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COMMUNICATION 577/15
Hassan lshag Ahmed
(representedbyAfricanCentre for Justice
and Peace Studies and others)
V
The Re·p ublic of Sudan
Adopted by the
African Commission 011 Human and Peopla' Rights
During the 6r Ordinary Se&awn held virtually from 14 April to <U May 2021,
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Communication 577/15: Hassan lshag Ahmed
(Represented by African Centre for Justice and
Peace Studies & Ors.) v Republic of The Sudan
Summary of the Complaint:
1. The Complaint was received by the Secretariat of the African Commission on
Human and Peoples' Rights (the Secretariat) on 13 October 2015. It is filed by the
African Centre for Justice and Peace Studies, the Media Legal Defence Initiative
and the East and Horn of Africa Human Rights Defenders Project (altogether the
legal representatives), on behalf of M:r. Hassan Ishag Ahmed (the Complainant),
against the Republic of The Sudan1 (the Respondent State).
2. The Complainant, who is a 31 year-old Sudanese journalist, avers that he currently
lives in exile in Nairobi, Kenya following his arbitrary arrest and detention by the
Sudanese authorities. He avers that he worked as a journalist for Al Gareedn
newspaper in Khartoum at the time of his arrest on 10 June 2014, and that he wrote
articles on political developments in the Respondent State, as well as articles on
the human rights situation in the country, citing as examples, his articles on the
experiences of srudents in the Darfur region, and on the state of press freedom in
the country.
3. He submits that on 07 June 2014, he had been assigned by Al Gareeda newspaper
to cover a symposium that was to be held by the opposition party, the Sudanese
Congress Party (the SCP), in al-Nuhood city, West Kordofan State, Sudan; and that,
whilst attending the symposium, he was hosted by the President of the SCP, Mr
Ibrahim El-Shiekh, at his home in al-Nuhood. He alleges that during the
symposium, Mr. El-Shiekh spoke critically of what he believed to be abuses
committed by the Rapid Support Forces, the government-aligned militia deployed
in conflict areas of the Sudan including Darfur.
4. He claims that following the event, and on 08 June 2014, joint forces of the National
Intelligence and Security Services (the NISS) and the police arrested Mr El-Sheikh
at his home, and that he (the Complainant) then published the arrest on social
media platforms, including Facebook and WhatsApp, and shared news of the
arrest with his newspaper. He submits that Mr El-Sheikh was subsequently
charged with six crimes, including Article 50 (undermining the constitutional
system) and Article 62 (inciting feelings of unrest among disciplined forces and
abetment of disturbing disorder), under the Criminal Act of Sudan (1991 ); and was
detained at al-Nuhood prison.
1 The Republic of The Sudan ratified the African Charter on Human and Peo
1986.
5. The Complainant claims that two days later, on 10 June 2014, he had travelled with
two colleagues to visit Mr El-Sheikh in prison, and that on his way to the prison,
he was approached by four plain clothes security personnel from the NISS, one of
whom ordered him to follow them to the al-Nuhood police station close to alNuhood prison. He claims that he was targeted by the security personnel because
of his coverage of Mr El-Sheikh's speech, and referred to a statement to this effect,
made by Ashraf Abd al-Aziz, Al Gareeda's editorial director.
6. He submits that at the police station, he was asked to identify himself, after which
he was interrogated about his presence in al-Nuhood as well as on his personal
background. He claimed that he had informed them that he was in al-Nuhood to
cover the SCP symposium, and that when asked what his religion was, he had
replied that he was "Sudanese", in reaction to which the four security personnel
proceeded to beat him and kick him for this response. He alleges that the beatings
caused him to fall over and hit his head on a metal bench, following which he then
lost consciousness. When he regained consciousness, he found himself in the
compound of the police station, where the security personnel later resumed his
interrogation, and during which one of them ordered him to quit the journalism
profession.
7. Following the above, he was transferred to al-Nuhood prison, where a prison
guard informed him that he was being detained under the Emergency Law, which
meant that he was under the jurisdiction of the Governor of the State. He explained
that under the Emergency and Public Safety Bye-law (1998) (Emergency Law), the
Governor of the State holds the discretionary power to arrest individuals
suspected of involvement in crimes relating to the declaration of emergency made
by the President. Also, he states that while the Emergency and Public Safety Byelaw (1998) stipulates that an arrest pursuant to this power is made provisionally,
the law does not set any time limits for the detention or provide for judicial
oversight. As a result, he claims that he did not know for how long he might be
detained.
8. The Complainant submits that he was then detained in an overcrowded cell with
poor ventilation which was holding twice its capacity of inmates, and that the
sanitary conditions at the prison were very poor, as there were no toilet or
washroom facilities in the cell, there was a constant foul smell due to human waste,
and there were no beds to sleep on, causing him to sleep on the cold floor which
worsened his injuries sustained from the beating of 10 June 2014.
9. He alleges that for the first week of his detention, he was denied medical attention
despite his repeated requests to see a doctor, and his deterio
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of 10 June 2014; his left leg was swollen; he had migraines
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night and prevented him from sleeping; and that he experienced fatigue and was
not able to eat or drink for several days. He also submits that although a visiting
lawyer subsequently intervened on his behalf and requested the prison authorities
to take him to see a doctor, the Prison Director only gave permission for him to see
a doctor after he fell unconscious while walking around the prison. He was
subsequently accompanied by two prison officers to the hospital, where a doctor
sent him for a urine test and thereafter prescribed him malaria medication and
painkillers. He states that he had asked for an X-ray, but the doctor refused. Also,
no medical report was issued.
10. Furthermore, he claims that on 26 June 2014, the Sudanese Journalist Network
organized a protest outside the offices of the National Council of Press and
Publications in Khartoum, and lodged a memorandum demanding his release, but
he continued to be held in detention.
11. The Complainant alleges that after 20 days of detention in al-Nuhood prison, he
was, on 1 July 2014, transferred to El-Obeid prison, North Kordofan State. He
alleges that at El-Obeid prison, he was informed by the officer who received him
that he was still being detained under the Emergency Law, and was also ordered
"not to stir up trouble" among the other prisoners. He claims that he made further
requests to see a doctor for the headache and body pain which he still suffered
from the beating of 10 June 2014, but that these were denied, despite the
intervention of a local lawyer from El-Obeid who had requested that the prison
authorities let him see a doctor.
12. He submits that on 19 September 2014, after three months in detention without
charge and without being told how long he would be detained for, he was released,
but was never informed of any charges against him. He then returned to work
following his release, but was treated as a "troublemaker" by his colleagues and
he found himself continually isolated. He claims that the hostile treatment he
received in Sudan following his detention led him to flee the country to Nairobi,
Kenya on 09 November 2014. He also claims that he still experiences mental
distress and anguish following his treatment by the Sudanese authorities, which is
heightened by the fact that he remains separated from his friends and family in
Sudan. He is also no longer able to rely on income from his journalistic work
following his release.
3I Page
14. The Complainant submits that he is not obliged to exhaust local remedies because,
under the domestic laws of the Respondent State, there are no available, effective
or sufficient local remedies to redress the violations that are the basis of the
Complaint.
15. He also submits that, in the circumstances of the case, this Complaint has been
submitted within a reasonable time in accordance with Article 56 (6) of the Charter.
Articles alleged to have been violated
16. The Complainant alleges that the Respondent State has violated Articles 1, 5, 6, 7,
9 and 16 of the African Charter on Human and Peoples' Rights {African Charter).
Prayers
17. The Complainant prays the African Commission on Human and Peoples' Rights
(African Comm.ission) to:
a) Find that the alleged violations did indeed take place.
b) Make a declaration that the Complainant's arrest, beating, and arbitrary
detention in inhumane conditions, constitute multiple violations of hls right
to be free from torture and cruel, inhuman and degrading treatment, as
protected by Article 5 of the African Charter;
c) Make a declaration that the Complainant's arrest, beating, and arbitrary
detention constitute multiple violations of his right to liberty and security
of person, as protected by Article 6 of the African Charter;
d) Make a declaration that the Complainant's arrest and arbitrary detention
without charges constitute multiple violations of his right to be heard, as
protected by Article 7 of the African Charter;
e) Make a declaration that the Complainant's arrest and arbitrary detention
for reporting on the arrest of Mr. El-Sheikh constitute multiple violations of
his right to freedom of expression, as protected by Article 9 of the African
Charter;
f) Make a declaration that the Complainant's beating and denial of medical
attention constitute multiple violations of his right to health, as protected
by Article 16 of the African Charter;
g) Make a declaration that Sudan's natio tae~~~~
laws, and Sudan's failure to pass
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torture, state-sponsored violence, arbitrary detention, detention in
inhumane conditions, detention without recourse to the courts, and
denial of medical attention while in detention, constitute multiple
violations of his right to domestic laws enforcing the provisions of the
African Charter, as protected by Article 1 of the African Charter;
h) Make a recommendation that Sudan make reparations to the Complainant,
consisting of, amongst others, lost income, medical expenses, and
compensation for physical and emotional suffering; and
i) Make a declaration that the 2010 National Security Act and the Emergency
and Protection of Public Safety Act (1997) violate Sudan's obligations under
international law.
Procedure
18. The Complaint was received at the Secretariat of the African Commission 13
October 2015, and receipt was acknowledged on 14 October 2015.
19. The Commission was seized of the Communication during its 57th Ordinary
Session which took place from 04 to 18 November 2015, and this decision was
communicated to the Parties through Note Verbale and letter dated 18
November 2015. The Complainant was requested to submit on admissibility
within two months.
20. On 26 November 2015 the Complainant wrote to the Commission requesting for
an extension of sixty (60) days within which to submit on admissibility, and
further follow up correspondences on 12 and 15 January 2016. The Secretariat
responded on 18 January 2016 indicating that a one month extension was
granted from the deadline for the admissibility submissions.
21. The Complainant's submissions on admissibility were received at the
Commission on 18 February 2016. On 22 March 2016 the Complainant's
submissions were transmitted to the Respondent State, which was requested to
submit on admissibility within two months.
22. On 06 May 2016 the Secretariat informed the Parties that consideration of the
Communication had been deferred during the 58th Ordinary Session, pending
submissions on admissibility by the Respondent State.
submitted by the Complainant on 05 January 2017, following a request for an
extension submitted in December 2016.
24. On 28 April 2017 the Secretariat acknowledged receipt of the additional
observations and transmitted it to the Respondent State. On 12 June 2017 the
Secretariat observed that the Complainant raised a preliminary objection in
their additional observations and wrote to the Respondent State, requesting the
latter to respond to the preliminary objection within one month in line with Rule
103(2).
25. The Secretariat informed the Parties that consideration of the Communication
was deferred during the 60th Ordinary Session and 22nd Extra-Ordinary Session.
26. On 30 October 2017 the Complainant indicated that the Respondent State was
out of time to respond to the preliminary objection and requested the
Commission to make a determination on the preliminary objection.
27. During its 23rd Extra-Ordinary Session, which took place 13 to 22 February 2018,
the Commission considered the preliminary objection and decided to reject it.
28. The Commission declared the Communication admissible during its 24th ExtraOrdinary session, which took place from 30 July to 8 August 2018.
29. On 4 September 2018, the Secretariat informed the parties of the decision on
admissibility, and the Complainant was requested to submit on the merits
within sixty (60) days of notification, in accordance with Rule 108 (1) of the
Commission's Rules of Procedure (2010).
30. On 15 November 2018, the Secretariat received the Complainant's submissions
on the merits of the Communication which was duly acknowledged and
transmitted to the Respondent State on 6 December 2018. The Respondent State
was requested to forward its merit submissions/ observations on the
Complainant's submissions within sixty (60) days of notification, in accordance
with Rule 108 (1) of the Commission's Rules of Procedure (2010).
