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Human and Peoples' Riqhts
Communication 471/14
Meriam Yahia lbrahin,
and three others
V
The Republic of Sudan
Adopted by the
African Commission on Human and Peoples' Rights
During the 7KI Ordinary Se.uion. done virtuallyfrom 23rd February to 8th Marci, 2024
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The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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Communication 471/14 - Meriam Yahia Ibrahim
and three others vs. The Republic of Sudan
SUMMARY OF THE COMPLAINT:
1.
The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received this Complaint on 2 June 2014 on behalf of Meriam Yahia Ibrahim
(the first Victim), Daniel Wani (the second Victim), Martin Wani (the third Victim) and
Maya Wani (the fourth Victim), from the Redress Trust (REDRESS), The African Centre
of Justice and Peace Studies (ACJPS), The Sudanese Organization for Development and
Rehabilitation (SODR), The Sudanese Human Rights Initiative (SHRI), and the Justice
Centre for Advocacy and Legal Consultancy (JCALC), herein collectively referred to as
the Complainants.
2.
The Complaint is submitted against the Republic of Sudan, a State Party to the African
Charter on Human and Peoples' Rights (the African Charter).1
3.
The Complainants allege that the first Victim was born in 1987 to a Muslim Sudanese
father and a Christian Ethiopian mother, married a Christian, the second Victim in
Khartoum in December 2011 and gave birth to a son named Martin (the third Victim) on
25 October 2012 and to a daughter named Maya Wani (the fourth Victim) on 27 May 2014.
4.
According to the allegations, the first Victim was arrested on 15 September 2013 by the
Public Order Police in Haj Yousef, a district in Khartoum. She was charged with adultery
because of her marriage to a Christian, the second Victim in the case. The charges were
based on the allegation by Mr. Alsmni Alhadi, who claimed to be the first victim's
brother. The Complainants state that the Prosecutor presented an indictment of adultery
before the Public Order Court in Haj Yousef and argued that the first Victim was a
Muslim because her father was a Muslim. Hence, her marriage to the second Victim is
void. It is stated that the first Victim opposed the charges and allegations, saying that she
was a Christian and had not committed adultery.
The Complainants further allege that on 11 November 2013, the Attorney General's Office
confirmed the charges of adultery on the grounds stated by the Prosecutor and
transferred the case to the Second Magistrate Court. The Complainants aver that during
the hearing held on 15 January 2014 at the Second Magistrate Court, the two men who
claimed to be the first Victim's brothers testified. Despite the defense put forth by the first
Victim, the court disregarded her. The Complainants also allege that the first Victim was
subjected to medical examination against her will simply because her purported brol_hers,
who levied charges against her, claimed that she was mentally ill. It is
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6.
The Complainants further allege that the Second Magistrate Court added a charge of
apostasy on the ground that the first Victim was a Muslim because her father was a
Muslim and was, therefore, prohibited by Sharia Law, as enshrined in Article 126 of the
1991 Criminal Code, from changing to another religion. It is alleged that the first Victim
was subsequently arrested with her son, Martin (the third Victim), and detained in
Omdurman's Women's Prison near Khartoum.
7.
The Complainants also allege that a new Judge was subsequently appointed to proceed
with the case because the Second Magistrate Court was no longer competent to hear the
case because of the newly added charge of apostasy. It is alleged that the new judge
denied the defense's request to start the case de novo and continued with the hearing. The
Complainants state that the defense presented three witnesses who testified that the first
Victim's mother died in 2011 and that she has been attending church regularly since 2005.
The Complainants further aver that, without giving reasons, the Judge denied the request
of the defense to present the first Victim's father as a witness.
8.
The Complainants allege that there were no subsequent hearings and that on 11 May
2014, without taking into consideration her right to freedom of religion and other
fundamental human rights guaranteed in Sudan's Interim National Constitution, the
Court convicted the first Victim on the charge of apostasy and gave her three days to
recant her faith or face the possible sentence of death by hanging. The Complainants state
further that after her conviction, ori 15 May 2014, two Muslim scholars came to Al-Haj
Yousef Criminal Court to convince her to change her mind and said that she was a
Muslim, but she affirmed her Christian faith in an open court and said that she was never
a Muslim and was raised as a Christian. It is alleged that the Court sentenced her to death
by hanging for apostasy and 100 lashes for adultery.
9.
The Complainants allege that on 22 May 2014, the defense filed an appeal with the Court
of Appeal of Bahri and Sharq Al Nil, and that the case was that if the sentences are
confirmed on appeal, the case may be appealed to the Supreme Court.
10. The Complainants allege that on 27 May 2014, the first Victim gave birth in Omdurman's
Women's Prison to a baby girl named Maya (the fourth Victim). It is further alleged that
the first Victim did not stay in good conditions in the prison as she was constantly kept
in shackles in her cell since her sentence on 15 May 2014, and that upon delivery, she was
transferred to the prison clinic with her children, where the medical facilities were
insufficient to provide adequate postnatal care.
11. The Complainants submit that on 23 June 2014, the Court of Appeal of Bahri and Sharq
Al Nil revoked the convictions and the sentences imposed against the first victim and
ordered her immediate release unless she was held for further proce ·"' 1.1~:1v- ~ .
Complainants submitted that the Court of Appeal affirmed that the
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apostasy and adultery because insufficient evidence was furnished to prove the
commission of that offence.
12. The Complainants state that following the decision of the Appeal Court, the first, third,
and fourth victims were released from detention on 23 June 2014. It is alleged that they
were then taken to the US Embassy amid serious concern that extremist religious groups
might attack them, and the initial plaintiff who triggered the case against the first Victim
also threatened to carry out the death sentence himself if she were released . It is further
alleged that on 24 June 2014, all victims were arrested by 10-15 National Intelligence and
Security Services (NISS) agents when they were about to leave the Respondent State at
Khartoum Airport. They were then detained at a detention facility belonging to the NISS
and denied access to their lawyers.
13. The Complainants stated that after several hours in the NISS detention facility, the first
victim was transferred to Khartoum East Police Station, where she was questioned about
the authenticity of her travel documents, which the authorities claimed were falsified.
The Complainants submitted that the first Victim had valid emergency travel documents
from the Sudanese authorities and a valid visa to enter the United States of America.
14. On 25 June 2014, the NISS accused the first Victim of forgery and providing false
information. The other three victims were allowed to leave detention but chose to stay
with the first Victim in custody. The first Victim was released on bail on 26 June 2014.
Thereafter, all the victims sought refuge in the US Embassy located in Khartoum.
Extremist religious groups frequently threatened them, and a group gathered outside the
Embassy, demanding the handover of the first Victim. The US Embassy security guard
had to call the police to disperse the crowd.
15. The Complainants allege that on 2 July 2014, the attorney for the first Victim submitted
evidence to the Attorney General of Sudan, indicating that the Victim's arrest on 25 June
2014 lacked any basis and the charges against her were unfounded. The emergency travel
documents in her possession were found authentic and issued by the Sudanese Embassy.
They further contend that on 4 July 2014, the original plaintiff, who claims to be the
brother of the first Victim, appealed to the Supreme Court against the Court of Appeal
verdict passed on 23 June 2014. This appeal was still pending before the Supreme Court
when the Complainants filed their submissions on Admissibility before the African
Commission on Human and Peoples' Rights (the Commission).
16. It is alleged that on July 24, 2014, the Victims left Sudan for Italy following negotiations
between the Italian government and the Respondent State. They have since found refuge
in the United States of America.
17. On 16 September 2014, it is alleged that the Advocates Committee of the Re ~
issued a travel ban against the legal representatives of the first Victim. The",__-~'n $_JS-isS' d <0
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legal representatives were causing damage to the Respondent State's reputation by
defending the first Victim and involving international human rights organisations in the
case. The travel ban was subsequently lifted on 20 September 2014 by the Bar Association,
which directed the petitioner to submit the Complaint to the police.
ARTICLES ALLEGED TO HAVE BEEN VIOLATED:
18. The Complainants alleged the violation of Articles 1, 2, 3, 4, 5, 6, 7, 8, 16, and 18 of the
African Charter.
PRAYERS:
19. The Complainants request the Commission to: (a)
find that the Respondent has breached the alleged provisions of the African
Charter;
(b)
declare that the Respondent is under an obligation to take all necessary measures
to ensure that effective remedies are availed;
(c)
recommend restitution of the Victims to the original situation they were in before
the violations of the African Charter occurred.
(d)
recommend that the Victims be compensated for material harm arising from the
loss of the First Victim's land, businesses and properties, and non-material harm
arising from physical and psychological suffering.
(e)
recommend a prompt and impartial investigation into the First Victim's arrest,
indictment, detention, conviction, and sentencing.
(f)
recommend a public acknowledgement of the facts and a public apology for the
violations of the African Charter suffered by the Complainants.
(g)
recommend changes to the Respondent's legislation, including the current and
any future Constitution and the Sudanese Criminal Code, to ensure its alignment
with the African Charter; and
(h)
recommend other institutional and policy reforms.
PROCEDURE:
21. On 16 July 2014, the Commission requested additional information regarding the
conviction and sentences of the first Victim.
22.
The Complainants confirmed that the Court of Appeal of Bahri and Sharq Al Nil revoked
the conviction of apostasy and adultery as well as the sentences of death by hanging and
100 lashes that were imposed on the first Victim and that she was released from prison
with her two children on 17 July 2014.
23.
On 24 July 2014, the Complainants informed the Commission that all the Victims had left
Sudan and formally withdrew their request for provisional measures.
24. The Commission was seized of the matter at the 16th Extraordinary Session held from 20
- 29 July 2014 in Kigali, Rwanda. After that, the Complainants were requested to submit
their Submissions on Admissibility.
25.
The Complainants submitted on Admissibility on 3 October 2014, and the Submissions
were transmitted to the Respondent State for their observations.
26.
During its 17th Extraordinary Session, held from 19-28 February 2015, in Banjul, The
Gambia, the Commission decided to grant the Respondent State 30 days from the date of
notification to file the necessary observations. The Secretariat informed both parties that
the Respondent State's observations on Admissibility were overdue on 19 March 2015.
27.
On 9 June 2015, the Secretariat received the Respondent State's observations on
Admissibility, and the Secretariat transmitted them to the Complainants. The
Complainants submitted their response to the Respondent State's observations on
Admissibility on 19 June 2015, and the Secretariat confirmed receipt on 23 June 2015.
28. The Commission deferred the consideration of this Communication during its 18th
Extraordinary Session, which took place from 29 July to 7 August 2015 in Nairobi, Kenya.
The Secretariat informed both parties of this decision on 17 September 2015.
29.
The Commission deferred consideration of this Communication on Admissibility for
various reasons between the 19th and 21st Extraordinary Sessions and the 58th and 59th
Ordinary Sessions. The Secretariat informed both parties of these decisions.
30. The Commission delivered its decision on the admissibility of this Communication
during its 27th Extraordinary Session held from 19 February to 05 March 2019 in Banjul,
the Gambia. The Secretariat informed the parties of this decision and advised them to
submit on the merits.
31.
the submissions to the Respondent State and advised it to submit its observations within
sixty days as per Rule 116(2) of the Rules of Procedure of 2010 on the same day.
32. The Commission deferred the determination of this Communication during the 67th
Ordinary Session held virtually from 13 November to 3 December 2020, pending the
Respondents' State submission. The Secretariat advised the Parties accordingly by the
letter dated 22 December 2020.
33. The Respondent State has not submitted in Merit, and the Communication is ready for a
default decision on merits.
ADMISSIBILITY
The Complainants' Submission on Admissibility
34. The Complainants addressed all seven requirements of Article 56. They placed more
emphasis on the requirement of Article 56 (5) that the Communications received by the
Commission shall be considered if they are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged .
35. They argued that the Communication identifies the organisations representing the
Victims as the Communication authors under Article 56 (1). They further argue that the
Communication is compatible with the African Charter as stipulated by Article 56 (2)
because it is submitted against Sudan, which ratified the African Charter on 18 February
1986, and alleges serious violations of rights that are enshrined in the African Charter
committed on and after 15 September 2013. They argue that the Communication is
written in a respectful language in line with Article 56 (3) and is not based exclusively on
mass media reports in line with Article 56 (4) as set out above. They also argue that the
Commission has confirmed that the Complainants reveal a prima facie violation of the
African Charter. They further contend that the Communication has been submitted
within a reasonable time as required by Article 56 (6) and has not been submitted to any
other procedure of investigation or settlement as per Article 56 (7) of the African Charter.
36. The Complainants further addressed the fulfillment of Article 56 (5), relying on their
arguments initially set out in the Complaint submitted for seizure, namely that no
effective remedies are available to the Complainants in the Respondent State. They
argued that the Commission's jurisprudence confirms that the Complainants need not
exhaust domestic remedies where they are unavailable, ineffective, or insufficient by
citing Communication 368/ 09 -Abdel Hadi, Ali Radi & Others v Republic of Sudan. 2 The
Complainants aver that in the present case, the individuals who had brot;J hf i , ~J$jt}
Com plaint against the first Victim appealed the Appeal Court's decision qb23,jif:lne-·2QJ 4o,(;
to the Supreme Court, where it was still pending at the time that the··ar
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Admissibility were submitted. However, as far as the first Victim is concerned, the
Appeal Court's acquittal means that she has exhausted domestic remedies in that regard.
37. The Complainants argue that the legal framework in the Respondent State shows that the
existing remedies are both ineffective and insufficient in redressing the Complaint
regarding the alleged violations of Articles 1, 2, 3, 4, 5, 6, 7, 8, 12, 16, and 18 (1) of the
African Charter. They cite the Commission's jurisprudence in Communications 147/95149/96 -Sir Dawda K. Jawara v. The Gambia to support their argument. Furthermore, they
claim that the threats, intimidation, and harassment they and their lawyers faced
highlight the unavailability of other remedies.
