation so that it provides:
1.
for adequate and effective safeguards against abusive use of force as
well as abuse of powers in the course of arrest and detention by
government forces, law enforcement and security officials;
11.
that arbitrary or abusive use of force as well as violations committed in
the course of arrest and detention procedures by governm
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law enforcement officials, including torture and ill-treatment, enforced
disappearances and rape, are effectively recognised as a criminal offence
under the law in Sudan;
iii. For criminal accountability of officials responsible for violations,
including by removing immunity legislation for such crimes that
officials enjoy under Sudanese legislation.
(g) ensure training in international human rights and international
humanitarian law to law enforcement and military personnel and National
Intelligence and Security Service (NISS) agents.
Procedure
17. The Secretariate received the Complaint on 21 st July 2011 and the
Communication was seized during the 50th Ordinary Session held from the 24
October to 5 November 2011 in Banjul, The Gambia.
18. On
7 November 2011, the Commission issued Provisional Measures and
respectfully requested the Respondent State to intervene with a view to preventing
irreparable harm being caused to the Victims.
19. By letter dated 16 November 2011, the Complainant was informed about Seizure
of the Communication and a copy of the Provisional Measures was forwarded to
the same. A Note Verbale informing the Respondent State about the Complaint was
also sent on the same date.
20. Communication 420/12 was subsequently received at the Secretariat on 23 April
2012.
21. At its 12th Extra-Ordinary Session which took place from 30 July to 4 August 2012
in Algiers, Algeria, the Commission decided to join Communication 420/12 with
Communication 402/11 and consider them together as a single Communication in
line with Rule 96(1) of its Rule of Procedure 2010. The Respondent State and the
Complainants were notified accordingly.
22. The Commission at its 12th Extra-Ordinary Session also considered the
implementation of its Provisional Measures and decided that the Provisional
Measures be resent.
23. On 21 August 2012, the Secretariat forwarded a Note Verbale to the Respondent
State resending the Provisional Measures. It requested the Respondent State to
report to the Commission on the actions taken to implement
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Measures issued against it within fifteen (15) days of the receipt of the request for
Provisional Measures.
24. The Commission during its 52nd Ordinary Session which took place from 9 to 22
October 2012 in Yamoussoukro, Cote d'Ivoire, took note of the non-response of the
Respondent State and decided to bring the matter to the attention of the relevant
organs of the African Union (AU) and to proceed to consider the Communication
at the admissibility level.
25. On 7 November 2012, the Complainants' submissions on Admissibility were
forwarded to the Respondent State and the State was requested to submit on
Admissibility w ithin sixty (60) days.
26. On 1 March 2013, the Embassy of the Republic of Sudan in Dakar, Senegal,
informed the Secretariat that the submissions of the Complainants which they had
received were illegible. In response, the Secretariat re-transmitted the submissions
on 5 March 2013, and informed the Complainants.
27. On 9 April 2013 and 10 June 2013, the Secretariat received letters from the
Complainants raising preliminary objections relating to the Respondent State's
submission on Admissibility and requesting that the Commission proceed to
decide on the Admissibility of the Communication solely on the basis of the
Complainants' submissions.
28. On 10 April 2013, the Secretariat received a Note Verbale from the Embassy of the
Republic of Sudan in Dakar stating that the Respondent State is still not able to
read the Complainants' submissions on Admissibility which were re-sent by the
Secretariat on 5 March 2013.
29. On 21 June 2013, the Secretariat wrote to the Respondent State and the
Complainants informing them that the matter will be tabled before the
Commission at its next Session.
30. The Commission took a decision on the Admissibility of the Communication
during its 14th Extra-Ordinary Session w hich took place in Nairobi, Kenya, from
20 to 24 July 2013 and both Parties were informed on 6 August 2013.
31. The Communication was deferred during the 55 th Ordinary Session, and
subsequent Extra-Ordinar y Sessions of the Commission and both Parties were
informed in March and June 2014 consecutively.
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32. On 4 June 2015, the Secretariat sent a No te Verbale reference number
ACHPR/COMM/402/11-420//12/SUD/903/15 by post to the Respondent
State's Embassy in Senegal notifying the Respondent's State that it has been
granted a period of 30 calendar days from the date of the notification within which
to file its written observations; and that the Commission will proceed to adopt a
decision on the merits if the said observations are not received within the time
prescribed.
33. On 3 November 2016, the Complainants requested the Commission to stay
proceedings for a period of 12 months due to the steps that were being taken by
the Respondent State to resolve the dispute locally.
34. With the time for the Respondent State to file its written submissions and after
repeated reminders to submit its response to the Complainants' written brief on
the merit, the Commission has now proceeded to decide the case on the merit in
light of Respondent State's default.
Admissibility
The Complainants' Submission on AdmissibilittJ
35. According to the Complainants, in cases of serious and massive violations of
human rights, the Commission needs to interpret the requirement of exhaustion of
domestic remedies in light "of its duty to protect human and peoples' rights as
provided for in the African Charter." Further," the condition that internal remedies
must have been exhausted cannot be applied literally to those cases in which it is
neither practicable nor desirable for the complainants or the victims to pursue such
internal channels of remedy in every case of violation of human rights. Such is the
case where there are many victims." 1
36. The Complainants submitted that, in the present case, the Respondent's alleged
indiscriminate bombing campaign is estimated to have resulted in "hundreds of
thousands" victims, including internally displaced persons. According to the
Complainants, non-governmental organisations (NGOs) reported that
government authorities and the SAF forces committed mass human rights
violations throughout 2012, including indiscriminate daily aerial bombardment by
Communications 54/91-61/91-96/ 93-98/ 93-164/ 96-196/ 97-210/ 98 - Malawi African Association,
Amnesti; International, Ms. Sarr Diop, U11ion interafricaine des droits de ['Homme and RADDHO, Collectif des
veuves et ayants-droit, Association Mauritanienne des droits de ['Homme v Mauritania, para 85; see also
Communications 27 / 89-46/91-49/91-99/93 - Organisation nzondiale contre la tortur
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Internationale des juristes democrates, Commission intemationale des juristes, Union intera • tu'r~Mfr!lro
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government forces in South Kordofan, the killing and injuring of civilians, and the
deliberate d estruction of grain and water sources, schools, farms, health clinics and
other civilian property. 2
37. The Complainants also submitted that significant number of women and girls
were reportedly raped by SAF forces while fleeing their homes in South
Kordofan's Nuba Mountains and "Sudanese government soldiers" reportedly
arrested and detained hundreds of men, women and children, which resulted in
the disappearance of some of those detained. 3 In Blue Nile State, the SAF also
allegedly carried out a bombing campaign starting in September 2011 which
continued through 2012, displacing tens of thousands. Government security,
police, and military forces were allegedly responsible for the extra-judicial killings,
injury, arbitrary arrest, torture and ill-treatment of civilians in Damazin and other
locations. 4
38. The Complainants averred that the UN has estimated that there is a total of 665,000
internally displaced persons or severely affected people in South Kordofan
(520,000 civilians) and Blue Nile (145,000 civilians). By the end of July 2012, the UN
Refugee Agency - the United Nations High Commission for Refugees (UNHCR) reported that the total number of persons from South Kordofan and Blue Nile who
had fled to neighbouring countries to escape persecution had reached 204,000. 5
39. The Complainants argue that there is no judicial system or mechanism in place in
Sudan that can cope with the large number of victims in the present case. It would
be impracticable to expect victims to exhaust any remedies in Sudan as they are
"unavailable in fact".
40. The Complainants further argued that the Respondent State had ample notice of
the human rights violations committed in South Kordofan. In particular, this
include the Commission's request for Provisional Measures on 7 November 2011
Human Rights Watch, 'Sudan: Crisis conditions in Southern Kordofan', 4 May 2012, at
http:/ /www. hrw.org/ news/2012/ 05/04/sudan-crisis-conditions-southern-kordofan;
Amnesty
International, 'We can run away from bombs, but not from hunger- Sudan's refugees in South Sudan',
June
2012,
pp.
10-14.
at
http://www.amnesryusa.org/sites/ default/ files/3919 s sudan report final 2.pdf.
3 Human Rights Watch, 'Sudan: Crisis Conditions in Southern Kordofan', 4 May 2012, at
http://www. hrw.org/ news/ 2012/ 05/ 04/ sudan-crisis-conditions-southern-kordofan.
4 Human Rights Watch, 'Sudan: Blue Nile Civilians Describe Attacks, Abuses', 23 April 2012, at
http://www.hrw.org/ news/ 2012/04/23 / sudan-blue-nile-civilians-describe-attacks-abuses.
5 OCHA, 'Sudan Weekly Humanitarian Bulletin, 23-29 July 2012' a t
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urging the Government " to intervene in the matter w ith a view to preventing
irreparable harm being caused to the victims". The Complainants noted that the
AU, the UN and other international bodies have called on the Respondent State
and the Su dan People's Liberation Army (SPLA) to end the violations in South
Kordofan as early as 10 June 2011 and to end the violations in Blue Nile starting
September 2011. 6
41. The Complainants submitted that the Respondent State failed to take any measures
to respond to the human rights violations committed in South Kordofan and Blue
Nile and there is no indication that the Respondent State had acted upon the
information on the alleged human rights violations in South Kordofan and Blue
Nile.
42. The Complainants further argued that remedies for human rights violations as
committed in South Kordofan and Blue Nile are ineffective and insufficient in the
Respondent State. According to the Complainants, they are not required to exhaust
any local remedy which is found to be, as a practical matter, unavailable,
ineffective or insufficient. They cite the Commission's d ecision in Dawda Jawara v
The Gambia, which states 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.7
43. According to the Complainants, there are no effective domestic remedies for
serious human rights violations such as those alleged in the Communication due
to: (i) shortcomings in Sudan's legal framework, and (ii) a general climate of fear
fostered by the Respondent State that prevents Victims from seeking remedies
against human rights violations committed by government officials.
44. The Complainants added that broad provisions for immunities for a range of State
officials furth er means that any " remedies" do not offer a prospect of success to
victims of human rights violations in Sudan. In the present case, the violations are
6 United Nations, 'Sudan: UN calls for immediate end to reported army bombing of civilians', 7
September
2011,http:// www.un.org/ apps/ news/ story.asp?NewsID=39482&Cr=kordofan&Crl =&Kwl =blue+n
i1e&Kw2=&Kw3=; United Nations, 'Sudan: Ban urges end to fighting in Southern Kordofan and Blue
Nil states, 2 September 2011,
http://www.un.org/ apps/ news/ story.asp?NewsID=39444&Cr=Kordofan&Cr1 =&Kwl = o~
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primarily alleged to have been committed by soldiers of the SAF with the support
of the Popular Defence Forces (PDF) and security forces.
45. Similarly, in Blue Nile, witnesses testified that SAF, militia and national security
forces committed human rights violations. The Complainants mad e reference to
Article 52 of the National Security Forces Act 2010, Article 46 of the Police Act 1999
and Article 34 of the Armed Forces Act 2007 which provide immunities for these
officials, including soldiers, for any acts committed in the course of their duties.
The immunities shield these officials from criminal prosecution and any civil suits
unless the head of the respective forces, or in case of the Armed Forces, the
President of the Republic, approves such legal action. Specifically, Article 34 (2) of
the Armed Forces Act of 2007 provides that:
No proceedings shall be taken against any officer, or soldier, who commits an act, which
constitutes nn offence, which occurs in the course, or by reason of his/her discharge of his/her
duties, or cnrn;ing out of any lawful order, issued thereto in this capacihJ thereof and he/she
shall not be tried, save upon permission, issued by the President of the Republic, or whoever he
may authorize.
46. The Complainants averred that any complaint regarding crimes committed by a
member of the security forces or soldier cannot therefore be pursued without
impediment, as their immunity would need to be lifted for any investigation to
proceed. Fu rthermore, they state that there is no judicial or administrative
procedure in place that would enable victims in the present case to compel, the
relevant authorities or the President of the Republic, in relation to violations
committed by mem bers of the SAF, to waive immunity and undertake a full
criminal investigation. The Complainants submitted that waiver of immunity is
therefore entirely discretionary and immunity is rarely lifted in practice.
47. According to the Complainants, the most recen t government campaign against
human rights activists, lawyers, journalists, marginalised communities and
individuals believed to be members of the opposition in Sudan extends to South
Kordofan an d Blue Nile. The Complainants submitted that the Darfur Relief and
Documentation Centre reported on 8 March 2012 that an "unknown number of
perceived political opponents, especially intellectuals and educated persons,
human rights and pro-democracy activists originating from the Nuba Mountains,
are held in government custody for prolonged periods and w ithout judicial
review." In April 2012, the International Rescue Committee reported that an
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increasing number of Nuba women and girls were raped while fleeing their homes
in Nuba Mountains in South Kordofan. 8
48. Considering that the Complainants raised a preliminary objection that any
submissions by the Respondent State on admissibility falling outside the time
frames established by the Rules of Procedure should not be entertained, the
Commission notes that as a matter of due diligence, a party must be expected to
raise issues of a technical nature such as illegibility following receipt of a
submission, well within the applicable time period. Accepting such argument after
the expiry of the time limit would result in an unmerited substantial extension of
the time limit and would allow parties to employ them as delaying tactics.
The Commission's Analysis on Admissibility
49. Having established that the African Commission is competent to entertain the
Communication before it, the African Commission will now proceed to analyse
Admissibility of the Communication.
