AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Addis Ababa, ETHIOPIA
P. O. Box 3243
Telephone 002511-115 517 700
website : www.africa-union.org
Cables: OAU, Addis Ababa
EXECUTIVE COUNCIL
Eleventh Ordinary Session
25 – 29 June, 2007
Accra, GHANA
EX.CL/364 (XI)
REPORT OF THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS (ACHPR)
EX.CL/364
Page
TWENTY-SECOND ACTIVITY REPORT OF THE AFRICAN COMMISSION
ON HUMAN AND PEOPLES’ RIGHTS
INTRODUCTION
1.
This Report is divided into three (3) sections: Section one deals with the holding
of the 41st Ordinary Session of the African Commission on Human and Peoples‟ Rights
(hereinafter referred to as the ACHPR or the African Commission); Section two
describes the activities undertaken by members of the Commission during the period
covered by the Report; and Section three deals with Financial and Administrative
matters of the Commission. The Report has three (3) annexes.1
2.
The present Report covers the period November 2006 - May 2007.
SECTION I
The 41st Ordinary Session
3.
The African Commission held its 41st Ordinary Session in Accra, Ghana from 16
– 30 May 2007. The Agenda of the session is attached to the present Report as
Annexure one (1).
4.
The 41st Ordinary Session was preceded by a series of events including three
workshops organized by the Commission of the African Union, namely: a workshop on
the implementation of AU decisions on human rights; a workshop on monitoring and
documentation of human rights violations by national human rights institutions; and a
round-table discussion on the Media in Africa. The ACHPR, in collaboration with local
NGOs in Ghana, organised a two-mile march on the right to reproductive health and
further held a round-table discussion on the subject. As it is customary, the NGO Forum
was organised by the African Centre for Democracy and Human Rights Studies
(ACDHRS), in collaboration with the African Commission.
5.
The main objective of these events, which started on the 9th and ended on the
15th of May 2007 in Accra, Ghana was to underscore the importance of mainstreaming
human and peoples' rights in Africa. They also provided NGOs working in the field of
human rights in Africa with an opportunity to reflect, in partnership with the African
Commission and other relevant stakeholders, on ways and means of enhancing the
promotion and protection of human and peoples‟ rights on the continent.
1 Agenda of the 41st Ordinary Session held from 16 - 30 May 2007 in Accra, Ghana; Decision on communication
finalised at the 41st Ordinary Session and the African Commission's Report of the Fact-finding mission to the Republic
of The Sudan undertaken from 08 - 18 July 2004.
EX.CL/364
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Attendance at the Session
6.
The following Members of the African Commission attended the 41st Ordinary
Session-:
•
•
•
•
•
•
•
•
•
•
Commissioner Salamata Sawadogo, Chairperson;
Commissioner Yassir Sid Ahmed El Hassan, Vice-Chairperson;
Commissioner Kamel Rezag-Bara;
Commissioner Musa Ngary Bitaye;
Commissioner Reine Alapini-Gansou;
Commissioner Mumba Malila;
Commissioner Angela Melo;
Commissioner Sanji Mmasenono Monageng;
Commissioner Bahame Tom Mukirya Nyanduga; and
Commissioner Faith Pansy Tlakula.
7.
In accordance with Article 39 (2), following a decision of the 40th ordinary session
of the ACHPR the seat of Commissioner Mohamed Ould Babana was declared vacant
by the Chairperson of the Commission of the African Union.
Participation at the 41st Ordinary Session
8.
During the opening ceremony, speeches were delivered by H.E Salamata
Sawadogo, Chairperson of the African Commission, Honourable Osei Prempeh, Deputy
Attorney General and Deputy Minister of Justice of the Republic of Ghana, Honourable
Patrick Chinamasa, Minister of Justice, Legal and Parliamentary Affairs of the Republic
of Zimbabwe on behalf of AU Member States, H.E. Julia Joiner Commissioner for
Political Affairs of the Commission of the African Union, Mrs. Kahinde Ajoni on behalf of
African National Human Rights Institutions (NHRIs), Mrs. Hannah Forster on behalf nongovernmental organizations (NGOs). Finally, Honourable Joe Ghartey, the AttorneyGeneral and Minister for Justice of the Republic of Ghana delivered an opening address
on behalf of H.E. Dr. John Kufuor and officially opened the 41st Ordinary Session of the
ACHPR.
