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Committee for the Prevention of Torture in Africa (CPTA) Newsletter

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CPTA Newsletter – 2025 Committee for the Prevention of Torture in Africa, Banjul, The Gambia Message from the Chairperson of the CPTA Dear readers, The 2025 edition of this Newsletter examines national legislation on the prevention of torture from the perspective of its effectiveness. Our annual theme, "National legislation to prevent torture: experiences and perspectives", calls upon us to move beyond the mere analysis of normative provisions to examine their practical implementation: which mechanisms produce tangible results, what obstacles persist, and what the real impact on persons deprived of their liberty is. The contributions featured in this issue come from field actors: legal practitioners, national human rights institutions, national preventive mechanisms, civil society organizations, and researchers. They have documented their practices, analysed systemic obstacles, and provided concrete recommendations. These contributions provide valuable insights into the challenges of legislative transposition: autonomous criminalization of torture, inadmissibility of evidence obtained under coercion, effective independence of monitoring bodies, access to remedies, and modalities of reparation. Our 2024 edition focused on education and training on anti-torture norms. A law can only be effective when it is fully understood by those responsible for its application. This year, the contributors demonstrate how to bridge the gap between legislative adoption and changes in practice. Our commitment remains: that each Member State equips itself with a robust legislative framework and ensures its implementation, supported by institutions endowed with real capacity and adequate resources. No State yields to the temptation to derogate from it in the name of security emergencies or political transitions. The absolute prohibition of torture allows for no exceptions. The analyses and case studies presented here outline a programe of action: filling regulatory gaps, strengthening the autonomy and resources of oversight institutions, and ensuring reparations that are responsive to the needs of victims. May this issue serve as a working tool for legislators, magistrates, security officials, national institutions, and civil society actors. Preventing torture requires a clear legal framework, accompanied by rigorous monitoring of its implementation. I would like to thank all contributors for the quality of their work. The Chairperson of the Committee for the Prevention of Torture in Africa (CPTA)
Summary of articles: 1. Author TUNMAPS The Uganda National Medical Alliance for Prisoners’ Support. 2. Winona Xu, Guest Lecturer, University of California, Los Angeles -- Fielding School of Public Health 3. Alemneh Desalegn, Ashagire 4. Bilhah Ikani Omulama 5. Nyachangkuoth Tai- Independent Researcher, Gender and Peacebuilding Expert 6. Kenya National Commission on Human Rights 7. Sylvie MANKENTSOP, Magistrat, Ministère de la Justice, Cameroun 8. Umulkuruthum Oyiza Dauda [Legend Golden Care Foundation] 9. Nqobani Nyathi, Centre for Human Rights, Faculty of Law, University of Pretoria 10. Misheck Jere, Reprieve 1. Strengthening Legal Pathways for Health Linkage, Referral, and Retention in Care for Survivors of Torture in Uganda. By : TUNMAPS The Uganda National Medical Alliance for Prisoners’ Support. Solomon Musiitwa Introduction: The Uganda National Medical Alliance for Prisoners’ Support (TUNMAPS) is an accredited National center of excellence not for profit actor, whose main objective is to steer strategies aimed at strengthening rapid health economic relief, research, rehabilitation, linkages, civic education, public welfare, and mindset change for prisoners, their families and ex-offenders in Uganda. TUNMAPS is a pioneer service provider for health, social-economic transformation, and research in prisons. Even though prisoners, their families, and ex-offenders are the most marginalized and stigmatized in their respective communities, they are not specifically targeted for support by the available support mechanisms from the Government and other nonpublic actors, even after serving their sentences, they continue living in fear because they are still condemned by the community Torture leaves deep scars not only on the body but on the mind, family, and community. In Uganda, survivors of torture in detention continue to face barriers to healing, rehabilitation, and justice. While Uganda has taken important steps, including the Prevention and Prohibition of Torture Act (2012) and the Prisons Act (2006), the journey from law to practice is still incomplete. For many survivors, the greatest challenge begins after release: finding health care, being referred to appropriate services, and staying in care. At a time when the African Commission on Human and Peoples’ Rights is calling for stronger national legislation and has tasked the Committee for the Prevention of Torture in Africa (CPTA) to draft a model law on torture, Uganda has an opportunity to demonstrate good practice. TUNMAPS report of 2024, showed that many prisoners who are tortured, at the time of their release are not offered health care nor linked to health facilities or their families for support and access and continuity of care, the report shows that stronger legal frameworks for linkage, referral, and retention in care can make a real difference. Good Legal Practices and Prospects for Development Uganda’s laws already contain building blocks for protecting the rights of torture survivors, but further development is needed to guarantee health, equity and
dignity. TUNMAPS highlights the following good practices, opportunities for growth and recommendable actions: Health Rights in Law: The Torture Act recognizes the right of victims to rehabilitation. This can be expanded to include mandatory health assessments, trauma counselling, and clear pathways to specialist care. Referral Mechanisms: Courts and prisons can be legally mandated to refer survivors directly to hospitals, rehabilitation centres, or mental health services. A standardized referral form and process would strengthen accountability. Linkage mechanisms: as per Nelson Mandela’s rules which highlights that prisoners should have equal access to health with those outside the prisons, and according to prisons act 2006, prisons are rehabilitation centers for offenders aged above 18 years. Prisons are under the mandate of Uganda Prisons Service (UPS), an autonomous body under the Ministry of Internal Affairs with a responsibility to provide reasonable, safe, secure, and humane custodial and rehabilitative services to inmates by universally acceptable standards, this offer is only limited to inmates and not extended to ex-offenders, therefore, the legal system needs to integrate linkage of those prior to release to nearest available social rehabilitation centers, health facility and district welfare department or direct to their families, this can reduce both mental and physical attack by the community as exoffenders are hellion to the community Continuity of Care: Amending the Prisons Act (2006) to include post-release monitoring would help survivors continue treatment in the community, reducing relapse, family rejections and preventing re victimization. Gender-Sensitive Protections: Women survivors often face sexual violence and stigma. Aligning national law with the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) would ensure access to reproductive health services and trauma informed care. Integration with Health Laws: Linking anti-torture legislation with the Mental Health Act (2019) and the Public Health Act can ensure holistic care for survivors. Compensation and Reintegration: Strengthening provisions for victim compensation and vocational training can help survivors rebuild their lives. Community Legal Support: Paralegals and local councils can be legally recognized to support referrals and follow-up care, ensuring no survivor is left behind. Use of Technology: Legal recognition of secure electronic medical records and referral platforms would make it easier to track continuity of care across prisons and community facilities. Accountability for Officials: Prison authorities should face legal sanctions if they fail to follow referral procedures, ensuring the law protects survivors in practice. Regional Harmonization: Aligning Uganda’s laws with the Robben Island Guidelines⁷ and ACHPR resolutions will strengthen regional solidarity against torture. Experiences and Perspectives from TUNMAPS’ Work The Uganda National Medical Alliance for Prisoners’ Support (TUNMAPS) has reached more than 20,000 survivors of torture and ill-treatment through prison visits, pre-release preparation, home follow-ups, and structured referral pathways. During prison visits, TUNMAPS provides health services, including treatment, mental health care, and psychosocial counselling. Prisoners approaching release are supported through pre-release follow-up visits,
ensuring they are linked to hospitals, mental health clinics, and community health workers before leaving prison. The African Commission on Human and Peoples' Rights (ACHPR) to understand the real insight For those already released, TUNMAPS conducts home and community follow-up visits to monitor treatment progress, mental torture, address stigma, and prevent relapse into poor health. Through its linkage and referral system, survivors are connected to the nearest health facility, rehabilitation centres, and psychosocial support services to ensure access, continuity of care, and retention in care. These experiences reveal three key perspectives: Health care, including mental health, must be integrated into anti-torture responses. Linkage to care and continuity of treatment before and after release are essential for recovery and continuity of care. Sustained follow-up and reintegration support uphold the right to health and dignity for torture survivors Further research to assess the health of survivors of torture Conclusion Uganda’s laws prohibit torture but survivors need more than prohibition, they need protection and healing. Effective legislation must guarantee rehabilitation, linkage to health services, structured referrals, and retention in care. Building on existing good practices, Uganda can take the lead in showing how national laws can transform lives. Strengthening legal frameworks in this way will not only bring Uganda in line with continental initiatives, such as ACHPR Resolution 624 (2025) on developing a model anti-torture law, but also demonstrate that survivors’ dignity and health are at the heart of justice. ______________ TUNMAPS remains committed to advancing these reforms and ensuring that every survivor of torture, whether in prison or after release, has the right to care, healing, and a second chance at life. TUNMAPS would be honored to present this comprehensive report on torture before 2. Closing the Gaps: Expanding National Anti-Torture Laws in Africa to Cover Non-State Actors By : Winona Xu, Guest Lecturer, University of California, Los Angeles -- Fielding School of Public Health Introduction African countries have made significant strides in ratifying international anti-torture instruments like the UN Convention against Torture (UNCAT). Yet a critical gap remains between these commitments and national laws. One major gap is the narrow definition of “torture” in many legal frameworks – often requiring a State agent as perpetrator – which leaves out atrocities committed by non-state actors. This is especially troubling given Africa’s reality of conflict-related mass rape and other sexual violence perpetrated by armed groups and militias. Under the African human rights system, such acts of mass rape are unequivocally recognized as torture or cruel, inhuman, and degrading treatment. However, if national legislation continues to adhere to an outdated, state-centric definition of torture, impunity for these crimes persists. This contribution examines how African jurisprudence has classified mass rape as torture, highlights progressive national laws that broaden the torture definition, and proposes reforms to align national legislation with African and international standards. National legislation may be effective with an inclusive definition of torture in accordance with international legal standards. Such reform at the African Commission can serve to be foundational to transforming anti-torture practices in African countries.