50. Article 56 of the African Charter sets out seven requirements that a
Communication brought under Article 55 of the African Charter must satisfy in
order to be admissible, which apply conjunctively and cumulatively. 9
51. In the present Communication, the Respondent State has not made any
submissions. Under such circumstances, as the jurisprudence of the Commission
dictates in the case of the Institute for Human Rights and Development in Africa v
Republic of Angola,10 "in the face of the state's failure to address itself to the
complaint filed against it, the African Commission has no option but to proceed
with its consideration of the Communication in accordance with its Rules of
Procedure." In the same decision, the African Commission re-affirmed its position
by ruling that " ... it would proceed to consider Communications on the basis of
the submission of the Complainants and information at its disposal, even if the
State fails to submit." 11 Consequently, the Commission will rely on the
8 International Rescue Committee, 'Surge in refugees from South Kordofan fleeing into South Sudan',
13 April 2012, at http:/ / www.rescue.org/ press-releases/ press-release-surge-refugees-southkordofan-fleein g-sou th-sudan-13491.
9 See Communication 304/2005: FIDH & Others v Senegal (2006) ACHPR, paragraph 38.
Communication 292/04 - Institute for Human Rights and Development in Africa v. Republic of Angola,
para. 34
11 Ibid. The cases cited in this case are: Communication 155/96 - Social and Economic Rights Action Center,
Center for Economic and Social Rights v. Federal Republic of Nigeria, and Communication 159/ 96 - Union
Inter Africaine des Oroits de l'Homrne, Federation Internationale des Ligues des Oroi
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to pronounce on the Admissibility of the
52. In the present Communication, the authors have been indicated, the
Communication is compatible with the provisions of the African Charter and the
Constitutive act of the AU as it outlines a prima facie case of the violation of relevant
Articles of the African Charter; it is not written in disparaging or insulting
language, and the Communication has not been settled through other international
procedures.
53. With regards to Article 56(5), the Complainants contended that they were not able
to exhaust local remedies because domestic remedies were not available, effective
and sufficient. It is in light of this submission that the Commission will proceed to
determine on the availability, effectiveness and sufficiency of Sudanese local
remedies to the Complainants.
54. The Complainants argued that there is no judicial system or mechanism in place
in the Respondent State that can cope with the large number of victims in the
present case and that it would be impracticable to expect victims to exhaust any
remedies in Sudan as they are "unavailable in fact" .
55. While the exhaustion of domestic remedies must in principle be considered in each
individual case, the African Commission's jurisprudence in other cases of serious
or massive violations of human rights committed in Sudan attests to the lack of
effective remedies available in the Respondent State. In regard to massive human
rights violations committed in Darfur, where "tens of thousands of people have
allegedly been forcibly evicted and their property destroyed" the African
Commission found that "in the present communication, the scale and nature of the
alleged abuses, the number of persons involved ipso facto make local remedies
unavailable, ineffective and insufficient." 12
56. Similarly, the Commission found in AmneshJ In ternational, Comite Loosli Bachelard,
Lawyers' Committee for Human Rights, Association of members of the Episcopal
Conference of East Africa v Sudan where hundreds of people were detained without
charge and tortured that the "seriousness of the human rights situation in Sudan
and the great number of people involved renders such remedies unavailable in
Africaine des Droits de /'Homme, Organisation Nationale des Droits de /'Homme au Senega
Malien11e des Droits de l' Homme v. Republic of Angola.
12 Communication 279/ 03- 296/ 05 - Sudan Human Rights Organisation & Centre on
Evictions (COHRE) v The Sudan, para. 100
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fact, or, in the words of the African Charter, their procedure would probably be
unduly prolonged ."13
57. In the present Communication, the Complainants contended that the Respondent
State's disregard for the rule of law in combination with a general climate of fear
fostered by the Respondent State, which includes recent government campaign
against human rights activists, lawyers, journalists, marginalised communities and
the raids against the populations of Sou th Kordofan and Blue Nile, renders any
potential remedy unavailable, as it exposes the Victims who seek to pursue legal
avenues to significant risks to their security.
58. The Commission recognised in A nuak Jus tice Council v Ethiopia that a remedy may
only be deemed available "if the petitioner can pursu e it w ithout impediments or
if he can make use of it in the circumstances of his case. The word ' available' means
readily obtainable; 'accessible' or 'attainable, reachable"' .14 The Commission also
held in John D. Ouko v Kenya that domestic remedies need not be exhausted where
doing so would put victims a t risk of their life.15
59. The Respondent State's campaign against human rights activists, lawyers,
journalists, marginalised communities and individuals in South Kordofan and
Blue Nile demonstrate the genuine risk to victims seeking to take judicial steps
with a view to holding those responsible for human rights violations to account.
The Complainants submitted that human rights violations continue to be
committed in South Kordofan and Blue N ile on a daily basis w ith complete
impunity. No specific provisions exist in Sudanese law or practice that would
provide victims with protection. Under these circumstances, it would be
"reversing the clock of justice to request the complainants to attempt to exhaust
local remedies." 16 Therefore, for the aforementioned reasons and in line with its
established jurisprudence, the Commission finds that domestic remedies were not
available for the Victims because of fear for their lives and existing risks to their
security.
60. The Complainants also submitted that local remedies are not effective as there
exists broad provisions for immunities for SAF sold iers and Sudanese security
13 Communications 48/90, 50/91. 52/91, 89/93, para. 39
Communicatio n 299/2005 - Anuak Justice Council v Ethiopia, para.51; Communication 379/ 09 Monim Elgak, Osman Hummeidn and Amir Sulirnan (represented by FIDH and OMCT) v 5
15 Com munication 232/1999 - John D. Ouko v Kenya, para. 19.
16 Sir Oawda Jawara v The Gambia, para 40
13
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forces for any acts committed in the course of their duties.17 The immunities shield
these officials from criminal prosecution and any civil suits unless the head of the
respective forces, or in the case of the Armed Forces, the President of the Republic,
approves such legal action. Moreover, they claim that there is no judicial or
administrative procedure in place that would enable the Victims to compel the
relevant authorities or the President of the Republic, in relation to violations
committed by members of the SAF, to waive immunity and undertake a full
criminal investigation. The waiver of immunity is therefore entirely discretionary.
61. The Commission has previously held that in light of the immunity provisions
under Sudanese law, "it would be a mockery of justice to expect that the Victims
would get justice from such a discretionary remedy." 18 The Commission has made
its position clear that when a remedy is a 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. In Constitutional Rights Project (in
respect of Zamani Lakwot and Six Others) v Nigeria 19 and Constitutional Rights Project
(in respect oJWahab Akamu, G. Adega and Others) v Nigeria,20 the Commission ruled
that when the remedy is of a discretionary, extraordinary remedy of a non-judicial
nature "it would be improper to insist on the Complainant seeking remedies from
a source which does not operate impartially and have no obligation to decide
according to legal principles. The remedy is neither adequate nor effective" .21
62. In line with the above reasoning, the Commission finds that the immunity
provisions in Sudanese law render local remedies inadequate and ineffective.
63. Furthermore, it is the Commission's established jurisprudence that, the exhaustion
of domestic remedies is not required in cases where it can be shown that a State
failed to remedy a situation despite 'ample notice and time' to do so.22 In the
present Communication, it is clear from the request for Provisional Measures
issued by the Commission, the reports of the AU, UN and international NGOs that
the Respondent State had ample notice of the alleged human rights violations in
South Kordofan and Blue Nile State, and should have accordingly taken the
17 Namely Article 52 of the National Security Forces Act 2010, Article 46 of the Police Act 1999 and
Article 34 of the Armed Forces Act 2007
Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and
OMCT) v Sudan, para.67.
19 Communication 87/ 93 - Constitutional Rights Project (in respect of Zamani Lakwot and six others) v
Nigeria, para 8.
20 Communication 60/91 - Constitutional Rights Project v Nigeria, para 10.
21 As above.
22 Communication 275/ 03 - Article 19 v Eritrea, paras 72, 77.
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necessary steps to investigate the matter. According to the Commission, the failure
to take any action means that domestic remedies are not available or - even if they
are - not effective or sufficient to address the alleged violations. 23
64. The Commission therefore holds that local remedies in the Respondent State were
not available, effective and sufficient to the Complainants and hence the
Complainants are waived from exhausting local remedies pursuant to Article 56(5)
of the African Charter.
Decision of the African Commission on Admissibility
65. In view of the above, the Commission declares the Communication admissible in
accordance with Article 56 of the African Charter.
Merits
Summary of the parties' submissions
66. The only submissions on the merits that have been made before the African
Commission on this matter are those of the Complainants. Despite several Notes
Verbale to the Respondent State to file submissions on the merits, the latter has
neglected, fa iled or refused to do so.
Complainants' submissions
67. The case of the Complainants before the Commission is summarised in the
following paragraphs.
68. The Complainants submitted that the Respondent State committed massive and
serious violations of the provisions of Articles 1, 2, 3, 4, 5, 6, 7(1)(a), 9(1), 12, 14, 16,
18, 19, 20, 21 and 23 of the African Charter, in no particular order.
(i) Alleged violation of the right to life (A rticle 4 of the African Charter)
69. The Complainants submitted that the SAF, PDF and other forces of the Respondent
State carried out extrajudicial killings of a large number of persons living in South
Kordofan and Blue Nile in violation of Ar ticle 4 of the African Charter.
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(ii) Alleged violation of the prohibition of torture (Article 5 of the African Charter)
70. The Complainants submitted that the Respondent State is responsible for torture,
ill-treatment, rape and sexual violence committed by various forces of the
Respondent State in violation of Article 5 of the African Charter.
71. The Complainants also argued that the forced evictions, the destruction of homes
and the poor living conditions endured by thousands of civilians as a result of
forced displacement constitute ill-treatment in violation of Article 5 of the African
Charter. 24
(iii) Alleged violation of the right to liberty and security (Article 6 of the African Charter)
72. The Complainants submitted that the arrests of many civilians, especially
members of the Nuba ethnic group and others believed to be SPLM/ A-North
sympathisers, as well as UN peacekeepers and journalists, were arbitrary and
constitute a violation of the right to security of the person guaranteed under Article
6 of the African Charter.
73. The Complainants argued that the SAF and NISS arrested large numbers of
members of the Nuba ethnic group, SPLM political and civil society activists,
civilians believed to support the SPLM/ A-North, UN personnel and journalists.
74. The Complainants further submitted that the SAF and other forces failed to inform
individuals of the reason for their arrest, refused to charge those detained, and
neglected to grant them access to a lawyer and to their families.
75. The Complainants emphasized that those arrested and detained have not been able
to challenge their arrest or detention before a judicial officer or judge.
76. The Complainants submitted that not only have the Respondent State's forces
committed, and continue to commit, a wide range of human rights violations
against civilians in the context of the conflict in South Kordofan and Blue Nile, but
also that the Respondent State failed to take any steps to protect the physical
integrity of its citizens, in violation of Article 6.
(iv) Alleged violation of the right to a remedy (Article 7(1)(a) of the African Charter)
77. The Complainants submitted that the Respondent State failed to provide victims
of the alleged human rights violations with access to justice in violation of Article
24
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7(1)(a) of the African Charter and the Commission's Principles and Guidelines on
the Right to a Fair Trial and legal Assistance.
78. The Complainants submitted that despite the Respondent State's responsibility for
serious and massive human rights violations resulting in a large number of victims
in South Kordofan and Blue Nile, the victims have not had any access to a remedy
and reparation to date.
79. The Complainants further submitted that the Respondent State has yet to respond
to the Commission's two requests for provisional measures and to take the
necessary steps to investigate the alleged violations, prosecute and punish those
responsible, and provide reparation to victims in South Kordofan and Blue Nile.
The Complainants further submitted that no cases are known where soldiers of the
SAF or members of the security forces have been held accountable for human
rights violations alleged to have been committed in both States, since the outbreak
of hostilities on 5 June 2011 and September 2011, respectively.
(v) Alleged violation of the right to information (Article 9(1) of the African Charter)
80. The Complainants submitted that the Respondent State's restriction of the right of
individuals to receive information by closing the region of South Kordofan and
Blue Nile state to national and international media, and by preventing national
media and journalists from reporting on the violations committed by the
Respondent State in both states, constituted a violation of Article 9(1) of the African
Charter.
81. The Complainants also submitted that the lockdown of South Kordofan and Blue
Nile as well as the de-facto blanket ban on national and international media from
accessing both States to report on the conduct of hostilities, ostensibly with a view
to prevent reporting on human rights violations by SAF, PDF and NCP forces, are
unjustifiable under the African Charter.
(vi) Alleged violation of the freedom of movement nnd residence (A rticle 12 of the African
Charter)
82. The Complainants submitted that the Respondent State, by forcibly displacing
civilians and by failing to ensure their safe return, has violated the right to
residence and freedom of movement as enshrined in Article 12 of the African
Charter.
83. The Complainants further submitted that many of those displaced as a result of
the SAF's indiscriminate bombings were not permitted access to IDP camps but
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rather forced to return to areas where their lives and safety were considered to be
at risk.
(vii) Alleged destruction of civil property (Article 14 of the African Charter)
84. The Complainants submitted that the SAF's indiscriminate air and ground attacks
on civilian life caused the destruction of churches, houses and other property, the
abandonment of homes and the loss of livestock and other resources, and therefore
amount to a violation of Article 14 of the African Charter.