31. On 8 March 2019, the Secretariat informed the Parties that during its 25th ExtraOrdinary session which took place from 19 February to 5 March 2019, the
Commission had decided to grant an extension of thirty (30) calendar days to
the Respondent State to make its submissions on the merits, failing which the
Commission will proceed to make a determination on the information before it
in accordance with Rule 113 (2) of the Commission's Rules of Procedure (2010).
6I Page
which took place from 24 April to 14 May 2019, to a later session. The Secretariat
also indicated that the extended deadline for the Respondent's written
submissions on the merits had expired on 14 April 2019, and therefore it was no
longer possible for the Respondent State to make submissions on the merits of
the Communication.
33. On 30 October 2020, the Secretariat received a correspondence from the
Respondent State requesting that the Secretariat furnish a detailed reference of
the Communication. On 16 November 2020, the Secretariat acknowledged
receipt and indicated the Note Verbales earlier transmitted to the Respondent
State.
34. A decision on the merits was deferred from the 65th Ordinary Session to 31 st
Extra-ordinary Session of the Commission.
Determination on the Preliminary Objection
35. The Complainant in its additional observations on the admissibility
submissions of the Respondent State raised a preliminary objection to the
permissibility of the Respondent State's admissibility submissions. The
assertion of the Complainant is that in accordance with Rule 103(1) of the
Commission's Rules of Procedure, submissions should be made within two
months, but that the State only submitted on admissibility five months after this
deadline had expired. The Complainant submits that this is an abuse of process
and that the State's submissions on admissibility should not be considered.
36. The Commission considered this objection, and determined that in line with its
the current practice, where the Communication is still pending before the
Commission for whatever reason, and the State submits, even if it is outside of
the provided time limits, that it would view this as an indication of political will
on the side of the State to participate in the Communications process, and that
the submissions would be allowed. Contrarily, where a State is out of time to
submit, and the Commission had already proceeded to make a determination
on the said Communication, the submissions of the State would not be
considered. In the current case the Respondent State submitted some months
outside of the given timeframe, however, since the Commission had not yet
made a determination on admissibility at that point, this would not result in the
Commission disregarding the State's submissions on admissibility.
71 Page
States who do decide to engage. Finally, given that the submissions of States are
not allowed in all cases, but only in cases where the Commission had not yet
proceeded to make a determination on the facts before it, following the deadline
for the submission, the Commission views the benefit of allowing the
submissions in such a case as outweighing the potential harm.
38. For these reasons, the Commission decided to dismiss the preliminary objection
and admit the admissibility submissions of the Respondent State.
Admissibility
The Complainant's Submissions on Admissibility
39. The Complainant submits that the Communication meets all the cumulative
criteria of admissibility as set out 'in Article 56 of the African Charter, and
therefor requests the Commission to declare the Communication admissible.
40. On Article 56(1) the Complainant submits that the authors of the
Communication have been identified, being the organisations authorised to act
as legal representatives of the Complainant, as set out in paragraph 1 above. The
Complainant further submits that an address had been provided for
correspondence with the authors. In addition, the Complainant himself, Mr
Hassan Ishag Ahmed has also been identified and is not requesting that his
identity be withheld from the Respondent State. He submits that thus Article
56(1) has been met.
41. On Article 56(2), the Complainant submits that the Communication is
compatible with the Charter, citing previous decisions of the Commission
setting out the three criteria for this requirement as being that the
Communication must be brought against a State Party to the Charter by
someone who is competent to do so, that the violation complained of should
have occurred or continued after ratification of the Charter by the State and that
the Communication must allege prima fade violations of rights protected in the
Charter.
42. In response to the first requirement, the Complainant submits that he is a
national of the Respondent State, and that the Respondent State is a State Party
to the Charter, and that therefore the Complaint was brought by someone who
was competent to do so. Secondly, the Complainant submits that the violations
took place during 2014, which is after the date of ratification by the Respondent
State on 18 February 1986. Finally, the Complainant submits that the
that "one is presumed
Commission in respect of prima facie violations has h
to have presented a prima Jacie case [... ] wh "' i:!l.l'fat!ts; resented in the
Complaint show that a human rights viol ~..,,~ ~ETA~~el/'~~~ urred". The
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Complainant proceeds to set out the ways in which he alleges his rights under
Articles 1, 5, 6, 7, 9 and 16 had been violated, including through indefinite
detention without being heard by a judicial authority, beatings sustained during
his interrogation, the conditions of his detention, among others, submitting that
this makes a prima facie case for violation of his rights in that they are specific
enough and the Commission already found in its seizure decision that there had
been prima facie violation. He thus submits that he meets the requirements
under Article 56(2).
43. The Complainant submits that he meets the requirements under Article 56(3)
in that the language used is respectful and balanced.
44. The Complainant further submits that the Communication is based on the
Complainant's own experience, and is thus not based exclusively on news
disseminated through the mass media, noting that the facts presented in the
Complaint were transmitted to the legal representatives through Skype and
telephone correspondence, thereby meeting the requirement of Article 56(4).
45. On the question of exhaustion of local remedies under Article 56(5) the
Complainant submits that he does not have to exhaust this requirement, since
there are no available, effective and sufficient remedies in this case, making
reference to the Commission's jurisprudence in AmneshJ International and Others
v Sudan;2 Monim Elgnk, Osman Hummeida and Amir Suleman (represented by FIDH
and OMCT) v. Sudan 3 amongst other decisions, as well as decisions of the
African Court on Human and Peoples' Rights. 4 The Complainant submits that
1) there is no effective remedy available for arbitrary arrest and detention; 2)
there is no effective and sufficient remedy to challenge the human rights abuses
of the NISS and 3) that the Respondent State has failed to provide a remedy or
investigate the allegations despite ample notice and time to do so.
46. In relation to the first argument, the Complainant submits that the Commission
has held in its jurisprudence that the normal remedy for arbitrary arrest and
detention is a writ of habeas corpus, so that a court may order the State authorities
to produce and individual and justify his imprisonment.5 The Complainant
states that on this ground the Commission has found that where a remedy of
habeas corpus does not exist at local level, there are no available remedies for the
victims of arbitrary arrest and detention to .resort to. 6
2 Communication 48/90, 50/91, 52/91, 89/93.
3 Communication 379/09, para 58.
•ran Riglzts Centre v.
aras 96 & 108.
~ Application 009/2011 & 011/2011, Ta11ga11yika L«w Societ1
Tanzanin (2013) para 82; Application 004/2013, Lohe Issa Kon
5 Communication 153/96 - Constitutional Rights Project v Ni~
6
As above, para 10.
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47. The Complainant avers that the statutory legal framework in Sudan for
emergencies is set out in the Emergency and Protection of Public Safety
Act(1997), which does not provide for a right to habeas corpus, and additionally,
if read with Section 15 of the Emergency and Public Safety Bylaw, 1998, permits
preventive arrest and detention on the basis of vague grounds and with no
provision limiting the duration of detention or providing for judicial oversight",
thus authorising prolonged or even indefinite detention without charge or
judicial review.
11
48. The Complainant submits that he was detained between 10 June 2014 and 19
September 2014 without charge, and that at no time during his arrest or
detention was he brought before a judicial authority; that no right to habeas
corpus was made available to him; and that he was detained pursuant to the
Emergency Law of West Kordofan State, placing his release at the sole discretion
of the governor of this State; that he was not provided with his own lawyer and
not given the opportunity to contact his family until his final days of detention.
Therefore, he submits that he was unable to challenge the legality of his
detention before the domestic courts while he was in detention.
49. In relation to the second argument, namely that there are no effective or
sufficient remedies to challenge the actions of the NISS, the Complainant refers
to previous decisions in which the Commission had recognised that the broad
immunities provided to the NISS in Sudan render ineffective any local remedies
that theoretically exist in this regard, through preventing effective investigation
and prosecution of violations by NISS officials. 7 The Complainant refers to
Article 52(3) of the National Security Act, which provides that "no civil or
criminal procedures may be brought against a member or association unless
upon the approval of the Director [of the NISS]," stating further that there is no
way for an individual to petition the Sudanese courts to compel the Director of
the NISS to lift the immunities of his officers. He alleges, in addition, that there
is no way for a person or court to initiate a judicial review of a decision not to
lift immunities.
50. In relation to the third argument, the Complainant states that the Respondent
State failed to initiate criminal investigations and prosecutions despite ample
notice, noting the jurisprudence of the Commission which has held that
enabling the Respondent State to deal with the alleged violation under its own
law is one of the main purposes for the exhaustion of local remedies
requirement. The Complainant refers to the jurisprudence of the Commission
which had held that if a State Party had ample notice and time within which to
remedy alleged violations and the State Party has not taken appropriate steps
to do so, domestic remedies are necessarily eit
ot available or are not
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effective or sufficient to redress the violations alleged.8 The Complainant also
notes that with regard to a criminal violation the Commission has held that the
obligation is on the State Party to investigate and bring the accused person to
court, and that one cannot demand of the Complainants to exhaust domestic
remedies in such a case.9
51. As evidence that the State had ample notice and time, the Complainant makes
reference to complaints he made to the prison authorities about the abuse
suffered at the hands of the NISS; international and national media reports
about his alleged arrest, detention, torture and ill treatment, a protest outside
the offices of the National Council of Press and Publications; public advocacy
for his release; and a complaint filed on his behalf with the National
Commission of Human Rights. The Complainant submits that despite being
sufficiently aware, the Respondent State failed to take steps to provide the
Complainant with a remedy for these violations, that there is no indication of a
formal investigation having been or to be carried out.
52. Based on these three arguments the Complainant submits that the requirement
to exhaust local remedies must be dispensed with.
53. The Complainant submits that he has complied with the requirement under
Article 56(6) in that the Complaint is submitted within a reasonable period. The
Complainant notes that in the jurisprudence of the Commission, cases where
local remedies could and were exhausted are treated differently from cases
where remedies were found to be unavailable, ineffective or insufficient, in the
latter case assessing timeliness as from the ti.me of the Complainant's notice of
the unavailability, ineffectiveness or insufficiency of the remedies. 10
Circumstances which the Commission had in the past taken as relevant include
the relocation of the Complainant to another jurisdiction; the complexities of
getting representation and challenges of communication systems in Africa.11
54. On the facts of the case the Complainant submits that he filed the Complaint
with the Commission approximately 13 months after he was released from
prison and 11 months after he fled to Kenya. He further submits that he had
found it challenging to settle in Kenya due to mental distress and anguish at
being separated from his family and friends and no longer having an income,
and thus that given the circumstances, the Complaint was submitted within a
reasonable time.
55. The Complainant confirms that in compliance with Article 56(7), the Complaint
has not been submitted to any other procedure of international investigation or
settlement. In conclusion he thus submits that he has satisfied all the criteria
under Article 56 and that the Commission should find the Communication
admissible.
The Respondent State's Submissions on Admissibility
56. In its response to the admissibility submissions of the Complainant, the State
first raised a number of factual issues, firstly alleging that the Complainant was
not arrested by the NISS, but rather by the police, in accordance with Section 5
of the Emergency and Public Safety Protection Act of (1997) on suspicion of
involvement in an act which contravenes the proclamation of the state of
emergency declared in line with Article 210 of the Interim National Constitution
of the Republic of Sudan and in response to security instability and armed
conflict in the area. They further submit that the Complainant had been
informed of the reasons for his arrest and treated in accordance with the
provisions of the Criminal Procedure Act of 1991. Thirdly, the Respondent State
states that in response to the complaint filed with the National Human Rights
Comnussion (NHRC), the police administration had formed an inquiry
committee which summoned the Complainant for a hearing, but that the
Complainant failed to appear before the committee, and that the inquiry record
is still open.