I. Mass Rape as Torture in African Human Rights Law Article 5 of the African Charter on Human and Peoples’ Rights prohibits “all forms of exploitation and degradation of man,” including torture and cruel, inhuman or degrading treatment. The African Commission on Human and Peoples’ Rights (ACHPR) has consistently interpreted Article 5 to cover acts of sexual violence. In its General Comment No. 4 (2017) on Article 5, the Commission explicitly affirmed that sexual and gender-based violence – or a State’s failure to prevent such violence – “may amount to torture and other ill-treatment.” The Comment lists rape, including “corrective rape,” among examples of acts that inflict severe trauma and thus breach the Charter’s prohibition. This reflects a growing consensus in international law that rape can constitute torture, particularly when it is widespread or used as a tool of intimidation or punishment. ACHPR case-law underscores that mass rape, especially by state actors or with their complicity, is among the gravest human rights violations. For example, in Safia Ishaq Mohammed Issa v. Sudan (ACHPR Communication 443/13, decided 2022), a student activist was abducted, beaten and gang-raped by Sudanese security agents. The Commission held that the rape constituted torture, finding that the victim “was subjected to torture in the form of sexual abuse (rape),” and that Sudan violated Article 5 by failing to prevent, investigate or punish the perpetrators. Earlier, in the landmark Democratic Republic of Congo v. Burundi, Rwanda & Uganda (Communication 227/99, 2003), the DRC detailed how invading forces used mass rape as a weapon of war – even alleging that 2,000 HIV-positive soldiers were sent to rape women and girls with the aim of spreading HIV/AIDS. The Commission found the respondent States responsible for “grave and massive” human rights violations, condemning the rapes as an affront to the victims’ dignity and a violation of the Charter 4. It referenced international law (Geneva Conventions and CEDAW) to emphasize that rape in armed conflict violates fundamental humanitarian norms and, by extension, Article 5 of the Charter 4. Likewise, in Sudan Human Rights Organisation & COHRE v. Sudan (communications 279/03 & 296/05, 2009), concerning atrocities in Darfur, the Commission held Sudan accountable for torture and cruel, inhuman treatment due to widespread rapes of women and girls by government forces and Janjaweed militia. The Commission noted these acts amounted to both physical and psychological torture of the affected communities. It stressed that even if non-state militia committed some abuses, the State’s failure to prevent and stop them breached Article 5. II. National Legislation: Expanding Definitions and Good Practices Despite the African Commission’s guidance, many African countries’ national laws still mirror the UNCAT definition of torture, which ties the crime to acts by a public official or someone acting in an official capacity. This state-actor requirement in law can become a loophole – perpetrators like rebel warlords, insurgents, or even private individuals who commit torture (including sexual torture) may evade accountability if national law doesn’t cover them. Such a narrow definition undermines the fight against torture, given modern conflicts and even peacetime realities where non-state actors (militias, gangs, traffickers, etc.) inflict horrific pain and suffering. It also provides a convenient excuse for governments to downplay abuses (“it’s not torture because it wasn’t done by officials”) – an attitude that slows down the adoption of robust anti-torture measures. Fortunately, several African countries have recognized this gap and enacted progressive legislation to close it, offering models for the continent. Uganda’s Prevention and Prohibition of Torture Act (PPTA) 2012 is a leading example. The PPTA explicitly expanded the
definition of torture to “include persons acting in a private capacity” as potential perpetrators. In other words, under Ugandan law it is a criminal offence for anyone – not just officials – to commit acts of torture, provided the other elements (intent to inflict severe pain for purposes like punishment, intimidation, discrimination, etc.) are met. Ugandan lawmakers realized that UNCAT’s definition was “too restrictive and limited to state actors,” and they chose a wider protection for their people. The law thus covers, for example, torture by a member of a rebel group or by a private prison guard, and it imposes penalties accordingly. It also obliges Ugandan authorities to prevent and investigate torture by non-state actors, reflecting the due diligence principle in domestic law. Uganda’s approach has been lauded as a best practice in Africa, demonstrating that there is nothing preventing States from going beyond the UNCAT baseline – indeed UNCAT’s Article 1 permits broader definitions. By removing the public-official limitation, Uganda’s law ensures no torturer can find refuge in a legal technicality. Nigeria’s Anti-Torture Act 2017 similarly does not restrict the perpetrator to state agents. The Act’s definition of torture closely follows UNCAT but pointedly omits any mention of the offender’s official capacity, effectively criminalizing torture by any person. Nigerian legal analysts note that the Act “gave a broader meaning to torture”, deliberately extending it to acts by non-state actors (which were not encompassed in prior law). This means that if, say, a member of Boko Haram or an armed band inflicts severe pain for purposes such as intimidation or coercion, they can be prosecuted for torture under Nigerian law. Such provisions are crucial in countries facing insurgencies or communal violence. Nigeria’s legislation also underscores that effective anti-torture laws require no “security exception” – in fact, Nigeria explicitly refused to pardon or amnesty torture even in its transitional justice measures (e.g., Zimbabwe’s Clemency Order excluded rapes and torture from amnesty, and Nigeria’s Act came amid counter-terrorism efforts). By criminalizing all acts of torture, Nigeria sent a message that national security or emergency conditions cannot be used as a pretext to tolerate torture. Other countries like South Africa and Kenya have likewise grappled with this issue. South Africa’s 2013 anti-torture law sticks to the UNCAT definition (limiting to public officials), but South African courts and commissions (such as the post-apartheid Truth and Reconciliation Commission) acknowledged torture by non-state actors, recommending reparations for all victims regardless of perpetrator. This shows a de facto understanding that harm is harm, whoever causes it, and the State must address it. Kenya provides a compelling example through jurisprudence. In a landmark High Court judgment in December 2020 (Coalition on Violence Against Women (COVAW) & Others v. Attorney General), Kenyan authorities were held liable for failure to prevent and investigate widespread post-election gang-rapes and sexual violence in 2007–08. The violence was perpetrated by mobs and militia (nonstate actors), yet the court found that Kenya’s failure to exercise due diligence to protect its citizens violated the constitutional rights to dignity, security, and freedom from torture and ill-treatment. The Court explicitly stated that the State has an obligation to protect individuals from torture and violence by private actors, and when it fails to do so, it bears responsibility for those acts. It awarded compensation to some survivors of rape by private perpetrators, reflecting the principle that the State’s omission made it complicit in torture. This judgment – the first of its kind in Kenya – operationalized at the national level what the ACHPR has long been saying: States must not hide behind the “lack of direct involvement” if they allowed torture to happen on their watch. Such court decisions can spur legislative change. Indeed, Kenyan civil society has advocated for amending laws to explicitly recognize torture by non-
state actors, to better implement this ruling and ensure accountability for future abuses. Experiences from Uganda, Nigeria, Kenya reveal good practices and opportunities for stronger legislation:  Broad Definitions: Clearly define torture to include acts by any individual, not only officials. This closes impunity gaps and aligns national law with ACHPR interpretations and the reality of conflicts where rebel groups commit torture.  No Safe Havens: Ensure no laws or decrees (like amnesties or immunities) excuse torture. National security should never be used as a shield to delay anti-torture laws – instead, security forces should be trained and held to high standards, as Uganda’s and Nigeria’s laws mandate. Notably, Nigeria’s Act came amidst counterinsurgency operations, yet the government recognized that outlawing torture strengthens legitimacy rather than weakening security.  Positive Duties: Write into law the State’s positive obligation to prevent, investigate, and punish torture by non-state actors. Uganda’s PPTA, for example, not only criminalizes private torture but also obliges authorities to act on it. This translates the African Charter’s Article 1 (duty to give effect to rights) into concrete national duties.  Support to Victims: Complement criminal laws with victimcentric measures – as seen in Kenya’s judgment ordering reparations and in DRC’s 2006 laws on sexual violence (cited by the ACHPR in 2014). National legislation should provide avenues for victims of torture (state or private) to seek redress, including through national human rights institutions or civil claims. III. Forward Challenges and the Way While progressive examples exist, persistent obstacles hinder the adoption and enforcement of comprehensive anti-torture laws. Political reluctance is a key issue: some governments are hesitant to widen the scope of torture laws, perhaps fearing accountability for both state agents and powerful non- state actors. In some cases, regimes invoke a “security exception” – arguing that strict anti-torture rules could impede security forces or that abuses by nonstate groups are beyond their control. Such arguments are false dichotomies. Respecting human rights and ensuring security are complementary, not contradictory. In fact, failing to criminalize torture by all actors undermines security, as it fosters cycles of violence and vigilantism. Another challenge is the lack of enforcement. Laws on paper don’t automatically change practice. Uganda, for instance, has had the PPTA for over a decade, but reports indicate torture (especially by police or in informal detention settings) persists, and prosecutions under the Act have been limited. This points to the need for continuous training, monitoring, and political will to enforce the laws – areas where National Human Rights Institutions (NHRIs) and civil society can play a vital role. Harmonization with regional standards is an area for improvement. The ACHPR’s upcoming Model Law on the Criminalization of Torture in Africa (mandated by Resolution 624 of 2025) offers a prime opportunity. The model law can encapsulate the expansive definition of torture (drawing from African precedents and erral Comment 4) and guide States to update their legislation. It should explicitly recommend including acts by private actors done with state acquiescence or which the state fails to prevent, as within the definition of torture – in line with ACHPR General Comment 4 and the due diligence principle. The model law can also address related issues: e.g., prohibit the use of “national emergency” or “orders from superiors” as defences for torture, and ensure penalties for torture reflect its gravity. Furthermore, NHRIs and NGOs have a critical promotional role: they have been instrumental in pushing for laws (Uganda’s