(viii) Alleged violation of the right to health (A rticle 16 of the African Charter)
85. The Complainants submitted that the indiscriminate bombing campaign by the
Respondent State led to the widespread destruction of homes and livestock and
caused hundreds of thousands of persons to be cut off from drinking water,
electricity and any medical aid, and constituted a violation of Article 16 of the
African Charter.
(ix) Alleged violation of the protection of the family (Article 18(1) of the African Charter)
86. The Complainants submitted that the forced displacement of hundreds of
thousands of civilians by the Respondent State's indiscriminate bombing
campaign and other human rights violations resulted in a violation of the right to
protection of the family under Article 18 (1) of the African Charter.
87. The Complainants submitted that the fear of aerial bombardment by the
Respondent State has forced civilians to leave behind family m embers, including
children as well as the elderly.
(x) Alleged discrimination against women (Article 18(3) of the African Charter)
88. The Complainants submitted that the Respondent State's forces and authorities
have committed widespread acts of sexual violence specifically targeted at women
and girls in violation of Article 18(3) of the African Charter.
89. The Complainants submitted that by specifically committing sexual violence
against female Sudanese civilians, the violations "are gender-specific in the sense
that the victims were subjected to acts of sexual harassment and physical violence
that can only be directed to women."
(xi) Alleged discriminatory treatment on other grounds (Article 2 of the African Charter)
90. The Complainants submitted that the Respondent State is responsible for
discriminatory treatment of civilians in South Kordofan, Blue Nile as well as other
areas in Sudan on the basis of sex, colour, race and ethnicity, and poli •
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in violation of Article 2 of the African Charter.
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(xii) Alleged violation of the Nuba's collective rights (Articles 19, 20, 21 and 23 of the African
Charter)
91. The Complainants submitted that the Respondent State's assault on members of
the Nuba ethnic group violates their collective rights as a "people" under the
African Charter. Specifically, they submitted that the Respondent State is
responsible for violations of the Nuba people's right to equality under Article 19;
their right to existence and self-determination under Article 20; their right to freely
dispose of their wealth and natural resources under Article 21(1) and (2); and their
right to peace and security under Article 23(1) of the African Charter.
92. The Complainants submitted that, due to the history of targeted violations
committed by the Respondent State against the Nuba people during the conflict in
South Kordofan, militias and government forces in South Kordofan killed
individuals because they belonged to the Nuba.
93. The Complainants submitted that the Respondent State has denied the Nuba their
fundamental rights enshrined in the African Charter, including their right to life,
to be free from torture and ill-treatment, and to liberty and security of the person.
94. The Complainants submitted that based on the continued and specially targeted
violations against this group, the Nuba cannot enjoy the same respect and the same
rights as others in Sudan in violation of Article 19 of the African Charter.
95. The Complainants submitted that the scale of the human rights violations
committed by the Respondent State's forces against the Nuba people threatens
their existence as a people in violation of Article 20 of the African Charter.
96. The Complainants also submitted that the Respondent State's forces destroyed
wealth and natural resources in the Nuba Mountains without providing any
compensation to the Nuba People in violation of Article 21(1) and (2) of the African
Charter.
97. The Complainants submitted that the destruction of thousands of homes and
cultivated land in the Nuba Mountains has effectively denied the inhabitants their
right to dispose of their own wealth without compensation.
98. The Complainants submitted that the Respondent State is furthermore responsible
for violating the Nuba peoples' right to national peace and security through the
unprovoked attacks on v illages by state forces.
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(xiii) Alleged violation of the right to equal protection of the law (Article 3(2) of the Charter)
99. The Complainants submitted that the Respondent State's failure to guarantee a fair
and just treatment of individuals and ensure the equal protection of the law
amounts to a violation of Article 3(2) of the African Charter.
(xiv) Alleged violation of Articles 1 of the African Charter
100. The Complainants submitted that the Respondent State's failure to take
reasonable and necessary steps to prevent and adequately respond to the
violations alleged in the complaint and the failure to implement the African
Commission's request for provisional measures amount to a violation of Article 1
of the African Charter.
101. On the basis of these submissions, the Complainants urged the Commission to
find that the Respondent State has violated the provisions of the African Charter
and grant the remedies sought.
B. Respondent State's submissions
102. As indicated above, the Respondent State did not submit its observations on
the merits, despite ample reminders by the Secretariat of the African Commission.
In the absence of any submissions by the Respondent and the time for the
Respondent State to enter its submissions having elapsed, the Commission is
entitled to proceed to enter a default decision on the merits in accordance with the
relevant provisions of the Commission's 2010 Rules of Procedure.
The Commission's Analysis on the Merits
103. Having considered the submissions of the Complainants on the merits, the
Commission will analyse the arguments and evidence furnished by the
Complainants.
Alleged violation of Article 4 of the African Charter
104. The Complainants alleged that the Respondent State violated the provisions of
Article 4 of the African Charter, through the extrajudicial killings of a large number
of persons in South Kordofan and Blue Nile. The killings, the Complainants
claimed, were perpetrated by the SAF, the PDF and other forces of the Respondent
State.
105.
Article 4 of the African Charter provides that:
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106. In the jurisprudence of the African Commission, the right to life is foundational
to the exercise of all other rights. Under the African Charter, the right to life applies
to all persons, at all times, and it cannot be derogated from.25 This is because
without life, all other rights cannot be exercised.
107. In the case of Forum of Conscience v Sierra Leone,26 the Commission held that
" [t]he right to life is the fulcrum of all other rights. It is the fountain through which
other rights flow, and any violation of this right without due process amounts to
arbitrary deprivation of life." 27
108. Similarly, in General Comment No. 3 on the African Charter on Human and
Peoples' Rights: The Right to Life (Article 4), the Commission notes that:
The right to life is universally recognised as a foundational human right. It is guaranteed by
Article 4 of the African Charter and all of the other main global and regional human rights
instruments. The right not to be arbitrarily deprived of one's life is recognised as part of
customan; international law and thegeneral principles of law, and is also recognised as a jus
cogens norm, universally binding at all times. The right to life is contained in the constitutions
and other legal provisions of the vast majorihJ of African and other States. All national legal
systems criminalise murder, and arbitrary killings committed or tolerated by the State are a
matter of the utmost gravih;.2B
109. By the tenor of this interpretation, State Parties have an obligation under the
African Charter to refrain from the arbitrary and unlawful deprivation of life. State
Parties have an obligation to protect human life against unwarranted or arbitrary
actions by security forces and private persons. In the case of Gabriel Shumba v
Zimbnbive, 29 the Commission noted that the right to life enshrined in Article 4 of
the African Charter is the supreme right of the human being. As the Commission
rightly held in that case, the deprivation of life by the authorities of the state is a
matter of utmost gravity w hich requires that State Parties under the African
Charter have a responsibility to strictly control and limit the circumstances under
w hich a person may be deprived of life by State authorities.
Communication 74/ 92 - Com111ission Nationale des Droits de /'Homme et des Libertes v Chad, para 21.
(2000) AHRLR 293 (ACHPR 2000) para 19.
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27 Communication 288/ 04 - Gabriel Shunrba v Zimbabwe (2012) para. 130.
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110. In General Comment 6 on the Right to Life in Article 6 of the International
Covenant on Civil and Political Rights,30 UN Human Rights Committee clarified
that the right to life under the Covenant impose an obligation on States Parties not
only to refrain from the intentional and unlawful deprivation of life but also to
protect human life against unwarranted or arbitrary actions by public authorities
and private persons.31
111. The Commission, in Sudan Human Rights Organisation and Centre on Housing
Rights and Evictions (COHRE) v Sudan,32 noted that it is the duty of the State to
protect human life from arbitrary and unwarranted actions by both public
authorities and private persons. This duty must be broadly interpreted to include
prohibitions of arbitrary killings by state security services and to strictly regulate
the circumstances in which a person may be deprived of life by state authorities. It
also includes the necessity to secure the right to life by making effective provisions
in criminal law to deter the commission of offences against the person, to conduct
effective official investigations when individuals have been killed as a result of the
use of force by State agents, and to establish law enforcement machinery for the
prevention, suppression, investigation and penalisation of breaches of criminal
law. The Commission further noted that the State is duty bound to take preventive
operational measures to protect an individual whose life is at risk from the criminal
acts of another individual.
112. In Article 19 v Eritrea (Article 19 case),33 the Commission noted that arbitrariness
should not be equated with an act being" against the law" but must be interpreted
more broadly to include elements of inappropriateness, injustice, lack of
predictability and due process.
In the instant case, the fac ts of multiple killings of civilians in South Kordofan
and Blue Nile by Security forces of the Respondent State are well established.
Besides the latest pieces of documentary evidence in support of the allegations by
the Complainants, there is well documented evidence showing not only the
indiscriminate aerial bombardment and shelling of civilians by the security forces
113.
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of the Respondent State, but also the bombing and shelling of civilian areas
throughout both regions.34
In its 5 November 2011 Resolution on the General Human Rights Situation in
Africa - ACHPR/Res.207(L)2011, the Commission observed that it was concerned
about:
114.
the indiscriminate aerial bombardment of civilian targets, and causing death among the
populations, destruction of houses and the systematic displacement of civilian
populations destruction of habitat and purposeful displacement ofcivilian populations,
extrajudicial kill(ngs and forced disappearances of members of the indigenous tribes of
these regions.35
115. Similarly, in its Concluding Observations and Recommendations on the 4th and
5 th Periodic Reports of the Republic of Sudan, the Commission observed that:
Government forces persistently and indiscriminately bomb civilian areas across the
Nuba Mountains, forcing people to seek shelter in caves and in mountains, where they
lack food, shelter, and access to basic needs such as water and sanitation.
116. These observations are in addition to public reports by the UN, the Sudan
Democracy First Group, Amnesty International, Human Rights Watch, and other
civil society organisations showing the arbitrary deprivation of life by security
personnel of the Respondent State. In the face of the preponderance of evidence
demonstrating the wanton destruction of human lives, the government did not
provide any explanation for the actions of its security personnel.
117. In light of the failure of the Respondent State to refute these allegations, the
Commission is entitled to find that the various killings of civilians in South
Kordofan and Blue Nile demonstrate, jointly and severally, government's
Human Rights Watch' Under siege: Indiscriminate bo,nbing and abuses in Sudan's Southern Kordofan and
Blue Nile States' (11 December 2012) pp. 20-21, 34-39; Amnesty International 'We can run away from
bombs, but not from hunger- Sudmz's refugees in Sou th Sudan' Ju ne 2012
https://www.amnesty.org/ en/ documents/afr65/ 001/2012/en/; UN Human Rights Committee,'
General Comment 6, Article 6,16th session, UN', Doc. HRI/GEN/1/ Rev.1, 1994, para.3; Sudan
Democracy First Group' Ethnic Cleansing Once Again: Sou th Kordofan/ Nuba Mountains' 13 June 2011
http:/ / www.sudantribune.com/ spip. php?iframe&page=imprimable&id_article=38972; The Enough
Project, 'S11da11 Field Dispatch: Refugees Provide Details of Attacks in Isolated Blue Nile State'
http://www.enoughproject.org/ files/ Blue_Nile_Dispatch_20120723. pdf.
35 African Commission "Resolution on
the General Human Rights Situation ~Africa ACHPR/Res.207(L)2011" adopted during the 50th Ordinary Session, Banjul, the Garn bi ~t}l•@~fobe-v0
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responsibility for the violations of Article 4. As such, the Commission finds that
the Respondent State violated the provision of Article 4 of the African Charter.
Alleged violation of A rticle 5 of the African Charter
118. The Complainants alleged that the Respondent State is responsible for torture
and ill-treatmen t committed by its various forces in violation of Article 5.
119.
Article 5 of the African Charter provides that:
EvenJ individual shall have the right to the respect of the dignity inherent in a human
being and to the recognition of his legal status. All forms of exploitation and
degradation of man particularly slaven;, slave trade, torture, cruel, inhuman or
degrading punishment and treatment shall be prohibited.
120. A basic interpretation of the text shows that Article 5 of the African Charter not
only guarantees respect for the dignity inherent in the human p erson bu t also
guarantees the recognition of his or her legal status. It further prohibits all forms
of exploitation and degradation of man or woman, including slavery, slave trade
and torture, cruel, inhuman or degrading punishment and treatment.
121. This implies that Article 5 of the African Charter permits no restrictions or
limitations on the right to be free from torture and cruel, inhuman or degrading
punishment or treatment. In the Article 19 case,36 the Commission held that the
right to freedom from torture and cruel, inhuman and degrading treatment, cannot
be derogated from for any reason, in whatever circumstances.
122. The Commission, in Mouvement Burkinabe des Droits de l'Homme et des Peuples v
Burkina Faso (Mouvement Burkinabe case),37 noted that any act resulting in the forced
disappearance of a person prevents the victim from the protection of the law and
causes immense suffering to that person and his or her family.38 In this case, the
Complainants submitted that the enforced disappearance of individuals in South
Kordofan and Blue N ile constitute a violation of Article 5, both of the right of the
person forcibly disappeared and the right of his or her family m embers to be free
from torture or inhuman and degrading treatment.