57. The Respondent State submits that the Complaint does not comply with the
requirement under Article 56(2) of the African Charter, since the Complainant
was detained in accordance with due process of law, under a national law
enacted in compliance with the Constitution and satisfying the requirements of
the International Covenant on Civil and Political Rights as well as the African
Charter; and for specific suspicion and reasons of which he was duly informed.
In addition1 the State submits that the allegations of maltreatment during
detention are unsubstantiated allegations which lack the prima facie evidence
required to establish a cause of action under the Charter.
58. The Respondent State further submits that the Communication falls short of the
requirements under Article 56(5), firstly, because the Complainant admits that
he has done nothing to exhaust the available domestic remedies. The State refers
to the jurisprudence of the Commission which held that it is incumbent on the
Complainant to take all necessary steps to exhaust or attempt to exhaust local
remedies, and that it is not enough for the Complainant to cast aspersions on
the ability of domestic remedies to succeed based on isolated incidents. 12
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Further referring to the principle that the Respondent State must first have an
opportunity to redress the alleged wrong within its own legal system.
59. The Respondent State further asserts that the judicial system of Sudan is easily
accessible, effective and independent, as guaranteed by the Constitution, stating
that the Complainant is thus casting unfounded aspersions in respect of the
availability and effectiveness of local remedies. In addition, the State asserts that
contrary to the submission by the Complainant that there is no provision in the
law for the remedy of habeas corpus, the Constitutional Court Act of 2005 in
Section 16 provides for the Court to have the power "to make an order to
anybody or person requiring him to bring before the court the arrested or
detained person to consider the constitutionality of the arrest or detention", and
further that Section 24 makes the decisions and orders of the Court binding on
all levels of government, the national and state organs as well as the entire
public.
60. The State submits that the only action taken by the Complainant to exhaust local
remedies was the complaint filed on his behalf with the NHRC. The State
submits that while the NHRC is independent of the judiciary it is competent to
consider human rights violations, but that the Complainant failed to appear
before the police administration inquiry committee "established to investigate
his complaint within the process of the NHRC's consideration of his case",
which record is still open. The State thus submits that the Complainant cannot
be considered to have exhausted or attempted to exhaust local remedies.
61. The State in addition submits that contrary to the assertions of the Complainant,
ill-treatment during detention or custody is prohibited and criminalised, and
that the police immunity referred to in the Complaint is procedural only and
does not extend to unauthorised or unlawful acts, and thus that it is common
practice to lift such immunities in cases of violations of human rights, noting
that more than 300 instances of lifting of immunities of police and NISS
members took place in the last two years.
62. The Respondent State submits that the Complainant did not file the Complaint
within a reasonable time as required under Article 56(6) of the Charter, stating
that he had remained free in his country for two months after his arrest and
thereafter of his free will left the country, filing the Complaint only eleven (11)
months later. The State submits that the Complainant has not provided a
manifestly reasonable justification for this delay.
Complainant's Response to the Respondent State's Submissions on Admissibility
64. In its additional observations on the admissibility submissions of the State, and
in relation to Article 56(2) of the Charter, the Complainant reiterates the three
requirements set out by the Commission in Mgwanga et al. v Cameroon for a
communication to be compatible with the Charter, as set out in paragraph 33
above. The Complainant submits that the first argument of the State under
Article 56(2), namely that the Complainant was detained in accordance with due
process of law, and was duly informed of the reasons for his arrest, does not
relate to any of the three requirements and is rather an attempt to argue the
merits at the admissibility stage.
65. The Complainant submits that the second argument of the State under Article
56(2), namely that the allegations of maltreatmen t in detention are
unsubstantiated allegations which do not amount to a prima Jacie violation is
rebutted not only by the Complainant's submissions but also the Commission's
decision on seizure, which determined that there is a prima facie case. The
Complainant submits that the Respondent State did not dispute compliance
with the other requirements under Article 56(2), and thus states that the
Commission should find that these requirements were also met, and thus that
the Complaint meets the requirements under Article 56(2).
66. The Complainant reiterates the three grounds on the basis of which he avers
that local remedies under Article 56(5) do not have to be exhausted, namely i)
the Respondent State failed to provide the Complainant with the right to habeas
corpus, thus there was no effective remedy for arbitrary arrest and detention; ii)
the immunity provisions in domestic law made remedies in relation to
violations committed by the NISS officers and/ or police inadequate and
ineffective; and iii) the inaction of the State in terms of taking investigative
measures into the alleged abuses rendered local remedies ineffective.
67. In responding to the State's assertion that the Complainant has done nothing to
exhaust local remedies and is merely casting aspersions on the ability of
domestic remedies to succeed, the Complainant reiterates the meaning given by
the Commission in its decision of Dmvda Jawara v The Gambia to 'available',
'effective' and 'sufficient', respectively meaning that it must be possible to be
pursued without impediment, must offer a prospect of success and must be
capable of addressing the complaint.1 3
that they are immune from suit, and was denied the right to hnbens corpus, thus
asserting there are legal impediments which prevented him from seeking a
remedy before the domestic courts. The Complainant also reiterates that the
State had knowledge of the alleged violations since it was published in the
media and known to the UN Independent Expert on the Human rights situation
in Sudan, amongst others, from the early stages of his detention.
69. In relation to the assertion of the State that an investigation is ongoing, the
Complainant submits that the State does not provide sufficient information
about the terms of reference of the investigation, whether witnesses had been
heard, which evidence had been produced and whether there had been any
findings. In addition, the Complainant submits that neither he nor his lawyer
were aware of or contacted in relation to the investigations, stating that even if
there is such an investiga.tion, it does not provide an effective remedy.
70. The Complainant in addition submits that while the State refers to a number of
judicial bodies, including the Constitutional Court, and states that these are
easily accessible, effective and independent, in the case of Article 19 v Eritrea, the
Commission has held that to demonstrate the availability, effectiveness and
sufficiency of the remedies, the State cannot just list "in abstracto the existence of
remedies without relating them to the circumstances of the case and without
showing how they might provide effective redress in the circumstances of the
case." 14
71. In relation to the submission of the State that habeas corpus was an available
remedy, the Complainant submits that the State misrepresented the argument
of the Complainant. The Complainant submits that while he never contested
that Jzabens corpus exists under Sudanese law, the Complainant had argued that
the legal framework under which he was arrested, namely the Emergency and
Protection of Public Safety Act, did not provide for hnbeas corpus, permitting
preventative arrest and detention without judicial oversight. In addition he
submits that there was no record of his arrest or detention, making it impossible
to establish who was responsible for his arrest and detention, and that he had
no access to a lawyer for more than 20 days of his arrest and that he was at no
point brought before a judge, and given that habeas corpus cases need to be dealt
with promptly, he submits that this failed to serve as an effective remedy. He
further submits that the State had failed to relate the provision of the
Constitutional Court Act providing for habeas corpus with the Emergency laws
and the current facts.
72. The Complainant further submits that there is
an application to the NHRC for the purpose o
since the remedies to be exhausted are judicial
14
Communication 275/03, para 73.
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73. In addition, the Complainant responds to the assertions of the State that the law
criminalises ill-treatment during detention and that it is easy for the immunities
to be lifted where there is an accusation of a violation of human rights. The
Complainant notes that such immunities apply to police and NISS respectively
and thus the dispute in fact between which was responsible for the arrest does
not affect this argument. The Complainant refers to previous jurisprudence of
the Commission which found that these immunities are an impediment to
initiating action against the NISS or police and that they render remedies
ineffective and inadequate. They further submit that the impunity provisions
sustain a culture of systemic impunity, rendering al possible remedies
discretionary and extraordinary.
74. In relation to the argument of the ease with which immunities can be lifted, the
Complainant states that this is irrelevant to the question of whether there were
remedies, and refers to jurisprudence in which the Commission had decided
that "when a remedy is discretionary, extraordinary and of a non-judicial
nature, the Complainants are not require to pursue it as part of the requirement
of exhaustion of local remedies" 15 and "it would be improper to insist on the
Complainant seeking remedies from a source which does not operate
impartially and has no obligation to decide according to legal principles". 16
They further reiterate the decision of the Commission in a previous case that it
is implausible to think that the heads of the police and NISS would lift the
immunities, and also noting that there is no procedure in legislation for lifting
these immunities, thus making them discretionary. The Complainant thus
submits that the Commission should find Article 56(5) has been complied with.
75. In relation to the arguments of the State on Article 56(6) that the Complainant
had not shown manifested reasonable justification for the delay in filing the
Complaint and that eleven months is not a reasonable time, the Complainant
states that the State did not respond with adequate specificity as to the factors
which determine whether there was a reasonable period, thus failing to
demonstrate that these factors did not amount to a reasonable justification for
the lapse of time.
the Complainant whether the Complainant was in another country of free will
or under duress is irrelevant, the relevant consideration being that he was
residing in another country at the time of filing the complaint.
77. The Complainant further submits that it is in line with the Commission's
decision in Obert Chinhnmo v Zimbabwe to find that 11 months from relocation is
a reasonable period under article 56(6), since he needed time to settle in Nairobi
and consider his position, which was also challenging given that he was
separated from his family and friends and no longer had an income from
journalism. The Complainant also reiterated the considerations in the
Commission's jurisprudence of complexities of getting representation before an
international body and the challenges of communication systems in Africa.
78. The Complainant submits that he met his legal representatives for the first time
on 15 May 2015, and that they were based in Uganda, which made it difficult
for them to obtain instructions, but that they interviewed to Complainant again
on 12 June, 21 July and 10 September 2015, and filing the complaint with five (5)
months after his initial meeting with his legal representatives. The Complainant
also referred to the jurisprudence of the UN Human Rights Committee and the
Inter-American Commission of Human Rights, which, like the Commission do
not provide fixed timeframes for submissions where the Complainant was not
required to exhaust domestic remedies. Drawing from this the Complainant
submits that the Commission should take into account the political instability
in the Respondent State at the time, as evidenced by the declaration of the state
of emergency. The Complainant in addition submits that the State has not
submitted nor is there any evidence that the State had suffered prejudice
because of the time taken in filing the Communication. The Complainant thus
reiterates that he has complied with the requirements under Article 56(6).
79. For these reasons, the Complainant maintains that the requirements under
Article 56 have been met and the Communication should be found admissible.
Commission's Analysis on Admissibility
80. Article 56 of the African Charter outlines seven (7) conditions which must all be
met for a Communication to be declared admissible. Failure to comply with one
or several of these conditions renders the Communication inadmissible.
17 I Page
82. Article 56(2) requires that the Communication must be compatible with the
Charter of the 0/ AU or the African Charter. The Complainant relies on
previous jurisprudence of the Commission in in Mgwanga et nl. 'lJ Cameroon
which unpacks this provision as having three requirements, namely 1) it must
be brought against a State Party to the Charter by someone who is competent to
do so, 2) that the violation complained of should have occurred or continued
after ratification of the Charter by the State and 3) that the Communication must
allege prima facie violations. The Complainant provides justification for why he
has complied with the first two requirements in paragraphs 33 and 34 above. In
relation to the submission that there was a prima facie violation, he set out the
rights purported to have been violated and the actions which constituted these
violations, and noted that the Commission had already found under the seizure
phase that there was a prima facie violation.
83. The Respondent State on the other hand maintains that the arrest was carried
out in accordance with due process of the law and that the allegations of
maltreatment during detention were unsubstantiated, and therefore that these
do not amount to prirnn Jacie violations. The Commission reconfirms the three
requirements under Article 56(2) as set out in Mgwanga et al. v Cameroon and
notes that the Respondent State had not contested the first two requirements.
On the facts, the Commission agrees that these first two requirements were met.