law was championed by NGOs and passed on June 26, the UN Day in Support of Torture Victims) and in litigating cases. Going forward, collaboration between the ACHPR, NHRIs, and NGOs can help identify gaps in each country’s laws and advocate for reforms. On the question, “Can effective legislation really transform practices?” – the answer is yes, but only if “effective” is understood holistically. Laws with clear, comprehensive definitions are the foundation for accountability. As one commentator observed, legislative clarity is essential for any meaningful and lasting transformation – it sets the stage by defining offenses, powers, and duties. When when laws change, they do lead to real impacts: Kenya’s court ruling on post-election rape has compelled the government to begin compensating victims and consider security sector reforms; Nigeria’s anti-torture act has raised awareness within its police force that torture is criminal (not “just bad practice”); Uganda’s law has provided a basis for NGOs to train officials and press for prosecutions. Continued reform includes ongoing training of security forces, independent monitoring (e.g., fully empowering NPMs – National Preventive Mechanisms – such as converting national human rights commissions into OPCAT-compliant bodies), and public awareness so that victims know their rights and feel safe to come forward. Across Africa, the momentum is building to strengthen national legislation against torture. ______________________ 3. The current situation of national legislation against torture in Africa: The Ethiopian Case. By: Alemneh Desalegn, Ashagire any single political system, regime, culture, religion or geographical location. Despite its prevalence, torture is considered as hostis humani generis The international communities have been taking different measures to eradicate and abolish the practice of torture as an unacceptable practice. Both international human rights laws and international humanitarian laws prohibit acts of torture against individuals protected by the respective laws. The 1948 Universal Declaration of Human Rights was the first international legal text to establish that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment Subsequently, the ban on torture has been codified in number of international and regional human rights treaties Except for UNCAT, none of these international human rights instruments clearly provides a definition for the term “torture” The prohibition of torture is absolute and has attained the status of jus cogens or become a peremptory norm and from which the international community cannot derogate States are also obligated to enact laws and prosecute act of torture Even if the provisions of UNCAT did not explicitly ban the grant of amnesty and pardon, international bodies’ decisions and interpretations of laws banning torture found that some States practice of amnesty and pardon is incompatible with the absolute prohibition of torture The Committee against Torture (CAT) clearly stated that; …Amnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment, or perpetrators of torture or ill-treatment violate the principle of non-derogability and no exceptional circumstances’ dictum of the Convention imposes an obligation to prosecute and punish the perpetrators, and that failure to satisfy this obligation violates the principle of non-derogation... Background The practice of torture has existed through all periods of history and is not confined to HRC also under its GC No. 20 indicates that the crime of torture is not subject to amnesty as it is not compatible with the duty of the
State to prosecute torture as a crime. Improper Criminalization and Prosecution of torture in Ethiopia promotes impunity The Federal Democratic Republic of Ethiopia (FDRE) Constitution prohibits cruel, degrading and the scope of prohibition of torture is not properly addressed by the criminal code.17 However, the committee did not clarify the extent to which the criminal code failed to mirror the international definition. Article 424 (1) “use of improper method” is defined as Any public servant charged with the arrest, custody, supervision, escort or interrogation of a person who is under suspicion, under arrest, summoned to appear before a court of justice, detained or serving sentence, who, in the performance of his duties, improperly induces or gives a promise, threatens or treats the person concerned in an improper or brutal manner, or in a manner which is incompatible with human dignity or his office, especially by the use of blows, cruelty or physical or mental torture, be it to obtain a statement or a confession, or to any other similar end, or to makes him give a testimony in a favorable manner is punishable with simple imprisonment or fine, or in serious cases, with rigorous imprisonment not exceeding ten years and fine. The criminal code did not provide any threshold (severity) to distinguish what makes torture different from other acts like cruelty and brutality. The code implicitly requires torture to be committed with intention but not negligently. Article 424 provides list of purposes to be achieved by using improper investigation methods such as ‘obtain a statement or a confession, or to any other similar end, or…to make him give a testimony in a favorable manner…’ Even if the lists are not exhaustive, the lists do not lead to the conclusion that the purpose of discrimination on any ground, punishment for an act he or a third person has committed or is suspected of having committed can be included by interpretation. Lastly, in Ethiopia, article 424 limits the commission of torture only by a public servant as use of improper method and excludes torture by non-state actors. Even state officials who do not have the power to arrest, custody, supervision, escort or interrogation of a person, but commit acts involving torture are not liable under article 424. The lack of a proper definition of torture and the lack of separate criminalization of acts involving torture hindered the prosecution of crimes of torture. The practice of the prosecution shows18 that acts amount to torture have been and are being prosecuted under provisions governing corruption (abuse of power-article 407), use of improper methods (article 424) and grave willful injury (article 555). Besides, existing laws that govern the grant of amnesty, pardon and provision of statute of limitation do not exempt torture, implicating no exception for torture perpetrators. To conclude, the lack of separate anti-torture laws in the country hinders the prosecution of acts involving torture under international laws. Criminalizing torture as subsumed crimes also created a condition of impunity through pardon, amnesty and statute of limitation. The lack of a separate anti-torture provision under the criminal code renders the constitutional prohibition of pardon, amnesty, and period of limitation inapplicable. The Ethiopian government should adopt an anti torture law to strengthen prevention and accountability for the crime of torture. other forms of inhuman treatment or punishment. Although the Constitution does not explicitly use the term torture in its formulation, the government of Ethiopia stated, under the periodic report it submitted to the human rights committee, that “there could be no doubt that the practice is altogether banned within the extended meaning of the broad prohibition of cruel or inhumane and degrading treatment or acts.” In addition, the constitution also places torture on the list of crimes against humanity whose prosecution cannot be barred by a statute of limitation and whose penalties cannot be commuted either by pardon or
amnesty by any state organ, including the legislature. Besides, Ethiopia is party to different international human rights and other international laws against torture including, the UNCAT and ICCPR. As per Article 9/4 of the FDRE Constitution, they become an integral part of the law of the land upon ratification. Thus, Ethiopia bears the obligation to criminalize and punish or prosecute torture as a serious crime under its domestic legal system. However, the national criminal law criminalized torture as “war crimes” and “use of improper method.” Although the criminal code does not provide a definition for torture, the elements of torture can be inferred as it criminalizes torture as underlying offence under crimes of use of improper methods and has been criticized for being narrow in its scope in light of international laws. The UNCAT, in considering the report made by the government of Ethiopia comments that the term torture and its notion are not directly incorporated as per the provision of UNCAT, and the scope of prohibition of torture is not properly addressed by the criminal code.17 However, the committee did not clarify the extent to which the criminal code failed to mirror the international definition. Article 424 “use of improper method” is defined as Any public servant charged with the arrest, custody, supervision, escort or interrogation of a person who is under suspicion, under arrest, summoned to appear before a court of justice, detained or serving sentence, who, in the performance of his duties, improperly induces or gives a promise, threatens or treats the person concerned in an improper or brutal manner, or in a manner which is incompatible with human dignity or his office, especially by the use of blows, cruelty or physical or mental torture, be it to obtain a statement or a confession, or to any other similar end, or to makes him give a testimony in a favorable manner is punishable with simple imprisonment or fine, or in serious cases, with rigorous imprisonment not exceeding ten years and fine. The criminal code did not provide any threshold (severity) to distinguish what makes torture different from other acts like cruelty and brutality. The code implicitly requires torture to be committed with intention but not negligently. Article 424 provides list of purposes to be achieved by using improper investigation methods such as ‘obtain a statement or a confession, or to any other similar end, or…to make him give a testimony in a favorable manner…’ Even if the lists are not exhaustive, the lists do not lead to the conclusion that the purpose of discrimination on any ground, punishment for an act he or a third person has committed or is suspected of having committed can be included by interpretation. Lastly, in Ethiopia, article 424 limits the commission of torture only by a public servant as use of improper method and excludes torture by non-state actors. Even state officials who do not have the power to arrest, custody, supervision, escort or interrogation of a person, but commit acts involving torture are not liable under article 424. The lack of a proper definition of torture and the lack of separate criminalization of acts involving torture hindered the prosecution of crimes of torture. The practice of the prosecution shows18 that acts amount to torture have been and are being prosecuted under provisions governing corruption (abuse of power-article 407), use of improper methods (article 424) and grave willful injury (article 555). Besides, existing laws that govern the grant of amnesty, pardon and provision of statute of limitation do not exempt torture, implicating no exception for torture perpetrators. To conclude, the lack of separate anti-torture laws in the country hinders the prosecution of acts involving torture under international laws. Criminalizing torture as subsumed crimes also created a condition of impunity through