9.
The Session was attended by four hundred and eighty five (485) participants
representing thirty two (32) States Parties,2, eleven (11) National Human Rights
Institutions3, and several African and International intergovernmental4 and non-
2
Algeria, Angola, Botswana, Burkina Faso, Burundi, Cameroon, Central African
Republic, Cote d‟Ivoire, Democratic Republic of Congo, Egypt, Ethiopia,
Gabon, Gambia, Ghana, Guinea (Conakry), Kenya, Lesotho, Libya, Mali,
Mauritania, Niger, Nigeria, Rwanda, Senegal, South Africa, Sudan, Swaziland,
Togo, Tunisia, Uganda, Zambia and Zimbabwe.
3
The National Human Rights Institutions were from: Algeria, Burkina Faso,
Central African Republic, Democratic Republic of Congo, Ghana, Kenya,
Malawi, Mauritius, Nigeria, Tanzania and Togo.
EX.CL/364
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governmental organizations, including the UN family and specifically the Office of the
High Commissioner for Human Rights.
10.
H.E. Mrs. Salamata Sawadogo, the Chairperson of the African Commission, in
her welcome address, thanked the government and the people of Ghana for hosting the
41st Ordinary Session of the African Commission. She also congratulated H.E. Dr. John
Kufuor, the President of the Republic of Ghana for the successful celebration of the 50th
Anniversary of Ghana‟s independence. She noted that it was Ghana‟s independence in
1957 that broke the backbone of colonialism in Africa, galvanized and inspired Africa to
realise its dream of freedom.
11.
She underscored the fact that though her term as Chairperson of the African
Commission is coming to an end, the African Commission is at the crossroads of many
changes and challenges that are presenting new opportunities to promote democracy
and protect human rights. She stated that the Commission as the premier institution
responsible for the promotion and protection of human rights in the continent is making
use of the opportunities of change occasioned by the peoples‟ quest for freedom,
African leaders‟ desire for change and the dynamism of civil society. She urged States
Parties to mainstream human rights in their development policies. She noted that in the
course of the past four years, the Commission has strengthened its relationship with
States Parties through dialogue while at the same time preserving its independence.
12.
She took the opportunity to express her gratitude to Member States of the AU,
her colleagues, staff members of the Secretariat and all the partners of the ACHPR for
the support during the period of her mandate.
13.
In conclusion, she encouraged Member States of the AU to implement the
provisions of the Constitutive Act of the AU in the promotion and protection of human
rights on the continent.
14.
Honourable leaders of delegations of Member States of the African Union, and
representatives of intergovernmental organisations, national human rights institutions
and non-governmental organisations read their statements on the situation of human
rights on the continent.
Rapporteur of the 41st Ordinary Session
15.
The Members of the Commission appointed Commissioner Mumba Malila to
serve as the Rapporteur for the 41st Ordinary Session.
4
st
The following Intergovernmental Organizations were also present at the 41 ordinary session: the
Office of the High Commissioner for Human Rights (OHCHR), United Nations High Commissioner
for Refugees (UNHCR), the Organisation Internationale de la Francophonie (OIF), the United
Nations Children‟s Fund (UNICEF) and the World Health Organization (WHO).
EX.CL/364
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Cooperation between the African Commission, National Human Rights
Institutions (NHRIs) and Non-Governmental Organizations (NGOs)
16.
The African Commission considered the application for Affiliate Status of the
National Commission for Human Rights and Freedoms of Cameroon and deferred the
matter to its next session pending further clarification on the status of the National
Human Rights and Freedoms Committee of Cameroon which already has an affiliate
status with the Commission.
17.