38. The Complainants also asserted that the obligation to exhaust domestic remedies is not
applicable where domestic legislation and practices foster violations of the African
Charter, among other legal instruments. They cited Communication 368/09 -Abdel Hadi,
Ali Radi & Others vs. Republic of Sudan,3 and Communication 71/ 92 -Rencontre Africaine
pour la Defense des Droits de l'Homme vs. Zambia to substantiate the position-4 The
Complainants contended that the Constitution of the Respondent State recognises Islamic
Sharia Law as a source of law, thereby asserting that all the rights arising from
international human rights instruments ratified by the Republic of Sudan must be
incorporated into the Bill of Rights.
39. They added that the Constitution silently reconciles the conflict between Sharia law and
the Respondent State's international human rights obligations. The Complainants
expressly referred to the offenses of apostasy (ridda) and adultery (zinna) as provided for
under Articles 126 and 145 of the 1991 Criminal Code, respectively. They argued that
these laws are contrary to the international human rights obligations of the Respondent
State. The Complainants asserted that these crimes fall under the category of hudud, and
if convicted, they attract severe punishments such as death by hanging, whipping,
stoning, or amputation. While those convicted of apostasy can avoid the death sentence
by renouncing their belief, the Complainants submitted that the application of Articles
126 and 145 of the 1991 Criminal Code violates the African Charter, specifically infringing
on freedom of religion and the family right, protected by Articles 8 and 18 of the African
Charter, respectively.
40.
3 ibid 46-49.
4
Communication71/ 92, paragraph 11.
41. The Complainants submitted that the Respondent State's practice in other cases,
confirmed by the findings of the Court's judgments in the present case, as well as the
Respondent State's most recent comments to the Human Rights Committee underscore
that the Complainants do not have any prospect of obtaining a remedy in the Respondent
State that would be capable of redressing the violations committed as a result of the
application of Articles 126 and 145 of the 1991 Criminal Code, which the courts confirmed
to form part of the Respondent State's legal framework, and that the Respondent State
seems determined to maintain the status quo.
42. The Complainants submitted that the absence of an effective and sufficient remedy is
further underlined by the Respondent State's failure to remedy the alleged violations
despite ample notice and time to do so. They further argue that, under these
circumstances, victims of human rights violations have no alternative but to seek justice
outside the Respondent State. The Complainants submitted that the Respondent State
had ignored calls from other governments, a letter of urgent appeal from the
Commission, a request from the United Nations and the media for the government to
intervene and prevent harm to the first Victim, which led to the first Complainant giving
birth in custody.
43. The Complainants further argued that threats and harassment forced them to leave the
Respondent State. The Complainants submitted that the victims could not stay in the
Respondent State to exhaust domestic remedies, as doing so would have exposed them
to a risk to their lives.5 They further submitted that the jurisprudence of the Commission
provides that "the existence of a remedy must be sufficiently certain, not only in theory
but also in practice, failing which it will lack the requisite accessibility and effectiveness.
Therefore, if the applicant cannot turn to the judiciary of this country because of a
generalised fear for his life (or even those of his relatives), local remedies would be
considered unavailable to him."6
44.
Providing information to supportthe contention above, the Complainants submitted that
the victims faced harassment and intimidation from the agents of the Respondent State,
referring to their arrest at the airport and subsequent detention at a National Intelligence
and Security Service (NISS) detention facility. They stated that the first Victim and her
family also received death threats from extremist religious groups, such as one called
"Hamza", which publicly stated that they would kill the first Victim and everyone who
helped her. It is alleged that more threats were received from the initial plaintiff, who
claims to be a brother to the first Victim, who allegedly announced that the family would
carry out the death sentence if she were acquitted of apostasy and that she deserved to
be executed. As a result of those threats, it was submitted that the Complainants had to
seek refuge in the Embassy of the United States of America on two occasions.
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45.
The Complainants further submitted that the harassmen t and intimidation of the Victims'
lawyers render any remedy that is theoretically available in the Respondent State
ineffective and unavailable. They relied on the Commission' s jurisprudence that " to
exhaust the local remedies within the spirit of Article 56 (5) of the Charter, one needs to
have access to those remedies, but if the victims have no legal representation, it would be
difficult to access domestic remedies." 7 and that in situations where legal representatives
cannot resort to domestic remedies because of a general fear of persecution, exhaustion
of domestic remedies would be "unreasonable and impracticable." 8
46.
The Complainants submitted that in the present case, the Victims' lawyers could argue
the first Victim's case before the Al-Haj Yousef Criminal Court and the Appeal Court.
However, following the release of the first Victim and her children from Omdurman
prison, NISS officials started harassing the lawyers and threatened them to stop
representing the victims. It is alleged that the Complainants' lawyers narrowly escaped
arrest when they were detained at Khartoum airport on 24 June 2014, when they were
about to leave the country. The Complainants further allege that the Respondent State
authorities began to accuse the Complainants' lawyers of " damaging the nation's
reputation by defending the victims."
47. It was also submitted that on 16 September 2014, the Advocates Complainants
Committee, a unit within the Sudanese Bar Association, requested the Complainants'
lawyers to explain why they had engaged international human rights organisations in
the first Complainant's case and issued a travel ban against the lawyers to prevent them
from leaving the Respondent State. The Committee also notified the immigration and
police authorities of its decision. Subsequently, one of the Complainant's lawyers was
prevented from leavin g the country. The travel ban was lifted on 20 September 2014, with
the Bar Association stating that Complaints against the Comp lainants' lawyers should be
submitted to the police for consideration by the ordinary courts.
48. The Complainants submitted further that there is no guarantee that the victims' lawyers
will not be subjected to further harassment and intimidation in the future should they
continue to seek justice on their behalf. It was also submitted that the lawyers received
death threats from extremists who considered the lawyers' representation of the victims
as "un-Islamic" and that the authorities had not investigated these threats to ensure the
lawyers' safety. The Complainants submitted that under the circumstances, it would be
"repugnant to expect anyone within Sudan who sympathises with the cause of the
victims to file a Complaint on their behalf before the relevant state organs." 9 It stated that
remedies in the Respondent State proved either unavailable or ineffective and in ~ cie'iti'F ., ~"
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9 Communication 379/ 09, paragraph 55.
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49.
The Respondent State contested the admissibility of the Communication on five grounds
that it fails to comply with the requirements under Article 56(1), (2), (3), (4), and (5) of the
African Charter. The following paragraphs will present the Respondent State's
arguments.
50.
Regarding Article 56 (1), a Communication should indicate its authors even if the latter
requests anonymity. The Respondent State submitted that the Communication falls short
of this requirement because, in the Complainant's submission before the Commission, the
first Victim is identified as "Meriam Yal1ia Ibrahim". In contrast, in the domestic judicial
proceedings, she was identified as "Abrar Alhadi Mohammed Abdullah", the name in
the official identity records kept by the Registry Department of the Respondent State.
51.
'The second ground of the Respondent State's objection to the admissibility of the
Communication is that it is not in conformity with Article 56 (2) of the Charter, which
requires all Communications to be compatible with the Constitutive Act of the African
Union or with the African Charter In furtherance of this argument, the Respondent State
submits that the cause of action of the Communication is the judicial proceedings that
were lawfully initiated against the first and second Complainants under the laws of the
Respondent State and that the application of such laws, which also guarantee a free trial,
is not per sea violation of the African Charter. The Respondent State argues that any flaw
or shortcoming in applying such law is correctable through the hierarchy of the national
judiciary, and international and regional mechanisms do not aim to usurp national
jurisdictions or substitute themselves for the courts of law of a sovereign State.
52. The Respondent State submitted that the Communication is written in disparaging or
insulting language directed against it, thereby not meeting the requirement of Article 56
(3) of the Charter, which makes the Communication inadmissible.
53. The Respondent State submitted that using terms such as "unjust" and "abhorrent"
ascribed to the judiciary of a State in the Submissions on Admissibility of the
Complainants is defamatory. The Respondent State added that the phrase "the
continuing need for protection from attacks by extremist religious groups in the
Respondent State ... " is insulting and irrelevant. The Respondent State further submits
that the innuendo that only upon the intervention of a foreign State (Italy) the
Complainants were able to leave abroad is an attack on the sovereignty and
independence of the State. Therefore, according to the Respondent State, this renders the
Communication inadmissible under paragraph 56 (3) of the African Charter.
54.
The Respondent State asserted that apart from the facts supported by the judicial
documents, against which they stated the reasons for inadmissibility, the other
allegations are exclusively based on news disseminated through the media. In support of
this contention, the Respondent State has provided a list of paragraphs fr..9rn the
Submission on Admissibility of the Complainants, which they alleged to ~ ' e-1::Je
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55.
Lastly, the Respondent State argues that the Communication is inadmissible because its
authors have not attempted to exhaust local remedies as required by Article 56 (5) of the
Charter for it to be admissible. In support of this position, the Respondent State cited
Communication 275/ 03 -Article 19 v . The State of Eritrea, in which the Commission stated
that "it is incumbent on the Complainant to take all necessary steps to exhaust, or at least
attempt the exhaustion of local remedies. It is not enough for the Complainant to cast
aspersion on the ability of the domestic remedies of the State due to isolated incidences."10
56.
The Respondent State submitted that effective remedies are available for the victims,
which can be deduced from the fact that the first Victim was condemned and sentenced
to capital punishment by the Court of First Instance. After that, she appealed against that
judgment through her lawyers, and the Court of Appeal delivered its ruling relatively
quickly. The Respondent State added that this was done within the same legal framework
and practice of the Respondent State, which the Communication's authors describe as" at
short of providing an effective and sufficient remedy".
57. The Respondent State further submitted that the assumption that the Appeal Court's
Acquittal of the first Victim means that s,h e has exhausted domestic remedies is without
legal basis. The Respondent State adds that the Court allowed the appeal and granted the
appellant's prayers and claims within the issues and facts raised by the appellant. The
Respondent State further adds that other issues raised in this Communication regarding
human rights violations fall under the jurisdiction of other arbiters, namely, the
Constitutional Court, the National Human Rights Commission, and the Public
Grievances Chamber, to which the Complainants have resorted .
58.
Lastly, the Responden t State submitted that the Submission on Admissibility of the
Complainants revealed no specific remedies on which they pray the Commission to
decide, and the prayers contained in the seizure decision, such as that requesting
provisional measures, are now redundant after the decision of the Appeal Court.
The Response to the Respondent State's Submission on Admissibility
59.
°Communication 275/ 03, paragraph 67.
1
11
Communication 409/ 12, para. 87.
victims. 12 In fulfilment of this requirement, the Complainants maintained that they
correctly identified tl1emselves and their repre£entatives, who have signed all their
documents containing their contact details. The Complainants also added that the
information provided regarding the identity of the first Victim was adequate to the extent
that the Respondent State was able to identify her and respond accordingly.
60. Regarding requirements of Article 56 (2) of the Charter, the Complainants submitted that
all the conditions required by this article, as translated within the practice of the
Commission, citing Sir Dawda K. Jawara vs. The Gambia13 (among others) were duly
satisfied. The Complainants submitted that, as set out in their submissions on
Admissibility, the Communication is submitted against Sudan, which ratified the African
Charter on 18 February 1986. It alleges severe violations of the African Charter committed
on the Respondent State's territory on and after 15 September 2013, and these allegations
are supported by prima fade evidence.
61.
Concerning the assertion of the Respondent State that the Communication has not
complied with Article 56 (3) because it contains disparaging or insulting language
directed against it, the Complainants cite, respectively, Ilesanmi vs Nigeria, Zimbabwe
Lawyers for Human Rights & Associated Newspapers of Z imbabwe v Zimbabwe, and Eyob B.
Asemie v the Kingdom of Lesotho. 14 submitted that the language used is neither disparaging
nor insulting.
62. Responding to the assertion that the Complaints are exclusively based on "news
disseminated through the media", tl1e Complainants submitted that the requirement of
Article 56(4) was met because the information contained in the initial Compliants
submitted to the Commission and the information contained in the submission on
Admissibility is not solely based on media reports, but also other sources such as court
documents and information provided and verified by the lawyers of the Complainants
and the Complainants themselves. They supported their submission with the position in
Sir Dawda K Jawara vs. The Gnmbia. 15 "While it will be dangerous to rely exclusively on the
news disseminated through the mass media, it would be equally damaging if the African
Commission were to reject a Communication because some aspects of it are based on
news disseminated through the media."
63.
In response to the contention of the Respondent State that local remedies have not been
exhausted in compliance with Article 56 (5) because the Complainants could have,
amongst others, approached the Constitutional Court, the Complainants cited A rticle 19
12 Communication 266/ 03,para. 67, referring to Malawi African Association et al v Mauritania, Communications 54/91,
61/91, 98/93, 164/97, 196/97 and 210/98, para. 79.
13, Communications 147/95-149 /96, para.41;Darfar Reliefand Documentation Centre v Sudan, Communiccl!io~3.1,0/0~,
,· "'s c r
para. 64.
•
14 Communication 268/03, para. 39; Communication 284/ 03, para. 97; and Communication 43~/12, p31ra:-58
15
Communication 147/95-149/)6, para. 24
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v Eritrea16 position by the Commission that it is not enough for a Respondent State to
make "a general refutation of the claims alleged and to insist that domestic remedies do
exist and that the Complainant did not attempt to exhaust them without relating them to
the circumstances of the case, and without showing how they might provide effective
redress in the circumstances of the case" .1 7
64.