pardon, amnesty and statute of limitation. The lack of a separate anti-torture provision under the criminal code renders the constitutional prohibition of pardon, amnesty, and period of limitation inapplicable. The Ethiopian government should adopt an anti torture law to strengthen prevention and accountability for the crime of torture. ______________________ 4. Prevention of torture in Kenya : Still a mirage by: Bilhah Ikani Omulama. Human Rights Officer at the Kenya National Commission on Human Rights, Advocate of the High Court of Kenya, LLB JKUAT school of Law, Post-graduate Diploma in lawKenya School of Law, LLM in International Human Rights Law and Public Policy-University College Cork-Ireland. INTRODUCTION Prevention of torture remains one of the fundamental aspects in access to justice, not only in Kenya but all over the world. The Convention Against Torture, and other Cruel, Inhuman or degrading treatment or punishment of 1984 (CAT), alongside the International Convention on Civil and Political Rights of 1976, lay a foundation for the prevention of torture in many jurisdictions worldwide. Nevertheless, the actual implementation of these laws remains a challenge for many nations, including Kenya. National Human Rights Institutions (NHRI) play a crucial role in legislative reforms. There are increasing numbers of survivors of torture in Kenya as a result of various reasons including but are not limited to Sexual and Gender Based Violence, as well as police and military brutality. As such, this article aims at analysing Kenya’s national legislation against torture, the existing justice and reparations for victims of torture in Kenya as well as the role of the Kenya National Commission on Human Rights (KNCHR) as an NHRI in promoting legislative reforms in Kenya. PREVENTION OF TORTURE ACT, 2017 CAP 88 LAWS OF KENYA The Prevention of Torture Act (POTA) gives effect to Article 25 (a) and 29 (d) of the Constitution of Kenya 2010 (CoK) and the principles of the CAT, provides for the prevention, prohibition, and punishment of acts of torture, and cruel, inhuman or degrading treatment or punishment; reparation to victims of torture, and cruel, inhuman or degrading treatment or punishment and for connected purposes. It defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. It goes further to outline the purposes of such deliberate pain infliction, which include: obtaining information or a confession from a person, punishing a person for an act they or any other person has committed or is planning to commit, intimidating or coercing a person to do or to refrain from doing anything or for any other reason based on discrimination of any kind. Interestingly, the POTA only envisages acts of torture committed by or on behalf of a public officer, which creates a lacuna for acts of torture committed by non-public officers. POTA criminalizes the offence of torture, and upon conviction, the offender is liable to imprisonment for a term not exceeding twenty years. In the event a victim dies as a result of torture, upon conviction, the offender is liable to imprisonment for life. The provision is applauded because it’s a punitive and deterrent component. However, when it comes to implementation, in practice, the alleged accused persons are always charged with assault or assault causing grievous bodily harm in accordance with the Penal Code, Cap 63 Laws of Kenya.
It is worth noting that POTA provides for no justification for torture, including circumstances of a state of war or a threat of war, internal political instability, public emergency or following of superior orders. It goes further to provide for offences relating to cruel, inhuman or degrading treatment or punishment, aiding and abetting offences under POTA, and the use of information obtained through torture. THE ROLE OF THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS IN PROMOTING LEGISLATIVE REFORMS IN KENYA As an NHRI, KNCHR has been granted broad powers under the POTA. They include: investigate alleged violations under POTA either upon receipt of a complaint or suo moto, promote the right to freedom from torture and cruel, inhuman and degrading treatment and punishment pursuant to the provisions of CoK and POTA, call for information from any private or public body to facilitate monitoring of compliance with the provisions of POTA, monitor State compliance with the relevant international treaty obligations, issue summons requiring attendance of any person before it or production of any document or record, recommend effective measures for prevention of torture, create public awareness of the protection of the rights under POTA, advise the government on matters relating to preventing of offences under POTA and liaise with public agencies to ensure implementation of POTA. That notwithstanding, eight years after the enactment of POTA, KNCHR has been unable to implement these powers and functions due to underfunding by the Government of Kenya (GoK). Better still, Kenya has not ratified the Optional Protocol to the CAT, which obligates State Parties to establish a National Preventive Mechanism (NPM) to prevent torture, and other cruel, inhuman or degrading treatment or punishment for people deprived of liberty. Even with that, the Persons Deprived of Liberty Act designates the KNCHR as one of the offices to which a person deprived of liberty may lodge a formal complaint. Despite the lack of clear legal provisions, commendably, the KNCHR rides on its functions of monitoring, investigating, and reporting on the observance of human rights in all spheres of life in the Republic to conduct detention facilities monitoring and audit to ensure the rights under POTA are adhered to, subject to the availability of resources. CURRENT JUSTICE AND REPARATIONS FOR VICTIMS OF TORTURE POTA empowers the victims of acts of torture to seek redress in the form of adequate reparations, including restitution, adequate compensation, rehabilitation, and, in the event of the death of such a victim, the dependants are also entitled to reparations. Upon conviction of an offence under POTA, the Court may, on its own motion or on the application of the victim, order the person to make restitution or compensate the victim for the cost of psychological treatment and any other relief that it may consider just. At any time during the trial process, a victim may request the Court to grant an order for their treatment and counselling. The costs of such treatment shall be catered for under the Victim Protection Trust Fund (the fund) and all the medical records shall be used as evidence before the Court regarding the offence charged under POTA upon obtaining consent from the victim. Notably, the fund is administered by the board referred to as the Victim Protection Board (VPB), which is an unincorporated body. The functions of the board include advising the Cabinet Secretary on various matters relating to protection of victims of crime including but not limited to: formulation of a comprehensive and integrated program to protect the victims of crime,
coordination of activities relating to the protection of the victims of crime, development of mechanisms to ensure timely, coordinated and effective response to cases of victim protection, compilation and documentation of desegregated data annually of victims of crime for the purposes of policy formulation and program direction and measures to reduce the victimization in the justice system. It is worth noting that the board, as it is lacks a legal capacity and autonomy; it cannot sue or be sued. It lacks a separate legal identity or political subdivision. Also, KNCHR is not a member of the board despite its critical role under POTA. Subsequent regulations under the Victim Protection Act (VPA) are yet to come into force. All these challenges cripple access to justice for the victims of torture. CONCLUSION The importance of promoting and protecting the rights under POTA cannot be overemphasized. KNCHR, as an NHRI, plays a pivotal role in safeguarding these rights and as such, its mandate should not be underestimated. The nexus between provisions of POTA and the VPA is inevitable. The milestones achieved so far by the board cannot be underrated despite the various challenges that it is facing, which include, but are not limited to, the lack of a consolidated database for victims of crime, inadequate finances and inadequate public awareness about the VPA. RECOMMENDATIONS The following proposals, if implemented, can be a step forward in ensuring deliberate prevention of torture as well as ensuring access to justice for victims of torture: Adequate funding of the KNCHR and the board to enable them efficiently execute their respective mandates. Urgent ratification of the OPCAT to pave the way for the designation of the KNCHR as an NPM to protect persons deprived of liberty from torture. An amendment of the VPA to include the KNCHR into the membership of the board owing to its critical role under POTA and the Persons Deprived of Liberty Act, as discussed above. The board should also be accorded a legal status to guarantee its autonomy. The proposed regulations under the VPA should also come into force to fully operationalize the VPA to strengthen the victims of torture protection services. ____________________________ 5. Human Rights Officer at the Kenya National Commission on Human Rights, Advocate of the High Court of Kenya, LLB JKUAT school of Law, Postgraduate Diploma in law-Kenya School of Law, LLM in International Human Rights Law and Public Policy-University College Cork-Ireland. By: Nyachangkuoth TaiIndependent Researcher, Gender and Peacebuilding Expert Introduction The prohibition of torture is a jus cogens (peremptory) norm of international law, enshrined in the United Nations Convention against Torture (UNCAT) and the African Charter on Human and Peoples’ Rights. Despite the widespread ratification of these treaties across Africa, many countries face difficulties translating these commitments into effective domestic laws, allowing impunity for torture and other inhumane treatments to persist. To address these issues, the African Commission on Human and Peoples’ Rights (ACHPR), through Resolution ACHPR/Res.624 (LXXXII) 2025, tasked the Committee for the Prevention of Torture in Africa (CPTA) with creating a model law to assist states in