123. The Commission also notes that the enforced disappearance of identified and
unidentified individuals in Sou th Kordofan and Blue Nile constitute a violation of
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Article 5, both in respect of the right of the person forcibly disappeared and that of
their family members. In the Mouvement Burkinabe case,39 the Commission not only
noted that the enforced disappearances of political opponents constituted a
violation of Article 5, but also held that:
Article 5 of the Charter guarantees respect for the dignity inherent in the human person
and the recognition of his legal status. This text further prohibits all forms of
exploitation and degradation of man, particularly slaven;, slave trade, torture cruel,
inhuman or degrading punishment and treatment. The guarantee of the physical
integrity and security of the person is also enshrined in Article 6 of the African Charter,
as well as in the Declaration on the Protection of all Persons against Forced
Disappearances, adopted by the General Assembly of the United Nations in Resolution
47/133 of 18th December 1992, which stipulates in article 1(2) that "any act leading to
forced disappearance excludes the victim from the protection of the law and causes grave
suffering to the victim and his family . It constitutes a violation of the rules of
international law, especially those that guarantee to all the right to the recognition of
their legal status, the right to freedom and security of their person and the right not be
subjected to torture or any other inhuman or degrading punishment or treatment. It
also violates the right to life or seriously imperils it.
124. The Complainants have submitted that during the first months of the conflict
in South Kordofan, between June 2011 and November 2012, the SAF and other
security services of the Respondent State carried out arbitrary arrests, detention,
torture and enforced disappearances and in the process subjected members of the
Nuba ethnic group in South Kordofan and Blue Nile to beatings and kicking, rape
and other forms of sexual violence, destruction of properties, forced evictions and
displacement in violation of Article 5 of the African Charter.
125. In particular, the Complainants listed specific violations of Article 5 to include:
the detention in June 2011 of four UN Peacekeepers and subjecting them to a mock
firing squad; the detention in June 2011 of an Al Jazeera TV team, who were beaten
with Rifle butts and threatened to be killed at the Security Authority Headquarters
and a police station; the arbitrary arrests in June 2011 of over a hundred civilians
in and around Kadugli, some of whom were reportedly tortured before being
transferred to Khartoum; the arrest and d e tention on 20 June 2011 of a young
Nubian woman, who was interrogated about her work with an international NGO
while being beaten with fists, sticks, rubber hoses, and electric wires; the arrest,
detention and torture in December 2011 by the NISS of three young men (Musa
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39 Commumcation No, 204/97 (2001.) - Mouvement Burkmabe des Drozts de l' Homme et d
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Bakhit, Al Fadul Altoum and Hamdeen Eisa Al Nour) belonging to the Misseriya
tribe, between Hajlij and Muglad in South Kordofan.
126. Other acts of ill-treatment and torture which the Complainants alleged include:
the arrest on 17 January 2012 of Mr Fathi Bashir El-Feil, a pro-dem ocracy activist
from Al-Abasya Tagali in South Kordofan and the threatening of his family by
security forces; the detention, interrogation and torture on 18 May 2012 of a Nuban
high school student on the accusation of being a rebel; the arrest of Omaia Abdel
Latif Hassan Omaia, a media representative of the SPLM-North on 22 August 2012
and incommunicado detention, since his transfer from Tajmala to Talodi in South
Kordofan, on 3 November 2012; the arrest on 24 October 2012, detention and
beating of 22-year old mother of two, Sarah L, along w ith 35 other women by
Sudanese security officials, in a national detention facility inside Kadugli town.
127. The Complainants also alleged that, on 10 and 11 November 2012, the security
forces of the Respondent State placed 34 women in incommunicado detention
without access to their lawyers or families and without access to medical facilities.
They claimed that while 14 of these women were released on 14 April 2013, the
remaining 20 women remained detained without any charges until they were
subsequently released on 10 July 2013.
128. The Complainants claimed that, on 18 November 2012, 60 civilians were
reportedly arrested in Dilling, South Kordofan, and taken to the military barracks,
before being transferred to Kadugli. They claimed that the 60 d etainees, most of
whom were from the 'Oncho' tribe, which is part of the Nuba ethnic group, were
denied access to their families and legal representation, and were not released until
they had bribed the security officials who kept them captive.
129. The Complainants submitted that, in Blue Nile, the security forces of the
Respondent State have reportedly arrested young Sudanese men on the accusation
of being SPLM/ A-North soldiers, and placed them in a crowded cell for extended
periods. They claim that those held in the cells have had their hands tied and
beaten with belts on their feet and hands, have been threatened, and witnessed a
military officer shooting two men in the head.
130. The Commission notes from the documentary evidence submitted before it that
the alleged targeting of ethnic Nuba and perceived or actual sympathizers of the
SPLM/ A-North extended beyond the conflict areas to other areas of Sudan.
Documented reports by national and international civil society groups show how
the Sudanese authorities have arbitrarily arrested, detained, t
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treated persons believed to be members of the Nuba ethnic groups, activists acting
on their behalf, as well as suspected SPLM/ A sympathisers.
131. As the Commission has held in the Article 19 case, 40 "where allegations are not
disputed by the state involved, the Commission may take the facts as provided by
the complainant as a given." In the same way, where the Respondent State in this
case does not dispute the factual allegations of the Complainants, the Commission
has the discretion to take the facts as a given.
132. Therefore, the Commission finds that the deliberate inhuman treatment of
members of South Kordofan and Blue Nile, including the rape and other forms of
sexual violence, violent assaults and enforced disappearances causing serious
physical and psychological suffering that amount to torture and ill-treatment,
violates Article 5 of the African Charter. The Commission also finds that,
regardless of the accusations leveled against those arrested and detained, the illtreatment, brutalisation and torment of those in detention by the security
personnel of the Respondent State with the intention to cause physical and
psychological harm are inhuman and unjustified and amounted to a clear violation
of Article 5 of the African Charter.
Alleged v iolation of Article 6 of the African Charter
133. The Complainants alleged that the arbitrary arrests of a large number of
civilians, in particular, members of ethnic groups such as Nuba and others
believed to be SPLM/ A-North sympathisers, as well as UN peacekeepers and
journalists as well as the enforced disappearances of identified and unidentified
individuals constitute a violation of the liberty and security of the person under
Article 6 of the African Charter.
134.
Article 6 of the African Charter provides that:
Even; individual shnll have the right to liberty and to the securihJ of his person. No one
may be deprived of his freedom except for reasons and conditions previously laid down
by laiu. In particular, no one mny be arbitrarily arrested or detained.
135. Deprivation of liberty through arbitrary arrests, detention and enforced
disappearances contravenes the very essence of Article 6 of the African Charter.
Where violation of Article 6 is widespread, as is evident in this case, and shown to
have been perpetrated by the Respondent State, the Commission has no option but
to find the Respondent State and its security personnel responsible.
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136. In the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa, the Commission affirms in relation to the obligation of State
Parties under Article 6 of the African Charter 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 lmv and by competent officials or persons authorised for that
purpose, pursuant to a warrant, on reasonable suspicion or for probable cause.
137. This means that the security personnel in the Respondent State must refrain
from arresting, detaining, or imprisoning individuals or groups in flagrant
disregard of due process of law or without legal justification. In Article 19 case, the
Commission noted that while arrests and detention may be legal according to
domestic law, it will be arbitrary and therefore unlawful if it is inappropriate,
unreasonable, unjustified and unpredictable. 41
138. In the present case, the SAF and NISS arrested large numbers of members of
the Nuba ethnic group, SPLM political and civil society activists, civilians believed
to support the SPLM/ A-North, UN personnel and journalists. The arrests and
detention were made primarily on the basis of the individuals' perceived
opposition to the government rather than on the ground of reasonable and
justifiable suspicion against them, in violation of Sudanese laws. In the absence of
any due process of law being followed in the arrests and detention of civilians in
South Kordofan and Blue Nile and given the lack of any reasonable or justifiable
explanation by the Respondent State, the Commission finds that the arrests and
detention were arbitrary and in violation of Article 6.
139. It is also pertinent to emphasise that the existence of conflict in the two affected
regions of the Respondent State does not justify any arbitrary measures adopted
by the military and intelligence authorities in the Respondent State. This is
especially so considering that due to the violent acts of the Resp ondent State' s
authorities, about 695, 000 people have been displaced internally as of August
2013, while 225, 000 were living in refugee camps in Ethiopia or South Sudan.
140. In the Article 19 case, the Commission citing with approval the decision of the
UN Human Rights Committee in the case of Albert Mukong v Cameroon42, noted
41 A rticle 19
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42 Communication No. 458/1991
IO August I 994.
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that the existence of conflict or war cannot be used as a justification by a State Party
for violation of the provisions of the African Charter.43
141. In the present case, the Respondent State did not file any submissions in
response to the Complainants' allegations that its national security agencies
carried out arrests, detention, and enforced disappearances of persons who are
either m embers of the Nuba ethnic group or perceived to be SPLM/ A - North
sympathizers. In the absence of any concrete steps on the part of the State to bring
the victims of arrests, detention and enforced disappearances to court several days,
months or, sometimes, indefinitely after the fact, or to allow them access to their
legal representatives, the African Commission is persuaded to conclude that there
is no reasonable justification for these violations. Arrests and detentions which are
carried out without recourse to due process of law amount to arbitrariness.
142. As such, the Commission finds that the arrests, detention and enforced
disappearances of civilians in South Kordofan and Blue Nile were unjustified and
amount to a violation of Article 6 of the African Charter.
Alleged violation of Article 7(1)(a) of the African Charter
143. The Complainants alleged that the Respondent State failed to provide the
victims of human rights violations with access to justice in violation of Article
7(1)(a) of the African Charter.
144.
Article 7(1)(a) provides that:
EvenJ individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts violating his
fundamental rights as recognised and guaranteed by conventions, laws, regulation
and customs in force;
145. Article 7(1)(a) of the African Charter gu arantees the right of fair trial and
effective remedies to everyone. States have an obligation under the African Charter
to ensure that anyone whose rights have been violated has an effective remedy by
an appropriate judicial body.44
146. In amplifying the right to fair trial and effective remedy under the African
Charter, the Commission notes, in the Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa, that everyone has the right to an effective
case (n 32 above) para 87,
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remedy by competent national tribunals for acts violating the rights guaranteed by
the Constitution, the law or the African Charter, regardless of whether the acts
were committed by persons acting in an official capacity. 45 The Commission also
notes that the right to an effective remedy includes: access to justice; reparation for
the harm suffered; and access to the factual information concerning the violations.
147. In the present case, there is no doubt that the incommunicado detention of
hundreds of civilians in South Kordofan and Blue Nile without trial not only runs
contrary to the Sudanese Constitution, but also violates the provisions of Article
7(1)(a) of the African Charter.
148. The Commission, therefore, finds that the arbitrary arrests, incommunicado
detention and detention without trial of large numbers of civilians in the two
affected regions of the Respondent State over the course of two years amounts to
massive violations of not only the right to liberty and security of the person but
also of access to effective remedies. As with its undertaking under the African
Charter, the Respondent State has an obligation to apply due process of law in
relation to persons who have been subject of arrests and detention and to
guarantee their right to a fair trial before a competent court or tribunal.
149. The right to effective remedies under Article 7(1)(a) of the African Charter
entails the obligation on the part of the Respondent State to investigate, try and
punish viola tors of human rights among its security personnel. The failure and
neglect on the part of the Respondent to respect this right, in relation to those
arbitrarily arrested and detained without trial, within a reasonable time or to hold
those members of its security agencies responsible for various human rights
violations, amounts to a violation of the right to a remedy under the African
Ch arter.
150. As such, the Commission finds that the Respondent State's arrests, prolonged
detention w ithout trial and incommunicado detention of hundreds of civilians
were arbitrary and violated Article 7(1)(a) of the African Charter.
Alleged violation of.Article 9(1) of the African Charter
151. The Complainants alleged that by effectively closing the region of Sou th
Kordofan and Blue Nile states to national and international media, and by
preventing national media from reporting on the violations committed by the
Respondent State in both states, the Respondent State restricted the right of
45 As above, para C.
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individuals to receive information in violation of Article 9(1) of the African
Charter.
152. Article 9(1) of the African Charter provides that " [e]very individual shall have
the right to receive information."
153. By the tenor of this provision, the right to freedom of expression and access to
information is guaranteed under the African Charter, and form part of the basic
components for the promotion of participation, democracy and accountability on
the continent. Under the African Charter, this right comprises the right to receive
information and express opinions. 46
154. In Constitutional Rights Project and Another v Nigeria, 47 the Commission held that
" [f]reedom of expression is a basic human right, vital to an individual's personal
development and political consciousness, and participation in the conduct of
public affairs in his country."
155. In the present case, the government did not provide any response to the
allegations pertaining to the restriction of civilians' right of access to information
as well as the restriction of media practitioners and journalists from reporting on
the conflict in South Kordofan and Blue Nile. The Commission recalls its
Concluding Observations on the Respondent State's 4th and 5th Periodic Report
that " [m]edia practitioners are often arrested, imprisoned, beaten and tortured for
doing their jobs."48
156. The Commission has noted severally in its jurisprudence that, the African
Charter does not contain a derogation clause.49 This implies that the right of
individuals to express themselves and disseminate their opinions "within the law"
does not give States a carte blanche prerogative to restrict the right to freedom of
expression and the press, under the African Charter, in times of w ar or conflict.
For this reason, any limitation of a right contained in the African Charter must be
in accordance with the provisions of Charter. 50
46 Also see
Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) para 54.
47 (2000) AHRLR 227 (ACHPR 1999) para 36.