The Complainants further added that a state cannot invoke a "remedy the availability of
which is not evident to the detriment of the complainant" 18 and that "the existence of a
remedy must be sufficiently certain, not only in theory but also in practice, failing which,
it will lack the requisite accessibility and effectiveness."
65. They finally concluded that the Respondent State never responded to their submission
that threats and harassment of the victims and their lawyers render remedies unavailable
to the Complainants. The Complainants added that the Respondent State has confirmed
in their submission that the first Victim was facing death threats in the Respondent State.
Yet, they provided no information on any steps to investigate the threats to the victims
and their lawyers.
66.
In addition to the above, the Complainant responded that the judgment of the Court of
Appeal did not address and remedy the human rights violations alleged in
theComplaints, that the Respondent State has not identified any effective remedy, and
that the Constitutional Court does not constitute an adequate remedy because the
approach of the Court of Appeal expressly affirmed that the criminalisation of apostasy
and adultery is compatible with the international human rights obligations of the
Respondent State. The approach of the Court of Appeal in similar cases has been the
same. Lastly, the Complainants responded that the National Human Rights Commission
and Public Grievances Chamber do not constitute remedies for Article 56 (5), citing Dr
Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan.19
The Commission's Analysis of Admissibility
67.
Article 56 of the African Charter outlines seven (7) conditions that must all be met for a
Communication to be declared admissible. Failure to comply with one or more of those
conditions renders the Communication inadmissible. The Communication was processed
in terms of Rule 105 of the Commission's Rules of Procedure, and both parties were duly
accorded an opportunity to present their views on the admissibility of the
Communication.
68.
From the submissions of the parties, the Commission noted that the issues of..cgntE:::v.tion
between the parties concerned the requirements of Article 56 (1), (2), (3),- ~4JtCf<rT•
and ·(5).of
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17 ibid
18 Sir Dawda K. Jawara v Tlie Gambia, Communications 147/95-149/96, para. 35.
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the Charter. After carefully examining the Commtmication and the parties' submissions,
the Commission found that Articles 56 (6) and (7) raised no issues of contention and was
satisfied. To this end, the Commission's analysis of admissibility only focused on the
requirements contained in Article 56 (1), (2), (3), (4), and (5) of the Charter.
69.
Thus, the first issue for determination was whether the Communication had indicated its
authors, even if the latter requested anonymity as prescribed by Article 56 (1). The
Respondent State believes that the Communication has not complied with Article 56 (1)
because the name used to identify the first Victim is different from the name used to
identify her in the domestic judicial proceedings, and the name appears in the Civil
Registry Department.
70.
The jurisprudence of the Commission is that for Article 56 (1) to be fulfilled, the
Communication must indicate the author's identity and address (contact details) and not
necessarily the victims' names. Still, it must contain adequate information concerning the
victims with a degree of specificity.20 The Commission has also pronounced itself that
"Article 56 (1) of the African Charter requires a Communication to indicate its authors
and not the victims of the violations"21 and that " Article 56 (1) of the African Charter will
be satisfied if the Communication discloses the identity and details of the authors
thereof. "22
71.
In the present case, the Commission finds that the Organizations representing the victims
have appropriately identified themselves and provided their addresses. Their
representatives sign all their submitted documents, and their full names appear in print. 23
In addition to that, they have also provided sufficient detail~ regarding the identity of the
victims, which enabled the Respondent State to identify them, thereby making the issue
of two different names used to identify the first Complainant an immaterial factor in
determining the fulfilment of Article 56 (1) in this case; hence the Communication has
complied with Article 56 (1) of the Charter.
72. The second issue to determine was whether the Communication complied with the
requirement under Article 56(2) of the Charter, which requires a Communication to be
compatible with the Constitutive Act of the African Union and the African Charter. The
Respondent State disputed the compatibility of the Communication because it results
See Luke Jvlunyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) vs. Angola and Thirteen Others,
Communication 409/12, paragraph 87
21 Kevin Mgwanga Gunrne et al v Cameroo11, Communication 266/03,para. 67, referring to Malawi African Association
et al v Mauritania, Communications 54/91, 61/91, 98/93, 164/97, 196/97 and 210/98, para. 79.
22 See. Spilg and Mack & Ditshwanelo (on belwlf oJ Lehlohonolo Bemard Kobedi) v Botswana, Communication 277/03, ,eara.
97.
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23 The Complainants are represented by The Redress Trust (REDRESS), the African Centre for Ju tit ~d Pea'l::e k
1
Studies (ACJPS), the Sudanese Organization for Development and Rehabilitation (SODR), the _$ adan§IS
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Rights Initiative (SHRI) and the Justice Center for Advocacy and Legal Consultancy (JC~lC);jA-ddress fo
correspondence: REDRESS; c/ o Jurgen Schurr; 87, Vauxhall Walk; SEn 5HJ London; United Krngdo
; Tel.: +44 20
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from enforcing domestic laws to which all people are subject, leading to judicial
proceedings. The Respondent State argued that the application of domestic laws does not
per se amount to a violation of the African Charter and that any shortcomings from the
application of the domestic laws can be remedied through the Courts of the Respondent
State.
73. The jurisprudence of the Commission has established conditions that must be satisfied for
Communications to be compatible with the African Charter. To comply with Article 56
(2), a Communication should allege a violation of any of the rights protected by the
African Charter, it must be brought against a State that is bound by the African Charter
by a competent person, and the alleged violation should have occurred within a territory
in which the African Charter is applicable. 24 Sudan ratified the African Charter on 18
February 1986. The Communication brought by the Organizations representing the four
Complainants alleges that serious human rights violations have taken place in the
territory of the Respondent State from 15 September 2013 due to the criminalisation of
apostasy and adultery by the Respondent State and the enforcement of such laws.
74.
The Complainants alleged the violation of the right to family and freedom of religion,
amongst others. It is important to note that the Commission is not deciding whether
human rights violations have occurred at this stage. Still, the Commission considers
whether there are allegations of such human rights violations. On that basis, the
Commission could not at this stage determine whether the application of domestic laws
of the Respondent State violates the rights protected by the African Charter to determine
the compatibility of the Communication with the Charter. Still, the Commission relies on
such allegations backed by evidence of prima facie violations of those rights and decides
that the requirement under Article 56 (2) has been satisfied.
75. The third issue for determination was whether the Communication was written in
disparaging or insulting language directed against the Respondent State and its
institutions in terms of Article 56 (3). The Respondent State submitted that the terms used
in the Submission on Admissibility by the Complainants, such as "unjust" and
"abhorrent", ascribed to its judiciary, are defamatory.25
76. The Commission found that the authors of the Complainants' submission on
admissibility in paragraph 14 attributed the use of the word " unjust" to the Arabic
Network for Human Rights Information who used it to describe the verdict passed
against the first Complainant and the word "abhorrent" was attributed to Amnesty
International who used it to describe the case of the first Complainant. Although
quotations were used, full references have been provided. The words were quoted in the
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v Sudan, Communication 310/ 05, para. 64.
25 Paragraph 14 of the Complainant Submission on Admissibility.
24
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context of describing the reaction of the international and regional organisations to the
case brought against the first Complainant by the Respondent State.
77. The Commission held in Communication 284/03 that "Communications within the
meaning of Articles 55 and 56 refer to the Complainants submitted by petitioners. These
Complainants invariably include other documentations submitted by the petitioner to
support their case, such as annexes." 26 Therefore, going against the argument of the
Complainants that those are not their words, the Commission considered those words as
part of the Communication because they relied upon them to support their case, and the
Commission considered those words in determining the compliance of the
Communication with Article 56 (3) of the Charter.
78.
The Commission held that "the operative words in Article 56(3) are disparaging and
insulting, and these words must be directed against the State Party concerned or its
institutions or the African Union. According to the Oxford Advanced Dictionary,
disparaging means to speak slightingly of... or to belittle .... and insulting means to abuse
scornfully or to offend the self respect or modesh; of. .. "27 It is also important to note that the
Commission held that a Communication alleging human rights violations by its very
nature should be expected to contain allegations that reflect negatively on the State and
its institutions.2s
79. The ordinary meaning of the words "unjust" and "abhorrent" is neither disparaging nor
insulting. The word "unjust" was used by the Arabic Network for Human Rights
Information to express their opinion on the verdict passed against the first Victim, and
the Organisations have submitted evidence to prove why they believe that the verdict
was unjust. It is also worth noting that the Court of Appeal later revoked the verdict,
which was perceived as unjust. Amnesty International also used the word "abhorrent to
express their opinion towards the case brought against the firstVictim . On the face of it,
the word "abhorrent" is not disparaging or insulting, and it is not precisely directed
towards the State and its institutions, but it is part of the allegations that are expected to
reflect negatively on the State and its institutions in human rights Complaints..
80. The Respondent State argued that the phrase "the continuing need for protection from
attacks by an extremist religious group in the Respondent State ... " is insulting and
irrelevant and that the innuendo that only upon intervention of a foreign State (Italy)
were the Complainants able to leave for abroad is an attack on the sovereignty and
independence of the State. 29 In Communication 435/12,30 the Commission held that "the
26 Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, Communication 284/03,
~a.W
27 Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, Co
para. 88 .
28 Eyob B. Asemie v the Kindgom of Lesotho, Communication 435/12, para. 58.
29 Paragraph 19 of the Complainants Submission on Admissibility.
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proscription of disparaging and insulting language is fundamental to diplomatic,
courteous, and respectful exchanges between parties appearing before it and the need to
uphold the integrity of State institutions, which are indispensable for protecting human
rights. However, a fine balance must be drawn between this proscription and the need to
facilitate free expression. Whereas, as in the present case, the Complainant uses language
which conveys his perception of facts and presents evidence to justify that perception,
the Commission cannot hold that such language is disparaging or insulting merely
because inferences can be drawn from the language which reflects negatively on the state
and its institutions."31
81.
The same can be said of the phrases pointed out by the Respondent State. Those phrases
are related more to the facts of the matter because they are part of the version of the
Complaints placed before the Commission, and the Respondent will also have an
opportunity to dispute and respond to the version of the Complaints at the right time.
The phrases are not disparaging or insulting just because inferences can be drawn from
them, which reflect negatively on the State and its institutions.
82. Based on this, the Commission found that the Communication complied with Article
53(3) of the African Charter.
83. The fourth issue for determination was whether the Communication is based exclusively
on news disseminated through the mass media as contended by the Respondent State.
The Respondent State submitted that "apart from the facts supported by the judicial
documents, against which we asserted the reasons for inadmissibility in paragraph 3
above, the other allegations are exclusively based on news disseminated through the
media."
84. The Commission held that "while it would be dangerous to rely exclusively on news
disseminated from the mass media, it would be equally damaging if the Commission
rejected a Communication because some aspects are based on news disseminated
through the mass media. This is borne out of the fact that the African Charter uses the
word "exclusively."32 The Commission noted that although reference has been made to
media reports by the Organizations representing the Complainants in their submissions,
the Compliants were also accompanied by the judgment that was delivered against the
firstVictim , which prompted the Organizations and the lawyers who represented the
first Victimin the domestic judicial proceedings to submit a Complaint to the
Commission. The Communication is not based solely on media reports; therefore, it
complies with Article 56 (4).
85. The last issue of contention was whether the Communication has complied with Article
56(5). The Respondent State advanced the view that domestic remedies are a:vai\wle-and
effective and that the Complainants did not exhaust local remedies becatGe \:he-hu~a.Rr '
31 ibid
32 Sir Dwada K Jawara v. The Gambia, Communications 147/95-149/96, para. 24.
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rights issues raised in the Communication could have been resolved had they
approached the Constitutional Court, the National Human Rights Commission, or the
Public Grievances Chamber. In Communication 275/03, the Commission held that "it is
incumbent on the Complainant to take all necessary steps to exhaust, or at least attempt
the exhaustion of local remedies. It is not enough for the Complainant to cast aspersion
on the ability of the domestic remedies of the State due to isolated incidences." 33As
advanced by the Respondent State in the present matter, the Commission noted that the
Complainants could have approached the Constitutional Court to exhaust local remedies,
but they have not done so. The Commission does not rely on mere aspersions of what
could have been the outcome had the Complainants approached the Constitutional Court
to determine the effectiveness of local remedies to decide on the admissibility of this
Communication. Casting doubts on the efficacy of domestic remedies does not absolve
the author from pursuing such remedies. 34
86. However, the jurisprudence of the Commission provides that it is not enough for a State
to make a general refutation that domestic remedies are available and effective and that
the Complainants did not attempt to exhaust them. In the present case, the Respondent
State has listed the existence of domestic remedies without relating them to the
circumstances of the case and without showing how they might provide adequate
redress.35 In Communication 275/ 03, the Commission held that "the fact that the
Complainant has not sufficiently demonstrated that they have exhausted domestic
remedies does not mean such remedies are available, effective, and sufficient. The
Commission can infer from the circumstances surrounding the case and determine
whether such remedies are available, and if they are, whether they are effective and
sufficient."36
87. From the submissions of both the Complainants and the Respondent State, it is not
disputed that the life of the first Victim, her husband (the second Victim), and their
children (the third and fourth Victims) were in danger. It is not in dispute that they have
received threats from religious groups in the Respondent State, and the family members
of the first Victim also threatened to kill her. The Respondent State submitted that the
first Victim was kept in detention during her trial for her safety, where she delivered the
fourth Victim because members of her family were furious about what they considered
her disgraceful behaviour, which they looked at as an insurgency against their values and
beliefs, even threatening to kill her if she had been released.37
88.