criminalizing and preventing torture at the national level. South Sudan exemplifies the challenges of implementing anti-torture laws in fragile states. Since gaining independence in 2011, it has suffered from ongoing political instability, militarized rule, and human rights violations, including frequent reports of torture by security forces. Although South Sudan has ratified critical human rights treaties, such as the UNCAT, fully integrating these obligations into domestic law remains incomplete. Similar challenges are evident in other conflictaffected African countries such as the Democratic Republic of the Congo (DRC) and Nigeria, where legal deficiencies, weak institutions, and political impunity hinder anti-torture efforts. This article analyzes South Sudan’s legal structure, explores enforcement obstacles, and draws lessons from other African experiences to suggest practical strategies aligned with the CPTA’s 2025 focus. The Current Status of Anti-Torture Legislation in South Sudan: While South Sudan has formally committed to international human rights norms, including ratification of the Convention against Torture, the absence of a comprehensive domestic law criminalizing torture remains a significant gap. Provisions in the Penal Code vaguely classify acts of torture under general assault or abuse, which dilutes accountability and limits the scope for prosecutions. The UN Human Rights Council’s 2024 report on South Sudan underscores that security institutions frequently act with impunity, with little to no independent oversight of detention facilities. This situation is comparable to that in the DRC, where torture, although criminalized under domestic law, is rarely prosecuted due to weak judicial systems and political interference. Similarly, in Nigeria, antitorture legislation adopted in 2017 suffers from poor enforcement, with documented cases of torture by security forces continuing unabated due to systemic corruption and limited monitoring mechanisms. In South Sudan, weak judicial independence further undermines legal protections. Victims of torture rarely pursue legal redress due to fear of reprisals and lack of access to legal aid. Military courts dominate adjudication of security-related offences, often prioritizing discipline within the armed forces over accountability to victims. Challenges in Enforcing Anti-Torture Laws Lack of Political Will: Militarized Governance and Security Exceptions: The absence of a political commitment is the foremost obstacle to anti-torture reforms in South Sudan. As one female peace activist in Juba explained, “Government officials sign agreements to please donors, but there is no monitoring or accountability.” This reflects a broader continental trend in which the ratification of international conventions is often symbolic, with little domestic followup. In conflict-affected contexts, security agencies frequently invoke the “state of emergency” to justify arbitrary arrests, incommunicado detention, and torture. This weaponization of the security exception has been observed in South Sudan and in countries such as Sudan and Cameroon, where emergency powers are used to suppress political dissent rather than protect public safety. Patriarchal and Militarized Structures: Patriarchal governance structures exacerbate the marginalization of women human rights defenders, many of whom face harassment and intimidation when advocating for victims of torture. Grassroots women in Wau reported threats for documenting torture cases, a challenge compounded by limited technical knowledge of legal processes. Opportunities and Good Practices: Leveraging Peace Agreements and Gender Reforms - The Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) includes provisions that can be leveraged to advocate for human rights reforms. The 35% affirmative action quota for women’s participation provides an entry
point for promoting gender-sensitive monitoring and legal reforms. Civil Society Engagement and Regional Best Practices frameworks: Civil society coalitions, including the South Sudan Women’s Coalition, have played a key role in documenting torture cases and engaging with international human rights organizations. These groups reflect successful models in Liberia and Sierra Leone, where grassroots documentation has played a vital role in shaping transitional justice. Comparative experiences in Africa provide valuable lessons. Côte d'Ivoire’s accession to the Second Optional Protocol to the ICCPR and Gabon’s establishment of a National Human Rights Commission as a National Preventive Mechanism (NPM) demonstrate that robust domestic oversight bodies can significantly reduce torture by enhancing transparency and accountability. 5. Regional and International Collaboration: South Sudan should collaborate with the African Commission on Human and Peoples’ Rights and peer states to share good practices. Conclusion The prevention of torture in conflict-affected states like South Sudan demands more than symbolic commitments. It requires enforceable legislation, institutional reforms, and inclusive civic engagement. Aligning reforms with the Women, Peace, and Security (WPS) agenda and CPTA’s model law initiative offers a pathway to dismantle impunity and strengthen the rule of law. References 1. UN Human Rights Council. (2024). Report of the Commission on Human Rights in South Sudan. Recommendations 1. Adopt Comprehensive Anti-Torture Legislation: South Sudan should domesticate UNCAT by amending the Penal Code to criminalize torture with clear definitions and penalties explicitly. 2. African Commission on Human and Peoples’ Rights (ACHPR). (2025). Resolution ACHPR/Res.624 (LXXXII) on the Prevention of Torture in Africa. 3. Intergovernmental Authority on Development (IGAD). (2018). Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan. 2. Establish a National Preventive Mechanism (NPM): A legally empowered, independent NPM, as recommended by the CPTA, should be established to monitor detention facilities. 3. Capacity Building for Judiciary and Security Forces: Training law enforcement officers, judges, and prosecutors in international human rights standards should be prioritized. 4. Grassroots Inclusion and Civic Education: Women’s groups and community leaders should be actively involved in advocacy and civic education to raise awareness and reduce impunity. 4. UN Women. (2021). Women in Peace Agreements Database. New York: UN Women. _________________________ 6. National legislation to prevent torture: experiences and perspectives’ By: Kenya National Commission on Human Rights A. INTRODUCTION 1. The Kenya National Commission on
Human Rights (“KNCHR” or “the Commission”), established under Article 59 of the Constitution of Kenya and the Kenya National Commission on Human Rights Act, 2011, welcomes this opportunity to contribute to the CPTA Newsletter 2025 on the theme “National Legislation to Prevent Torture: Experiences and Perspectives.” The KNCHR is mandated to promote, monitor, and protect all human rights, with a particular commitment to vulnerable and marginalized groups, including persons deprived of liberty. 2. The operations of the Commission are guided by the United Nations Paris Principles on the establishment and functioning of independent national human rights institutions - commonly referred to as the Paris Principles - and as such enjoys an “A” status accreditation by the Global Alliance of National Human Rights Institutions. At the continental level, the Commission enjoys affiliate status with the African Commission on Human and Peoples’ Rights. 3. The enactment of national legislation to prevent torture is both a promise and a challenge for the protection of human rights in Africa. While Kenya’s legal instruments provide a strong framework to prohibit and punish torture, persistent gaps in implementation, enforcement, and victim rehabilitation highlight the need for a holistic Human Rights-Based Approach. Centering the PANEL principles, Participation, Accountability, Nondiscrimination, Empowerment, and Legality, is essential to ensure that national legislation effectively prevents torture and guarantees justice for Victims. B. KENYA’S LEGISLATIVE FRAMEWORK ON THE PREVENTION OF TORTURE 4. Kenya’s legal framework provides a strong foundation for the prevention of torture. Article 25(a) of the Constitution enshrines freedom from torture and cruel, inhuman, or degrading treatment as an absolute and non-derogable right. This constitutional safeguard was reinforced by the enactment of the Prevention of Torture Act, 2017, which aligns Kenya’s domestic law with the UN Convention against Torture (UNCAT)1 and the Robben Island Guidelines.2 5. The Prevention of Torture Act, 2017 notably provides a definition of torture consistent with international law, criminalizes torture, prescribing penalties for perpetrators and establishes the individual liability of public officials and superior officers. Other complementary statutes, such as the National Police Service Act, 2011 and the National Coroners Service Act, 2017, support accountability and oversight. 6. Further, in Kenya, oversight on matters relating to torture is carried out by several independent bodies. The KNCHR is the lead institution mandated to monitor, investigate, and report on torture and ill-treatment, including through inspection of detention facilities. The Independent Policing Oversight Authority investigates complaints of police misconduct, including torture by law enforcement officers, while the Internal Affairs Unit of the National Police Service handles complaints from within the service, though its independence is more limited. The Judiciary provides a check through habeas corpus, constitutional petitions, and human rights litigation, while the Parliamentary Committee on Justice and Legal Affairs conducts legislative oversight on compliance with human rights standards. C. AREAS OF IMPROVEMENT AND RECOMMENDATION 7. Despite these positive steps, challenges remain in bridging the gap between legislative commitments and practical implementation. KNCHR has consistently observed weak enforcement of anti-torture provisions, delays in the investigation and