84. In relation to the third requirement, namely that there must be a prima Jacie
violation, the Commission has held in a number of cases that prima fi1cie
violation of the provisions of the Charter is said to have occurred "when the
facts presented in the Complaint show that a human rights violation has likely
occurred11 •17 The Commission has further held that a failure to "show a link
between the Articles of the African Charter allegedly violated and the account
of act or situation complained of" would result in a failure to prove a prima facie
violation,18 and that stating an allegation in n general manner is not enough.19
In Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Fonuu) v.
Zimbabwe the Commission further held that because the Complainant
"succinctly narrates how the Victim allegedly suffered", "tries to show how the
alleged acts of the Respondent State violate Articles [of the Charter]," and
"attached some documentary evidences to corroborate its allegations", the
Commission found that a prima fade case was proved.20
85. In the current case, the Complainant has in paragraphs 6 to 9 above set out the
alleged ways in which he suffered and in paragraph 13 above related the alleged
violations to the provisions of the Charter. The Commission is therefore
convinced that this establishes a clear link between the events and the rights
allegedly violated, and the alleged violation is not merely stated in a general
manner. The Commission does not require documentary evidence in order to
establish a primn facie violation, but would only require evidence or proof at the
merit stage, in order to establish violations on a preponderance of probability.
Therefore, the Commission finds that the Complainant has satisfied the
requirements under Article 56(2) of the African Charter.
86. Article 56(3) requires that a Communication must not be "written in disparaging
or insulting language directed against the State concerned and its institutions or
to the Organisation of African Unity (now African Union)." The Complainant
submits that he meets the requirements under Article 56(3) in that the language
used is respectful and balanced, and the State has not offered any contrary view
on this point. The Commission has in reading the Complaint not come across
anything which would amount to disparaging or insulting language. The
Commission therefore finds that the requirements of Article 56(3) have been
met.
87. Article 56(4) of the Charter requires that the Communication must not be based
exclusively on news disseminated through the mass media. The Complainant
submits that the Communication is based on his own experience and were
transmitted to the legal representatives through Skype and telephone
correspondence. The State did not raise any objections on this ground, and the
Commission finds that the requirements of Article 56(4) have been met.
88. On the question of exhaustion of local remedies under Article 56(5) the
Complainant submits that he does not have to exhaust this requirement, since
there are no available, effective and sufficient remedies in this case, stating that
1) there is no effective remedy available for arbitrary arrest and detention; 2)
there is no effective and sufficient remedy to challenge the human rights abuses
of the NISS and 3) that the Respondent State has failed to provide a remedy or
investigate the allegations despite ample notice and time to do so.
there is provision in the law for the remedy of habeas corpus. The Complainant
in response submits that while he never contested that habeas corpus exists under
Sudanese law, the Complainant had argued that the legal framework under
which he was arrested, namely the Emergency and Protection of Public Safety
Act, did not provide for habeas corpus, permitting preventative arrest and
detention without judicial oversight, and thus that there is no effective remedy
available for arbitrary arrest and detention in the Complainant's case.
90. The Commission notes that its jurisprudence to which the Complainant :referred
which found that domestic remedies did not have to be exhausted in cases
where habeas corpus was not available, were cases in which the Victims were
held in detention without access to lawyers at the time when the Con-zplaint was
submitted to the Commission. 21 Since in the current case the Complainant had been
released an<l had been present in his country for two months thereafter, the
circumstances are completely different from the above scenario. Thus the
argument in relation to hnbeas corpus does not apply in the current case, as the
Complainant had the possibility, following his release, to exhaust local remedies
in other ways, which will be assessed below. For this reason, the Commission
finds that this argument does not prove that it was not necessary/ possible to
exhaust local remedies.
91. The Complainant raises a second argument, namely that there is no effective
and sufficient remedy to challenge the human rights abuses of the
NISS/police,22 as "no civil or criminal procedures may be brought against a
member or association unless upon the approval of the Director [of the NISS],"
that there is no way for an individual to petition the Sudanese courts to compel
the Director of the NISS to lift the immunities of his officers and that there is no
way for a person or court to initiate a judicial review of a decision not to lift
immunities.
92. ln response, the State submits that ill-treatment during detention or custody is
prohibited and criminalised, and that the police immunity referred to in the
Complaint is procedural only and does not extend to unauthorised or unlawful
acts, and thus that it is common practice to lift such immunities in cases of
violations of human rights, noting that more than 300 instances of lifting of
immunities of police and NISS members took place in the last two years. The
State in addition submits that the judicial system of Sudan is easily accessible,
effective and independent.
21
See Communication 153/96 - Constitutio1Ull Rights Project v Nigen·a,.~ ==-- ,
The latter was added in the further observations following ,...,...,.....,
Complainant was in fact arrested by the police. However the ~
change the far.ts as the same immunities apply to NISS and l~lice
22
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93. In his additional observations, the Complainant refers to previous
jurisprudence of the Commission which found that these immunities are an
impediment to initiating action against the NISS or police and that they render
remedies ineffective and inadequate, as they sustain a culture of systemic
impunity, rendering al possible remedies discretionary and extraordinary,
referring also to jurisprudence of the Commission which held that "when a
remedy is discretionary, extraordinary and of a non-judicial nature, the
Complainants are not reguired to pursue it as part of the requirement of
exhaustion of local remedies" and that "it would be improper to insist on the
Complainant seeking remedies from a source which does not operate
impartially and has no obligation to decide according to legal principles". They
further reiterate the decision of the Commission in a previous case that it is
implausible to think that the heads of the police and NISS would lift these
immunities.
94. It is a well-established principle of the Commission's jurisprudence that only
those remedies which are "ordinary remedies of common law that exist in
jurisdictions and normally accessible to people seeking justice" have to be
exhausted. 23 The Commission, as mentioned above, has thus held that
discretionary and extraordinary remedies do not have to be exhausted. In
addition, the Commission as well as the African Court on Human and Peoples'
Rights, have held that ordinary remedies do not include instances where the
review of a decision is at the discretion of a court,24 where the Complainant has
to request the Attorney General to prosecute or undertake private prosecution, 25
where there is a duty on the State to conduct criminal investigation and
prosecution,26 or where an authority, such as the President has a discretion to
grant a remedy. Nor is there a duty on the Complainant to submit cases to
national commissions, even if they can grant remedies, such as a national
human rights institution (NHRI), as they are "non-judicial institutions" .27
95. In previous decisions against Sudan, where National Intelligence Security
Service (NISS) members were immune from prosecution and disciplinary action
under the National Security Act of 2010 in Sudan, and where private individuals
Communication 242/0l -Interights, lrzstitute for H11mn11 Rights and Development /11 Africa, n11d Association
Mnuritnnienne des Droits de I' Homme v Ma11ritania, 4 June 2004, para 27. Ken11edy Ow/110 Onyachi mid
Others v. United Republic ofTm1zn11ia, App. No. 003/2015, Judgment of 28 September 2017, parn 56.
24 Communication 375/09 - Priscilla Njeri Ecl1nrin (represen ted by Federation of Women Lawyers, Keriyn a11d
J,1ternatio11al Center for the Protection of Hu111n11 Rights) v. Kenya, 7 November 2011, para 54; Alex Thomas
v Republic o/Trmzania, App. No.005/2013, Judgment on Merits, 20 November 2015, para 65.
25 Communication 245/02 - Zimbal:n.ve H111111m Rights NGO Forum v Zimbabwe, 15 May 2006, para 70.
26 Communication 245/02 - Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 70.
27 Communication 221/98 - Alfred B. Cudjoe/ Glznnn, 5 May 1999, ara .!.,4. Communication 375/09 Priscilla Njeri Ec/1aria (represented by Federation of Women Lnwye , 1ya.;R-J.' "'~ 1~nh'onfll Center for the
Protection of Human Rig/its) v. Kenyfl , 7 November 2011, p
..:A'frlctln,~~~sion on Hunum and
Peoples'_ Riglt_ts ": Republic of Kenya, App. No. 006/2012, 26 ~ 20'17. . . ' • Coltl~
i'- ~nication 268/03:
llesamm V N1gerrn, 11 May 2005, para 42.
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could not bring lawsuits against government officials under Article 27 of the
Criminal Procedure Act, the Commission held that this did not provide an
effective remedy for the victim. 28 The Commission has held that such
immunities restrict the exhaustion of domestic remedies, unless a preliminary
investigation was undertaken, noting that by failing to conduct this
investigation, any remedies which theoretically existed were rendered
redundant, and neither adequate nor effective. 29 The Commission has also held
that a state of emergency may render it impossible for the victim to exhaust
domestic remedies.30
96. From the submissions of the Parties it is clear that there has been no substantive
change in the approach of the law in Sudan in relation to the immunities of
police and the NISS since these previous decisions of the Commission. The State
attempts to prove the contrary through the provision of information that 300
cases in the preceding two years in which irmuunities were in fact lifted,
however, given the uncontested submissions of the Complainant that the lifting
of immunities in law remain at the discretion of the police authorities and that
there is no procedure for the courts to review this decision, this renders this
remedy discretionary, which cannot guarantee an impartial process and which
does not function on the basis of legal principles. Also, since the reported
violation had allegedly been committed by the police/NI&5, it is improbable to
expect that a further report to the authorities, apart from the one already
submitted to the prison authorities, would result in any further action on the
part of these same state organs who are accused of perpetrating the violations.
97. In addition, in his original Complaint the Complainant indicated that under the
Emergency Law, the Governor of the State holds the discretionary power to
arrest individuals suspected of involvement in crimes relating to the declaration
of emergency, and that while arrest pursuant to this power is made
provisionally, the law does not set any time limits for the detention or provide
for judicial oversight. The State has not refuted this statement. The Commission
is thus of the view that even if there had been a possibility for the lifting of the
immunities, this would still not have resulted in an adequate remedy, as the
applicability of the Emergency law means that there is no legal basis to contest
the arbitrary arrest, which is one of the violations complained of. This thus
refutes the argument of the State that the judicial system of Sudan is easily
effective, since the alleged violations are not protected under the applicable law
and thus not enforceable/remediable by the judicial system.
28 Communication 386/10- Dr. Fnrouk Molmmed Ibrahim (represented by REDRESS) v. Suda11, 18 October
2013, para 60.
29 Communication 368/09 - Abdel Hndi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 48.
30 Communication 386/10 - Dr. Farouk Mohamed lbml1i111 (represe11te
- RESS) v. S11dn11, 18 October
\l~lasa,
decree which governed
2013, para 54. ln this case the victim was unable to approach t
,,\
. •fbR~ gi~ they had no right to
his arrest and detention set out that no reasons for the arr
contact their family or lawyer, nor the ability to challengi riega •
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98. In relation to his third argument, the Complainant notes that with regard to a
criminal violation the Commission has held that the obligation is on the State
Party to investigate and bring the accused person to court, and that one cannot
demand of the Complainants to exhaust domestic remedies in such a case. In
this regard he states that the Respondent State had failed to initiate criminal
investigations and prosecutions despite ample notice, 31 noting the
jurisprudence of the Commission which has held that if a State Party had ample
notice and time within which to remedy alleged violations and the State Party
has not taken appropriate steps to do so, domestic remedies are necessarily
either not available or are not effective or sufficient to redress the violations
alleged.
99. The Respondent State had not provided any response specific to this argument.
However, the State avers that the only action taken by the Complainant to
exhaust local remedies was the complaint filed on his behalf with the NHRC. In
addition stating that the Complainant refused to appear before the police
administration committee established to investigate his complaint within the
process of the NHRC' s consideration of his case.
100.The Complainant submits that there is no obligation on him to make an
application to the NHRCfor the purpose of exhausting domestic remedies, since
the remedies to be exhausted are judicial remedies. In relation to the assertion
of the State that an investigation is ongoing, the Complainant submits that the
State does not provide sufficient information about the terms of reference of the
investigation, whether witnesses had been heard, which evidence had been
produced and whether there had been any findings. In addition, the
Complainant submits that neither he nor his lawyer were aware of or contacted
in relation to the investigations, stating that even if there is such an
investigation, it does not provide an effective remedy.