' Concluding Observations and Recommendations on the 4th and 5th Periodic Report
of the Republic of Sudan', adopted at the 12 th Extra-Ordinary Session of the African Commission on
Human and Peoples' Rights held from 29 Ju ly to 4 August 2012, Algiers, Algeria, para. 45.
49 Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) paras 38 & 41;
Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) para 67.
so Article 19 case (n 32 above) para I 05.
48 African Commission,
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157. The only legitimate reasons for limitations to the rights and freedoms
enshrined in the African Charter can be found in Article 27(2), which is that the
rights of the Charter "shall be exercised with due regard to the rights of others,
collective security, morality and common interest'. As such, for any restriction of
a right recognised in the African Charter to be reasonably justified, it must be in
conformity with the obligations of the State Party and must be legitimate,
absolutely necessary and strictly proportionate to the intended goal being pursued
by the Government.
158. In Media Rights Agenda and Others v Nigeria (Media Rights case),51 the
Commission held that where a State Party has sou ght to restrict the rights
enshrined in the African Charter, " [t]he reasons for possible limitations must be founded
in a legitimate state interest and the evils of limitations of rights must be strictly
proportionate with and absolutely necessary for the advantages ·which are to be obtained."52
The Commission further noted that "[e]ven more important, a limitation may never
have as a consequence that the right itself becomes illusory." 53
159. In this case, the evidence shows that the people of South Kordofan and Blue
Nile, especially those of Nuba ethnic origin, had been deliberately cut-off from
having access to national and international media and from effective media
coverage of the violations committed by the Respondent State in South Kordofan
and Blue Nile. Not only has the restriction of access been done without any
legitimate aim, it is disproportionate to and absolutely unnecessary for whatever
the intended aim of the Respondent State sought to obtain.
160. In Civil Liberties Organisation (in respect of Bar Association) v Nigeria, 54 the
Commission held that, as a general principle, competent authorities should not
override constitutional provisions or undermine fundamental rights guaranteed
by the constitution and international human rights standards. The Commission
also stated that:
Government should avoid restricting rights, and take special care with regard to those
rights protected by constitutional or international human rights law. No situation
51
(2000) A.HRLR 200 (ACHPR 1998).
Media Rights case (n 50 above) para 69.
53 Media Rights case (n 50 above) para 70.
54 Communication 101/93 - Civil Liberties Organisation (in respect of Bar Association
AHRLR 186 (ACHPR 1995), para 15.
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justifies the wholesale violation of human rights. In fact, general restrictions on rights
diminish public confidence in the rule of law and are often counterproductive.55
161. In the absence of any rebuttal from the Respondent State, the Commission is
left with no option than to accept as true that there is no justification for their
occurrence.
162. The Commission, therefore, finds that the restriction on the freedom of
expression, access to information and on local and international media are
unjustified, illegitimate, disproportionate, and absolutely unnecessary and
therefore amounts to a violation of Article 9(1) of the African Charter.
Alleged violation of Article 12 of the African Charter
163. The Complainants alleged that, by forcibly displacing civilians and by failing
to ensure their safe return, the Respondent State has violated the right to residence
and freedom of movement as enshrined in Article 12 of the African Charter.
164.
Article 12 of the African Charter provides that:
Even; individual shall have the right to freedom of movement and residence within the
borders of a state provided he abides by the law.
165. Free movement is crucial for the protection and promotion of human rights and
fundamental freedoms. 56 This implies that, under the African Charter, the right to
protection from displacement arises from the right to freedom of movement and
residence within the borders of a State as recognised by the African Charter.
166. As the Commission has earlier noted in its jurisprudence, the right to freedom
of movement and enjoyment of residence is a right guaranteed under the African
Charter to all individuals w ithin a state. Freedom of movement is a right firmly
enshrined in international human rights instruments and the Constitutions of
numerous States. It entails that a citizen of a State generally has the right to leave
that State and return at any time. It also includes the right to travel to, reside or
work in, any part of the State the individual wishes without interference from the
State.
167. Moreover, the proviso for individuals to abide by the law as a condition for the
enjoyment of the right to freedom of movement and residence does not create a
limitation under the Charter. For a restriction on the freedom of movement or
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56 Sudan Human Rights Organisation case (n 30 a bove) para 187.
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residence to be reasonably justified, the onus is on the Respondent State to show
that the limitation on the right, seeks to achieve a legitimate aim, is absolutely
necessary and strictly proportional. This onus has neither been rebutted nor
dispensed with by the Respondent State in this case.
168.
In the Sudan Human Rights Organisation case, the Commission held that:
Freedom of movement and residence are two sides of the same coin. States therefore
have a duti; to ensure that the exercise of these rights is not subjected to arbitran;
restrictions. Restrictions on the enjoyment of these rights should be proportionate and
necessan; to respond to a specific public need or pursue a legitimate aim. Under
international law, it is the duti; of States to take all measures to avoid conditions which
might lead to displacement and thus impact the enjoyment offreedom of movement and
residence.57
169. In General Comment No.5 on the African Charter on Human and Peoples ' Rights: The
Right to Freedom of Movement and Residence (Article 12(1)), the Commission clarifies
that the right to freedom of movement imposes a duty on the State not to interfere
with the enjoyment of the free movement of individuals. This duty includes not
imposing or allowing impediments, whether social constructed or politically
driven, in the lawful exercise of the freedom to choose residence. 58 The
Commission also noted that, by the very nature of the territorial component of
Article 12, State Parties are required to protect the right to freedom of movement
of every person primarily within their borders, which inclu des every political and
administrative subdiv isions of States.59
170. Similarly, under Principle 5 of the UN Guiding Principles on Internal Displacement,
national authorities and international actors are required to adhere to international
law in relation to their obligations to respect and ensure respect for human rights
and humanitarian law, in order to prevent or avoid situations that can lead to
internal displacement. 60
Sudnn Human. Rights Orgnnisation case (n 30 above) para 188.
ss General Comment No.5 on the African Charter on Human and Peoples' Rjghts: The llight to Freed om
of Movement and Residence (A rticle 12(1)), paras 9 & 11.
59 General Comment No.5 on the African Charter on Human and Peoples' Rights: The Right to Freedom
of Movement a nd Residence (Article 12(1)), para 12.
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60 Uruted Nations Office for the Coordination of Humanitarian Affairs Guiding Prin 'p}ill~ ~ ,Tnti!mal o.,,<-c
Displncement (2004) Principle 5.
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171. In the instant case, the Respondent had a clear duty under the African Charter
to prevent the displacement of the civilian population, and to protect and assist
those impacted by violence and armed conflict from the impact of the conflict.
172. The failure of the Respondent State to prevent or mitigate the involuntary
movement or forced displacement of civilian populations in South Kordofan and
Blue Nile or to protect those who have been forcibly displaced in the two regions
amounts to a violation of the provision of Article 12 of the African Charter.
Alleged violation of Article 14 of the African Charter
173. The Complainants alleged that the SAF's indiscriminate air and ground attacks
on civilian life caused the destruction of churches, houses and other property, the
abandonment of homes, and the loss of livestock and other resources in violation
of Article 14 of the African Charter.
174.
Article 14 provides that:
The right to propertt; shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in accordance
with the provisions of appropriate laws.
175. This suggests that, under Article 14 of the African Charter, not only is the right
to property and the peaceful enjoyment of property guaranteed, but that the
arbitrary deprivation of property is also prohibited. State Parties have a
responsibility to protect the right to property of citizens from encroachment,
including interference with the peaceful and quiet enjoyment of property.
176. The destruction of civilian homes, buildings and other structures as well as
cultivated land and property by the armed forces of the Respondent State have led
individuals and groups to be displaced or flee their ordinary places of abode. As
the African Commission noted in Social and Economic Rights Action Centre (SERAC)
and Another v Nigeria (SERA C case),61 "when housing is destroyed, property, health
and family life are adversely affected."
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obligation, under the Pinheiro Principles, also entails that States shall take steps to
ensure that no one is subjected to displacement by either State or non-State actors. 62
178. In the instan t case, it is evident in the absence of any rebuttal by the Respondent
State that the victims of displacement in South Kordofan and Blue Nile have both
been displaced from their residences and denied their right to peaceful enjoyment
of property.
179. The Commission finds that the displacement of civilians from the lawful and
quiet enjoyment of property amounts to a violation of Article 14 of the African
Charter.
Alleged violation of Article 16 of the African Charter
180. The Complainants alleged that the attacks on civilians, subsequent
displacement and failure of the Respondent State to provide basic services violated
Article 16 of the African Charter. The Complainants claimed that the
bombardment of civilians, their homes, farms and dwelling areas, which cut them
off from drinking water, food, electricity and medical aid, constitute a violation of
Article 16 of the African Charter.
181. Article 16 of the African Charter guarantees that "[e]ven; individual shall have the
right to enjoy the best attainable state of physical and mental health." This right entails
the obligation of state parties to take the necessary steps to protect the health of
their people and to ensure that they receive appropriate medical attention when
they are sick. The righ t to the best attainable state of physical and mental health
also en tails both a positive obligation on the par t of the State to progressively
realise the right of access to the basic necessities for good health such as food, water
and healthcare, and a negative obligation to not imped e access by the civilian
population to these necessities.
182. In this regard, the Commission takes inspiration from the work of the UN
Committee on Economic, Social and Cultural Rights. In General Comment No. 15
on The Right to Water, for example, the UN Committee on Economic, Social and
Cultural Rights states that the righ t to water is inextricably linked to the right to
the highest attainable standard of health.63 Similarly, in the case of SERAC, the
Commission found that the right to food is implicit in the African Charter and
inseparably linked to the dignity of human beings. The African Charter and
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international law require and bind Nigeria to protect and improve existing food
sources and to ensure access to adequate food for all citizens.
183. In the same way, under the African Charter, the right to water and food are
essential for securing the highest attainable standard of physical and mental health
under Article 16. They are fundamental to an adequate standard of living as they
are some of the most basic necessities for survival.
184. In the SERAC case, the Commission found that the right to food is implicit in
the African Charter and inseparably linked to the dignity of human beings. The
Commission noted that the minimum core of the right to food required that the
Nigerian government should not destroy or contaminate food sources, but rather
protect and improve existing food sources and to ensure access to adequate food
for all citizens.64 This obligation also requires that the government should not
allow private parties to destroy or contaminate food sources, and prevent peoples'
efforts to feed themselves.
185. From the facts of this case, there is no doubt that the bombardment and
destruction of areas of civilian habitation, livestock and farms, inexorably expose
victims to serious health risks, not least the emotional and psychological trauma
of war, forced displacement and armed violence. In the case of victims of prolong
detention, the Commission has noted that the responsibility of government is
heightened in situations where individuals are in its custody and completely
dependent on the actions of the authorities for their wellbeing. 65
186. While the failure of the government of the Respondent State to provide basic
services such as safe drinking water, electricity and medicine by itself contravenes
the obligations undertaken under Article 16 of the African Charter, the deliberate
prevention of the civilian population in South Kordofan and Blue Nile from having
access to water, food, electricity and medical aid is a flagrant violation of their
fundament right to the best attainable standard of physical and mental health,
recognised under the African Charter.
187. The Commission finds that the bombardment and destruction of civilian homes
and resulting forced displacement negatively affected the ability of victims of the
violence to access water, food and medical supplies, which invariably violated
their right to health.
Human Rights our
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188. As such, the Commissions finds that the Respondent State's actions amounted
to a violation of Article 16 of the African Charter.
Alleged violation of Article 18(1) of the Africnn Chnrter
189. The Complainants alleged that the forced displacement of large numbers of
civilians as a result of the Respondent State's indiscriminate bombing campaign
and other human rights violations resulted in a violation of Article 18(1) of the
African Charter.
190. Article 18(1) provides that "[t]he fnmily shnll be the natural unit and basis of
society." The Article goes further to place an obligation on the State to protect the
family and take care of its physical and moral health.
191. The Commission has noted in its jurisprudence that the family is the basic core
of society, which should be protected by the State. In Democratic Republic of the
Congo v Burundi, Rwandn and Uganda,66 the Commission noted that the mass
transfer of persons from the eastern provinces of the complainant state to camps
in Rwanda was inconsistent with the provisions of Article 18(1) of the African
Charter.
192. Similarly, in the SERAC case,67 the Commission held that the right to housing
could be implied from the combined effect of Articles 14, 16 and 18(1) of the
African Charter. The Commission noted that, at a very minimum, the right to
shelter not only" obliges the Nigerian government not to destroy the housing of its
citizens," bu t also required government to not obstruct efforts by individuals or
communities to rebuild lost homes. In that case, the Commission stated that:
The state's obligation to respect housing rights requires it, nnd thereby all of its organs
and agents, to abstain from carnjing out, sponsoring or tolerating any practice, policy
or legal mensure violating the integrity of the individual or infringing upon his or her
freedom to use those _material or other resources available to him or her in a way he or
she fin ds most appropriate to satisfiJ individual, family, household or communihJ
housing needs. Its obligations to protect obliges it to prevent the violation of any
individual's right to housing by any other individual or non-state actors like landlords,
properti; developers, nnd landowners, and where such infringements occur, it should
act to preclude further deprivations as ·well as guaranteeing access to legal remedies.
The right to shelter even goes further than a roof over one's head. It extends to embody
66
(2004) AHRLR 19 (ACHPR 2003) para 81.
67 (2001) AHRLR 60 (ACHPR 2001) para 61.