It is not in dispute that after the Court of Appeal revoked the conviction and sentence of
the first victim, which resulted in her release, she had to seek refuge in the Embassy of
the United States of America. She also had to seek refuge in the same Ernbas~y
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34 Article 19 v Eritrea, Communication 275/ 03, para. 67.
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35 Article 19 v Eritrea, Communication 275/ 03, para. 73.
36 ibid para. 74.
37 Paragraph 5 of the Respondent States' Observations on the Complainants' Submission on Adrniss)hility. ,
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second occasion after her release from detention when she was arrested at Khartoum
airport by the security agents of the Respondent State. The Respondent State has not
submitted any steps to investigate the threats against the Complainants or any measures
taken to ensure their safety when they were in the Respondent State, which could have
enabled them to pursue local remedies. The Complainants submitted that the lawyers
who represented the victims in the domestic proceedings have been subjected to threats
and persecution. Under these circumstances, the Commission finds that it would be
"repugnant to expect anyone within Sudan who sympathises with the cause of the
victims to file a Complaint on their behalf before the relevant state organs." 38
89.
In Communications 147/95-149/96, the Commission held that " the existence of a remedy
must be sufficiently certain, not only in theory but also in practice, failing which, it will
lack the requisite accessibility and effectiveness. Therefore, local remedies would be
unavailable if the applicant cannot turn to his country's judiciary because of generalised
fear for his life (or even his relatives)." 39
90.
In the present case, domestic remedies were unavailable to the complainants because of
generalised fear for their lives, which prompted them to seek refuge outside the territory
of the Respondent State; therefore, the Communication has complied with Article 56 (5)
of the African Charter.
The Decision of the Commission on Admissibility
91.
Given the above, the Commission Declared the Communication Admissible per Article
56 of the African Charter. Parties were advised to submit on Merit under the
Commission's Rules of Procedure.
MERITS
92. In the merits of this Communication, the Commission is called upon to determine
whether the alleged acts or omissions by the State or its agents are a violation of rights
under the African Charter, specifically Articles 1, 2, 3, 4, 5, 6, 7, 8, 16, and 18.
Parties' Submission on Merits
93. The Respondent State did not file submissions on merit. The Communication is,
therefore, considered ex parte based on the submission by the Complainants. The
Commission remains guided in this by its previous positions in the Institute for Human
Rights and Development in Africa v. Republic of Angola40 and the analogous decisions to the
38 Communication 379/09, AdmissibilihJ Decision, August 2012, pnra. 55.
39
Sir Dawada K. Jawara v. The Gambia, Coomttnication, 147/95-149/96, paragraph 35.
°Communication 292/04 para. 34; See also, Communication 155/96 Social and Economic Rights Action Center,
4
Center for Economic and Social Rights v. Federal Republic of Nigeria, and 159/96 Union Inter Africai9e des Droits
de l'Homme, Federation Internationale des Ligues des Droits de l'Homme, Rencontre Africaint<~est'G/8ffs-ct~
l'Homme, Organisation Nationale des Droits de l'Homme au Senegal and Association MalieI)®>''aesctAM ' "bi;o
l'Homme v. Republic of Angola.
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effect that it would consider Communications based on the Complainants' submission
and information at its disposal, even if the State fails to submit. Consequently, it will
give due weight to the Complainants' allegations insofar as they have been adequately
substantiated.
The Complainants' Submission of the Merits
94. TI1e Complainants introduced a factual background of the case, accounting for the ordeal
the Victims suffered due to what appeared as an inadequate legal framework of the
Respondent State with such issues ranging from gender-based violence and denial of
religious freedom to poor detention conditions and, finally, submitted that the
Respondent had violated its legal obligations to respect and protect the rights of the
Complainants under the African Charter as chronologically shown below.
Article 2: The right to freedom from discrimination based on religion or gender
95. The Complainants submitted that the Sudanese Authorities violated the rights of the first
Victim to non-discrimination, as she faced persecution based on her gender as a female
and religion as a Christian. They claim that had she been the daughter of a Christian man
who converted to Islam, she would not have been charged with apostasy. Furthermore,
they assert that if she were a Muslim man married to a Christian woman, she would not
have been convicted of adultery. The Complainants contended that such differential
treatment is discriminatory, representing a grave miscarriage of justice. They also
submitted that the offense of adultery in Sudanese law is particularly discriminatory
against women, as evident in this case, where only the first Victim and not her husband,
the second Victim, were convicted.
96. The Complainants argue that the application of Sudanese criminal laws resulted in the
first Victim receiving the harshest punishment of corporal punishment and the death
penalty. They emphasize that such penalties for offenses like apostasy and adultery are
entirely disproportionate and violate Sudan's international human rights obligations.
Furthermore, they highlight the wrongful detention of the first Victim and her children
in deplorable conditions for over five months, during which the first Victim received
inadequate medical care while pregnant and after giving birth. The Complainants stress
that the first Victim and her family faced severe threats to their lives and were forced to
flee Sudan under extreme and high-risk circumstances.
97.
Article 3: Right to Equal Protection Before the Law
98. The Complainants contended that Article 3 and Article 2 of the African Charter ensure
equal protection against discrimination and incitement to discrimination for individuals,
irrespective of gender or religion.
99. They relied on the case of the Egi;ptian Initiative for Personal Rights and Interights vs. the
Arab Republic of Egypt,41 which established that unequal treatment under the law can only
be claimed if it is proved that the treatment was discriminatory or selective. Additionally,
they cited Antonie Bissangou vs. Congo,42 which held that a violation of Article 2 is not a
prerequisite for violating Article 3, as it contains a general guarantee of equality, which
supplements the discrimination in Article 2.
100. The Complainants further argued that a violation of Article 3 "should follow from the
law, 11 which is to be understood broadly to include not only legislation but also any
exercise of power or judgment conferred by law in a discriminatory manner. They
submitted that the first Victim's rights under Article 3 were violated due to her gender,
her religion as a Christian, and her father being a Muslim. They contended that this
violation deprived her of the enjoyment of her other African Charter rights.
101. The Complainants maintained that the discriminatory treatment of the first Victim by the
Sudanese prosecution authorities and courts, applying Sudanese law, was not justifiable
on any grounds sufficient to warrant .the severe disrespect for and undermining of the
first Victim's rights that transpired. And therefore, the first Victim's rights under Article
3 of the African Charter were violated.
Article 4: the Right to Life and Integrity of the Person
102. The Complainants submitted that the Respondent State violated the rights of the first,
third, and fourth Victims under Article 4 of the African Charter and the corresponding
obligations outlined in General Comment No. 3 on the Right to Life. Accordingly, the
Complainants submitted that states have to protect detained individuals from violence
and emergencies that may threaten their lives. This duty also includes ensuring that
detainees have access to primary living conditions, such as adequate food, water,
ventilation, a sanitary environment, and necessary healthcare, including maternal
healthcare and antiretroviral drugs.
103. The Complainants referred the case of Malawi African Association, Amnesty International,
Ms Sarr Diop, Union iuterafricaine des droits de ['Homme and RADDHO, Collectif des veuves
et ayants-Driot, Association Mauritanienne des droits de ['Homme vs. Mauritania, 43 where the
Commission found a violation of Article 4 when individuals were denied food, ap9- ~
medical attention, subjected to torture that culminated in death, or forced to0 go into,- 0 <c 0·~
hiding due to fear for their lives.
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41 Communication 323/06, 1 March 2011, 176.
42
Communication 253/02, 29 November 2006
43 Communication 205/97, Kazeem Ami1111 v. Nigeria, 11 May 2000, Para 18.
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21
104. Considering these principles, the Complainants submitted that the Respondent State
violated the rights of the first, third, and fourth Victims under Article 4 in three ways.
Firstly, their detention in various facilities, including the Hilat Koko police station in
Khartoum, the Haj Yossif police station in Khartoum, and Omdurman Women's Prison,
subjected them to gravely inadequate and inhumane conditions that failed to meet the
basic requirements of a dignified life. Secondly, the first Victim's death sentence for
apostasy not only violated her freedom of religion but also constituted an excessive
penalty that cannot be justified. The fact that she was threatened with immediate
execution, despite being days away from giving birth, further compounded this violation
of national and international law. Thirdly, after their release from Omdurman Women's
Prison, the Respondent State failed to fulfill its duty to protect the Complainants' lives
despite the known threats from Islamist fundamentalist groups.
105. These failures left the first, third, and fourth Victims vulnerable and forced them to leave
Sudan to secure their safety.
Article 5: the Prohibition of Torture and ill-treatment
106. The Complainants contended that Article 5 of the African Charter had been violated due
to instances of cruel, inhuman, and degrading treatment or punishment. They support
their argument with legal authorities, including the Open SociehJ Justice Initiative v Cote
d'Ivoire44 and the Protocol to the African Charter on the Rights of Women in Africa (the
Maputo Protocol).45 The Complainants highlight the paramount importance of
respecting human dignity and the obligation of states to criminalize torture and other
forms of ill-treatment. 46 Additionally, they emphasize that Article 5 applies to detainees
and stress their entitlement to prompt medical services and independent medical
examinations. The Complainants also refer to specific cases where the Commission has
deemed certain punishments, such as lashing, to violate Article 5.47 They further mention
the Commission's criticism of Sudan's laws, which permit various forms of corporal
punishment, considering them to be cruel, inhuman, and degrading, particularly
towards marginalized women. 4s
44 Communication. No. 249/ 02 (2005).
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ("Maputo
Protocol"), Entry into force Nov. 25, 2005
46 Citing Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, General
Comment No. 1 on the Implementation of Article 5 of the African Charter on Human and Peoples' Rights, 51st
Ordina ry Session (2012); Communication 277/03, Spilg v. Mack and DITSHWANELO (on behalfof Lehlohonolo
Bernard Kobedi) v. Botswana, 16 Decembe r 2011, P163 and Communication 368/09, Abdel Hadi, Ali Radi & Others
v. Republic of Sudan, 4 June 2014, P 74.
47 Citing, for example, Communication 334/06, Egt;ptian Initiative for Personal Rights and INTERJGHTS vs. EgtJpt, 3
March 2011, para 173; and Communication 225/98, H uri - Laws v. Nigeria, 6 November 2000, para 41. See also
Communication 368/09, Abdel Hadi, Ali Radi & Others v. Republic ofSudan, 5 November 2013, para-74
48 Citing the ACH PR, "Concluding Observations and Recommendations on the 4th and 5th Periocyc%port t5f theu
,
Republic of Sudan", 4 August 2012, P 40, the ACHPR/Res. 105, "Resolution on the Prevention of.Jetfur~' lirtd -<><'o,;,
Prohibition of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment", pp 2-3, also; Resolut1
<«u
45
107. On the basis of the facts of the case at hand, the Complainants stated that the treatment
of the first Victim by the Respondent State involved the deliberate infliction of severe
pain and suffering through both:- a) deliberate acts of physical and psychological torture
and b) detaining her in inhuman conditions, for the improper purposes of inflicting
punishment, coercion, and discrimination, which amounts to torture and ill-treatment in
violation of Article 5 of the African Charter. The Complainants argue that the first
Victim's rights under Article 5 were violated during her time at Omdurman Women's
Prison. She experienced severe physical abuse and ill-treatment, including being beaten,
kicked, and spit on by prison guards. She was shackled for most of her detention and
even gave birth while shackled, resulting in long-lasting health issues. Furthermore, she
faced extreme psychological pressure, receiving the death penalty and 100 lashes while
in the late stages of pregnancy. They stated that she was repeatedly pressured to
renounce her Christian faith and affirm Islamic beliefs, and finally, that the first Victim
and her infant son were both subjected to inhumane detention conditions, including a
lack of access to proper medical care during the time they spent in detention.
108. They submitted that these actions were carried out to punish the first Victim for not
renouncing her faith, to coerce her into converting to Islam, and because of
discrimination based on her gender and religion. The treatment she received amounts to
torture under Article 5 of the African Charter. The third and fourth Victims, who were
detained with the first Victim in Omdurman Women's Prison, also had their Article 5
rights violated. They were unable to receive proper care from the first Victim due to her
physical restraints and were denied necessary medical attention despite their young
ages.
Article 6: The Right to L-iberttJ and SecurittJ of the Person
109. The Complainants argued that the Respondent State violated their rights to liberty and
security of the person, as guaranteed by Article 6 of the African Charter. They referred to
previous cases where the Commission held that the right to liberty could be violated by
detention after a trial that does not conform to international standards, even if the
individual is released.49
of the ACmHPR on the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or
Degrading Treatment or Punishment in Africa (Robben Island Guidelines), 32nd Session, Banjul, The Gambia,
October 2002, April 2008, Part IC, 4-14, 285 ACHPR/Res. 105, "Resolution on the Prevention of Torture and
Prohibition of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment", 30 May 2007, P 3,
accessible at https:/ /www.achpr.org, last accessed on 19 February 2020.
~
49
They cite the consolidated cases of Malawi African Association, AmneshJ International, Ms Sarr Di6p, tlJ;!io.n
~
interafricaine des droits de /'Homme and RADO HO, Collectif des veuves et ayants-Droit, Association mauritanie ne.d~
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droits de /'Homme vs. Maurita11ia Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98,,Para 113.
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110. They also cited various guidelines and principles established by the Commission, which
outline the conditions under which deprivation of liberty can be considered arbitrary and
contrary to Article 6.so
111. Specifically, the Complainants argued that the Respondent State violated their rights to
liberty and security of the person in several ways. Firstly, they claimed that the arrest and
detention of the first Victim were discriminatory based on her gender and religion. She
was targeted because she was the daughter of a Muslim man who had converted to
Christianity and married a Christian man. Secondly, they argued that the pre-trial
detention of the first Victim, while pregnant and together with her infant son, was not a
measure of last resort and was unnecessary. The offences she was accused of did not
involve endangering life or material damage and did not warrant pre-trial detention.