The African Commission appealed to States Parties that had not yet done so, to
establish national human rights institutions in compliance with the Paris Principles and
with its own resolution on national institutions and strengthen the capacities of existing
ones.
18.
During the session, the African Commission also considered the applications of
seven (7) NGOs seeking observer status before it. In accordance with its Resolution
ACHPR /Res.33(XXV)99: on the Criteria for Granting and Enjoying Observer Status to
Non-Governmental Organizations Working in the field of Human and Peoples‟ Rights
adopted in 1999, the African Commission, after consideration, granted observer status
to the following NGOs:
•
•
•
•
•
African Women Organisation in the Diaspora (AWODO) of The Gambia;
Zimbabwe Association of Doctors for Human Rights of Zimbabwe;
Zimbabwe Exiles Forum of South Africa;
Federation of Women Lawyers of Kenya; and
Centre for Democratic Governance in Burkina Faso of Burkina Faso.
19.
This brings the number of NGOs with Observer Status before the African
Commission to three hundred and sixty seven (367).
SECTION II
a. Activities of Members of the Commission
20.
During the period under consideration, members of the Commission undertook
several activities, in their capacity as Commissioners, and Special Rapporteurs or
Chairpersons of Working Groups promoting and protecting human and peoples‟ rights
on the continent.
i.
Participation at workshops, seminars and conferences
21.
During the reporting period the Chairperson undertook the following activities:
22.
She took part in the 10th Ordinary Session of the Executive Council and the 8th
Ordinary Session of the Assembly of Heads of State and Government of the African
Union where she presented the 21st Activity Report of the Commission.
EX.CL/364
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23.
From 1 - 4 February 2007, she took part in the 3rd World Congress on the Death
Penalty in Paris, France and attended some of the workshops and a round-table
organized during the Congress. During this Congress, she gave an address on the
status of the death penalty in Africa with a panel composed of lawyers and human rights
experts from the Inter-American Commission, the European Commission and the
International Commission of Jurists.
24.
In Berlin, Germany from 22 - 23 February 2007, at the invitation of the German
Government, she took part in a high-level meeting on the theme « Economic
empowerment of women for intelligent economies ». This Conference was organized by
the Federal Ministry of Economic Cooperation and Development (BMZ) in collaboration
with World Bank, the Department for International Development of the United Kingdom
and the Forum for Policy Development.
25.
Consequently, Madam Heidemarie Wieczroek-Zeul, Federal Minister in charge
of Economic Cooperation and Development (Germany) to invite her to provide details
about the ACHPR and its work. The Minister was impressed by the enormous work
done by the Commission and pledged to maintain contacts with the Commission in
order to organize a major meeting in November 2007 in collaboration with the
Commission and other partners on capacity building for women.
26.
The Chairperson also took part in other activities such as the public meeting held
on 25 April 2007, at the African Institute for Planning and Economic Development
(IDEP) on the human rights systems in Africa. Contributing to the production of a
documentary on the ACHPR, she granted an interview to the Ghana Broadcasting
Corporation on the 28 April 2007.
27.
From 3 - 5 May, 2007 together with 3 of her colleagues (Madam Angéla Melo,
Mr. Bahame Tom Nyanduga and Mr. Ngary Mussa Bitaye), she attended a
brainstorming session on the ACHPR organized by the Department of Political Affairs of
the Commission of African Union, in Maseru, Lesotho.
28.
Prior to the 41st ordinary session, the Chairperson took part in a series of
activities organised by civil society organisations and the Department of Political Affairs
of the Commission of the African Union in Accra, Ghana from 13 – 15 May 2007.
29.
During the period under consideration, she sent urgent appeals addressing
human rights situations in two African countries: Guinea and Zimbabwe. Regarding the
appeal on the situation in Guinea, she drew the attention of the current AU Chairperson,
the current Chairperson of ECOWAS and the Chairperson of the African Union
Commission.
30.