38
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the individual's right to be left alone and to live in peace
not. 68
whether under a roof or
193. In General Comment No. 19 on the Protection of the Family, the Right to Marriage
and Equality of the Spouses made under Article 23 of the International Covenant on
Civil and Political Rights, the UN Human Rights Committee clarified the
obligation of the State to adopt legislative, administrative and other measures to
protect the family and to avoid any action that will negatively affect the family
unit, including the arbitrary separation of family members and involuntary
displacement of families.69
194. This Commission cites with approval its decision in the Sudan Human Rights
Organisation case70 and in Union inter Africaine des droits de l'Homme, Federation
Internationale des Ligues des droits de ['Homme and others v Angola,71 were the
Commission found that massive forced expulsion - whether in peace time or war
time - of populations has a negative effect on the enjoyment of the right to family
life. In both cases, the Commission noted that the Respondent State had violated
Article 18(1) of the African Charter by separating families.
195. In the present case, it is the Commission's opinion that the destruction of
civilian residences had the same effect of destroying family life and separating
family due to the ensuing displacement and dispersal of families. It is reported by
notable humanitarian actors including the UN that a majority of those affected by
the forced displacement are women and children, including thousands of children
of school age from Abu Kershola and surrounding villages in South Kordofan and
Blue Nile.
196. The Commission finds that the natural negative effect of the forced
displacement of civilians from civil centres and structures and the continued
impact of the conflict in areas habited by civilians is the unwarranted separation
of families and the violation of the peaceful and quiet enjoyment of family and civil
life. The Commission finds that the forced displacement of civilians in both South
Kordofan and Blue Nile constituted a violation of Article 18(1) of the African
Charter.
68 SERAC case (n 58 above) para 61.
Sudan Human Rights Organisation case (n 30 above) para 214.
Sudan Human Rights Organisation case (n 30 above) para 215.
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Alleged violation ofArticle 2 and Article 18(3) of the African Charter
197. The Commission will consider Articles 2 and 18(3) together, given that both
provisions are closely linked in the context of this Communication.
198. The Complainants submitted that the Respondent State is responsible for
discriminatory treatment of civilians in South Kordofan, Blue Nile as well as other
areas in Sudan on the basis of sex, colour, race and ethnicity, and political opinion
and that the Respondent State's forces and authorities have specifically targeted
women and girls and have committed widespread acts of sexual violence in
violation of Articles 2 and 18(3) of the African Charter.
199.
Article 2 of the African Charter provides that:
Even; individual shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction ofany kind such
as race, ethnic group, colour, sex, language, religion, political or any other opinion,
national or social origin, fortune, birth or other status.
200.
Article 18(3) of the African Charter provides that:
The state shall ensure the elimination of even; discrimination against women and also
ensure the protection of the rights of the woman and the child as stipulated in
international declarations and conventions.
201. The principle of non-discrimination as recognized in both Articles is a
fundamental principle in international human rights law. The principle guarantees
that those in the same circumstances are dealt with equally in law and practice.
Under Article 2, the principle of non-discrimination entails that an individual or
group of persons be accorded equal treatment, irrespective of their particular
characteristics and ensures, in relation to Article 18(3), that women in particular
are protected by State Parties from discrimination.
202. The Commission, in Communication 313/05 - Kenneth Good v. Republic of
Botswana, held that the test to establish whether discrimination has occurred is
threefold: (a) whether equal cases are treated in a different manner; (b) whether a
difference in treatment does not have an objective and reasonable justification; and
c) whether there is no proportionality between the aim sought and the means
employed.
203. In this case, the widespread acts of sexual violence have specifically been
targeted at not the general population but women and girls. The heino ~ !$. lack u
any objective or legal justification for their occurrence in the first
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especially considering that sexual violence against women and girls is
international condemned as a war crime. Lastly, the use of sexual violence against
women and girls was greatly disproportionate to what aim that the Respondent
State's forces sought to achieve.
204. Similarly, under Article 18(3), the African Charter affirms that mandatory
obligation of State Parties to eliminate every form of discrimination against women
and the duty to protect the rights of women and the girl child under international
human rights law.
205. Although the African Charter does not define "discrimination", the
Commission has clarified the relationship between discrimination and genderbased violence, based on the requirement in Article 18(3) that State Parties protect
the rights of women and the child "as stipulated in international declarations and
conventions" and by receiving inspiration from other relevant regional and
international human rights instruments pursuant to Articles 60 and 61 of the
African Charter.
206. In Egyptian Initiative for Personal Rights and Interights v Egypt (Egi;ptian Initiative
case),72 the Commission relied on the definitions proffered in the Protocol to the
African Charter on Human and Peoples' Rights on the Rights of Women in Africa
2003 (African Womews Protocol) and the UN Convention for the Elimination of
Discrimination Against Women 1979 (CEDAW) in aid of its analysis on the
relationship between discrimination and sexual-based violence. In that case, the
Commission considered the definitions of "discrimination against women" and
"violence against women" in the African Women's Protocol in relation to the
principle of non-discrimination in Articles 2 and 18(3) of the African Charter.
207. With the African Charter not providing any express definition of the term
"discrimination" in Article 18(3), the Commission in the Egyptian Initiative case
proceeded to consider the definitions of "discrimination against women" and
"violence against women" provided in the supplementary provisions of the
African Women's Protocol as well as UN instruments. In particular, the
Commission considered Article 1(£) of the African Women's Protocol to the effect
that:
Discrimination against women means any distinction, exclusion or restriction or any
differential treatment based on sex and whose objectives or effects compromise or
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destroy the recognition, enjoyment or the exercise by women, regardless of their marital
status, of human rights and fundamental freedoms in all spheres of life.
208. The Commission noted that this definition is quite similar to the
which defines "discrimination" as:
CEDAW,
[A]ny distinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifijing the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equalihj of men and women, of human
rights and fundamental freedoms in the political, economic, social, cultural, civil or any
other field. 73
209. The Commission also considered the definition of" discrimination" in the UN
General Recommendation No. 19, where the CEDAW Committee affirmed the
correlation between discrimination against w omen and gender-based violence. In
Paragraph 6 of General Comment 19, the CEDAW Committee clarified that the
definition of discrimination includes gender-based violence, which is violence
directed against a woman because she is a woman or that affects women
disproportiona tely. The Committee noted that gender-based violence "includes
acts that inflict p hysical, mental or sexual harm or suffering, threats of su ch acts,
coercion and other deprivations of liberty." 74
210. The Commission also considered the definition of "discrimination against
women" in Article lU) of the African Women's Protocol and the relevant UN
instruments above, as well as the definition of "violence against women" in the
same Article, which provides that:
Violence against women means all acts perpetrated against women which cause or
could cause them physical, sexual, psychological, and economic harm, including the
threat to take such acts; or to undertake the imposition of arbitran; restrictions on or
deprivation offundamen tal freedoms in private or public life in peace time and during
situations of armed conflicts or of war.
211. After a careful analysis of the implications of these definitions on the rights of
women in the Egypt Initiative case,75 the Commission concluded that systematic
sexual violence targeted at the women participating or present in the scene of a
demonstration amounted to gender-based violence. The Commission held that
"violence against women affects, compromises or destroys the enjoyment and
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15 Egyptian Initiative case (n 70 above) para 12 1.
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exercise by women of their fundamental and human rights in different spheres of
life. In this regard, the African Commission considers violence against women as
a form of discrimination against them." 76
212. By the tenor of the corollary definitions in the African Women's Protocol, it is
clear that the provisions of Articles 2 and 18(3) of the African Charter are
inextricably linked to the supplementarily interpretive provisions of the African
Women's Protocol in relation to issues of gender-based discrimination and genderbased violence in Africa.
213. The interpretations provided by Article 1 of the African Women's Protocol of
"discrimination against women", an expression first used in Article 18(3) of the
African Charter, and the interpretation of "violence against women", which
responds to the need to "ensure the protection of the rights of women" under
Article 18(3) of the same Charter, clearly establish the normative relationship
between the African Carter and the African Protocol in relation to the protection
of the Rights of Women from discrimination and violence.
214. The Commission notes that the African Women's Protocol has not yet been
ratified by the Respondent State. While Sudan has not ratified the African
Women's Protocol, it signed it on 30 June 2008, and its signature attracts with it the
obligation not to undermine or defeat the object and purpose of the Protocol.
Article 18 of the Vienna Convention on the Law of Treaties states:
"A State is obliged to refrain from acts which would defeat the object and purpose of a
treaty when: (a) it has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or approval, until it shall
have made its intention clear not to become a party to the treaty"
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215. Furthermore, by virtue of Article 60 of the African Charter, the Commission
can draw inspiration from international law on human and peoples' rights,
particularly from the provisions of various African instruments on human and peoples'
rights" on the issue of discrimination against women and violence against women,
including sexual violence against women. In particular, the provisions of Articles
2, 3 and 11 of the African Women's Protocol are relevant to this case.
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216. Article 2 of the African Women's Protocol provides that States parties shall
combat all forms of discrimination against women through appropriate legislative,
institutional and other measures by including in their national constitutions and
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other legislative instruments the principle of equality between women and men
and ensure its effective application.
217. Articl e 3 of the same Protocol provides for the right of every woman to dignity
inherent in a human being and to the recognition and protection of her human and
legal right. The Article also provides that " [e]very woman shall have the right to
respect as a person and to the free development of her personality."
218.
Article 11 of the African Women's Protocol provides that:
1. States parties undertake to respect and ensure respect for the rules of international
humanitarian law applicable in armed conflict situations, which affect the population,
particularly women.
2. States parties shall, in accordance with the obligations incumbent upon them under
international humanitarian law, protect civilians including women, irrespective of the
population to which they belong, in the event of armed conflict.
3. States parties undertake to protect asylum seeking women, refugees, returnees and
internally displaced persons, against all forms of violence, rape Protocol on the Rights
of Women 71 and other forms of sexual exploitation, and to ensure that such acts are
considered war crimes, genocide and/or crimes against humanity and that their
perpetrators are brought to justice before a competent criminal jurisdiction.
4. States parties shall take all necessan; measures to ensure that no child, especially girls
under 18 years of age, take a direct part in hostilities and that no child is recruited as a
soldier.
219. These provisions affirm the obligation of State Parties to the Protocol not only
to prevent all forms of discrimination against women but also to ensure the respect
for the rights and dignity of women, and protection of women during armed
conflict. In the Egyptian Initiative case, the Commission recognised the harmful
impact of the differential treatment that the victim had received and how that
amounted to discrimination on the basis of sex. It also rightly pointed out the link
between gender-based violence and discrimination against women. It however
arrived at its decision based on w hether or not the women received the same
treatment as the men in the same circumstances.
220. The Commission's interpretation of Articles 2 and 18(3) was based on formal
equality between the sexes, as opposed to the principle of substantive
transformative equality. It is pertinent to note that any act of sexual and genderbased violence, is an act of gender-based discrimination, irrespective of w hether
men in the same situation were treated the same way as women or not. The African
Women's Protocol by its very nature and tenor guarantees su stantive
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transformative equality not just formal equality. Under it, states have the
responsibility to prevent, regulate, control, investigate, punish and provide
effective remedies. Reparations under the Protocol include individual reparations
and reparations targeted at systematic failures.
221. Furthermore, the Guidelines on Combatting Sexual Violence and its Consequences
in Africa (the Niamey Guidelines) calls on States to take ac tions to prevent sexual
violence against women including in conflict or post-conflict situations; and
combating impunity for the perpetrators of sexual violence. The Niamey
Guidelines also underscore the right to reparation, calling on States to take the
necessary legislative and other measures required to guarantee access to
appropriate, efficient, accessible, timeous and long-lasting reparation for injury
an d loss suffered by victims of sexual violence. States are also required to ensure
that their national legal framework guarantees that the definitions of all forms of
sexual violence set out in criminal legislation are consistent w ith regional and
international standards .77
222.
Under Principle 4 of the Niamey Guidelines, the Commission clarifies that:
States must take the necessary measures to ensure that the rights of the victims ofsexual
violence are guaranteed, irrespective of their race, colour, national origin, citizenship,
ethnicihJ, profession, political opinions, and any other opinions, and health including
HIV status, disabilihJ, age, religion, culture, marital status, socio-economic status,
status as a refugee, migrant or any other status, sexual orientation and identihj, gender
expression or any other factor that could lead to discrimination against them.78
223. However, it is worth noting that in EqualihJ Now and Ethiopian Women Lawyers
Association (EWLA) v Ethiopia,79 the Commission held that "distinctively exacting
violence on someone simply because she is a woman, as opposed to being a man,
or exacting more violence on women as compared to men in the same
circumstances amounts to discrimination.
224. Similarly, in emphasizing the importance of prov iding access to justice to
women and girls at risk of sexual and gender-based violence, the Commission
77 Niamey Guidelines para 39.
Niamey Guidelines para 4. Also see the AU Solemn Declaration on Gender Equality in Africa
Assembly/AU/Decl.1 2 (III) Rev. I , para 4, that urges Member States of the Union to develop, launch a nd
implement "sustained public campaigns against gender based violence" and "[r}einforce legal mechanisms that
will protect women at the national level and end impunity of crimes committed against women" in order to shift
,,u r.1>< 1 , ,
and positively transform the attitude and behaviour of society .