prosecution of cases, and limited availability of psychosocial and medical support services for victims. 8. Further, while Kenya has ratified the UN Convention against Torture, it has yet to ratify its Optional Protocol (OPCAT),3 which would establish a National Preventive Mechanism and strengthen oversight through independent monitoring of places of detention. Ratification and full domestication of OPCAT remain critical to ensuring that national laws are not only robust on paper but effective in practice. 9. Looking forward, Kenya needs to build on the progress already made by combining practical reforms with new ways of addressing torture. It is not enough to train officers; there should also be stronger safeguards in how policing and justice systems are managed, including the use of technology to improve transparency and accountability. 10. The government should dedicate clear budget lines to support survivors of torture, provide rehabilitation services, and strengthen oversight institutions. Communities and civil society should also be more actively involved in monitoring detention facilities and supporting victims, since they are often the first to notice abuses. The courts, for their part, can play a bigger role by issuing firm and ongoing orders that push institutions to make real changes rather than leaving reforms to chance. D. CONCLUSION 11. In summary, Kenya’s experience shows that while having strong laws is important, laws alone are not enough. What is needed is proper enforcement, adequate resources, stronger oversight, and greater involvement of communities. 12. Ratifying the Optional Protocol to the UN Convention against Torture would also be a critical step, as it would give Kenya stronger international backing and practical tools for preventing abuse in detention. 13. The KNCHR remains committed to working with government, regional bodies, and international partners to ensure that torture is not just outlawed on paper but is completely eliminated in practice. _______________ 7. HARMONISATION OF NATIONAL LEGISLATION WITH AFRICAN AND INTERNATIONAL NORMS: the case of Central African States By: Sylvie MANKENTSOP, Magistrate, Ministry of Justice, Cameroon In national contexts marked by multifaceted crises or conflicts, the temptation to resort to torture under various pressures remains pervasive. Central Africa is no exception to this empirical reality, whether in Cameroon, the Republic of Congo, Gabon, the Central African Republic, or Chad. Indeed, torture continues to constitute one of the most serious violations of fundamental human rights and human dignity. Fully aware of the gravity of torture and its affront to the shared values of the international community, States have designated it as an international crime, even though it remains justiciable under national jurisdictions. Torture lies at the intersection of international law and domestic law. Indeed, international law establishes the absolute prohibition of torture while assigning States the responsibility to combat it. Beyond general human rights treaties, the prohibition of torture is also anchored in specific treaties, the most emblematic of which is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984. The Convention, whose provisions have been reaffirmed and reinforced regionally through the Robben Island Guidelines, imposes obligations on States to harmonize national legislation with African and international norms on torture in order to build a barrier against impunity, as well as to facilitate
prosecutions and interstate cooperation. In this regard, beyond a conventional definition of torture that has acquired customary status, the Convention requires States to criminalize torture in their domestic legal frameworks. The constitutional system of States, whether monist or dualist, does not significantly affect this obligation of harmonization, insofar as it is an indirect obligation. The aim is to create convergence in national legislation regarding the definition and criminalization of torture, enabling each State’s criminal law to effectively prosecute and adjudicate acts of torture while avoiding disparities that could create obstacles to prosecutions and international cooperation. The ultimate aim is to uphold the purpose of the treaty and prevent the emergence of criminal havens resulting from minimalistic definitions. Focusing on the harmonization of national legislation within the geographical scope of Central Africa, have States such as Cameroon, the Republic of Congo, Gabon, the Central African Republic, and Chad, all parties to the Convention against Torture, complied with the obligation to harmonize their national laws with the relevant norms? Alternatively, have they fulfilled the obligation to take domestic measures to adapt national criminal law to punish torture, in accordance with the general obligation to execute international commitments in good faith. With regard to criminal matters, this harmonization will be assessed not in terms of the two poles of criminal law, but rather through the prism of fulfilling the obligation to define torture in domestic law (I) as well as to criminalize torture and make it a separate offence (II). I. Harmonization of the Definition of Torture in National Legislation in Central Africa The harmonization of the definition of torture in national legislation is a critical issue, given the tendency to equate torture with mere acts of violence or barbarity, or even cruel, inhuman, or degrading treatment, thereby a serious violation of human dignity. A quick assessment of the national legislation of Central African States reveals discrepancies in the definition of torture, as the same dynamic has not been observed in the integration of the definition of this offence into domestic law. Two trends emerge in this regard within the national legislation under review in Central Africa. The first trend concerns States that have adopted, stricto sensu, the definition provided in Article 1 of the Convention while adding contextual elements, whereas the second trend involves States that have removed certain elements from it. The first category includes Cameroon and Chad, which, having preferred to adapt the definition of torture by incorporation or adaptation by reference, added elements to those contained in Article 1 of the Convention against Torture. Thus, Article 277-3, paragraph 3, of the Cameroonian Penal Code stipulates that the term "torture" refers to "any act by which pain or suffering, either physical, mental or psychological, is intentionally inflicted on a person by a public servant, a traditional leader or any other person acting in the course of duties either at his own instigation or with express or implied consent, in order to obtain information or confessions from that person or from another, to punish her for an act that she or any other person has committed or is presumed to have committed, to intimidate or overawe her or any other person, or for any other motive based on any discrimination. The term torture as so defined does not apply to pain or suffering resulting from legitimate punishments, inherent to or caused by them". Article 323 of the Chadian Penal Code reproduces this definition verbatim. Both Cameroon and Chad have thus extended the scope of perpetrators of torture to include traditional authorities, who in these contexts are considered auxiliaries of the administration with the corresponding privileges. However, this extension does not cover non-state actors or private individuals acting as such, even though recent developments in international humanitarian law support such an extension.
In the second category, a minimalist definition of torture is noted, raising doubts about its conformity with the definition provided by the Convention and its ability to enable the State to fulfill its obligations. This is the case with Article 224 of the Gabonese Penal Code, which stipulates that: "establishes that torture or barbarism involves the commission of one or more inhuman or degrading acts of exceptional seriousness that amount to more than mere violence, cause severe pain or suffering to the victim and are motivated by the desire to deny the victim his or her human dignity." This definition omits the purpose behind the infliction of pain or suffering and fails to specify the status of the persons involved in committing such acts. The is also the case with Article 118 of the CAR Penal Code, which criminalizes torture without adapting the definition of this offence, stipulating that "the act of subjecting a person to torture, cruel, inhuman, or degrading treatment, or acts of barbarity is punishable by a term of hard labor ". Moreover, this article makes no distinction between torture and cruel, inhuman, or degrading treatment, thereby overlooking the gradation in severity that exists between the two concepts. This criminalization lacks the constituent elements and the criteria of precision, accessibility, and predictability that characterize the principle of legality of offences and penalties, which should accompany the criminalization of torture in domestic law. II. Harmonization through the Criminalization of Torture as a Distinct Offence under National Legislation The general principle prohibiting torture, which has been elevated to the status of a jus cogens norm, obliges States to establish it as a criminal offence under their national legislation. Harmonization is all the more justified given that the norms of the Convention against Torture cannot directly serve as a legal basis for prosecution under domestic law, thereby rendering it an indirect criminalization that requires transposition into domestic law. Indeed, Article 4 of the Robben Island Guidelines stipulates that "States should ensure that acts, which fall within the definition of torture, based on Article 1 of the UN Convention against Torture, are offences within their national legal systems." Apart from the general prohibition of torture enshrined in the constitutional texts, it should be noted that Cameroon, Gabon, the Central African Republic, and Chad, with the exception of the Republic of the Congo, have complied with the obligation to incorporate the offence of torture into their national criminal legislation, thereby providing it with the necessary legal tools to prosecute perpetrators of acts of torture. In this regard, the general trend observed is the criminalization of torture within the Penal Code, rather than through the adoption of a specific legislative instrument. The choice of the Penal Code as the vehicle for such incorporation does not allow States to integrate the comprehensive framework required for the prevention and prosecution of acts of torture. With regard to the Republic of the Congo, although the Congolese Constitution prohibits torture, there is nonetheless no criminalization of torture within the national penal framework or in any other criminal legislation. Under these circumstances, the courts resort to borrowed classifications, which do not carry the same symbolic weight with respect to the protected value of human dignity. In other words, the absence of an autonomous definition of the offence of torture contributes to trivializing a serious violation of human dignity, which is likely to foster impunity, just as would a deficient definition of the offence. ******* The harmonization of national legislations against torture with international norms in Central Africa cannot be deemed satisfactory unless all States align themselves with this initiative, thereby