On his part, the Vice-Chairperson, Commissioner YASSIR SID AHMED EL
HASSAN took part in the 10th Session of the Executive Council and in the 8th session of
the Assembly of Heads of State and Government of the African Union in January 2007
in Addis Ababa along with the Chairperson. He took the opportunity of his presence in
Addis Ababa to hold high level meetings with the delegations of Egypt, Chad, Mali,
EX.CL/364
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Sahrawi Arab Republic, Libya, The Sudan and Somalia.
The purpose of these
meetings was to solicit support for the resolutions contained in the 21st Activity Report
and to discuss the possibility of allowing promotional missions in their respective
countries.
31.
He took part in the workshops and the NGO Forum, which preceded the 41st
Ordinary session in Accra, Ghana between 9 and 14 May 2007.
32.
Commissioner Kamel Rezag Bara participated from 11 - 12 December 2006 in
an international seminar on the theme « Parliament and the Media » organized in
Algiers under the auspices of the National Council and the National Assembly with the
collaboration of the United Nations Development Programme (UNDP) - Algeria.
33.
From 9 – 14 January 2007 he participated in a seminar organized by the Libyan
Academy of Higher Studies on the International Criminal Court, (ICC) in Tripoli (Libya).
At this seminar, he presented a paper on the perspectives of ratification of the
International Criminal Court statutes in Africa and in the Arab world.
34.
From 28 January to 3 February 2007 he participated in a meeting of experts
convened in Washington D.C. by Mrs. Gay MacDougall, United Nations independent
expert on the question of minorities under the auspices of the United Nations Office of
the High Commissioner for Human Rights in Geneva. The theme related to the
« Regional standards and mechanisms for the protection of the rights of minorities and
the fight against discrimination».
35.
From 14 – 15 February 2007 he participated in a seminar organized in Algiers by
the African Centre for Studies and Research on Terrorism (ACSRT), on the theme
« Terrorist fanaticism, extremism and violence » and made a presentation on the subject
of the compatibility of African anti-terrorist laws with the regional and international
human rights protection standards.
36.
On 21 March 2007 he participated in the opening ceremony of the Conference of
Heads of State on the implementation of the New Partnership for Africa‟s Development
(NEPAD), held in Algiers, in the presence of the members of the panel of eminent
persons responsible for the African Peer Review Mechanism (APRM).
37.
From 20 - 22 March 2007, he participated in a regional meeting on the Education
and the Rights of Women in North Africa, organized under the auspices of the African
Union.
38.
From 26 – 30 March 2007, within the framework of his promotional activities, he
carried out a mission to Burkina Faso.
39.
From 19 February to 25 March and 7 May 2007 he held a series of meetings with
the Director General and the staff of the African Centre for Studies and Research on
Terrorism and had INTERIGHTS (London) and the International Security Studies (ISS)
EX.CL/364
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for the purpose of organizing a seminar on Terrorism and Human Rights in Africa, at the
Centre‟s headquarters in Algiers.
40.
Commissioner Angela Melo took part in the following activities during the period
under consideration in her capacity as Commissioner and Special Rapporteur on the
rights of women in Africa.
41.
From 12 - 16 February in Luanda, Angola, she participated in a Portuguese
speaking camp on Human Rights during which she made a presentation on the
Communications procedure of the African Commission, on the role of the special
mechanisms of the Commission and the State periodic Report mechanism as well on
the relationship with NGOs.
42.
From 3 – 13 March in Washington D.C., USA, under the sponsorship of the
Center for Human Rights of the University of Pretoria, South Africa, she led a mission to
the Inter-American Human Rights Commission in her capacity as Chairperson of the
Working Group on Specific Issues relative to the work of the African Commission.
43.
From 3 – 5 May 2007 she took part at a brainstorming meeting organised by the
Commission of the African Union in Maseru, the Kingdom of Lesotho.
44.
From 9 - 10 May 2007 in Johannesburg, South Africa, she conducted a Training
Course for the Portuguese speaking NGOs on the procedure for acquiring Observer
Status and on the protection mandate of the African Commission.
45.
Commissioner Sanji M. Monageng undertook the following activities during the
period under consideration.
46.