101.The Commission in this regard reiterates its jurisprudence that in respect of a
criminal violation the duty is on the State to investigate the alleged violation,
and that there is no duty on the Complainant to bring a civil claim or pursue
private prosecution in such a case in order to exhaust local remedies. 32
However, it is a logical conclusion that where a State is not aware of lhe alleged
violation it cannot be expected to take any action to investigate and address such
an alleged violation. Therefore, in order to show that the State had the
3 1 As evidence that the State had ample notice and time, the Complainant makes reference to complaints
he made to the prison authorities about the abuse suffered at the hands of the NlSS; international and
national media reports about his alleged arrest, detention, torture and ill treatment, a protest outside
the offices of the National Council of Press and Publications; public advocacy for his release; knowledge
by the UN Independent Expert on the Human rights situation in S
and a complaint filed on his
behalf with the National Commission of Human Rights.
~ oN. HU~1,;,.,,
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32 Communication 245/02 - Zimbabwe Humnn Rights NGO F
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opportunity to investigate, the Complainant must prove that the violations had
been brought to its attention in a sufficient manner. In its jurisprudence the
Commission has held that the notice of the allegations to the State must be
"ample" .33
102. While the remedies which have to be exhausted are local judicial remedies,
there is no requirement that the actions to bring the violations to the attention
of the State in the case of criminal violations necessarily have to be only through
judicial avenues. The Complainant states that he informed the prison authorities
of the alleged violations, that it was disseminated through international and
national media, that a protest took place outside the offices of the National
Council of Press and Publications followed. by the submission of a
memorandum for his release, that there was public advocacy for his release, and
a complaint was filed on his behalf with the National Commission of Human
Rights. The Commission finds that these steps were sufficient to satisfy the
requirement of ample notice to the State for purposes of institution of
investigations by the State, particularly given that the matter was reported to
the prison authorities, and therefore finds that there was a duty on the State to
investigate, and that failure to do so would render local remedies unavailable.
103. The next question which arises is whether the State had taken sufficient steps
to address the violations once they were brought to its attention. In its
jurisprudence the Commission has held that "a State which has received
allegations of violations will have a duty to investigate them and if it fails to do
so, then it will forfeit its prerogative to deal with the matter domestically".34 In
the current case, there is no evidence that the State had responded to the
reporting of the violations to the prison authorities, which demonstrates a
failure on the part of the State to investigate. The State however submits that
following the submission of the complaint to the NHRC, the police
administration had formed an inquiry committee which summoned the
Complainant for a hearing, but that the Complainant failed to appear before the
committee, and that the inquiry record is still open.
104. The Commission in its jurisprudence has held that that one must consider not
just whether a body is termed a court or judicial body at the national level, but
rather whether it has the 'competence to adjudicate complaints/ disputes' and
the remedy "must primarily conform to and operate in accordance with certain
fundamental legal principles". It must operate in strict observance of the
procedural guarantees of a fair hearing by a competent, independent and
impartial organ. It must be based on enforceable law from which the relief it
offers earns its mandatory or coercive force, as opposed to being merely
discretionary' .35 If it does not satisfy these criteria then it will not have to be
exhausted.
105.ln relation to the Police Administration Committee there is very little
information provided by the State. No information is provided regarding the
legal basis on which it was established, the processes before the committee,
including whether there are procedural guarantees, and the kinds of remedies
that it is able to provide. For these reasons, in addition to the submission by the
Complainant that neither himself nor his legal representative had been
informed about this process and the absence of proof to the contrary, the
Commission finds that this would not have resulted in an effective remedy. In
any case the procedure before the NHRC is not a judicial procedure, as the
Commission has held before, and thus processes before it need not be
exhausted.36
106. On the basis of these conclusions, the Commission thus finds that the
Complainant did not have to exhaust local remedies, as they were not available,
effective and sufficient.
107.Article 56(6) requires that a Complaint must be "submitted within a reasonable
period from the time local remedies are exhausted or from the date the
Commission is seized of the matter". The Complainant notes that in the
jurisprudence of the Commission, where remedies were found to be
unavailable, ineffective or insufficient, timeliness would be assessed from the
time of the Complainant's notice of the unavailability, ineffectiveness or
insufficiency of the remedies, 37 noting that the relocation of the Complainant to
another jurisdiction; the complexities of getting representation and challenges
of communication systems in Africa are factors which are relevant in relation to
timelines. 38 The Complainant submits that he filed the complaint approximately
13 months after he was released from prison and 11 months after he fled to
Kenya, indicating that he had in addition found it challenging to settle in Kenya.
108. The Respondent State to the contrary argues that because the Complainant had
remained free in his country for two months after his arrest and thereafter of his
free will left the country, the Complainant had not provided a manifestly
reasonable justification for this delay. In response the Complainant states that
the State did not respond with adequate specificity as to the factors which
determine whether there was a reasonable period, thus failing to demonstrate
that these factors did not amount to a reasonable justification for the lapse of
time.
109.ln relation to the State's submission that the Complainant left of his own free
will, the Complainant submits that this is irrelevant, the relevant factor being
that the Complainant was residing in another country, and that the Commission
had in the past held that 11 months after relocation was reasonable. The
Complainant sets out the process which he had followed to bring the Complaint
before the Commission in order to stress the difficulties in communicating in
Africa and the fact that his representatives were based in a different country.
The Complainant submits that further factors which the Commission should
take into account in determining the timeliness include the political instability
in the Respondent State at the time, as evidenced by the declaration of the state
of emergence and the lack of evidence submitted by the State to show that it
suffered prejudice because of the time taken in filing the Communication.
110. The Commission has held in its jurisprudence that the purpose of the
requirement under Article 56(6) is to require the Complainant to "be vigilant
and to discourage tardiness." 39 In addition, where there is a delay, the
Complainant has to provide reasons 40 and these must be a "good and
compelling reason" which requires the African Commission to consider the case
in the interests of fairness and justice. 41 In Obert Chinhamo v Zimbabwe the
Complainant stated that the delay in submitting the case to the Commission was
due to the fact that he needed to settle in his new country, and in this case the
Commission considered that ten mouths, where the Complainant was now in
another country, would "for the sake of fairness and justice" be considered to
be reasonable. 42
111.On the submissions by the Complainant as to the reasons for the delay, it is
clear that it cannot be said that he was being tardy, since he provides strong
justifications for the delay, including his resettlement in a different country, his
mental state during this time, as well as the relative difficulty posed by
communicating with his legal representatives who were in a different country.
The Commission takes note of the point raised by the State that the Complainant
had been in the country for two months after his release and then left his country
of his own free will, but does not see how this would make the period within
which the Complaint was submitted unl'easonable. Since his legal
representatives were not in his country of origin, he would have faced the same
Communication 310/ 05 - Darfur Reliefand Dornmentatiorz Centre v Sudan, para 78.
Communication 333/06 - Soutllcrn Africa Hmnm, Rights N
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thers v Tanzania, 26 May
2010, para 76.
41 Communication 310/05: Darfiir Relief and Documwta •
vember 2009, para 78;
Communication 375/09 - Priscilla Njeri Eclmria (represe
1 Lawyers, Kenya and
l11tenzatio11al Center for lite Protection of Human Rights) v.
,'ip ara 60.
42 Communication 307/05 - Obert Chinhamo v Zimbabwe,
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26 I P age
difficulties in contacting them had he remained in Sudan, as he did from his
location in Kenya.
112. Furthermore, without going into the question as to whether he had left the
country of his free will, as he had been warned prior to his arrest to discontinue
his work as a journalist (see paragraph 6 above), it is likely that he would have
suffered mental distress on this account even if he had remained in Sudan. For
these reasons, the Commission finds that submitting the Complaint within 13
months of his release and 11 months of his resettlement is not an unjustifiable
delay in this case. Therefore, the Commission finds that the Complainant had
complied with the requirement under Article 56(6).
113. The Complainant indicates that in compliance with Article 56(7), the Complaint
has not been submitted to any other procedure of international investigation or
settlement. The Respondent State did not provide any contrary argument. The
Commission thus finds that the requirement under Article 56(7) has been
complied with.
114.For these reasons, the Commission is satisfied that the Complainant has
complied with all the requirements for admissibility as set out under Article 56.
Decision of the Commission on Admissibility
115. In view of the above, the Commission declared the Communication admissible.
Merits
The Complainant's Submissions on Merits
Alleged violation of Article 5 of the African Charte.r
116. The Complainant submits that the Respondent State violated Article 5 of the
African Charter when he was beaten by NISS officers at the al-Nuhood Police
Station o.n 10 June 2014, detained in an overcrowded and unsanitary prison
condition, refused necessary medical care, subjected to mental trauma as a
result of being held indefinitely without notice as to the cause of his arrest and
detention; and the failure of the Respondent State to investigate these abuses
and provide red:ress for injuries incurred.
117. The Complainant refers to the definition of' torture' as contained in Article 1 of
the Convention against Torture and Other Cruel Inhuman and Degrading
Treatment or Punishment (UN Convention Against Torture), and submits that
tjcle 5 is aimed at the
the Commission has repeatedly explained that
!r'o'fN
·ndividual, and its
protection of both the physical and mental i
interpretation should be afforded the wides 0ssib1 iA'i!dl:ec"°ti:QD against abuse.
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118. The Complainant submits that the Respondent State is under an obligation to
put in place procedural safeguards in order to prevent detainees from being
subjected to abuse, and where the abuse occurs, States are obligated to initiate a
prompt and impartial investigation in order to bring perpetrators to justice as
well as afford to redress the victim.
119. The Complainant states that on 10 June 2014, he was violently beaten by four
NISS officers at the al-Nuhood Police Station. He was violently kicked, dragged
outside and beaten using fists and sticks. The beating lasted for approximately
20 minutes, and resulted in the Complainant hitting his head against a metal
bench and losing consciousness. The Complainant avers that as a result of the
abuse, he suffered injuries to his head and left leg.
120. The Complainant submits that beating a detainee to the point of
unconsciousness amounts to torture, inhumane and degrading punishment.
The Complainant cites in support of his argument Monim Elgak, Osman
Hummeida and AmirSuliman (represented by FIDH and OMCT) v Sudan,43 where
the Commission considered similar conducts by NISS officers and found a
violation of Article 5.
121. The Complainant submits that the conditions of his detention violate the
provisions of Article 5 of the African Charter. He states that he was held for 20
days in a holding cell which was severely overcrowded, unsanitary and he was
forced to sleep on the cold ground, which worsened the pain of the injuries
inflicted on him from the beating of 10 June 2014. He submits that he had
difficulties sleeping, eating or drinking and his repeated requests to see a doctor
and a lawyer were denied. The Complainant refers to Abdel Hndi & Others v
Republic of Sudan, where the African Commission observed that" ... holding a
person in detention under conditions that are not in keeping with his dignity
and pose a threat to his health amounts to cruel, inhuman and degrading
treatment or punishment." 4 4
122. The Complainant contends that the nature of his arrest, interrogation, abuse
and detention reveals the clear intention of the Respondent State to punish him
for his journalistic coverage of the SCP symposium. The Complainant argues
that he was being punished for publishing articles regarding Mr El-Sheikh's
speech about violence committed by the Rapid Support Forces and for
publishing articles on his arrest. Further stating that this intention is evident, as
his arrest was effected while he was on his way to visit Mr El-Sheikh, this was
shortly after he shared news of Mr El-Sheikh's arrest with his newspaper and
on his Facebook account.