Thirdly, they claimed that the subsequent prosecution and conviction of the first Victim
jeopardized her and her children's liberty and security of the person. She received severe
sentences of corporal punishment and the death penalty, and she and her children were
held in deplorable conditions in detention for over five months. Additionally, she was not
permitted to leave the prison to give birth, forcing her to give birth while shackled. Even
after her release, the first Victim and her family faced threats, further prosecution, and
intimidation by Sudanese authorities. Furthermore, the Complainants argued that the
first Victim was subjected to incommunicado detention on several occasions, where she
was cut off from communication with the outside world and denied access to her lawyers
and family. In previous cases, the Commission deemed these instances of
incommunicado detention to be arbitrary and a gross violation of human rights. 51
112. The Complainants invoked the Commission's previous rulings on the right to security of
person, which distinguishes between individual and national security.52 They argued that
the Respondent State violated the first victim's right to security of the person under both
strands of the right, as her physical integrity was not protected by the state from abuse
by official authorities or non-state actors.
Article 7: The Right to a Fair Trial
113. The Complainant argued that the first Victim's right to a fair trial was violated, as
outlined in Article 7 of the African Charter. They cited the case of Mr Mamboleo M.
Itundamilamba vs The Democratic Republic of Congo53 as support that Article 7 is a universal
50 Cited Commission's " Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003,
Section Ml(b) "Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, and the
cases of the Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHR E) vs. Sudan
Communication 279/ 03-296/05 Para 172, and Free Legal Assistance Group, LaWIJers' Committee for Human Rights,
Union lnterafricaine des Droits de /'Homme, Les Temoins de Jehovah v. DRC Communications 25/89-47/90-56/91100/93 at Para 45.
51 Referring to the positions in Liesbeth Zegveld and Mussie Ephrem vs. Eritrea, Communication 250/ 02, 20 , t' .
November 2003, Pg 53, and Sir Dawda K. Jawara v. Gambia 147/ 95-149/96 P59.
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52 Citing the Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights aud..
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Evictions (COHRE) v. Sudan, 27 May 2009, Pa ra 175
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requirement. Furthermore, they argued that this guarantee includes the principle of
procedural equality of arms, which the Commission has described as an essential aspect
of the right to a fair trial. 54 To support their case, the Complainant also referred to section
A.2.e of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa, which highlights the essential elements of a fair trial, such as having adequate
time to prepare a case, presenting arguments and evidence, and being able to challenge
opposing arguments or evidence. 55
114. The Complainant alleges multiple violations of the first Victim's right to a fair trial. They
submitted that procedural and substantive irregularities and judicial biases marred the
initial criminal proceedings. In that, the Complainant submitted that the Court made an
incorrect judgment about the Victim's religious belief, assuming she was Muslim based
on her father's religion, disregarding her upbringing and lifelong Christian faith. This
erroneous conclusion led to the nullification of the marriage between the first and second
victims, exceeding the Court's authority. Secondly, they submitted that the Court also
encroached on the jurisdiction of the Personal Status Court by convicting the first Victim
of adultery. At the same time, the second Victim was acquitted of the same charge,
showing discrimination. Thirdly, the Court indicted the first Victim for the
unconstitutional offense of apostasy, imposing the death penalty without any basis,
dismissing the arguments made by the first Victim's defense team regarding the
incompatibility of apostasy with freedom of religious belief, thereby undermining the
equality of arms.
115. The Complainants, moreover, submitted that the Court threatened the first Victim with
immediate execution unless she recanted her Christian faith and accepted Islam, even
though the Respondent State's Constitution prohibits executing pregnant women within
two years of giving birth. They submitted that the Court even sent imams to pressure the
first Victim into complying with the ultimatum. When the first Victim refused, she was
sentenced to death and severe corporal punishment.
116. Notwithstanding the revocation of the first victim's convictions on appeal, the
Complainants submitted that such irregularities of the first instance proceedings were
neither acknowledged nor rectified in the Court of Appeal proceedings (nor in the
subsequent appeals proceedings. They submitted that the Court of Appeal only revoked
the first Victim' s convictions, bowing to the international community's intense
diplomatic pressure on the Respondent State. The Complainants submitted that the
Court of Appeal failed to uphold the first Victim's religious freedom (and thus the
validity of her marriage).
117. Considering the above, they concluded that the conduct of the Respondent State's Courts
fell well below the standard of the most basic tenets for the right to a fair trial, as
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enshrined in Article 7 of the African Charter.
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Article 8: the Freedom of Religion
118. The Complainant argues that the first Victim's right to freedom of religion, guaranteed
by Article 8 of the African Charter, was violated. They refer to a previous case, Center for
Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare
Council) v. Kenya, 56 where the Commission affirmed that the right to hold religious beliefs
is absolute, expressed as "freedom of conscience," "freedom of religion," and 11 freedom to
practice religion." The Complainant further notes that the state's responsibility under
Article 8 of the African Charter is engaged when individuals are persecuted based on
their religion. In particular, they point out that the Commission has previously held that
the application of Shari'a law to non-Muslims violates Article 8 and has called on Sudan
to ensure that Shari'a law is not enforced in this manner. 57 The Complainant highlights
the Commission's finding that Sudan violated Article 8 in cases where individuals were
11
persecuted to cause their conversion to Islam" and where Christians faced 11 arbitrary
arrests, expulsions, and denial of access to work and food aid." 58
119. The Complainant argues that the first Victim's rights to freedom of religion under Article
8 were violated in multiple ways following her initial arrest in September 2013. Firstly,
the Public Prosecutor indicted the first Victim for the offense of adultery on the
assumption that she was Muslim, despite her stating that she identified as Catholic to the
police prior to her arrest. This resulted in the application of Shari'a law, even though she
was a non-Muslim. Secondly, the Magistrate Court added the charge of apostasy against
the first Victim because she had converted from Islam to Catholicism. However, she was
raised as an Ethiopian Orthodox Christian and chose to adopt the Catholic faith as an
adult. Criminalizing conversion is incompatible with religious freedom. Thirdly, the Haj
Yossif General Court tried and convicted the first Victim of both adultery and apostasy
despite the consistent profession of her Catholic faith during the trial. The court's
findings were contradictory ~ the conviction for adultery assumed that she was Muslim
and therefore prohibited from marrying a Christian man. Yet, the sentence of apostasy
assumed that she had renounced Islam and adopted another faith.
120. Additionally, the court pressured her to affirm the Islamic faith under threat of the death
penalty, undermining her right to choose her religion as guaranteed by Article 8 and the
Interim National Constitution of Sudan, 2005. Furthermore, the first Victim was sentenced
to the death penalty and 100 lashes, which is a manifestly disproportionate and
56 Communication 276/03, 25 November 2009, Para165.
57
Citing Communication 48/90-50/91-52/ 91-89/ 93, Amnesty International, Comite Loosli Hachelard, Lawyers'
Committee fo r Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan, 15 November
1999, pg 73. See also ACHPR," Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the
Republic of Sudan", 4 August 2012; ACmHPR, " Promotional Mission Report of the Commissioner Angela Melo, Special
Rapporteur on the Rights a/Women in Africa in lite Republic of Sudan", (30 March to 4th April 2003), p 161(ct, ~ .
SSCiting Communication 48/ 90-50/ 91-52/91-89/93, Amnesty International, Comite Loosli Baclzelar?i~ <JJawyers' ~ u .<><' ~
Committee fo r Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan, 15 N0vem"beJ
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unreasonable restriction on her freedom of religion. These punishments are also
inconsistent with the African Charter. Although the Court of Appeal overturned the first
Victim's convictions and sentences, the majority of the court based their decision on the
erroneous ground that she was not mentally responsible for her actions. This failure by
the Court of Appeal to uphold the first Victim's right to freedom of religion, as enshrined
in Article 8 of the African Charter and the Interim National Constitution of Sudan, 2005,
has resulted in continued threats to her life from Islamist fundamentalist groups. These
threats have forced her and her family to flee Sudan.
121. Overall, the violations of the first Victim's rights to freedom of religion include the
incorrect application of Shari'a law, the charge of apostasy for converting to Catholicism,
the contradictory convictions, the pressure to affirm the Islamic faith, the
disproportionate punishments, and the failure of the Court of Appeal to protect her right
to freedom of religion.
Article 12: the Freedom of Movement
122. The Complainant raised the issue that the victims were deprived of their right to freedom
of movement, which Article 12 of the African Charter safeguards. They asserted that
Sudan violated Articles 12(1) and 12(2) of the African Charter. They highlighted a
previous case, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions
(COHRE) vs Sudan, S9which stated that freedom of movement is a fundamental human
right crucial for protecting and promoting other human rights and fundamental
freedoms.
123. The Complainants added that Article 12(1) of the African Charter includes the freedom
to travel, reside, and work in any part of the state without interference from the state.
Regarding Article 12(2), the Complainants argued that every individual has the right to
leave their country, including their own, and return only subject to lawful restrictions
that protect national security, law and order, public health, or morality.
124. The Commission, in the case of Movement Burkinabe des droits de ['Homme et des peuples vs.
Burkina Faso,60 found a violation of Article 12(2) when a political party leader was
prohibited from leaving Burkina Faso after publishing a statement about the political
situation in the country.
125. In another case, Sir Dawda K. Jawara vs The Gambia, the Commission found a violation of
Articles 12(1) and 12(2) of the Charter, where government officials were prevented from
travelling outside Gambia.61
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60
61
Communica tion 204/ 97, Para 47.
Communication 147/ 95-149/96, Para 70.
27
126. In the context of this case, the Complainants submitted that the Victims' rights to freedom
of movement under Article 12 were violated, resulting from the continued threats to the
first Victim's life from Islamist fundamentalist groups, from which the Respondent State
did not protect her and which have meant that she and her family are unable to return to
Sudan safely. Secondly, the failure to take measures to protect the lives and personal
integrity of the Complainants against threats by private actors, thus forcing them to leave
Sudan against their will to protect themselves and their families, and the actions of NISS
agents in detaining the Complainants at the airport and obstructing their departure from
Sudan due to false allegations concerning the authenticity of their travel documentation
which proved to be baseless.
Article 16: the Right to Health
127. The Complainants argued that the first, third, and fourth Victims had their rights to
health violated, as guaranteed by Article 16 of the African Charter. They referred to
previous cases, such as Egi;ptian Initiative for Personal Rights & INTERIGHTS v. Egi;pt.62 and
Purohit and Moore v. The Gambia,63 stating that the right to health is essential for all other
human rights recognized by the African Charter and is vital for overall well-being. They
also cited the Commission's Resolution on Access to Health and Need for Medicines in Africa
and the "Principles and Guidelines on the Implementation of Economic, Social and Cultural
Rights in the African Charter on Human and Peoples' Rights," which assert that the right to
health includes access to safe water, sanitation, food, nutrition, housing, occupational and
environmental conditions.
128. Regarding healthcare in detention, the Complainants turned to previous cases, such as
Malawi African Association and Others vs ..Mauritania64 and Monim Elgak, Osman Hummeida
and Amir Sulivan (Represented by FIDH and OMCT) vs. Sudan65, in which the Commission
held that the State has an obligation to respect the right to health for those in detention.
They emphasized that the responsibility for the physical integrity and welfare of
detainees lies with the competent public authorities. In the present case, the
Complainants highlighted the concern expressed by the United Nations High
Commissioner for Human Rights regarding the physical and mental well-being of Ms
Ibrahim during her detention, mainly while she was eight months pregnant and
accompanied by her 20-month-old son in harsh conditions. 66
129. The Complainants further argued that the rights to health of the Victims were violated in
specific ways. Firstly, the first and third Victims were deprived of their basic needs,
including access to food, basic hygiene, and medical care, during their incarceration. The
prison guards attempted to conceal these deplorable conditions by moving them to a
cleaner cell before visits from human rights organizations and government officials.
62 Communication 323/06, 16 December 2011, Pg 261.
63 Communication 241/01, 29 May 2003, Para 80.
64 Communication No. 54/91, 61/91, 98/93, 164/97, 196/97 and 201
65 Communication 379/09. 14 March 2014, Para 136
66 United
Nations, " UN rights office deeply concerned over Sudanese woman facing death for apostasy", 16 May 20 ,
accessible ath ttp://www.un.org, last accessed on 19 February 2020
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Secondly, the third Victim constantly fell ill with colds, fevers, and diarrhoea while in
detention, but was not provided with any medical care. Thirdly, the first Victim did not
receive any antenatal or postnatal medical care and was even kept in shackles while
giving birth to her daughter, the fourth Victim. Additionally, the fourth Victim, who was
born three weeks premature and under challenging conditions, did not receive any
neonatal medical care.
130. The Complainants concluded that these violations of the right to health demonstrate a
failure on the part of the authorities to fulfill their duty to ensure the well-being and
physical integrity of individuals in detention. The Complainants argued that these
violations directly contradict the State's obligations under Article 16 of the African
Charter to respect, protect, and fulfill the right to health.
Article 18(1)(2): the Right to Family Life
131. The Complainant submitted that the first Victim was denied her rights under Article 18
of the African Charter, to which states have both a positive and negative obligation. i.e.,
to assist the family in meeting its needs and interests and protect the same institution
from abuse by its officials, organs, and third parties, as was held in Kenneth Good v. the
Republic of Botswana." 67 The Complainants referred the case of Sudan Human Rights
Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan. 68 in which the
Commission held that "arbitrary or unlawful interference with the family" contravenes
Article 18(1).