On 21 February 2007, she presented a paper on “Trafficking in Children and
Women” and the rights of these two groups, with specific relevance to equality before
the law and equal protection of the law, at a Seminar for Investigators on the Child Act
2005, in The Gambia.
47.
From 3 to 13 March 2007, she was part of a group of five representatives of the
African Commission which visited the offices of the Inter-American Commission on
Human Rights (IACHR) in Washington, USA to observe how the IACHR discharges its
promotion and protection mandate.
48.
On 28 March 2007, she participated in a meeting held in Banjul, for the validation
of the Draft Women‟s Bill of the Republic of The Gambia. The Women‟s Bill is the law
that is meant to domesticate the Protocol on the Rights of Women into national
legislation.
49.
From 28 - 30 April, 2007 she took part in the Gambian Womens‟ forum coorganized by the African Commission, in collaboration with the Women‟s Bureau of the
Republic of The Gambia and the University of The Gambia.
EX.CL/364
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50.
On May 2 2007, in Banjul, The Gambia, she attended an award given ceremony
where Mrs Hannah Forster, Executive Director of the African Centre for Democracy and
Human Rights Studies was given a “Woman of Courage Award” by the United States
Government.
51.
She also took part in the events which preceded the 41st ordinary session of the
Commission in Accra, Ghana
52.
During the period under review, Commissioner Bahame Tom Nyanduga,
undertook a number of activities, organized mainly by the NGO partners. As it was the
case during the previous intersession period, he could not undertake any promotion
mission to States Parties, because of the restrictive budget at the disposal of the
Commission.
53.
He submitted a paper which was read to a Seminar organized by the Ministry of
Justice of the Republic of Ghana and Africa Legal Aid, AFLA, an international NGO
which enjoys observer status with the African Commission on the African Human Rights
System, entitled, “The Interface between the African Commission and the African Court
on Human and Peoples‟ Rights”. The Seminar took place between 1 and 2 December
2006, in Accra, Ghana.
54.
On 14 December 2006, he participated in a consultative meeting organized by
the Tanzania Bar to formulate the position of the Bar regarding the question of abolition
of the death penalty and the establishment of Kadhi Courts in Tanzania, being part of a
survey by the Law Reform Commission on the two issues.
55.
Between 17 and 20 December 2006, he attended a workshop in Cairo, Egypt,
organized by the Egyptian Council for Human Rights, the NHRI of Egypt, on the subject
of the Implementation of International Humanitarian law and Human Rights law in the
protection of Civilian population during armed conflicts in Palestine and Lebanon
following the Israeli invasion and occupation. He urged participants, mainly the
members states of the Arab League to support the AU peace efforts in Darfur and
Somalia.
56.
Between 16 and 19 February 2007 he took part in a workshop on “Citizenship
and Statelessness in Africa,” in Kampala, Uganda, which looked at the human rights
and insecurity issues caused by denial of citizenship to individuals and groups of
peoples in various countries on the continent.
57.
Between 18 and 22 April he took part in the 36th FIDH Congress, in Lisbon,
Portugal, which examined issues of Migration by African youth and the immigration
regimes in Europe. The Congress urged states to ratify the UN Convention on the
Protection of Migrants and members of their families.
58.
Between the 23 and 26 April 2007 he participated in a seminar which took place
in Nairobi Kenya, on “Enhancing Protection of Displaced Populations in the Great Lakes
Region, ” pursuant to the adoption of the Great Lakes Pact in December 2006
EX.CL/364
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59.
On the 3 May 2007, he participated in a meeting to prepare presentations by the
African Commission to the PRC in Maseru, the Kingdom of Lesotho. Between 4 and 5
May 2007, he took part in the Brainstorming meeting organized jointly by the African
Union Commission and the ACHPR for representatives of AU Member States accredited
to the African Union, the Permanent Representative Committee (PRC), in Maseru, the
Kingdom of Lesotho, to explore ways and means of strengthening the African
Commission.
60.