79 Communication 341- Equality Now and Ethiopian Women Lawyers Association (E
i.aJ, p,<}rfi1<
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noted in Safia Ishaq Mohammed Issa (represented by The R EDRESS Trust) v. Sudan,80
that guaranteeing access to justice that is free of discriminatory treatment based on
sex or any other ground is a prerequisite for ensuring effective access to justice for
victims of sexual violence, particularly women.
225. The above decisions and standards not only establish that sexual violence
targeted against women is gender-based, but also set standards for gender equali ty
that influence the perception and responds to sexual assault and related issues.
226. In the present case, the Complainants submitted that the mass rape and other
forms of sexual violence committed by SAF forces and state authorities against
women amounted to gender-based violence. They submitted that the conduct of
the Respondent State's authorities was specifically directed against women
because they are women and because it affected them disproportionately.
227. Specifically, the Complainants allege that, in November 2011, PDF soldiers
stationed at Jau (South Kordofan), a military base near the South Sudan border,
assaulted and raped two Nuba girls, ages 14 and 16, w ho were fleeing to the Yida
refugee camp in South Sudan. 81 In Blue Nile, two young girls are reported to have
been killed as a result of being raped by around 30 men. 82 Although the
Commission notes the absence of any direct evidence before it on these serious
allegations, their widespread nature reported by various organisations and the
inability of the Respondent to refute them make sexual violence or the threat of it
indeed, significantly plausible.
228. The Complainants also submitted that the Respondent State's authorities
committed discrimination based on colour and ethnicity considering that
numerous victims, including children and women from the Nuba ethnic group
have been killed or threatened to be killed for being "black" and for their political
opinion on suspicion of being SPLM/ A-North members. 83 The Complainants
submitted that the Respondent State's forces and authorities singled out
°
Communication 443/13 - Safia lshaq Mohammed Tssa (represented by The REDRESS Trust) v. Republic of
Sudan, para 164.
81 Human Rights Watch, 'Under Siege' , p. 28.
8
82 Enough Project, ' Field Dispatch: Refugees from Blue Nile Recount Alrocities, Government's Targeting of Civilians ', I
November 20 I I.
83 Enough Project' Field Dispatch: Refugees fro m Blue Nile Recount Atrocities, Govemme ~t'fJ13,;~tj1)g of
Civilians', 1 November 2011, p. 2; Nicholas D. Kristoff,' ln Sudan, seeing echoes of Darfi. ~
18 February 2012, ht
times.corn 2012 02 19 o inion sunda
echoes-of-darfur.htrnl (accessed 18 August 2022).
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individuals in and outside South Kordofan and Blue Nile on the basis of their
perceived or actual relationship to the SPLM/ A-North.
229. The Complainants claimed that where the SAF forces and other Respondent
State authorities believed an individual to be a member or supporter of the
SPLM/ A- North, it subjected the individual to a variety of violations, including
arbitrary arrest and detention, torture and ill-treatment. Civilians who were not
(perceived to be) members of the SPLM/ A-North were not subjected to the same
treatment.
230. The Respondent has not denied these allegations, including the allegations of
rape and sexual violence committed by its security personnel against women and
girls. And there are numerous indications from the evidentiary documents
submitted before the Commission, including the reports of local and international
NGOs of sexual and gender-based discriminations, as well as discrimination on
account of sex, colour and ethnicity.
231. In the Egi;pt Initiative case, the Commission noted that sexual assault against
victims were acts of gender-based violence perpetuated by state and non-state
actors under the control of state actors, that went unpunished .84 The
weaponisation of rape and sexual violence against vulnerable girls and women as
tools of oppression and violations during conflict, as referenced in that case, is not
any different from the instant one.
The Commission affirms that the duty to respect that the Respondent bears
232.
entails that state institutions and officials refrain from acts of violations and that
the duty to protect and the due diligence obligation of the Respondent State entails
that the State takes measures to prevent discrimination of any kind and to, more
especially, protect vulnerable groups such as women and girls from sexual and
gender-based violence. This includes the obligation to investigate allegations of
sexual and gender-based violence, prosecute and punish offenders, and ensure
that victims are accorded adequate remedies.
233. There is no indication that the Respondent State has fulfilled its obligations
under the African Charter to prevent discrimination on account of gender or sex,
colour, origin, ethnicity or political opinion under Article 2 of the African Charter
or to protect the affected women and girls in accordance with international human
rights law under Article 18(3) of the African Charter.
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234. The Commission finds that the Respondent State, having failed to prevent the
violations from happening and, where they occurred, having failed to adequately
address them or accord remedies to the victims, violated the provisions of Articles
2 and 18(3) of the African Charter.
Alleged violation of Articles 19, 20, 21(1)(2) and 23 of the African Charter
235. The Complainants submitted that the Respondent State's assault on members
of the Nuba ethnic group violates their collective rights as a "people" under the
African Charter. This includes alleged violations of the Nuba people's right to
equality in Article 19, their right to existence and self-determination in Article 20;
their right to freely dispose their wealth and natural resources in Article 21(1) and
(2); and their right to peace in Article 23 (1) of the African Charter.
236. In the light of the foregoing submission, the first issue for consideration is the
application of peoples' rights of the African Charter to the Nuba. It is now
generally accepted in scholarly works and in the jurisprudence of the Commission
that peoples' rights of the African Charter apply to specific category of people.
While the term peoples' as used in the Charter is amendable to different
interpretation how it is used in particular context and provision of the Charter, one
important meaning of the term is a reference to sub-national groups having distinct
identity on account of possession of specific identity markers and status. 85 Viewed
from this conceptual perspective, ' the subjects of peoples' rights,' as one analysis
of the jurisprudence of the Commission pointed out, 'are the different ethnic
groups or inhabitants of a particular territory within the state, who on account of
historical, cultural and/ or existing patterns of discrimination have come to form a
sense of separate identity. This finds textual support in the African Charter,
particularly in article 19: 'All peoples shall be equal; they shall enjoy the same
respect and shall have the same rights. Nothing shall justify the domination of a
people by another. '86 The African Commission in its jurisprudence in Katangese
People's Congress v Zaire and SERAC and other v. Nigeria in affirming and
recognizing the applicability of peoples' rights of the Charter to ' the people of
Ka tanga' and to ' the Ogoni people', the term 'peoples' may mean a section of the
85 See RN Kiwa nuka 'The meaning of " people"
in the African C harter on Human and Peoples' Rights'
(1988) 82 American Journal of International Law 97 & Solomo n A. Dersso, The jurisprudence of the African
Commission on Human and Peoples' Rights with respect to peoples' rights of the African Charter,
(2006) 6 African Human Rights Law Journal (2006) 358.
86 Solomon A. Dersso, 'The jurisprudence of the African Commission on Human and Peoples'
ights
w ith respect to peoples' rights of the African Charter,' (2006) 6 African Human R' 6s.. e.aW, Joµ Wal
(2006) p 362.
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population of a state that historically inhabited and is associated to a particular
region or territory w ithin the state and such a sub-national group constitutes a
subject of the peoples' rights of the Charter.
237. In the present case, the Nuba constitute a section of the p opulation of Sudan.
The Complainants argued that the Nuba are "distinct people living in their own
historic territory", w hich is the Nuba Mountains in South Kordofan. It was
submitted that they are made up of ethnically and religiou sly diverse tribes who
share "a common iden tity as 'Nuba' throu gh their shared mountain homeland,
common culture and traditions, and a history of shared oppression." The
classification of the Nuba as a people, the Complainants submitted, is also
supported by the identification of the Nuba by others, an d the consequences such
identification entails for ind ividual Nuba in relation to non-Nuba.
238. Clearly, while the Nuba people d o not constitute a single ethnic or religious
group, they p ossess a shared common iden tity by virtue of, among others, a
common territory that they historically inhabited and a sense of belonging they
fostered by living together in their shared historical territory, the Nuba mountains.
This sense of common identity has been further reinforced by the shared
experience of discrimination and violations that the people of Nuba have been
subjected to. Following the recognition, in Katangese People's Congress v Zaire and
SERAC and other v. Nigeria, of the application of peoples' rights of the Charter to
people from particular territory of a state, the Commission thus finds that the Nuba
are people for purposes of peoples' rights of the African Charter.
Alleged violation of Articles 19 of the African Charter
239. As noted above one of the violations alleged by the complainants concerns
Article 19 of the Charter. Article 19 of the African Charter provides that "[a]ll
peoples shall be equal; they shall enjoy the same respect and shall have the same rights.
Nothing shall justifiJ the domination of a people by another."
240. From the Complainants' arguments, it is claimed that the Nuba have
historically been regarded as second-class citizens by the dominan t classes of
Sudan and have historically been vulnerable to marginalization. They have also
been victims of group-targeted violence, particularly during civil wars in South
Kordofan in the mid-1980s and throu ghout the 1990s. And that Sudan has a history
of discrimination in the provision of education and development to this group.
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during the war in Nuba Mountains in the early 1990s, and in particular slavery]
have a pronounced racial aspect, as the victims are exclusively southerners and
persons belonging to the indigenous tribes of the Nuba Mountains."
242. The Complainants submitted that many Nuba were forced into "peace camps
in government-controlled areas, and large tracts of emptied land were rapidly
incorporated into new commercial agricultural schemes." And that by the time the
warring parties agreed to a ceasefire in 2002, " [T]he Nuba Mountains were largely
emptied of their population."
243. The Complainants further submitted that eye-witness accounts show that
militias and government forces in South Kordofan killed individuals because they
belonged to the Nuba and, in the process, denied members of the Nuba their
fundamental rights enshrined in the African Charter . For this reason, the
Complainants submitted that the Nuba cannot enjoy the same respect and the
same rights as others in Sudan in violation of Article 19.
244. The Commission finds that, w ith regard to the alleged violation of Article 19 of
the African Charter, the historical record of the civil wars in Sudan and the specific
experience of the Nuba people in particular are such that discrimination and
violation of rights were perpetrated targeting specific group of people. Nuba
people as historically marginalized people and as one of the communities in Sudan
who were subjected to discrimination and violations including through state
policies have been deprived of their right under Article 19 to be equal, to enjoy the
same respect and to have the same rights. The Respondent State continues to
commit violations against the Nuba during the more recent conflict in South
Kordofan where serious and massive human rights violations have specifically
targeted the Nuba people. The Commission thus finds a violation of Article 19 of
the African Charter.
Alleged violation of Articles 20 the African Charter
245. The complainants also submitted that the acts of violence to which they were
subjected violated their rights to existence and self-determination under Article 20
of the Charter. Article 20(1) of the African Charter states that:
All peoples shall have right to existence. They shall have the unquestionable and
inalienable right to self-determination. They shall freely determine their political status
and shall pursue their economic and social developmen t according to the policy they
have freely chosen.
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246. With regard to the Respondent State's alleged violation of this article, the
Complainants submitted that the scale of the human rights violations committed
by the Respondent State's forces against the Nuba people threatens their existence
as a people in violation of Article 20.
247. In the 2005 Report of the African Commission Working Group of Experts on
Indigenous Populations/Communities to the UN Commission on Human Rights
Working Group on Minorities, the African Commission noted that dispossession
of indigenous peoples of their land, in addition to discriminating against them and
denying them their rights denies them their right to existence and selfd etermina tion. 87
248. The Commission agrees with the Complainants that the indiscriminate
bombing campaign undertaken by the Respondent State's forces against rebel held
areas in the Nuba Mountains invariably forced the Nuba people living in the Nuba
Mountains off their land. The Commission finds that the Nuba people have been
subjected to extrajudicial killings, enforced disappearances, torture and other
violations. The resulting loss of life, destruction of property and forced
displacement threatens the existence of the Nuba as a distinct people. The
Commission thus finds a violation of the right to existence of the Nuba under
Article 20 of the Charter.
Alleged violation of Articles 21(1)(2) the African Charter
249. The other rights allegedly violated are those under Article 21 of the Charter.
Article 21(1) of the African Charter stipulates that "[a]ll peoples shall freely dispose of
their wealth and natural resources. This right shall be exercised in the exclusive interest of
the people. In no case shall a people be deprived of it." Sub-article (2) provides that [i]n
case of spoliation the dispossessed people shall have the right to the lazoful recovery of its
properhJ as well n.s to an adequate compensation."
11
250. With regard to the alleged violation of Article 21(1) of the African Charter, the
Commission also finds that the destruction of thousands of homes and cultivated
land in the Nuba Mountains has effectively denied the inhabitants their right to
freely dispose of their wealth.
251. The Respondent State's bombing campaign has left large expanse of arable land
unfit for cultivation and driven surv ivors to refugee camps and other places to seek
refuge. The effect of this unwarranted dispersal has made it impossible for the
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Nuba people to benefit from their land and its natural resources. The Commission
thus finds that the rights of the Nuba to freely dispose of their wealth and natural
resources under Article 21(1) have been violated.
252. Under Article 21(2) of the African Charter, the Respondent State has an
obligation to compensate the Nuba people for despoilation of their properties. The
destruction of their property and the failure to compensate them for the damage
amounts to a violation of Article 21(2) of the African Charter.
Alleged violation of Articles 23 of the African Charter
253. The Complainants also allege that their right to peace under Article 23 was
violated. Article 23(1) of the African Charter enshrines that:
"[a]ll peoples shall have the right to national and international peace and securiti;. The
principles of solidarity and friendly relations implicitly affirmed by the Charter of the
United Nations and reaffirmed by that of the Organization of African UnihJ shall
govern relations between states."