132. Conversely, they submitted that Article 18(2), in its negative sense, requires a State to
"refrain from violating the rights and interests of the family." 69 The Complainants
acknowledged the duality of the Article 18 guarantee in the COHRE case, where it stated
that' ensuring the protection provided for under Article 23 of the International Covenant
on Civil and Political Rights requires that States parties should adopt legislative,
administrative or other measures to ensuring the protection of the family as also requires
that States refrain from any action that will affect the family unit, including arbitrary
separation of family members and involuntary displacement of families." 70
133. The Complainants also noted with respect to General Comment No. 19 that it is a "right
of men and women of marriageable age to marry and to find a farnily." 71 Relevantly,
"prosecution for adultery is contrary to international law as ' the criminalization of sexual
67 Communication 313/05, 26 May 2010, Para 212.
68 Communication 279/ 03-296/ 05, 27 May 2009, ~ 213.
69 Citing Keneth Good, Supra, at para 212.
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° Communication 279/ 03-296/ 05, Sudan Human Rights Organisation & Centre on Housing Rights af!d'-Evicpons
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(COHRE) v. Sudan, 27 May 2009, Para 214.
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71 UN H uman Rights Committee, "General Comment No. 19: Protection of the family, right to marriage and equaliti; of
the spouse", 1990, Pg 4,
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relations between consenting adults is a violation of their right to privacy under
international human rights law'."72
134. They concluded that the conviction of the first Victim for the offence of adultery by the
Haj Yossif General Court constituted a fundamental breach of her rights to marry and
found a family under Article 18 of the African Charter, notwithstanding the Court of
Appeal's revocation of her convictions, given the Court's failure to uphold the first
Victim's religious freedom (and thus her marriage).
Article 1: The Failure in the Respondent's Dutt; to Give Effect to the Charter
135. The Complainants cited A bdel Hadi, Ali Radi, and others vs. the Republic of Sudan73 and
Egyptian In itiative for Personal Rights & INTERIGHTS v. Egypt· They argued that violating
"any provision of the Charter" means violating Article 1 and liability thereunder. Citing
Noah Kazingashire, John Chitsenga, Elias Chemvura, and Batanai Hadzisi v. Zimbabwe,74 they
submitted that ratification of the African Charter requires "harmonization" of national
laws with the African Charter. As argued above, in the present case, the Respondent State
is directly responsible for the violations of Articles 2, 3, 4, 5, 6, 7, 8, 12, 16, and 18 of the
African Charter in respect of the Victims, for engaging in conduct which violated the
rights enshrined in those provisions. The Respondent State furthermore failed to put in
place a legal framework to protect the rights of the Complainants or provide them with
access to adequate remedies and redress.
The Commission's Analysis of the Submission of Merits
136. The Commission will first consider the alleged violations of Article 2 of the African
Charter to determine each allegation. After analyzing all the other Articles, the provisions
of Article 1 will be addressed. This is because a violation of Article 1 can only be
established if other Articles in the African Charter have been violated . This is a common
practice followed by the Commission.
On Alleged Violation of Article 2: The R ight Against Discrimination
137. Article 2 provides that:
"Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and
guaran teed in the present Charter without distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or any other opinion, national and social origin, fortune,
birth or another status;"
138. To determine whether Article 2 of the African Charter has been violated, the Commission
considers that various international and regional instruments provide for discrimination
against women, as it is guided by Article 60 of the African Charter. Starting w~th the
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mother for apostasy and adultenf, 19 May 2014,
73 Communication 368/ 09, 4 June 2014, Para 91
74
Communication 295/ 04, Para 142.
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prov1s1ons of the Maputo Protocol, it notes that discrimination against women is
explicitly defined to mean "any distinction, exclusion, or restriction based on sex that
compromises or undermines their enjoyment of human rights." Also, not far away from
this provision, in the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) in Article 1, the Commission finds that discrimination
against women is defined to mean any differentiation based on sex that impairs women 1s
enjoyment of their human rights and fundamental freedoms.
139. Along with these definitions, the Commission reiterates its decision in the Association
Mauritanienne des Droits de l'Homme vs Mauritania that discrimination in the context of
Article 2 of the African Charter manifests into two types: direct and indirect
discrimination. Direct discrimination against women constitutes different treatment
explicitly based on the grounds of sex and gender ·differences. In contrast, indirect
discrimination against women occurs when a law, policy, programme, or practice
appears to be neutral as it relates to women and men but has a discriminatory effect in
practice on women. 75 The Commission re-states that irrespective of its manifestation,
whether direct or indirect, discrimination is prohibited with the States assuming their
obligation under the African Charter and in other human rights instruments,
internationally and regionally.
140. The Commission considers the right to equality between men and women in marriage,
including the freedom to choose a spouse. It recognizes the importance of upholding the
equality of all individuals, as stated in Article 2 of the African Charter and the Maputo
Protocol. Similar to the obligation of the States in Article 1 of the African Charter, the
Commission notes from the CEDA W Committee General Recommendation No. 2876 that
States Parties must respect, protect, and fulfil women's rights to non-discrimination and
the enjoyment of equality.
141. In applying the framework to deal with non-discrimination against women, the
Commission stresses its position in Samira Ibrahim Mahmoud and Rasha Ali Abdel-Rahman
(Represen ted by the Egtjptian Initiative for Personal Rights (EIPR) & Interights) vs. The Arab
Republic of Egypt of the following palpable obligations that States must observe,
specifically at least; - First, to enact laws prohibiting all forms of discrimination against
women and ensure that existing legislation is amended as necessary, and monitored
through adequate functioning of legal processes; Secondly, enforce existing legislation,
including through effective investigation, prosecution of perpetrators, reparation and
support/rehabilitation services for victims; and Thirdly, to take specific measures to
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Discrimination against Women, CEDAW /C/GC/28
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ensure gender-sensitive investigations and prevent gender stereotyping and secondary
victimization. 77
142. Now, in determining discrimination in this context, the Commission follows the tests of
discrimination in its decision in Kenneth Good vs. Republic of Botswana,78 that a violation
of the principle of non-discrimination arises if, firstly, equal cases are treated differently;
secondly, a difference in treatment does not have an objective and reasonable
justification; and thirdly, if there is no proportionality between the aim sought and the
means employed. Within tl1e context of the principles above, several crucial questions
regarding the situation at hand need to be addressed. These questions include: (i) Was
there equal treatment under the law for all men and women in Sudan? (ii) If so, is there
a reasonable justification for this treatment?
143. The Complainants submitted that the first Victim faced persecution based on her gender
and religion as the daughter of a Muslim man who.professed Christianity and married a
Christian.79 They argued that had she been the daughter of a Christian man who
converted to Islam, she would not have been charged with apostasy. Furthermore, they
assert that if she were a Muslim man married to a Christian woman, she would not have
been convicted of adultery.
144. The Complainants contend that such differential treatment is discriminatory,
representing a grave miscarriage of justice. And that the offense of adultery and the
application of the Sudanese criminal law is particularly discriminatory against women,
as evident in this case, where only the first Victim and not her husband were convicted.
The Complainants raised a concern about both parties being charged with adultery, but
only one of them was found guilty. They questioned how this was possible and whether
it meant that a person could be found guilty of committing adultery alone, even if both
parties were initially charged with the same act. 80
145. Several conclusions are apparent from the submissions of the statements made by the
Complainants, namely, (i) the treatment is exclusively for women, (ii) the practice is to
discourage marriage between Female Muslims and Male Non-Muslims, and not vice
versa, (iii) the law does offer protection as of right to intermarriage between consenting
adults and for such the first Victim faced the consequences of the law, id est charged,
convicted and suffered all the ordeal;81 and (iv) as a result of the laws, the violations were
perpetrated on the first Victim, an expectant mother and her infants.
77 Communication 424/12 Samira Ibrahim Mahmoud and Raslta Ali Abdel-Rahman (Represented bi; the Egi;ptian illitiative
for Personal Rights (EIPR) & Interights) vs. The Arab Republic of Egi;pt, 75th Ordinary Session, para 174
78 Cited above, para. 219
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146. Having said this, the burden of proof could, therefore, shift on the Respondent State to
demonstrate that the law indeed protected the Victims and that there was no differential
treatment given to both male and female Muslims to justify their intermarriages and any
restrictions whatsoever. However, for what is considered in the record and all attempts,
the Respondent State never submitted on merit, and there is no evidence to the contrary,
the Commission finds a violation of Article 2 of the African Charter.
147. The Commission reiterates its position in Amnesty International and Others vs. Sudan 82 that
it is unjust to apply religious laws against individuals who do not follow that religion,
and also that non-Muslims have the right to be judged by a secular court and not by
Shari'a tribunals. The Commission considers the application of Sudan's criminal law
discriminatory and violent in this context.
148. For these reasons, based on the above analysis, the Commission finds the Respondent
State violating Article 2 of the African Charter.
On alleged Violation of Article 3: The Right to Equal-itjt Before the Law and Equal Protection
of the Law.
149. Articles 3(1) and (2) of the African Charter provide that:
"EvenJ individual shal.l be equal before the law, and that evenJ individual shall be entitled to
equal protection of the law."
150. Conceptualizing the parameters of this, the Commission understands that Article 3 of the
African Charter has two components: tht=! right to equality before the law and the right to
equal protection of the law. The right to equal protection of the law means that "the law
shall prohibit and guarantee to all persons equal and effective protection against
discrimination to the meaning ascribed to it under article 2 of the African Charter. 83 Thus,
the right to equality before the law means that all are equal before the courts and
tribunals. As for the right to equal protection of the law, the Commission recalls its
decision in Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) vs
Botswana that it consists of the right of all persons to have equal access to the law and the
courts and to be treated equally by the law and the courts. 84 As a result, to prove a
violation of Article 3 of the African Charter, it must be shown that the victims did not
receive favourable protection similar to that accorded to others in the same situation. In
the context of this Communication, the question of whether there was unequal treatment
of the people is raised.
151. The Complainants gave an account of events from the indictment sometime in 2013 on
allegations by one Al Hadi for adultery charges, and the conviction of the first Victim for
82 Communications 48/90, 50/ 91, 89/93 Para 72 and 73
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apostasy and adultery. 85 It is stated that both the first and second Victims were indicted,
but later on, only the first Victim was found guilty of adultery. To what extent does the
Commission find a differential treatment of the parties in a similar situation? The
Commission reiterates its stance in Kenneth Good vs the Republic of Botswana (also cited in
analysis of violation of article 2 above) that article 3 of the African Charter is violated not
only where equal cases are treated differently but where a difference in treatment does
not have an objective and reasonable justification and if there is no proportionality
between the aim sought and the means employed.
152. Regarding these requirements, the Commission finds no justifiable basis for the first
Victim's adultery conviction, particularly when her husband, the second Victim, was not
similarly found guilty. Consequently, she was elevated for her charges of apostasy.
153. The Commission agrees that the Respondent State has violated the right to equality and
equal protection under Article 3 of the African Charter regarding the first Victim.
011 alleged Violations of Article 4: the Right to Life and Integrity of the Person
154. Article 4 of the Charter states, "The human person is inviolable. Every human being has the
right to respect his life and the physical and moral integrity of his person. No one shall be
arbitrarily deprived of this right.
155. To characterize the rights to life, the Commission recalls its decision in Forum of Conscience
vs Sierra Leone86 that the right to life is the basis of all other rights. And that it is the source
from which other rights flow, and any unjustified violation of this right amounts to an
arbitrary deprivation. The Commission also considers the position adopted by the
African Court on Human and Peoples' Rights in the African Commission on Human and
Peoples' Rights vs Kenya. 87(the Ogiek case), returning to the fundamental character of the
right to life, indicating that all other rights and freedoms depend on this right. The Court
considers that depriving someone of life eliminates the very holder of those rights and
freedoms. 88
156. The Commission also reiterates the United Nations Human Rights Committee's
consideration that "the right to life encompasses the right of persons to be free from acts
and omissions intended to cause or expected to cause their unnatural or premature death,
and to live with dignity. "89 The Commission agrees with the Committee's position that
deprivation of life involves deliberate or at least foreseeable and preventable harm
85 See para 62 and 63 complainants' Submission on merits
86 Communication 223/98- Forum of Conscience v/ Sierra Leone (2000) ACHPR para 20.
87 Application 006/ 2012- (2017) AfCHPR
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(damage or injmy) caused by an act or omission which results in the termination of life. 90
In the case of the Centre for Minority Rights Development (Kenya) and Minority Rights Group
(on behalfof Endorois Welfare Council) vs. Kenya, 91 the Commission held that the State must
take positive and concrete measures to guarantee the right to life, especially in the case of
vulnerable and exposed persons, whose care becomes a high priority.
157. The Complainants submitted that the Respondent State violated the rights of the first,
third, and fourth Victims under Article 4 of the African Charter and the corresponding
obligations outlined in General Comment No. 3 on the Right to Life. Accordingly, the
Complainants submitted that States must protect detained individuals from violence and
emergencies that may threaten their lives. This duty also includes ensuring that detainees
have access to primary living conditions, such as adequate food, water, ventilation, a
sanitary environment, and necessary healthcare, including maternal healthcare and
antiretroviral drugs.
158. The Commission considered the submission by the Complainants and found violations
of Article 4 as a result of gravely inadequate and inhumane conditions that failed to meet
the basic requirements of a dignified life while in several detention facilities. Secondly,
the first Victim's death sentence for apostasy in her state of health and associated threats
was traumatic. Thirdly, for failure to protect the Complainants' lives despite the known
threats from Islamist fundamentalist groups, which left the first, third, and fourth Victims
vulnerable and forced them to leave Sudan to secure their safety.