28 I Page
123. The Complainant submits that the abuse suffered left him with a chronic pain
on the left side of his head, as well as mental and emotional trauma that still
persist years after the events occurred. The Complainant further submits that
the Sudanese authorities have failed to take necessary measures to investigate
the abuse he suffered, and no mechanism exists under the laws of Sudan to
which he may seek redress. Accordingly, the Complainant submits that the
Respondent State has violated its obligation under Article 5 of the African
Charter.
Alleged violation of Article 6 of the African Charter
124. Article 6 of the African Charter provides for the right to liberty and to the
security of the person. The Complainant submits that in identifying whether an
arrest and detention violates Article 6, the African Commission must first assess
whether the measure was carried out in accordance with domestic law. He
contends that if this criterion has been observed, the African Commission must
then assess whether the domestic law meets the requisite international
standards. The Complainant cites in support of his argument the criteria as
elaborated in the African Commission's Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa. 45 He further refers to the case of
Monim Elgak & Others v Sudan in. which the African Commission found an arrest
effected by the NISS to be arbitrary, as the victims were not formally arrested
with a warrant nor were any charges brought against them in the course of their
detention. 46
125. The Complainant submits that throughout his detention period he was never
informed of the reason for his arrest, or how long he would be detained. He
contends that he was never formally charged, but was rather in.formed by prison
authorities that he was being detained under provisions of the Emergency law.
The Complainant submits that an arrest under the Emergency law which
permits detention without charges constitutes a violation of Article 6. Further
contending that merely stating that an arrest is made under the Emergency law
is akin to stating that an arrest was made "for public safety" or "to protect the
state" - and these do not constitute charges.
126. The Complainant draws the Commission's attention to a requirement of the
Emergency law. He states that the law grants the Governors the discretionary
power to arrest individuals suspected of involvement in offenses relating to the
declaration of emergency made by the President. The Complainant submits that
the arrest and detention violated the Emergency law in three respects: i) he was
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29 I P a g e
never in.formed of the crime that the authorities purported to suspect he was
involved; ii) he was detained for 101 days, therefore his detention cannot be
characterized as "provisional", as the Sudanese Criminal Procedure Code
provides for a maximum of three days detention for purposes of inquiry and up
to two weeks without charge; iii) he was never brought before any court, not
even before the Special Court in which those arrested under the law are to be
tried. These facts the Complainant submits amounts to a clear violation of
Article 6 of the African Charter.
Alleged violation of Article 7 of the Africa Charte.r
127. The Complainant submits that the Respondent State violated Article 7 of the
African Charter by failing to bring his cause before a court of law during his
period of detention. The Complainant refers to the African Commission's
decisions in Abdel Hadi & Others v Republic of Sudnn and Purohit and Moore v The
Gambia wherein the Commission held that anyone deprived of their liberty
through arrest or detention must be presented with the opportunity to challenge
the matter of their detention before a judicial body, and such judicial body must
without delay decide on the lawfulness of the arrest or detention. 47
128. The Complainant further submits that the right to habeas corpus is not
obtainable under the Emergency and Protection of Public Safety Act (1997),
therefore he had no means to challenge the basis for his detention. The
Complainant explains that the Emergency law grants the NISS officers the sole
discretion to determine the length of his detention. He points out that this is a
clear violation of Article 7 as held by the Commission in Jnterights, ASADHO
and Madam 0. Disu v Democratic republic of Congo. 48
Alleged violation of Article 9 of the African Charter
129. The Complainant submits that the Respondent State violated his right to
freedom of expression as prescribed under Article 9 of the .African Charter. He
avers that the arrest, beating and detention were done with the aim of punishing
him for his journalistic work and to further intimidate him and other journalists
from future reporting on sensitive issues.
130. The Complainant elaborates on the obligation of the Respondent State as
prescribed in the African Commission's Declaration of Principles on Freedom
of Expression in Africa.49 The Complainant argues that the African Commission
has confirmed the fundamental importance of the right to freedom of expression
in many of its decision, citing as examples: Constitutional Rights Project, Civil
Liberties Organization and Media Riglzts Agendn v Nigeria,50 Amnesty International
v Zambia, 51 and Scanlen fr Holderness v Zimbabwe. 52
131. The Complainant contends that the right to freedom of expression constitutes
an essential foundation of a democratic society and one of the basic conditions
for its progress and for an individual's self-fulfilment is that the right may only
be restricted in certain circumstances, and in conformity with international
human rights standards. In support of this argument, the Complainant cites the
decision of the African Court on Human and Peoples' Rights (African Court) in
Konate v Burkina Faso, wherein the African Court held that a three-part test
should be applied in cases where freedom of expression is restricted: i) whether
the restriction was provided by law; ii) whethe·r the restriction served a
legitimate purpose; and iii) whether the restriction was necessary to achieve the
set objective.53
132. The Complainant submits that the restriction on his freedom of expression was
not provided by law, and failed to meet the requirements under Article 9 of the
African Charter and Article 39 of the Constitution of Sudan. Further submitting
that his work highlighted instances of corruption and abuse by State agents, as
such the lack of a formal charge against him is in itself evidence to show that his
arrest and detention was not done in pursuit of any legitimate aim.
Consequently, the Complainant su.bmits that his arrest and detention were not
provided by law, did not serve a legitimate purpose and was not necessary or
proportionate.
Alleged violation of Article 16 of the African Charter
133. The Complainant submits that the beating suffered, the inadequate care and
treatment he received and the inappropriate conditions of detention harmed his
physical and mental health in violation of Article 16 of the Charter. The
Complainant argues that the United Nations Committee on Economic, Social
and Cultural Rights in General Comment 14 directs States to ensure that
detainees are afforded timely and appropriate healthcare.
African Com.mission on Human and Peoples' Rights, Declaration of Principles on Freedom of
Expression in Africa 2002 art 16.
50 Communication 105/93-128/94-130/94-152/96 Constitut'
1-1 iRtirg ,q,.... roject, Civil Uberties
Organization and Media Rights Agenda v. Nigeria para 5~.
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51 Communication 212/98 - Amnesty Intemational v Zambia/ i 'a 54.
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134.To further support his argument, the Complainant refers to the African
Commission's Principles and Guidelines on the Implementation of Economic,
Social and Cultural Rights in the African Charter on Human and Peoples'
Rights. He contends that the document introduces the concept of minimum core
obligations which are non-derogable and exist regardless of available resources.
The Complainant refers the Commission to its findings in: Media Rights Agenda
and Others v Nigeria, 54 International Pen and Others (on behalf of Saro-Whoa) v
Nigeria55 and .Malawi African Association and Otlzers v Mauritania,56 wherein the
Commission found that conducts endangering a prisoner's health amounts to a
violation of Article 16 of the African Charter. Accordingly, the Complainant
submits that the Respondent State must be held to the same standards.
Alleged violation of Article 1 of the African Charter
135. Article 1 of the African Charter provides that State Parties shall recognise the
rights, duties and freedoms enshrined therein and shall undertake to adopt
legislative and other measures to give effect to them. The Complainant refers to
Sudan Human Rights Organization & Centre on Housing Rights nnd Evictions
(COHRE) v Sudan wherein the African Commission held that a rights violation
implies a violation of Article 1, insofar as the Respondent State failed to prevent
the violation.57
136. The Complainant alleges that the National Security Act created the
circumstances that allowed the NISS and State security apparatus to abuse the
Complainant. He therefore submits that the Respondent State's failure to
prevent the violations of the provisions of the African Charter, and its reliance
on vague provisions of the National Security Act and Emergency Law to justify
the abuse constitutes a violation of Article 1 of the African Charter.
137. In support of these allegations, the Complainant has submitted three
documents as exhibits. They include: documentation of counselling therapy
sessions undertaken and two witness statement of the facts alleged.
Commission's Analysis on the Merits
138. As indicated above, the Respondent State failed to submit its observation on
the merits, despite the opportunity accorded it in accordance with Rule 113 (2)
32 I Page
of the Commission's Rules of Procedure (2010). In the present circumstances,
and in accordance with the practice of the Commission, the following analysis
relies principally on the submissions of the Complainant and the Jurisprudence
of the Commission.
139. The Commission is called upon to determine whether the actions of the
Respondent State as described by the Complainant constitutes a violation of
Article 1, 5, 6, 7 and 16 of the African Charter.
Alleged Violation of Article 5
140. Atticle 5 of the Charter reads:
Every 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 slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited.
141. The Commission has held that Article 5 of the African Charter is aimed at the
protection of both human dignity and the physical and mental integrity of the
individual.58 In Sudan Human Rights Organization & Centre on Housing Rights and
Evictions (COHRE) v Sudan, the Commission adopted the definition of torture
contained in Article 1 of the United Nations (UN) Convention Against Torture
which states:59
[T]he term "torture" means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or
is suspected of having committed, o.r intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity.
•
142.According to the above definition, four constitutive elements must be taken
into account in qualifying an act as torture, these include: i) the nature of the act;
ii) the intention of the perpetrator; iii) the purpose; and iv) the involvement of
public officials.
33 I P a g e
minimum level of severity. 60 Ascertaining this minimum level of severity is
relative, as it is dependent on several variables, such as the duration of the
treatment, its physical or mental effect, the age, sex and state of health of the
victim.61 The Commission notes the Complainant submission in paragraphs 118
and 119 above, that on 10 June 2014, he was invited for questioning at alNuhood police station, where he was severely beaten by four NISS officers for
twenty (20) minutes, and in the process, he fell over, hitting his head against a
metal bench and lost consciousness. He avers that the aim of the abuse was to
punish him for his journalistic coverage of the SCP symposium.
144.lt is a well-established jurisprudence of the Commission that where allegations
go unrefuted, it will proceed to decide Qn the facts presented, 62 however, in
relying on the information provided by the Complainant, the Commission must
test the veracity or reliability of the Complainant's evidence.63 The question that
thus arises is whether the Complainant's allegations have been sufficiently
substantiated. It is within the practice of the Commission to rely on sworn
testimonies and a medical certificate as proof of torture. In Monim Elgak, Osman
Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, the
Commission relied on sworn testimonies and a medical certificate in
establishing a case of torture.64 Similarly, in EgiJptian Initiative for Personal Rights
and INTERIGHTS v Egypt, the African Commission went one step further and
relied solely on the Complainants' submissions of testimonies of the victims to
prove sexual molestation which qualified as a violation of Article 5 of the
Charter.65
145.In the present Communication, the Commission observes that the
Complainant's written testimony describes in clear details the act of torture
which resulted in the Complainant sustaining injuries to his head and left leg,
and the testimony of his former colleague who visited him during his period of
detention at El-Obeid prison described his state as ' ... frail, complained about
back pains as a result of the beatings and constant headaches because they had
taken away his eyeglasses for weeks'. 66 The psychosocial therapy report
submitted in support of his averments describes the Complainant mental state
as traumatized " ... lacking confidence, afraid, not trusting and rather flat. He
demonstrated minimal emotional stimulation. He was still going through
trauma and needed a lot of help ... "
146.The Commission considers that psychosocial treatments (interventions)
include structured counseling, motivational enhancement, case management,
care-coordination, psychotherapy, and relapse prevention. 67 As such, this
amounts to a valid medical report or certificate in the sense that it was made by
a mental health professional. Similarly, in the case of Dhaou Belgacem THABTI v
Tunisia the United Nations Committee AgainstTorture (UNCAT) noted that"in
support of [the Complainant's] claims of torture and the effects of torture, the
complainant subrnit[ed] a certificate from a Swiss physiotherapist, a report by a
neurological specialist in Fribourg and a certificate of psychiatric treatment from
the medical service of a Swiss insurance company" 68 ; these formed part of the
evidence on the basis of which the respondent state was found in violation of
the provisions of the Convention Against Torture and Other Cruel Inhumane
and Degrading Treatment. Therefore, for the purposes of assessing the mental
state of a person who has been tortured, such report is valid and can be used as
direct evidence, especially in the Complainant's circumstance where physical
evidence of torture may no longer exist.