On 10 and 11 May 2007 he took part in consultations between the African Union
Commission and its cooperating partners, on the draft AU Convention on IDPs, which
were held in Addis Ababa, Ethiopia.
61.
From 13 - 15 May 2007, he took part in a Workshops, seminars and NGOs forum
that preceded the 41st Ordinary session.
62.
Commissioner Musa Ngary Bitaye participated in a workshop held in Harare,
Zimbabwe from 24 - 25 February 2007 organized in by Zimbabwe Lawyers for Human
Rights in partnership with OSISA and S.A.D.C Lawyer Association.
63.
From 4 - 5 May 2007, in Maseru, Lesotho, he took part in the brainstorming
meeting between the Permanent Representatives Committee (PRC) and the African
Commission.
64.
Prior to the 41st ordinary session, he attended the Forum of NGOs in Accra,
Ghana, from 12 - 14 May, 2007.
65.
Commissioner Mumba Malila participated in a consultative meeting of
chairpersons of human rights non-governmental organisations (NGOs), held in Lusaka,
Zambia from 10 - 13 January, 2007
66.
He contributed to a journal article on Human Rights, published by the Law
Faculty of Katholik University of Belgium.
67.
From 17 - 19 April, 2007, he attended a conference in Bristol, England, on the
Optional Protocol to the Convention Against Torture, where he presented a paper on
“The Place of the Optional Protocol on Torture in the work of the African Commission on
Human and Peoples‟ Rights”.
68.
He also attended on 18 April 2007, in Bristol, UK, a meeting with the Chairperson
of the United Nations Working Group on Arbitrary Detention, Mrs Leila Zerrougui, Mr.
Jean Baptiste from APT, Prof Malcom Evans, Dean of the Law Faculty, University of
Bristol and others to strategise on how to mobilise resources and structure possible
areas of cooperation between the subcommittee and OPCAT on the one hand and
regional special mechanisms on the other.
EX.CL/364
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69.
From 12 - 15 May, 2007 he took part in the events preceding the 41st Ordinary
session including the NGO Forum preceding held from 12 - 14 May, 2007.
70.
Due to lack of funding he couldn't undertake all scheduled missions as a
Commissioner and as Special Rapporteur on Prisons and Conditions of Detention in
Africa.
71.
During the period under review, Commissioner Pansy Tlakula, Special
Rapporteur on the Freedom of Expression in Africa undertook a study on the status of
freedom of expression in Africa and reported to the Commission at its 41st ordinary
session in Accra, Ghana.
72.
Commissioner Reine Alapini-Gansou took part in numerous activities during the
period under consideration in her capacity as Commissioner and Special Rapporteur on
Human Rights Defenders in Africa.
73.
Hence, in her capacity as member of the African Commission on Human and
Peoples‟ Rights she participated in four workshops in Benin, in a Validation Workshop
on the draft law on individuals suffering from mental disorders in Brazzaville, the
Republic of the Congo on November 30 2006.
74.
On 14 December 2006 she also took part in a Validation Workshop of a Policy
Document related to the Education and Training of the Girl Child in Benin at the
invitation of the Ministry of Primary and Secondary Education and Professional Training
of Benin.
75.
As Special Rapporteur on Human Rights Defenders in Africa she addressed the
issue of the violations of human rights through appeals sent to several States. From 4 8 December 2006, she participated, in Gisenyi in Rwanda at a Consultative/Training
workshop organized by the International Service on Human Rights in collaboration with
the Great Lakes Human Rights League.
76.
At the invitation of Government of Benin, she took part in the feedback Workshop
on the Conclusions and
Recommendations of the United Nations Commission on the
Rights of the Child from 11 - 13 January 2007.
77.
From the 6 - 12 February 2007, she was invited as a resource person to a
workshop on the capacity building of the Human Rights Defenders in Kpalime, Togo.
78.
She met with several State officials from Togo, the Democratic Republic of
Congo, Rwanda as well as African and international NGO partners such as the Carter
Centre.
79.