159. The Commission remain guided by its position in the Malawi African Association, Amnesty
International, Ms Sarr Diop, Union interafricaine des droits de ['Homme and RADDHO,
Collectif des veuves et ayants-Driot, Association Mnuritanienne des droits de ['Homme vs
Mauritania,92 (also cited by the Complainants) that it is a violation of Article 4 when
individuals were denied food and medical attention, subjected to torture that culminated
in death, or forced to go into hiding due to fear for their lives.
160. For these reasons, the Commission finds the Respondent State violating Article 4 of the
African Charter.
On Alleged Violation of Article 5: Prohibition of Torture and Cruel, Inhuman and Degrading
Treatment
161. Article 5 of the African Charter states that: "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
l
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and Political Rights", para 6
91 Communication 276/ 03 para 217
92
Communication 205/ 97, Kazeem Aminu v. Nigeria, 11 May 2000, Pa ra 18.
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exploitation and degradation of man particularly slavenJ, slave trade, torture, cruel and inhuman
or degrading punishment and treabnent shall be prohibited;"
162. In the first instance, in determining whether the alleged acts inflicted on the Victims
amounted to Torture and Cruel, Inhuman and Degrading Treatment in the scope of
Article 5, the Commission reiterates its holding in International Pen and Others vs Nigeria93
that Article 5 of the African Charter prohibits not only torture but cruel, inhuman or
degrading treatment. The Commission also remains guided by its position in Curtis
Doebbler vs Sudan,94 that the determination of whether an act constitutes inhuman,
degrading treatment or punishment depends on the circumstances of the case, and that
the prohibition of torture, cruel, inhuman, or degrading treatment or punishment is to be
interpreted as widely as possible to encompass the broadest possible array of physical
and mental abuses.
163. As to the obligation of states, the Commission refers to Article 16(1) of the UN Convention
against Torture, which requires States to prevent, in any territory under their jurisdiction,
acts of cruel, inhuman, or degrading treatm~nt or punishment which amount to torture
as defined in Article 1, regardless of the perpetrator's official capacity. The Commission
also considers Article 16(2) of the same Convention. It adds that the provisions are
without prejudice to the provisions of any other international instrument or national law
which prohibits cruel, inhuman or degrading treatment or punishment and holds along
the view adopted in Egyptian Initiative for Personal Rights and Interights vs. Egypt95 that the
spirit of the UN Convention Against Torture shall apply even in the context of the African
Charter.
164. In the same line of reflection as to what constitutes ill-treatment, the Commission also
takes the position it took in the Egyptian Initiative for Personal Rights and Interights vs. EgiJpt,
in particular, considering the European Court position in Ireland v UK96underscoring that
an act will qualify as 'ill-treatment,' when it attains a minimum level of severity in terms
of (i) the duration of the treatment; (ii) the physical effects of the treatment; (iii)the mental
effects of the treatment; and (iv) the sex, age and state of health of the victim involved;
165. On the question of what constitutes "inhuman degrading treatment," the Commission
again maintains its view from the EgiJptian Initiative for Personal Rights and Interights vs
Egypt case, citing the combined Greek Cases97 by the European Commission.The
Commission con siders that the notion of inhuman d egrading treatment covers at least
93Communications 137/94, 139/94, 154/96 & 161 /97
94Commun ication 236/ 2000, see also Communication 225/98 Huri-Laws v N igeria and UN Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment
95 See, Paragraph191-2
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such treatment as deliberately causing severe suffering, mental or physical, which in the
particular situation is unjustifiable, and that for an act to be degrading, there must be
some form of' gross humiliation'.
166. Overall, the Commission echoes the positions respectively adopted by itself and the
European Court on Human Rights in John K. Modise v Botswana98 and Campbell and Cosans
v UK99 that the acts of inhuman and degrading treatment" not only cause serious physical
or psychological suffering but also humiliate the individual while exposing them to
personal suffering and indignity and can be interpreted to extend to the widest possible
protection against abuses, whether physical or mental"
167. The Complainants contended that Article 5 of the African Charter had been violated due
to instances of cruel, inhuman, and degrading treatment or punishment. Additionally,
they emphasized that Article 5 applies to detainees and stressed their entitlement to
prompt medical services and independent medical examinations referring to specific
cases where the Commission has deemed certain punishments, such as lashing, to be
violations of Article 5 and mentioned the Commission's criticism of Sudan's laws, which
permit various forms of corporal punishment, considering them to be cruel, inhuman,
and degrading, particularly towards marginalized women.
168. Now, interrogating the circumstances of the case at hand to establish cruel, inhuman and
degrading treatment (ill-treatment) and torture, the Commission recalls the facts in
paragraphs 107 (above), facts also captured in Paragraphs 4 to 12 on the summary of the
complaint and several annexes. The Commission finds that the treatment of the Victims
amounts to physical and emotional trauma. It is the Commission's view that the acts were
cruel, inhuman, and degrading treatment (ill-treatment) in the scope of Article 5 of the
African Charter. For instance, physical abuse and ill-treatment, including being beaten,
kicked, and spit on by prison guards. The first Victim was shackled for most of her
detention and even gave birth while shackled, resulting in long-lasting health issues.
169. The Commission would also like to accentuate that, by being a party to the African
Charter, the Respondent State should prohibit inhuman and degrading treatment under
Article 5 of the African Charter. In addition, The Commission notes that the Respondent
State is also a party to the International Covenant on Civil and Political Rights (ICCPR),100
whose Article 7 provides that "No one shall be subjected to torture or cruel, inhuman or
degrading treatment or punishment." The Commission notes that the Victims in the
present Communication were not only subjected to ill-treatment but intimidated in
several ways. For instance, when the first Victim was persuaded to change her religion
l,
98 Communication 97 /93 Para 71
99
(1982) ECHR, para 28.
100 Sudan Accedded to the ICCPR on 18 March 1986, See,
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or to face the death penalty as submitted.101 The Respondent State, therefore, owed an
obligation to the Victims to effectively investigate the acts of ill-treatment that impacted
their dignity and pw1ish the perpetrators accordingly. Failing to do so only amounted to
an infringement of the rights of the Victims under Article 5 of the African Charter and
other international instruments that the Respondent State is a party to.
170. Based on the foregoing, the African Commission concludes that the Respondent State
violated Article 5 of the African Charter because the acts committed amounted to
inhuman treatment, and investigations were not conducted.
011 Alleged Violations of Article 6: The Right to Liberty aud Security of the Person
171. Article 6 of the Charter states: "Even1one has the right to liberty and securihJ- No one sh.all be
deprived of their liberhJ except on such grounds and under such conditions as are determined by
law. In particular, no one shall be arbitrarily arrested or detained."
172. The Commission notes that this provision prohibits detentions that have not been carried
out in accordance with the law. The Com,nission refers explicitly to its Principles and
Guidelines on Due Process and Legal Assistance in Africa, which set out the obligations
of States about the right to liberty and security, including the prohibition of arbitrary
detention, the obligation to detain only when strictly prescribed by law, by order of and
in accordance with the decision of the competent authorities and for the purposes
determined by law. The obligation is to initiate effective investigations to identify
perpetrators, hold them accountable, and provide reparations to the victims.102 The
Commission further notes that Article 6 of the African Charter protects two fundamental
rights: freedom of action and movement, and personal security. The first right is
composed of several aspects, which can be summarised in two: the right not to be
detained or imprisoned by public authorities, except for reasons and under conditions
prescribed by law, and the right not to have one's freedom restricted or to be confined
within a specific space, without reasons and under conditions prescribed by law.
173. In contrast, the right to personal security implies that people and all those who have
chosen to live in Africa should be able to do so safely and peacefully, free from threats
and aggression from public authorities or private entities. Any restriction on these two
rights must be in accordance with what has been previously established as an established
legal norm.
174. The Commission echoes its decisions in Constitutional Rights Project/Civil Liberties
Organisation vs Nigeria, in which it observed that "where individuals are detained without
charge, [...] this constitutes an arbitrary deprivation of their liberty and therefore a
violation of Article 6. 11
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175. Interrogating the circumstances of this case, the Complainants argued that the
Respondent State violated their rights to liberty and security of the person, as guaranteed
by Article 6 of the African Charter. Firstly, by effecting the arrest and detention of the first
Victim on a discriminatory basis. Secondly, the pre-trial detention of the first Victim, while
pregnant and together with her infant son, was not a measure of last resort and was
unnecessary. The offences she was accused of did not involve endangering life or material
damage and did not warrant pre-trial detention. Thirdly, they claimed that the subsequent
prosecution and conviction of the first Victim jeopardized her and her children's liberty
and security of the person. She received severe sentences of corporal punishment and the
death penalty, and she and her children were held in deplorable conditions in detention
for over five months. Additionally, she was not permitted to leave the prison to give birth,
forcing her to give birth while shackled. Furthermore, the Complainants argued that the
first Victim was subjected to incommunicado detention on several occasions, where she
was cut off from communication with the outside world and denied access to her lawyers
and family.
176. In the final determination, the Commission concurs with the Complainants. It ascertains
that the Respondent State contravened the victim's entitlement to the security of the
person under both facets of the right because the Respondent State failed to safeguard
their physical well-being against maltreatment by·governmental authorities and private
individuals, hence violating Article 6.
On alleged Violations of Article 7: The Right to Fair Trial
177. Article 7 of the Charter provides that:
(1) everyone has the right to have their case heard. This right includes :
a) the right to bring an action before the competent national courts against any act
infringing the fundamental rights recognized and guaranteed by the conventions, laws,
regulations, and practices in force;
b) the right to be presumed innocent until proven guilty by a competent court;
c) the right to a defence, including the right to be assisted by a lawyer of one's choice;
d) the right to be tried within a reasonable time by an impartial tribunal.
(2)No one may be co_nvicted of an act or omission which did not constitute, at the time it was
committed, an _offence punishable by law. No penalty may be prescribed if it was not prescribed
at the time the offence was committed. The penalty is personal and concerns only the offender.
178. The Commission notes that Article 7 of the African Charter concerns the procedural
component of the right to a fair trial. Under the Commission's Principles and Guidelines
on Fair Trial and Legal Assistance in Africa, the victims have the right, among others, to
legal counsel and medical examination, and to communicate with family or friends at the
time of arrest. 103 The guidelines also guarantee adequate time to prepare a case, present
arguments and evidence, and challenge opposing arguments. In this, the Commission
considers the procedural equality of arms an essential aspect of the right to a fair trial.1 04
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179. The Commission notes that this case involves allegations of multiple violations of Article
7 regarding the first Victim's right to a fair trial. The Complainant argues that procedural
and substantive irregularities and judicial biases marred the initial criminal proceedings
against the first Victim. For instance, the court made an incorrect judgment about the first
Victim's religious belief, assuming she was Muslim based on her father's religion,
disregarding her upbringing and lifelong Christian faith. Further, an erroneous
conclusion led to the nullification of the marriage between the first and second Victims,
exceeding the court's authority. It also stated that the court encroached on the jurisdiction
of the Personal Status Court by convicting the first Victim of adultery while acquitting
the second Victim of the same charge, demonstrating discrimination. Additionally, the
court indicted the first Victim for the offence of apostasy, imposing the death penalty
without any basis and dismissing arguments mad.e by the defence regarding the
incompatibility of apostasy with freedom of religious belief, thus undermining the
equality of arms.
180. Based on the submissions and allegations presented, it is evident that the conduct of the
Respondent State's courts did not meet the standards required for the right to a fair trial
under Article 7 of the African Charte'r. The court's judgments were based on incorrect
assumptions about the first Victim's religious belief, exceeding their jurisdiction, and
discriminating between the first and second Yictims. The imposition of the death penalty
without a basis and the threat of immediate 1execution for not recanting religious beliefs
also violated the first Victim's right to a fair trial.
181. The Commission concludes that there has been a violation of Article 7 of the African
Charter in relation to the pre-trial detention and denial of access to lawyers, as well as the
wrongful assumption of jurisdiction by the court. These actions disregard the fair trial
principles outlined in Article 7, as well as the rights guaranteed under the Commission's
Principles and Guidelines on Fair Trial and Legal Assistance in Africa
On alleged Violations of Article 8: t he Freedom of Religion
182. Article 8 of the Charter provides: "Freedom of conscience, the profession and free practice of
religion shall be guaranteed. No one may, subject to law and order, be submitted to measures
restricting the exercise of these freedoms."
183. The provision of Article 8 affords individuals two operative guarantees: (1) the freedom
to profess religion and (2) the freedom to practice religion. On the one hand, freedom to
profess a religion entails the freedom to adopt, have, maintain, or hold a religion and the
freedom to join or otherwise recant or reject a religion one holds at any time.
184. It is recognized that these core aspects of freedom of religion are exercised in the
innermost circle of the human being, known as the forum internum, which includes tte
conscience. Freedom to practice religion, on the other hand, includes ou.tward, <.
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community with others, in public or in private - teaching, worship, the observance of
religious precepts and cults are part of that facet also called forum externum.
185. The practice of religious faith is generally manifested through the performance of
external acts such as the observance of religious precepts and rites, which are mandatory
in the mind of the adherent. Because of the interplay between those religious practices
and behaviours with the outside world, the rights of others, and the general interests of
the community, the State may legitimately adopt and apply measures which restrict the
free practice of religion for the sake of maintaining law and order. Hence, the limitation
clause under Article 8.105 The Commission in Hossam Ezzat & Rania Enavet v. Egi;pt held,
"Whereas the term 'profession of religion' may mean an open declaration or affirmation
of one's religion, which is an outward act, in the context of Article 8 of the African
Charter, it is to be interpreted as denoting the act of adopting, having, maintaining or
holding a religion. 106 "Thus, the freedom to profess a religion entails the freedom to
adopt, have, maintain, or hold a religion.