147. The Commission in Egi;ptian Initiative for Personal Rights and Interights v EgiJpt
has held that 'when a person is injured in detention or while under the control
of security forces, there is a strong presumption that the person was subjected
to torture or ill-treatment. 69 In determining whether physical injuries were
indeed inflicted on a Complainant by State agents, the Commission has noted
that the prompt access to medical personnel becomes critical.7° In this regard,
the Commission notes the Complainant's submission in paragraph 9 above that
after numerous requests, he was subsequently accompanied by two prison
officers to the hospital to seek treatment for the injuries inflicted on him from
the beating of 10 June 2.014. He submits that he was refused an x-ray by the
doctor on-call and subsequently prescribed malaria medication and pain killers,
but no 1nedical certificate was issued.
148. Paragraph 20 of the Resolution on Guidelines and Measures for the
Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa (the Robben Island Guidelines) provides
for basic safeguards for those deprived of their liberty, all of which shall apply
from the moment when a person is first deprived of their liberty. An essential
safeguard against torture being 'the right to an independent medical
examination'. 71 The Istanbul Protocol further provides that 'A medical
examination should be undertaken regardless of the length of time since the
torture, but if it is alleged to have happened within the past six weeks, such an
examination should be arranged urgently before acute signs fade.' 72 It is evident
from the facts before the Commission that the Respondent State failed in its
obligation to put in place these procedural safeguard.
149. As earlier noted, the Respondent State is responsible for the security of any
person it holds in detention and, when an individual in detention shows signs
of injury, it is incumbent on the State to produce evidence showing that it is not
responsible. In the absence of satisfactory evidence or explanations to the
contrary presented by the State, the Commission shall consider the facts as
presented by the Complainant as established.73 The course of event as described
by the Complainant shows that the treatment was inflicted by security agents
acting in their official capacity, with the intent to punish the Complainant for
his publication on the SCP symposium, particularly on the speech made by Mr.
El-Sheikh, as he was accused of misinforming the public, spreading lies and
associating with rebel groups, during the interrogation process. 74 The
Commission considers that this treatment was of such a cruel nature that it
attained the threshold of severity to amount to torture.
150.Further, Article 5 of the African Charter prohibits not only torture but cruel,
inhuman and degrading treatment. The Commission notes the Complainant's
submission that during his period of detention at al-Nuhood prison, he was held
in a narrow, damp, dirty and overcrowded cell with 12 to 16 other detainees. He
submits that there was not enough space for one to sleep comfortably, as such
he slept on the cold floor, which worsened the pain from the injuries inflicted
on him. The Commission also notes his submissions on the poor sanitary
conditions of the detention facility and the unhygienic conditions of the food,
which contained insects and dirt, making it inedible.
151. The Commission reiterates that the term cruel, inhuman or degrading
treatment includes not only actions which cause serious physical or
71 Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel,
Inhuman OT Degrading Treahnent or Punishment in Africa (The Robben Island Guidelines) 2002 sec
20(b).
n Istanbul Protocol - Manual on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, 9 August 1999 (reproduced as OHCHR,
Professional Training Series No. 8/Rev. 1, UN Doc. HR/P/PT/8/Rev.1, available at
http:/ /www.irct.org/Default.aspx?ID=2701), para. 104.
7.1 Communication 48/90, 50/91, 52/91 and 89/93 - A11111esty l11ternatio11al, Comite Loosli Baclielard,
Lawyers' Committee for Human Rights, Association of Members of the Episc
Conference of East Africa v
S11da11 para. 52 and Communication 227/99 - Democratic Rep11bli
ngrul.'- ,~
- ~di, Rwanda,
'•l
Uganda para 96
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psychological suffering, but must be interpreted to extend to the widest possible
protection against abuses. 75 The Commission has also held in Krishna Achuthan
(on behalfofAleke Banda), AmneshJ Internntionnl (on behalfofOrton and Vera Ch.irwn)
v Malawi that holding prisoners under conditions of overcrowding, acts of
beating, poor sanitary conditions and extremely poor quality of food
contravenes Article 5 of the African Charter.76 The Commission therefore holds
that the action of the Respondent State constitutes multiple violations of Article
5 of the African Charter.
Alleged violation of Article 6
152. Article 6 of the Charter reads:
Every individual shall have the right to liberty and to the security of his person.
No one may be deprived of his freedom except for reasons and conditions
previously laid down by law. In particular, no one may be arbitrarily arrested
or detained.
153. The Complainant submits that he was detained by NISS officers without charge
for 101 days, and only informed by the prison authorities at al-Nuhood prison
and subsequently El-Obeid prison that he was being detained under the
Emergency and Public Safety Bye-law (1998). The Respondent State has not
contested this claim, in fact, it has failed to respond to the Secretariat's request
even after repeated notifications. In this circumstance, the Commission must
decide on the facts of the Complainant as the facts of the case. 77
154. The Commission has held that the right to liberty has two arms. The first arm
is simply the freedom from restraint, an individual's ability to do as he/ she
pleases, provided it is done in accordance with the law.78 The second arm deals
with the right to security of the person.79 In determining the parameters of the
limitation to the right to liberty, the Commission has stressed that the clause
'laid down by law' does not provide a blanket approval of any domestic law
regardless of its effect. so Tn Amnesh; International nnd Others v Sudan the
Commission held that "Article 6 must be interpreted in such a way as to permit
arrests and detention only in the exercise of powers normally granted to the
security forces in a democratic society."s1 Competent authorities should not be
able to negate the rights conferred upon individuals by the Charter and
guaranteed by international human rights standards. The clause therefore
constitutes a reference to international law, as such, only restrictions on rights
which are consistent with the African Charter and with States Parties'
international obligations should be enacted by the relevant national
authorities.82
155. The Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial
Detention in Africa (the Luanda Guidelines) expounds on the obligation of
States and the procedural standards to be adopted with regards to arrests, police
custody and pre-trial detention. Accordingly, Principle 4 provides for rights
which must be afforded persons under arrest, these include amongst others: the
right to be informed of the reasons for their arrest and any charges against them;
the right of access without delay to a lawyer of his or her choice; the right to
apply for release on bail or bond pending investigation or questioning by an
investigating authority and/ or appearance in court; the right to challenge
promptly the lawfulness of their arrest before a competent judicial authority;
and the right to freely access complaints and oversight mechanisms.83 Further,
Principle 35 of the Luanda Guidelines provides that "All persons in police
custody a.nd pre-trial detention shall have the right, either personally or through
their representative, to take proceedings before a judicial authority, without
delay, in order to have the legality of their detention reviewed. If the judicial
authority decides that the detention is unlawful, individuals have the right to
release without delay ."84
156. The Commission observes that pursuant to the Emergency and Protection of
Public Safety Act of 1997 (Act No. 1 1998), the President of the Republic of the
Sudan may issue a declaration of a state of emergency all over Sudan or in any
part of it. 85 Subsequent to the declaration, a competent authority may arrest
persons suspected of participating in crimes related to the declaration. 86 Section
79 of the Criminal Procedure Code of the Republic of the Sudan (2003) provides
that, a person arrested by the police may remain in detention for a period not
exceeding twenty-four (24) hours, this may be renewed by the Prosecution
Attorney for a period not exceeding three (3) days, and upon the report of the
Communication 48/90-50/91-52/91-89/93 - AmneshJ International, Comite Loosli Bachelard, Lnwyers'
Committee for H11mm1 Rights, Association of Members of the Episcopal Conference of Enst Africa v Sudan para
59.
82 Communication 339/2007 - Patrick Okiring and Agupio Samson (represented by Human Rights Network
and ISIS-WICCE) v. Republic of Uganda para 108.
~
83 Guidelines on the Conditions of Arrest, Police Custody and Pre-Tr·
ef:elRf'toW iit, rica (Luanda
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Guidelines) 2014 principle 4 (b) (d} (i) G) & (k).
84 (As above) principle 35.
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85 Emergency and Protection of Public safety Act of 1997 (Act Nol -tses_j~'
86 (As a.hove) sec 5 (h).
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Prosecution Attorney, a Magistrate may order the continued detention of the
arrested person, for the purpose of inquiry, every week for a period not
exceeding in total two weeks. The Commission notes that the Emergency and
Protection of Public Safety Act of 1997 does not stipulate any such time frame
but rather contemplates a special court in which persons arrested pursuant to
the Emergency Law may be arraigned and tried. 87 A recourse which was never
made accessible to the Complainant.
157. It is therefore important to reiterate that the African Charter does not allow
State Parties to derogate from their treaty obligations during emergency
situations. ss Thus, the guarantees contained in Article 6 must be effectively
enforced at all times, even in public emergencies threatening the life of the
nation. This comprise, in particular, the right of anyone arrested or detained on
a criminal charge to be informed, at the time of arrest, of the reasons for his/her
arrest, the charges brought against him/her and must be brought promptly
before a competent judicial authority.89 ln the circumstance, it cannot therefore
be considered that the Respondent State displayed the required diligence in
ensuring that its law enforcement agents upheld and protected the rights
enshrined in the African Charter in the exercise of their power of arrest.
158. The Commission in the case of Patrick Okiring and Agupio Samson (represented
by Human Rights Network and ISJS--WICCE) v. Republic of Uganda, held that the
right to liberty serves as a substantive guaran tee that 'any arrest or detention
will not be unlawful or arbitrary' .90 In defining ru·bin·ariness in the context of
arrest and detention, the Commission referred to the decision of the United
Nations Human Rights Committee in Rafnel Marques de Morais (represented by the
Open SociehJ Institute and Interights) v Angola where it noted that arbitrariness
also includes "elements of inappropriateness, injustice, lack of predictability
and due process of law". 91 Hence, the Complainant's prolonged remand
without affording him the opportunity to challenge the lawfulness of his
detention was arbitrary and unlawful, and therefore outside the permissible
limitations to the right to personal liberty.92 For these reasons, the Commission
finds the Respondent State in violation of Article 6 of the African Charter.
87 (As above) sec 6 (2) provides: The president of the republic, or any person he delegates, may set, in
consultation with the chief justice, special courts (trial and appellate) to try any accused under this act
and he may specify the procedures of these courts.
88 (N 80 above) Communication 275/03 para 98.
89 Principles and G uidelines on the Right to a Fair Trial and Legal Assistance in Africa 2003 art 1 and
2; and the Robben Island Guidelines paras25,26 and 27.
90 Communication 339/2007 - Patrick Okiring and Agupio Samson (represe11ted by Human. Rights Network
and ISIS-WICCE) v. Re-public of Uganda para 107.
i. Hu- ~
91 Communication 1128/2002 -Rafael Marques de Morais (represe11tedj
~ flint)fJetY.
• stitute and
4
lnteriglits) u Angola (2005) Human Rights Council, para 6.1.