On 14 March 2007, she launched, in collaboration with Mr. Sidiki Kaba, President
of the International Federation for the League of Human Rights (FIDH), the Report of the
Human Rights Defense Observatory on the situation of the rights of Human Rights
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Defenders (joint programme of the FIDH and the World Organisations Against Torture)
for the year 2006 in Ouagadougou, Burkina Faso.
80.
From 17 - 20 March 2007 in Algiers, Algeria, she participated in a sub-regional
workshop on the integration of the Rights of Women in the Educational System.
81.
From 24 - 30 March 2007 she undertook a working mission to Geneva with the
support of the International Service for Human Rights. The objective of this mission was
to participate in the session of the Human Rights Council and to meet my colleague
from the United Nations.
82.
She also took part in the training workshop of Human Rights Defenders in
Kinshasa the Democratic Republic of Congo (DRC) from the 21 - 24 April 2007
organized by the International Service for Human Rights based in Geneva.
83.
She also took part in the events preceding the 41st ordinary session of the
Commission from 12 - 14 May 2007.
b. Presentation of periodic reports by States Parties
84.
In according with the provisions of Article 62 of the African Charter on Human
and Peoples‟ Rights, the Republic of Zambia and the Republic of Kenya presented their
Initial reports, while Zimbabwe presented its Periodic Report combining its 6th – 10th
reports. The African Commission adopted Concluding Observations on the three reports
mentioned above and transmitted them to the State Parties.
c. Status of submission of State Reports
85.
The status of submission and presentation of State Reports as at the 41st
ordinary session of the Commission stood as follows:
No.
Category
1
States which have submitted and
presented all the its reports
States which have not submitted any
Report
States which have submitted all their
Reports and have to present it at the
42nd Ordinary Session of the African
Commission
States which have submitted two (2) or
more Reports but owe more
States which have submitted one (1)
Report but owe more
2
3
4
5
Number of
States
14
15
2
8
14
EX.CL/364
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6.
The above status of submission of state reports is represented as
follows:
No.
State Party
Number of
Reports due
States which have submitted and presented all their
Reports (14)
1
Cameroon
-
2
Central Africa Republic
-
3
Egypt
-
4
Libya
-
5
Mauritania
-
6
Nigeria
-
7
Rwanda
-
8
Seychelles
-
9
South Africa
-
10
Sudan
-
11
Uganda
-
12
Kenya
-
13
Zambia
-
14
Zimbabwe
-
States which have submitted all their reports and have to
present at the 42nd Ordinary Session of the ACHPR (2)
1
Algeria
2
Angola
-
States which have submitted two or more reports but owe
more (8)
1
Benin
2 overdue
reports
2
Burkina Faso
1 overdue report
3
Gambia
5 overdue
reports
4
Ghana
2 overdue
reports
EX.CL/364
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5
Namibia
2overdue
reports
6
Senegal
1 overdue report
7
Togo
2 overdue
reports
8
Tunisia
5 overdue
reports
States which have submitted one report but owe more (14)
1
Burundi
2 overdue
reports
2
Cape Verde
4 overdue
reports
3
Chad
3 overdue
reports
4
Congo (Brazzaville)
1 overdue report
5
Congo(DRC)
1 overdue report
6
Guinea
4 overdue
reports
7
Lesotho
2 overdue report
8
Mali
3 overdue
reports
9
Mauritius
5 overdue
reports
10
Mozambique
4 overdue
reports
11
Niger
1 overdue report
12
Sahrawi Arab Democratic
Republic
1 overdue report
13
Swaziland
2 overdue
reports
14
Tanzania
8 overdue
reports
(Rep)
States which have not submitted any report (15)
EX.CL/364
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1
Botswana
10 overdue
reports
2
Comoros
10 overdue
reports
3
Côte d'Ivoire
7 overdue
reports
4
Djibouti
7 overdue
reports
5
Equatorial Guinea
11 overdue
reports
6
Eritrea
3 overdue
reports
7
Ethiopia
4 overdue
reports
8
Gabon
10 overdue
reports
9
Guinea Bissau
10 overdue
reports
10
Liberia
11 overdue
reports
11
Madagascar
7 overdue
reports
12
Malawi
8 overdue
reports
13
Sao Tome and Principe
10 overdue
reports
14
Sierra Leone
11 overdue
reports
15
Somalia
10 overdue
reports
86.