preventing legal vacuums or safe havens that foster impunity for perpetrators of torture./__________________________ 8. The Anti-Torture Act 2017: Gauging its Impact on the Effective Reduction of Torture in Nigeria Umulkuruthum Oyiza Dauda [Legend Golden Care Foundation] Introduction Prior to the enactment of the Anti-Torture Act in 2017, Nigeria’s legal framework provided only fragmented and insufficient protection against torture. The Section 34 of the 1999 Constitution prohibits torture and other inhuman or degrading treatment, it did not establish torture as a distinct criminal offense, nor did it prescribe specific penalties or enforcement mechanisms1. The enactment of the AntiTorture Act, 2017 marked a monumental legislative victory in Nigeria’s human rights journey. For the first time, torture was defined as a distinct criminal offence under national law, in compliance with Nigeria’s obligations under the UN Convention Against Torture (UNCAT), which it ratified in 2001. The law criminalized torture whether physical or mental, mandates accountability for perpetrators, prohibited its justification under any circumstance, and outlined the responsibilities of law enforcement agents and the rights of victims2. Yet, despite its groundbreaking nature, more than seven years after its passage, the implementation of the Anti-Torture Act, 2017 remains fraught with structural, institutional, and cultural challenges. This article evaluates the extent to which the Act has effectively contributed to reducing torture in Nigeria. Overview of the Anti-Torture Act, 2017 The Anti-Torture Act, 2017 offers a comprehensive definition of torture3 aligned with UNCAT, encompassing both physical and psychological suffering inflicted intentionally for purposes such as extracting information, punishment, intimidation, or discrimination, particularly by public officials. It criminalizes torture as a distinct offense, prescribing up to 25 years imprisonment for grievous harm and life imprisonment if it results in death (Section 8). The Act emphasizes that no circumstance, including war or public emergency, can justify torture. It also ensures that confessions obtained through torture are inadmissible in court, and affirms victims' rights to complain, access medical examination, and seek compensation. These are major advancements in Nigeria's human rights architecture, which has long suffered from the normalization of torture in policing and detention practices. Implementation Challenges and Institutional Practices Despite the Anti-Torture Act, 2017 clarity and comprehensive nature, its enforcement has been inconsistent and slow. The Nigerian legal and security environment is still plagued by deep-seated institutional cultures that rely on coercion, forced confessions, and extrajudicial methods as tools for law enforcement. Most concerning is the continued use of torture by security agencies. A major driver of this abuse is the systemic overreliance on confession-based investigations. Due to poor forensic capacity and lack of modern investigative tools, law enforcement personnel frequently resort to torture to obtain confessions, often as a shortcut to secure convictions or meet performance expectations. This culture of impunity is reinforced by limited training, weak supervision, and a reward system that values results over rights. Political will to implement the Act meaningfully is also lacking. While the law was enacted in 2017, essential measures such as training for personnel, funding for enforcement, and development of victim support services have received minimal state investment. The failure to issue the subsidiary regulations required by Section 12 of the Act further undermines its
operationalization. Prosecutions under the Act remain extremely rare, with no known convictions under its provisions, despite widespread incidents of torture. Corruption within the law enforcement system compounds the problem. Illegal bail practices, manipulation of evidence, and bribery within law enforcement obstruct access to justice and deter victims from coming forward. As noted by Human Rights Watch and Amnesty International, even when victims report abuse, investigations are often delayed or derailed. Oversight mechanisms are weak and underresourced. While the National Human Rights Commission (NHRC) is designated as Nigeria’s National Preventive Mechanism (NPM), it faces challenges such as limited independence, insufficient funding, and restricted access to detention facilities. Its recommendations are often ignored, and human rights desks established in some police stations have not significantly curbed torture, especially since they are unavailable nationwide. Barriers to Justice for Victims Although, Section 4 of the Anti-Torture Act, 2017 affirms the right of victims to redress, including compensation and rehabilitation, practical mechanisms to access these remedies remain virtually non-existent. Survivors of torture face numerous barriers: a lack of legal representation, fear of reprisal, the unavailability of witness protection, and distrust of the judiciary. Even where civil society organizations provide legal support, the long and expensive process of litigation deters most victims. Court orders are often ignored or delayed in execution, compounding the trauma already suffered. Rehabilitation services, psychosocial support, medical assistance, and reintegration programs are virtually nonexistent within state institutions, and survivors must often rely on NGOs and community-based initiatives to rebuild their lives. Progress and Opportunities for Reform While the implementation of the AntiTorture Act, 2017 has been far from ideal, there are emerging signs of progress and key opportunities for reform that offer hope for reversing the trend of impunity. Civil society organizations continue to play a vital role in bridging the enforcement gap. In 2024, Legend Golden Care Foundation (LGCF)4, a Nigeria-based Non governmental organization working on access to justice, human rights, and legal reform, in collaboration with key stakeholders developed and sponsored the Anti-Torture Act (Amendment) Bill. The bill, which has successfully passed its first reading in the legislature, aims to strengthen the AntiTorture Act and harmonize national practice with international standards. Through strategic litigation, public advocacy, and community sensitization campaigns, these organizations have brought increased visibility to torture-related abuses and empowered victims to seek redress. Their efforts have also helped keep torture prevention on the public and policy agenda, pushing for greater accountability from law enforcement agencies. In addition, the National Human Rights Commission (NHRC), despite institutional limitations, has taken steps to investigate torture complaints, publish public reports, and make recommendations to authorities. In a few cases, courts have awarded compensation to victims of torture, signaling a willingness though still limited on the part of the judiciary to apply human rights standards. Reform-minded initiatives within the Nigeria Police Force, such as the establishment of Human Rights Desks in some commands and ongoing dialogues on police reform, reflect a growing internal acknowledgment of the need to modernize policing practices. While these efforts are still nascent and unevenly implemented, they provide a foundation for broader systemic change. To truly unlock the potential of the Anti-Torture Act, Nigeria
must take bold steps forward. These include: - Issuing subsidiary regulations under Section 12 of the Act to operationalize its provisions and clarify institutional roles and responsibilities. - Enhancing investigative capacity through the adoption of modern forensic techniques and phasing out dependence on confessionbased policing. - Strengthening institutional accountability through independent oversight bodies, internal disciplinary reforms, and public complaint systems. - Implementing comprehensive, recurring, and mandatory training on the Anti-Torture Act, UNCAT standards, non-coercive interrogation techniques, and detainee rights for all law enforcement and judicial personnel. This training should be embedded in institutional curricula and linked to career progression and promotions. - Establish a well-funded, accessible, and holistic survivor-centered support services, including access to legal aid, medical rehabilitation, and psychosocial support, as a core component of its obligations under the Anti-Torture Act, 2017. - Establish a centralized national database to track torture allegations, investigations, prosecutions, and convictions. Regular public reporting will enhance transparency, support policy development, and measure the effectiveness of anti-torture efforts over time. - Ensure the enforcement of judicial decisions to build public trust and reaffirm the rule of law. - Promote public awareness and civic engagement to inform citizens of their rights under the Anti-Torture Act, promote zero tolerance for torture, and encourage reporting. Community engagement is essential to breaking the culture of silence and empowering victims and witnesses to come forward. ______________________________ 9. Why Zimbabwe needs a law against torture as a matter of urgency By: Nqobani Nyathi, Centre for Human Rights, Faculty of Law, University of Pretoria Introduction Despite the Zimbabwean Constitution’s explicit prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment, the State has not have the enabling legislation that criminalises torture as a distinct offence. The absence of such legislation undermines the practical enforcement of constitutional rights and perpetuates impunity. Constitutional protections, while important, are not by themselves enough to end torture. This article argues that Zimbabwe must enact comprehensive anti-torture legislation, not merely to fulfil its domestic constitutional obligations, but also to comply with regional and international standards as a matter of urgency. The normative framework against torture Section 53 of the Zimbabwean Constitution prohibits physical or psychological torture and cruel, inhuman or degrading treatment or punishment. In addition to this, no law may limit the right not to be tortured or subjected to cruel, inhuman and degrading treatment or punishment. The Zimbabwean constitutional provisions align with Article 5 of the African Charter on Human and Peoples’ Rights (African Charter), which affirms the right to dignity and the absolute prohibition of torture. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as the deliberate infliction of severe physical or mental pain or suffering by, or with the consent of, a public official, for purposes such as punishment, intimidation, coercion, discrimination, or extracting information or a confession. Zimbabwe has, regrettably, not ratified CAT.