, , ~i' s ,__... ,. ~o
92 Communication 232/99 - Ouko v. Kenya (2000) AHRLR135 (A
R 2 0),~~s - -21; ~
Communications 25/89, 47/90, 56/91 and 100/93 - Free Legal Af ~ ta;:c Gr~f;,,,'td O 1~ s'(i Zaire
(2000) AHRLR 74 (ACHPR 1995) para 42,
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Alleged Violation of Article 7
159. The Complainant avers that the Respondent State violated the provisions of
Article 7 (1) (d) of the African Charter. This provision guarantees the right to be
tried within a reasonable time by an impartial court or lTibunal. The
Commission has clearly established in its Resolution on the Right to recourse
and Fair Trial that anyone deprived of his/her liberty through arrest or
detention shall be brought promptly before a judicial authority and shall be
entitled to trial within a reasonable time or to be released.93
160. The Complainant was arrested on 10 June 2014 and held in detention for 101
days without charge. The Commission in Constitutional Rights Project v Nigeria
has held that 'in a criminal case, especially one in which the accused is detained
until trial, the trial must be held with all possible speed to minimise the negative
effects on the life of a person who, after all, may be innocent'.94 To guarantee
expeditious access to justice for persons in detention, the Commission' s
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa provides that "judicial bodies shall at all times hear and act upon
petitions for habeas corpus ... or similar procedures. No circumstances whatever
must be invoked as a justification for denying the right to habeas corpus ... " 95
161. A review of the Emergency and Protection of Public Safety Act 1997 reveal that
there exist no effective right to habeas corpus under the Emergency law, thereby
preventing the Complainant from having the opportunity of inquiring into the
lawfulness of his detention. The Commission therefore finds that 101 days
(approximately 3 months) in custody without charges being filed or even an
opportunity to challenge the detention is an unreasonable delay, and thus
constitutes a violation of Article 7 (1) (d) of the African Charter.
Alleged violation of A1:ticle 9 of the African Charter
162. Article 9 (2) of the Charter reads:
Every individual shall have the right to express and disseminate his opinions
within the law.
level", as this would make the protection of the right illusory.96 As such, the
Commission found that Article 27(2) of the African Charter provides for the
only legitimate reasons for limitations of the rights and freedoms contained in
the Charter. 97 In this regard, Ar ticle 27(2) provides that the rights of the African
Charter "shall be exercised with due regard to the rights of others, collective
security, morality and common interest".
164. The Complainant alleges that upon his arrest on 10 June 2014 he confirmed his
identity to the NISS officers, presented his credentials as a journalist and
provided a copy of the Al Gareeda. newspaper that contained the article he had
written on the symposium. The Commission notes the Complainant's assertion
that he was accused of having associations with rebel groups, and for
misinforming the public and spreading lies about the comments made by Mr.
El-Sheikh in his speech, which he expressly denied.98 Consequent to which he
was detained pursuant to the Emergency Law for 101 days.
165. The Respondent State has not provided evidence that the restriction on the
Complainant's right to freedom of expression was for any of the reasons
prescribed in Article 27(2) of the African Charter. The Commission however
notes the conflict situation that continue to plague the Southern Kordofan and
Blue Nile regions, displacing tens of thousands. 99 Hence, necessitating the
proclamation of the state of emergency declared in the south and central states
of Kordofan at the time. Regardless, it has been stressed in the Commission's
jurisprudence that the Charter contains no derogation clause.100 In AmneshJ
International and others l) Sudan, the Commission indicated that this " ... can be
seen as an expression of the principle that the restriction of human rights is not
a solution to national difficulties: the legitimate exercise of human rights does
not pose dangers to a democratic state governed by the rule of law." 101 States
must strive to attain a balance between human security and humane counterterrorism, to ensure that measures adopted are not inimical to human rights.
166. In the present Communication, there is no substantive evidence that the
Complainant's publication threatened the collective security of the State,
96 Communication 140/94, 141 /94, 145/95 -
Co11stitutio1111l Rights Project and Others v Nigeria para 40.
97 (As above) para 41.
98
Complainants' submission on the Merits para 48.
International Crisis Group 'Sudan's spreading conflict (II): war in Blue Nile' 18 June 2013 available
at https:// www.cr isisgro up.org/ a frica / horn-a frica /suda n/ sudan-s-spread ing-conflict-ii-wa r-bluen iJe (accessed 24 February 2021); British Broadcasting Corporation 'Will Sudan ever find peace in
Darfur, South Kordofan and Blue Nile?' 8 December 2014 available at
h ttps:// www .bbc.com / news/ world-africa-30354614 (accessed 24 February 2021 .
100 Communication 48/90, 50/91, 89 /93 - Amnesty International & ot11ers v
- •
Communication 140/94, 141/94, 145/95 - Constitutional Rig/its Project ~ l.'dt'2~t11,~Ji~~;'X
a 41;
Communica tion 105/93, 128/94, 130/94, 152/96 - Media Rights Agen ' s 11d Co
• 1rf R} s Project
v Nigeria paras 67-69.
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101 (As above) Communicabon 48/90, 50/91, 89/93 para 79.
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morality or public order. If perhaps the Complainant's publication contained
libellous statements, a civil suit could have been instituted against the
Complainant and Al Gareeda newspaper his employer, demanding a retraction
of the article, in accordance with the principles anchoring the right to freedom
of expression. The Commission recalls that the Declaration of Principles on
Freedom of Expression and Access to Information in Africa (the Declaration)
adopted in 2019 obliges states to: i) repeal laws that criminalise sedition, insult
and publication of false news; ii)amend criminal laws on defamation and libel
in favour of civil sanctions which must themselves be necessary and
proportionate; and that the imposition of custodial sentences for the offences of
defamation and libel are a violation of the right to freedom of expression. 102
167. The justification for a limitation or restriction to a right must be strictly
proportionate and necessary for the legitimate aim pursued.103 The Commission
in Media Rights Agenda and Others v Nigeria has held that "freedom of expression
is a basic human right, vital to an individual's personal development, his
political consciousness, and participation in the conduct of public affairs in his
country." Hl4 As such, any law which permits the imprisonment of persons
whose views contradicts those of the Government's is contrary to the spirit of
Article 9 and cannot qualify as a justifiable limitation to the right to freedom of
expression. 105 Hence, the Commission has held that, the imprisonment of
journalists "deprives not only journalists of their rights to freely express and
disseminate their opinions, but also the public, of the right to information." 106
In light of the above, the Commission finds the Respondent State in violation of
Article 9 (2) of the African Charter.
Alleged violation of Article 16 of the African Charter
168.Article 16 of the Charter reads:
(1) Every individual shall have the right to enjoy the best attainable state of
physical and mental health.
(2) State Parties to the present Charter shall take the necessary measures to protect
the health of their people and to ensure that they receive .medical attention when
they are sick.
169.The Complainant contends that the Respondent State's significant delay in
providing him with medical assistance and the subsequent insufficient medical
care provided, constitutes a violation of his right to the best attainable state of
health as provided in Article 16 of the African Charter. He further avers that the
conditions of his detention severely affected his mental well-being in ways that
continue to impact him even after his release on 9 September 2014.
170.The Commission notes that the facts establish that the Complainant sustained
injuries to his head and left leg as a result of the abuse of 10 June 2014. The
Complainant further submits that these injurie were worsened by the
deplorable conditions of detention at al-Nuhood prison, where he was
remanded for a period of twenty (20) days. These condition as highlighted
above include: detention in a severely overcrowded prison cell, the absence of
adequate sanitary facilities, poor food and nutrition and the psychological toll
of being held indefinitely without charge.107
171. The right to health implies not only the freedom from diseases, but the
complete physical, mental and social wellbeing of a person. 108 As a result, the
interpretation of the right to health is not limited to medical care but must be
construed as inclusive of access to food, water, sanitation and the basic
conditions of living that are determinants of health. 109 This principle was
substantiated by the Commission in Purohit and Moore v The Gambia where it
held that the right to health is " ... crucial to the realisation of all the other
fundamental human rights and freedoms. This right includes the right to health
facilities, access to goods and services to be guaranteed to all without
discrimination of any kind."110
172. The Commission notes the Complainant's submissions that he had migraines
which intensified at night, and he was unable to eat, drink or sleep for several
days due to the pain. However, his persistent requests to visit a doctor were
rejected, and he was only taken to a hospital seven (7) days after his detention,
upon the intervention of a visiting lawyer. The Complainant also submits that
his request for a full body examination was refused, and he was subsequently
prescribed malaria and pain medication after undergoing a urine and blood test.
These averments have not been contested by the Respondent State.
173.Regarding the denial of medical care, the Commission recalls its jurisprudence
in International PEN and Others (on belwlfof Ken Saro-Wiwa Jnr) v Nigeria wherein
it held that State responsibility is heightened in cases where an individual is in
its custody, as the detainee's well-being and integrity is completely dependent
on the actions of the State authorities.111 In this regard, the Luanda Guidelines
provide for the right of an arrested person to urgent medical assistance, to
request and receive a medical examination and to obtain access to existing
medical facilities. 112 Therefore, as a minimum core obligation the Respondent
State is required to respect and fulfil the right to health by refraining from
denying or limiting equal access to healthcare, and adopting measures to ensure
physical accessibility for all persons, particularly vulnerable and disadvantaged
groups, including detainees. 113
174. Regarding the inadequacy of the medical care, it is observed from the
Complainant's testimony that the treatment administered did not relieve his
pain, as he persisted in his request to visit a hospital even after his transfer from
al-Nuhood to El-Obeid prison, and subsequently notified his lawyer that his
requests had been rejected by the prison authorities. 114 The Commission
therefore finds that in the absence of any indication that the Complainant's
condition had improved after his initial visit to a doctor, or that his state of
health had been properly reassessed, it was incumbent on the Respondent State
to take necessary measures to protect his health, given that he was held in the
custody of the State authorities. 115 Consequently, the Commission finds a
violation of Article 16 of the African Charter.
Alleged violation of Article 1
175. The Complainant has submitted that the Respondent State's failure to prevent
the Charter violations, and its reliance on the overbroad and vague provisions
of the National Security Act and the Emergency Law constitutes violations of
Article 1 of the African Charter.
176. Article 1 of the African Charter stipulates that" ... parties to the[] Charter
shall recognise the rights, duties and freedoms enshrined in the Charter and
shall adopt legislative or other measures to give effect to them".
177. The Commission reiterates its decision in Sudan Human Rights Organization and
Centre on Housing Rights and Eviction v Sudan that Article 1 imposes a general
obligation on States to respect, protect and fulfil the rights enshrined in the
African Charter, as such, States are required to adopt measures to give effect to
those rights. 116 A failure to uphold this obligation constitutes a violation of
Article 1.The Commission has reached a conclusion that the Respondent State
failed to protect the Complainant from being subjected to torture and other illtreatrnent; and failed to respect his right to liberty, access to justice, right to
adequate medical care and his right to freedom of expression and dissemination
of information. As a consequence, the Commission finds that the Respondent
State in violation of Article 1 of the Charter.
Decision of the Commission on Merits
178. Based on the above reasons, the African Commission on Human and Peoples'
Rights holds as follows:
i.
That the Respondent State - the Republic of the Sudan has violated Articles
1, 5, 6, 7(1) (d), 9 (2) and 16 of the African Charter on Human and Peoples'
Right;
ii.
Requests the Republic of the Sudan to:
a. Pay adequate compensation for, among others lost income, medical
expenses and physical and emotional suffering, to the Complainant named
in the present Communication in accordance with the domestic law of the
Republic of the Sudan for the rights violated;
b. Promptly and independently investigate, prosecute, and punish all State
actors responsible for the illegal detention and torture of the Complainant;
c. Reform of the Respondent State's laws including the National Security Act
(2010), the Emergency and Protection of Public Safety Act (1997) and the
Emergency and Public Safety Bye-law (1998), in addition to policies and
practices incompatible with the African Charter and international law such
as prolonged arbitrary detention and remand, and denial of the opportunity
to challenge the lawfulness of detenti~n, and further urges the State to adopt
and implement procedural safeguards for the prevention of torture and
other forms of ill-treatment as required under the Robben Island
Guidelines;
d. Train security officers on relevant standards concerning adherence to
custodial safeguards and the prohibition of torture.
m.
In accordance with Rule 112 (2) of the Co
(2010), the Respondent State should notify th
•
of Procedure
t :e measures
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a11d Evictions (COHRE) v Sudan para 227.
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Done Virtually, at 68th Ordinary S
held from 14 April to 04 May
46 I Page