254. The right to national peace and security has two dimensions. The first
dimension affords a negative protection. By virtue of this protection, people are
entitled to be protected from being targets of or being subjected to conditions of
armed violence. The second dimension involves positive protection. This goes
beyond the silence of the guns or the absence of armed violence. It additionally
involves the provision of institutional and legal measures that ensure positive
peace whereby they have a secure social and political environment guaranteed by
respect for their rights, the rule of law and the enforcement of law and order in
accordance with internationally accepted constitutional processes. At a minimum
Article 23(1) requires that the state or its agents refrain from subjecting any
category of its population from being a target of armed violence or being subjected
to conditions of armed violence.
255. With regard to the Respondent State's alleged violation of Article 23(1), the
Commission notes that the attack of civilian villages and populations by State
forces amounted to a denial of the right to live in peace and security.
256. In Malawi African Association and Others v Mauritania, 88 the Commission noted
that even where the attack by State forces was done against rebel groups, the
responsibility for protection of human rights was incumbent on the Mauritanian
State, which is a party to the African Charter; and as such, the unprovoked attacks
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on villages constitute a denial of the right to live in peace and security. 89 The
Commission also noted that regardless of whether the destruction of civilian
villages in Mauritania was carried out by state-controlled forces or rebel forces, the
responsibility to protect the people remained that of the State.90
257. In the present case, there is no indication on the part of the Respondent State
that it has taken any due diligence measures either to prevent the disruption of the
peace or investigate and punish violators of the peace and security of the people.
The lack of any preventive or mitigation measures by the Respondent State to stop
the violent disruption of the peaceful existence of individuals and communities in
the recess of their residences and neighbourhoods in South Kordofan and Blue Nile
incurs the responsibility of the Respondent State under the African Charter.
258. Given that the nature and extent of the attacks and bombardment of unarmed
civilians by state security forces in breach of the duty of the state to respect denies
the victims their right to live in peace and security, the Commission finds the
Respondent State violated the obligation to guarantee peace and security to the
people of South Kordofan and Blue Nile under Article 23 of the African Charter.
Alleged violation of Article 3(2) of the African Charter
259. Article 3(2) provides that every individual shall be entitled to equal protection
of the law.
260. The Complainants submitted that, for the reasons stated above in this case, the
failure of the Respondent State to provide the victims in South Kordofan and Blue
Nile w ith adequate and equal protection of the law am ounted to a violation of
Article 3(2) of the African Charter.
261. From the facts of this case, it is clear that the Respondent State did not protect
the members of the Nuba as it did the dominant sectors of the Sudanese
population. The Respondent State did not also protect particularly vulnerable
groups such as women, children and ethnic minorities from the horrors of war and
armed violence as well as from sexual and gender-based violence.
262. Based on the neglect by the Respondent State of its obligation under the African
Charter to prevent violations and protect the victims from infringement by state
forces and other violent non-state actors throu gh the provision of adequate
security and legal gu arantees as well as the availability and accessibility of
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As above, para. 140.
90 As above, para. 140.
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effective remedies, the Commission finds that the Respondent State violated the
provision of Article 3(2).
Alleged violation of Article 1 of the African Charter
263. Based on the foregoing, it is clear that the failure of the Respondent State to
comply with its obligations under the various rights and freedoms enshrined in
the Charter impinges on its obligation under Article 1 of the African Charter.
264.
Article 1 of the African Charter provides that:
The member states of the Organization of African UnihJ parties to the present Charter
shall recognise the rights, duties and freedoms enshrined in this Charter and shall
undertake to adopt legislative or other measures to give effect to them.
265. In Commission Nationale des Droits de ['Homme et des Libertes v Chad,91 the
Commission noted that, under Article 1 of the African Charter, state parties
undertake not only to recognise the rights, duties and freedoms adopted by the
African Charter, but also to adopt measures to give effect to them. This suggests
that should a state neglect to ensure the rights in the African Charter, it will
constitute a violation, even if the state or its agents are not the immediate cause of
the violation.
266. In the same way, since the African Charter, unlike other human rights
instruments, does not allow for state parties to derogate from their treaty
obligations during emergency or conflict situations, the Commission finds that the
non-compliance by the Respondent State with its obligations under the African
Charter is a direct violation of Article 1. Notwithstanding the existence of armed
conflict in South Kordofan and Blue Nile, the human rights obligations of the
Respondent State under Article 1 of the African Charter are not diminished.
The Complainants' request for remedies and reparations
267. The Complainants have requested the Commission to treat the situation in
South Kordofan and Blue Nile as a situation of emergency according to Rule 80 of
the Commission's Rules of Procedure and to draw the attention of the Assembly
of Heads of State and Government to the situation.
268. The conditions for treating a serious or massive human rights violations
situation as a matter of emergency are stipulated in Article 58 of the African
Charter.
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269.
, 11 African Commission on
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Article 58 of the African Charter provides that:
1.
2.
3.
When it appears after deliberations of the Commission that one or more
communications apparently relate to special cases which reveal the existence of
a series of serious or massive violations of human and peoples' rights, the
Commission shall draw the attention of the Assembly of Heads of State and
Government to these special cases.
The Assembly of Heads of State and Government may then request the
Commission to undertake an in-depth study of these cases and make a factual
report, accompanied by its findings and recommendations.
A case of emergency duly noticed by the Commission shall be submitted by the
latter to the Chairman of the Assembly of Heads of State and Government who
may request an in-depth study.
270. Article 58 of the African Charter is supported by Rules 79-80 of the 2010 Rules
of Procedure of the Commission. Rule 79(1)(a) provides that:
(1) The Commission shall treat a situation as a matter ofemergency under Article 58(3)
of the African Charter, ·when:
(a) it is one of serious or massive human rights violations;
271.
Rule 80(1)(a) provides that:
(1) When the Commission has decided to treat a situation as one of emergency, it shall:
a. Draiu the attention of the Chairperson of the Assembly of Heads of State and
Government of the African Union to the matter in accordance with Article 58(3) of the
Charter;
b. Drazu the attention of the Peace and Security Council to the matter in accordance
with Article 19 of the Protocol on Peace and Security;
c. Inform the Executive Council;
d. Inform the Chairperson of the African Union Commission of the matter.
2. The Commission as well as its subsidian; mechanisms under the Charter and present
Rules, shall also take any appropriate action, including Urgent Appeals.
55
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that should be drawn to the attention of the AU Assembly. To exercise such a
discretion, the Commission must act judiciously based on the current situation.
273. By the very nature of the wording of Article 58(1), the Commission is required
to act in a certain way upon the occurrence of a specified set of circumstances.
Specifically, Article 58(1) directs the Commission to draw the attention of the AU
Assembly to 'special cases' which reveal a 'series' of 'serious and massive
violations' of human and peoples' rights.
274. Indeed, the allegations of massive or serious violations of several provisions of
the African Charter contained in this Communication are quite concerning. The
neglect, failure or refusal of the Respondent State to respond to the seriousness of
the accusations warrant that the nature of the human rights violations found in
this case be better understood .
275. However, after careful deliberations, the Commission is of the opinion that the
issues for which the Complainants had sought a referral to the AU Assembly under
Article 58 of the African Charter have been overtaken by events and that it is no
longer necessary to do so. In the light of this, the Commission declines the
Complainants' request to draw the attention of the AU Assembly to the issue of
massive and serious violations in South Kordofan and Blue Nile under Article 58
of the African Charter.
276. The Complainants also prayed the Commission to re-iterate its request to the
Respondent State for provisional measures to prevent irreparable harm to civilians
in accordance with Rule 98. However, the Complainants have not provided any
information update to suggest that the harms alleged in 2011 are currently
ongoing. The essence of "provisional" measures is to prevent the occurrence of
irreparable harm pending when a decision is made.
277. Considering the length of time that has passed since the alleged violations
occurred and now, it is the Commission's reasoned consideration it is not relevant
to reiterate the Provisional Measures issued to the Respondent State.
278. The Complainants have also requested the Commission to accept a separate
submission on remedies and reparation and to allow for a hearing on reparation if
it has found the Respondent State to be in violation of the African Charter. In
support of this requ est, the Complainants submitted that the magnitude of the
violations committed and the large number of victims affected re • c_omplex
individual and collective measures of reparation, and are a "mat, /o cRfi/\1,14r
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the Communication" in line with Rule 99 (3) (d) of the Commission's Rules of
Procedure.
279. Based on this, the Complainants submitted that such a hearing is merited in
accordance with Rule 99(3)(d) of the Commission's Rules of Procedure, which
allows the Commission to address the following in detail:
1.
appropriate forms of reparation as provided for by the UN Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, including restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition for the victims
of these violations, including for the next of kin of those who were
unlawfully killed by SAF, PDF, or other state forces and authorities, or who
suffered harm as a result of the failure of the state to provide adequate
protection against violations and to request the Government of Sudan to
give effect to such findings;
11.
appropriate collective measures of reparation to repair collective or group
harm caused by the Respondent State's campaign of massive and serious
human rights violations;
280. Rule 99(3) of the 2010 Rules of Procedure of the Commission provides as
follows:
During a hearing on a Communication or at any stage prior to the conclusion of the
matter, the following may be considered:
(a) The verification of the facts;
(b) Initiation of a friendly settlement;
(c) Consideration on the merits; or
(d) Any other matter pertinent to the Communication
281. By the tenor of Rule 99(3)(d), there is nothing preventing the Commission from
going further to consider a request by a party for an opportunity to make
submissions for remedies and reparations where the Commission has found
evidence of serious or massive violations of the provisions of the African Charter
and where the justice of case requires it to so do.
Decision of the Commission on the Merits
282.
For these reasons, the African Commission:
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1.
Finds a violation of Articles 1, 2, 3(2), 4, 6, 7(1)(a), 12(1), 14, 16, 18, 19, 20,
21 and 23 of the African Charter.
2.
Urges the Respondent State to guarantee all the rights found to have been
violated in this communication in accordance with its obligation under
Article 1 of the African Charter.
3.
Grants the Complainants' request for the Commission to hear
submissions from both parties on remedies and reparations and,
therefore, requests the Complainants to forward their written submissions
on remedies and reparations to the Commission within sixty (60) days of
its receipt of notification of this decision, and the Respondent State shall
have sixty (60) days within which to submit its observations in response
thereof.
4.
Urges the Respondent State to set up an independent inquiry to carry out
prompt, effective and impartial investigations into the circumstances of
the abovementioned violations, and ensure that where sufficient evidence
exists, the perpetrators are brought to justice and held accountable for any
violations.
5.
Recommends to the Respondent State to ratify the Protocol to the African
Charter on Human and Peoples' Rights on the Rights of Women in Africa
2003, in order to safeguard and ensure the protection of women from
gender-based discrimination, violence against women and sexual
violence in times of war and armed conflict. in line with its existing
obligations under Articles 2 and 18(3) of the African Charter.
6.
Recomm~nds to the Respondent State to ratify the AU Convention for the
Protection and Assistance of Internally Displaced Persons 2009 (Kampala
Convention), in order to prevent internal displacement and protect as well
as assist internally displaced persons in Sudan.
7.
Recommends to the Respondent State to adopt legislative, administrative,
judicial and all other necessary measures to implement the Niamey
Guidelines and to ensure that the rights and obligations therein are
guaranteed in fact and in law, including during armed conflicts, crisis
situations and states of emergency. This will include examining legislative
and regulatory provisions and all other relevant provisions to ensure Jhat
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they are compliant with the provisions of the Guidelines.
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8.
Calls on the Respondent State to:
a. immediately release all arbitrarily detained civilians and ensure that
those detained on a lawful basis enjoy full due process rights;
b. urgently facilitate unimpeded access by humanitarian aid groups to
deliver assistance to civilians in all parts of Southern Kordofan and
Blue Nile;
c. allow full and effective access for international monitors, including
human rights officers, to Southern Kordofan and Blue Nile states;
d. provide appropriate housing and basic needs to the displaced persons
in accordance with the UN Guiding Principles on Internal
Displacement and the AU Convention for the protection and
assistance of internally displaced persons in Africa;
e. ensure the safe return of the displaced persons to their communities
after the unrest has ceased;
f. reform its national legislation so that:
(i)
the Respondent State provides for adequate and effective
safeguards against abusive use of force as well as abuse of powers
in the course of arrest and detention by government forces, law
enforcement and security officials;
(ii)
Recognize the right of the Nuba people to equality and nondiscrimination pursuant to Article 19 of the African Charter and
their right to existence as distinct category of minority people by
virtue of Article 20 of the Charter, with full rights on their land
and the use of the resources on their land in accordance with
Article 21 of the Charter;
(iii) arbitrary or abusive use of force as well as violations committed
in the course of arrest and detention procedures by government
forces and law enforcement officials, including torture and illtreatment, enforced disappearances and rape, are effectively
recognised as a criminal offence under the penal codes in Sudan;
(iv) the Respondent State provides for the criminal accountability of
officials responsible for violations, including by removing the
immunity that officials enjoy for such crimes under Sudanese
legislation; and
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the Respondent State ensures training in international human
rights and international humanitarian law to law enforcement
and military personnel and NISS agents.
Urges the Respondent State to report on the steps it has taken to
implement these decisions in accordance with Rule 112 (2) of its Rules of
Procedure, w ithin one-hundred and eighty (180) days.
Done during the 74th Ordinary Session held virtually from 21 February to 7 March
2023.
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