Regionally, the Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa (Robben Island Guidelines) give more details on States’ obligations, highlighting measures for criminalisation, prevention, investigation and victim remedies. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa also have other anti-torture provisions, including reinforcing the inadmissibility of evidence obtained through torture. The benefits of adhering to international and regional standards The adoption of anti-torture legislation in Zimbabwe should not be seen only as a constitutional necessity but also as a means of aligning with broader international and regional standards that provide both clarity and guidance. Instruments such as the African Charter create binding obligations for the State to ensure the prohibition of torture. These obligations are reinforced through soft law instruments, notably the Robben Island Guidelines, which set out practical measures for prohibition, prevention and accountability. Adhering to these standards offers Zimbabwe some benefits. First, it ensures legal certainty by defining torture in clear terms and providing guidance on prosecution, thereby avoiding reliance on general criminal law provisions such as assault, which inadequately capture the gravity of torture. Second, it enhances accountability and deterrence, as officials are less likely to engage in torture if the law provides clear prohibitions and penalties consistent with international expectations. Third, it strengthens judicial integrity, since evidence obtained through torture must be excluded, in line with both CAT and the Principles and Guidelines on the Right to a Fair Trial in Africa. Beyond this, by having specific anti torture legislation, Zimbabwe will be demonstrating that it is committed to respecting human dignity and the rule of law by holding perpetrators torture accountable. Enacting comprehensive anti-torture law would, therefore, demonstrate good faith in meeting these commitments and contribute to restoring confidence in Zimbabwe’s justice system. Persistent gaps Zimbabwe and challenges in Despite constitutional guarantees, evidence indicates that torture persists in Zimbabwe, particularly within law enforcement and political contexts. Victims frequently lack access to effective remedies, and prosecutions rarely reflect the seriousness of the offence. The absence of a dedicated anti-torture law also undermines Zimbabwe’s compliance with regional and international human rights mechanisms, including concerns from the African Commission on Human and Peoples’ Rights (African Commission) that Zimbabwe has not ratified CAT and that it does not have specific legislation to criminalise torture. Conclusion Zimbabwe’s constitutional prohibition of torture, combined with binding regional and international obligations, provides a clear normative imperative for legislative action. Adopting comprehensive anti-torture legislation would go a long way in protecting the victims of torture and most importantly, acting in good faith and taking seriously the African Commissions Concluding Observations. Immediate legislative reform is essential to move Zimbabwe from constitutional aspiration to enforceable legal reality. ______________________________ 10. Application of the Exclusionary Rule in Malawi
By: Misheck Jere, Reprieve Introduction Malawi has ratified many international human rights conventions, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which is the principal international instrument on the prohibition of torture. Under Article 15 of the CAT, States parties assume an obligation to ensure that any statements that have been obtained through torture should not be admitted as evidence in any proceedings except against a person accused of torture. This obligation is known as the exclusionary rule. As a party to the CAT, Malawi is therefore bound to comply with these provisions in good faith and cannot invoke domestic law to justify negligence of this obligation. This article discusses the state of the law on the application of the exclusionary rule in Malawi. The Exclusionary Rule Under the Constitution Within the Malawian legal system, the Constitution, which is the supreme law of the land, adopts the exclusionary rule indirectly and directly through two provisions. Firstly, the Constitution indirectly incorporates the rule by prohibiting torture and cruel, inhuman or degrading treatment or punishment. Secondly, the Constitution directly incorporates the rule by providing that no one “shall be compelled to make a confession or an admission that could be used as evidence against him or her”. Recent Malawi Supreme Court judgements have confirmed that in light of the bill of rights in the Constitution, the exclusionary rule now applies in absolute terms to all evidence obtained contrary to statutory and Constitutional provisions. This precedent is a progressive break with prior jurisprudence, which gave trial courts discretion on whether to admit illegally obtained evidence including torture-tainted evidence. Forced Confessions Under the Criminal Procedure and Evidence Code Despite possessing a progressive Constitution and boasting positive jurisprudence from the country’s apex Court on the subject, Malawi, oddly, retains a criminal statute that expressly permits the admissibility of torture-tainted evidence. In particular, section 176(3) of the Criminal Procedure and Evidence Code, which was enacted about 30 years before the current Constitution, permits the admissibility of forced confessions. Although this piece of legislation manifestly offends the Constitution, it has not been ruled unconstitutional and is regularly cited when an accused tries to raise an objection against admission of forced confessions into evidence during trial. As a result of this permissive environment, law enforcement officers routinely resort to torture to secure unreliable confessions that inevitably result in unsafe convictions and hence unlawful sentences. Examples of instances where police officers have resorted to torture to secure confessions abound. For instance, in a 2021 case where a plaintiff sued the state for compensation, he gave unimpeached evidence that 6 police officers took turns beating him with boots and burglar bars to force him to confess to an offence that he had not committed. The plaintiff sustained a dislocated shoulder among many injuries. Fortunately for the plaintiff, the victim of the robbery that he had allegedly committed came to his rescue by telling the police officers that she had mistakenly reported him as the perpetrator of the robbery. While the plaintiff was exonerated by the complainant, most people in his position do not meet a similar fate. Instead, they are tortured and subdued to the point of confessing to offences they did not commit. They are then unsafely convicted based on these forced confessions and ultimately sentenced to unlawful custodial sentences and in some cases, death sentences. There is no doubt that law enforcement officers are emboldened to employ aggressive and coercive interrogation techniques, including
torture, because of the permissive environment to rely on torture-tainted evidence that the Criminal Procedure and Evidence Code creates. In this regard, there is thus a palpable inconsistency between the position adopted by both the Malawian Constitution and the Convention Against Torture (to which Malawi is a party), and the position adopted by the Criminal Procedure and Evidence Code. Until recently, this inconsistency was compounded by the conflicting judicial approaches on the treatment of forced confessions. At the Supreme Court level, the inconsistency was, in the past, astonishingly resolved in favour of section 176(3) of the Criminal Procedure and Evidence Code. This patently flawed but binding Supreme Court precedent resulted in conflicting decisions in the High Court with some High Court judges following this precedent while others held that the Supreme Court precedent notwithstanding, section 176(3) of the Criminal Procedure and Evidence Code is inconsistent with the Constitution. In that legal climate, prosecutors remained all too willing to rely on forced confessions to secure easy convictions because the local criminal law allowed it. On the other end of the criminal process spectrum, defence attorneys were left with the unenviable task of challenging this torture-tainted evidence in the context of a permissive local framework. However, two landmark decisions from the Malawi Supreme Court of Appeal have all but cleared the confusion by holding that illegally obtained evidence, including evidence obtained through means of torture, is inadmissible. Crucially, the two decisions have explicitly stated that the Supreme Court is reversing the precedent that held that forced confessions under section 176 of the Criminal Procedure and Evidence Code are admissible. Judicial Movement Toward Absolute Application of the Exclusionary Rule In April of 2024, the judgment of the Supreme Court in the case of R v Chanthunya (Criminal Case 11 of 2018) was published. This case could have the potential to completely change the legal landscape regarding the exclusionary rule. The Court noted that Malawi is now in “the era of Constitutional superiority…. where all laws and acts must pass constitutional muster or risk being declared illegal and therefore null and void.” It also noted that “it is now obligatory that all laws, human rights and constitutional freedoms are, except to the extent to which they are lawfully limited, fully respected by all branches of government namely the Executive, the Judiciary and the Legislature.” The Court emphasised the point that the State cannot benefit from its illegal activity and explicitly mentioned section 176(3), noting that courts “must depart from the position” that forced confessions can be used as evidence. In June of this year, the Malawi Supreme Court issued yet another landmark decision on the admissibility of illegally obtained evidence, in State (on the application of Msukwa and Another) v The Director of the Anti-Corruption Bureau. Building on the Chanthunya decision, the Court noted that Malawi now follows the exclusionary rule, writing: “The Supreme Court established an absolute exclusionary rule, declaring that evidence procured through violations of statutory or constitutional violations is per se inadmissible”. These cases are of huge significance as they render the constitutionality of section 176(3) of the Criminal Procedure and Evidence Code untenable. However, to eliminate the risk of an adverse Supreme Court decision restoring section 176(3) as a legitimate source of law on forced confessions, an outright repeal of the section is still a necessity. Additionally, not repealing section 176(3) would water down any attempt at criminalising torture through legislation as it would result in two contradicting pieces of legislation. Removal of section 176(3) may come about by a constitutional challenge or advocacy for a legislative amendment. Conclusion As per the Supreme Court, Malawi now follows the absolute exclusionary rule when
dealing with illegally obtained evidence, including torture-tainted evidence. This position is grounded in the Constitution and the CAT. However, section 176(3) of the Criminal Procedure and Evidence Code still permits the admissibility of torture-tainted evidence and is yet to be directly challenged for constitutionality before a court of law. To this end, the recent Supreme Court precedent offers an excellent opportunity for a constitutional challenge to section 176(3) with a view to removing it from the statute books once and for all. Outside of litigation, the direction taken by the Supreme Court should also serve as enough encouragement for the executive and the legislature to amend the Criminal Procedure and Evidence Code.

Created 11 de fev. de 2026 · Edited 11 de fev. de 2026