186. The Complainant argues that the first Victim's right to freedom of religion, guaranteed
by Article 8 of the African Charter, was violated in .multiple ways following her initial
arrest in September 2013. Firstly, the Public Prosecutor indicted the first Victim for the
offense of adultery on the assumption that she was Muslim, despite her stating that she
identified as Catholic to the police prior to her arrest. This resulted in the application of
Shari'a law, even though she was a non-Muslim. Secondly, the Magistrate Court added
the charge of apostasy against the first Victim because she had converted from Islam to
Catholicism. However, she was raised as an Ethiopian Orthodox Christian and chose to
adopt the Catholic faith as an adult. Criminalizing conversion is incompatible with
religious freedom. Thirdly, the Haj Yossif General Court tried and convicted the first
Victim of both adultery and apostasy despite the consistent profession of her Catholic
faith during the trial. The court's findings were contradictory - the conviction for adultery
assumed that she was Muslim and therefore prohibited from marrying a Christian man.
Yet, the sentence of apostasy assumed that she had renounced Islam and adopted
another faith.
187. Additionally, the court pressured her to affirm the Islamic faith under threat of the death
penalty, undermining her right to choose her religion as guaranteed by Article 8 and the
Interim National Constitution of Sudan, 2005. Furthermore, the first Victim was sentenced
to the death penalty and 100 lashes, which is a manifestly disproportionate and
unreasonable restriction on her freedom of religion. These punishments are also
inconsistent with the African Charter. Although the Court of Appeal overturned the first
See also Article 27(2) of the African Charter according to which the rights in the ,,African ' Charter
"shall be exercised with due regard to the rights of others, collective security, morality, and commominterest". , <
106 Communication No. 355/07 Hossam Ezzat & Rania Enayet (represented by Egyptian Initiative for P~rso al
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Rights & INTERIGHTS v. The Arab Republic of Egypt (2018) ACHPR, paras. 130.
105
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Victim's convictions and sentences, the majority of the court based their decision on the
erroneous ground that she was not mentally responsible for her actions. This failure by
the Court of Appeal to uphold the first Victim's right to freedom of religion, as enshrined
in Article 8 of the African Charter and the Interim National Constitution of Sudan, 2005,
has resulted in continued threats to her life from Islamist fundamentalist groups. These
threats have forced her and her family to flee Sudan.
188. It is evident to the Commission that significant violations of Article 8 of the African
Charter occurred. Incorrect assumptions directly hindered the first Victim's ability to
profess and practice her religion, the criminalization of her supposed change in religion,
and disproportionate sentencing. Moreover, the failure of the Court of Appeal to address
these religious aspects has resulted in continued threats to the first Victim's life. It is
imperative that the State takes immediate action to rectify these violations, ensure the
protection of religious freedoms, and provide appropriate redress to the first Victim.
189. For these reasons, the Commission finds the Respondent State violating Article 8 of the
African Charter.
On alleged Violations of Article 12: the Freedom of MovemeJ1t
190. Article 12 of the Charter provides:
(1) Every individual shall have the right to freedom of movement and residence within the
borders ofa State, provided he abides by the law.
(2) Every individual shall have the right to leave any country, including his own, and to
return to his country. This right may only be subject to restrictions provided by law to
protect national security, law and order, public health, or morality.
(3) -(5) N/A
191. The Commission considers that Article 12(1) and (2) of the African Charter include
various rights and freedoms. While (1) provides for freedom of movement and residence
in any part ofthe State unimpeded, provided that one abides by the laws of the land,107
in (2) it is clear that every individual has the right to leave their country and to return to
the same.
192. The cruxes of these, however, in this Communication regard the freedom to reside and
its analogous freedom to move in any part of the state on the one hand and, on the other
hand, the right to leave at one's convenience. Regarding the former, there is no doubt at
this juncture that tl1e freedom of movement for the victims was restrained, apparently
for reasons that their arrest and detention at some points on various dates were not
'
107 See, General Comment No.5 on the African Charter on Human and Peoples' Rights: The Right to Freedom\£
Movement and Residence (Article 12(1)) adopted in 2019
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lawful. As to the latter, the Commission recalled its position in the case of Movement
Burkinabe des droits de l'Homme et des peuples vs Burkina Faso, 108 where it observed that a
violation of Article 12(2) ensued when a person (political leader) was prohibited from
leaving Burkina Faso after publishing a statement about the political situation in the
country and Sir Dawda K. Jawara vs The Gambia, that it is a violation of both Articles 12(1)
and 12(2) of the Charter, where people were prevented from travelling outside their
country.109
193. The Commission agrees that the Victims' rights to freedom of movement under Article
12(1)(2) were violated. Firstly, by unlawful arrests and detentions. Secondly, resulting
from the continued threats to the first Victim's life from Isla.mist fundamentalist groups,
from which the Respondent State did not protect her, and which means that she and her
family are unable to return to Sudan safely. Thirdly, the failure to take measures to
protect the lives and personal integrity of the Complainants against threats by private
actors, thus forcing them to leave Sudan against their will to protect themselves and their
families.
194. In light of the foregoing, the Commission finds the Respondent in violation of Article 12
of the African Charter.
Ou alleged Violation of Article 16: t h.e Right to Health
195. Article 16 of the Charter Provides that:
(1) "Everyone has the right to the enjoyment of the highest attainable standard of physical and
mental health,
(2) States Parties to the present Charter undertake lo take the necessary measures to protect
the health of their populations and to provide them with medical assistance in the event of
sickness."
196. The right to health is an essential right under Article 16 of the African Charter, which
obliges States to take necessary measures to protect the physical and mental health of
every individual within their jurisdiction. This right is not only essential for the wellbeing of all people, but also underpins the realization of other rights recognized in the
Charter. The Commission reiterates its positions in Egyptian Initiative for Personal Rights
& INTERIGHTS v. 'f,gi;pt110 and Purohit and Moore v. The Gambia111 and its Resolution on
Access to Health and the Need for Medicines in Africa and the "Principles and Guidelines on the
Implementation of Economic, Social and Cultural Rights in the African Charter on Human and
Peoples' Rights" that it includes access to safe water, sanitation, food, nutrition, housing,
and occupational and environmental conditions. In regards to healthcare, in detention,
the Commission refers to the case of Malawi African Association and Others v? Mauritania
108 Communication 204/97, Para 47.
109 Communication 147/95-149/96, Para 70.
11
°
Communication 323/06, 16 December 2011, Pg 261.
m Communication 241/01, 29 May 2003, Para 80.
and Monim Elgak, Osman Hummeida and Amir Sulivan (Represented by FIDH and OMCT) vs
Sudan,112 in which it held that the State has an obligation to respect the right to health in
detention. In this case, the Commission emphasized that the responsibility for the
physical integrity and welfare of detainees lies with the competent public authorities.
197. In the present case, the Complainants argued that the first, third, and fourth Victims'
rights to health were vio]ated, as guaranteed by Article 16 of the African Charter. Indeed,
the circumstances of the detention demonstrate shortfalls in the provision of the right to
health as protected in Article 16 of the African Charter. The first and third Victims were
deprived of their basic needs, including access to food, basic hygiene, and medical care,
during their incarceration. The third Victim constantly fell ill with colds, fevers, and
diarrhoea while in detention, but was not provided with any medical care. Furthermore,
the first Victim did not receive any antenatal or postnatal medical care and was even kept
in shackles while giving birth to her daughter, the fourth Victim. Additionally, the fourth
Victim, who was born three weeks premature and under challenging conditions, did not
receive any neonatal medical care. The Commission finds that these actions are in direct
contradiction to the State's obligations under Article 16 of the Charter, and as such,
constituting violations. .
Article 18(1)(2): the Right to Fami ly Life
198. Article 18 of the Charter Provides that:
(1) The family shall be society's natural unit and basis. It shall be protected by the State, which
shall care for its physical health and morals.
(2) The State shall have the duty to assist the family, which is the custodian of morals and
traditional values recognized by the community,
(3) The State shall ensure the elimination of even; discrimination against women and also
ensure the protection of the rights of women and the child as stipulated in international
declarations and conventions, and
(4) The aged and the disabled shall also have the right to special protection measures to meet
their physical or moral needs.
199. There is no doubt about the state of a family as a natural and basic unit of society and the
obligation of the state to protect it. 113 In protection of the family life pursuant to Article
18(1) and (2) of the African Charter, the Commission acknow]edges that States should
adopt legislative, administrative or other measures to ensure the protection of the right
to family life and to refrain from any action that will affect the family unit, including
arbitrary separation of family members and involuntary displacement of families." 114 To
112 Communication 379/09. 14 March 2014, Para 136
113 Kenneth Good v. the Republic of Botswana Communication 313/05, 26 May 2010, Para 212.
114
Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evjctions
I
(COHRE) v. Sudan, 27 May 2009, Para 214.
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this requirement, the Commission notes in General Comment No. 19 (also cited by the
Complainants) that it is a "right of men and women of marriageable age to marry and to
find a family." 115
200. The circumstances of this communication suggest the interference with family life and,
in particular, discrimination on the right to choose a spouse. The prosecution of the first
Victim for the offence of adultery, as noted, in violation of Article 2 of the Charter,
exacerbates the violation of the rights under Article 18 of the African Charter.
201. Given the above, the Commission finds the Respondent State in violation of Article 18 of
the African Charter.
On the alleged v iolation of A rticle 1: The Failure in the R esponden t's Duty to Give Effect to the
Charter
202. Article 1 of the African Charter provides that:
"The Member States of the Organization of African Unity parties to the present
Charter shall recognize the rights, du ties and freedoms enshrined in this Charter
and shall undertake to adopt legislative or other measures to give effect to them."
203. The Complainants submitted that ratification of the African Charter requires
"harmonization " of national laws with the African Charter. As argued above, in the
present case, the Respondent State is directly responsible for the violations of Articles 2,
3, 4, 5, 6, 7, 8, 12, 16, and 18 of the African Charter in respect of the Victims, for engaging
in conduct which violated the rights enshrined in those provisions. The Respondent State
furthermore failed to put in place a legal framework to protect the rights of the
Complainants or provide them with access to adequate remedies and redress.
204. Unpacking the obligation to respect, the Complainant submitted that it entails that the
State should refrain from interfering in the enjoyment of all fundamental rights. The
Complainant further cited tl1e Inter-American Court in Velasquez Rodriguez v . Honduras 116
that -any exercise of public power that violates the rights recognized by the Convention
is illegal. Whenever a State organ, official, or public entity violates one of those rights,
this constitutes a failure of the duty to respect the rights and freedoms outlined in the
Convention. 117 The Complainants stated that the conclusion is independent of whether
the organ or official has contravened provisions of internal law or overstepped the limits
of his authority and that under international law, a State is responsible for the acts of its
•.
115 UN Human Rights Committee,
1
"General Comment No. 19: Protection of the family, right to marriage and+equa1ity~ f
the spouse", 1990, Pg 4,
116fACtHR, Series C, No.4, Judgment of July 29, 1988, para 169
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agents undertaken in its official capacity and for their omissions, even when those agents
act outside the sphere of their authority or violate internal law.118
205. As to the obligations to protect, promote, and fulfil, the Complainants, citing the
International Commission of Jurists, Military Jurisdiction and International Law,
submitted that the State needs not only to refrain from directly violating the concerned
rights but also to take appropriate positive steps to ensure a positive framework to
prevent and address violations. They noted that the significant component of such
obligation is the State's duty to investigate human rights violations and prosecute the
perpetrator(s), demanding prompt, thorough, impartial, and independent investigations.
The Complainants also submitted, along with the Commission's Robben Island Guidelines,
that State Parties are under the obligation to ensure the establishment of readily accessible
and fully independent mechanisms to which all persons can bring their allegations of
torture and ill-treatment.119
206. Associating with the facts, the Complainants submitted that the Respondent State
breached its duty to give effect to the rights guaranteed in the Charter. sufficient
protection against the crime of rape committed against the Complainants;120
207. The Commission remains guided by its decision in Dawda Jawara v. The Gambia, 121 that a
violation of any provision of the Charter automatically means a violation of Article 1,
hence, if a State Party to the Charter fails to recognise the provisions of the same, there is
no doubt that it violates this Article.
Decision of the Commission on the Merits
208. For these reasons, the African Commission finds that the Respondent State has breached
the alleged provisions of Articles 1, 2, 3, 4, 5, 6, 7, 8, 16, and 18 of the African Charter.
11s
i.
urges the Respondent State to take all necessary measures to ensure that it
provides effective remedies, namely, restitution, compensation, policy
reforms, public apology, and legal reforms;
11.
recommend restitution to the Complainants for their original situation before
the violations of the African Charter occurred.
Ibid, para 170
119 Ibid, Article 19.
120 See, Paragraph 223 of the Complainants written Submission on Merits
121 Comm. Nos. 147/ 95 and 149/96, para 46
46
iii.
recommend that the Victims be compensated for material harm arising from
the loss of the First Victim's land, businesses and properties, and non-material
harm arising from physical and psychological suffering.
iv.
recommend a prompt and impartial investigation into the First Victim's arrest,
indictment, detention, conviction, and sentencing, and
v.
recommend a public acknowledgement of the facts and a public apology for
the violations of the African Charter suffered by the Complainants.
vi.
requests the Respondent State to inform the Commission within one hundred
and eighty (180) days of being notified of this decision, of the measures taken
to implement the present decision in accordance with Rule 125 (1) of th ules
of Procedure of the Commission 2020.
s --------......'"l ,-
Done during the 78th Ordinary Session of the African Commission on Hu
Rights held virtually from 23rd February to 8th March 2024,;
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