The African Commission continues to urge Member States of the African Union
that have not yet done so, to submit their initial and periodic reports. Member States are
also reminded that they can combine all the overdue reports into a single report for
submission to the African Commission.
d. Protection Activities:
87.
During the period covered by this report, the African Commission undertook
several measures to ensure the protection of human and peoples‟ rights. These include
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writing urgent appeals to States, in reaction to allegations of human rights violations
received from individuals and NGOs.
88.
The African Commission examined seventy three (73) communications: it was
seized with ten (10) new communications; declared seven (8) admissible, finalised one
(1), considered requests for review on three (3), deferred sine die consideration of one
(1) and deferred fifty (50) to the next session for further consideration. The decision of
the communication finalised on merits is attached to the present report as annexure
two (2).
89.
The Commission also decided to attach to the present Activity Report, the Report
of its Fact-finding mission undertaken to the Darfur Region of the Republic of The Sudan
from 08 – 18 July 2004, including The Sudan‟s response thereto. The report is attached
to the present report as annexure three (3).
90.
In accordance with Article 46 of the African Charter, the African Commission
conducted a special hearing on the human rights situation in Zimbabwe.
e. Adoption of Reports
91.
During the session, the African Commission adopted and transmitted to the
respective States Parties, the following reports:
•
•
•
•
•
•
•
Report of Promotion Missions to the Republic of Burundi;
Report of Promotion Mission to the Republic of Rwanda;
Report of the Promotional Mission to the Republic of Mali;
Report of the Promotional Mission to the Republic of Cameroon;
Report of Promotion Mission to the Republic of Uganda;
Report of the Promotional Mission to the Kingdom of Swaziland; and
Report of the Promotional Mission to Burkina Faso.
92.
The African Commission also considered and took note of the Report of the
Research and Information Visit to the Republic of Uganda and Central African Republic
undertaken by its Working Group on Indigenous Populations/Communities in Africa.
93.
The Commission also adopted an Advisory Opinion on the UN Declaration on the
Rights of Indigenous Populations.
f. Adoption of Resolutions
94.
The African Commission adopted the following resolutions -:
•
•
Resolution on the rights of older persons in Africa;
Resolution on the situation of human rights defenders in Africa;
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•
•
•
•
•
Resolution on the operationalisation of the United Nations – African Union
Cooperation: framework for the Ten Year Capacity Building Programme for the
African Union;
Resolution on the situation in Somalia;
Resolution on the health and reproductive rights of women;
Resolution on the prevention and prohibition of torture and other cruel,
inhuman or degrading treatment or punishment; and
Resolution reiterating the importance of compliance with reporting obligations
under the African Charter.
g. Organization of Seminars
95.
During the intersession, the African Commission, in collaboration with the Rights
and Democracy, the Women‟s Bureau of the Republic of The Gambia and the University
of The Gambia (UTG) in Banjul, The Gambia organised a workshop of the rights of
women in The Gambia entitled „the Gambian Women Rights Forum‟ from 28 – 30 April
2007.
96.
Due to lack of funds, the Commission could not organize all the seminars and
conferences earmarked in its Strategic Plan.
97.
The African Commission reiterated its intention to organize more seminars and
conferences, in particular, a seminar on-:
•
•
•
•
•
•
•
•
•
•
•
•
•
Terrorism and Human Rights in Africa;
Islam and Human Rights in Africa;
Contemporary Forms of Slavery;
Refugees and Internally Displaced Persons in Africa;
Seminar on Building the Culture of Peace and Human Rights for the Military /
Police ;
Regional Conference / Seminar for Journalists;
Human Rights Education Seminar for Teachers;
Peaceful settlement of ethnic and social conflicts from a human rights
perspective;
The right to education: an essential condition for development in Africa;
The right of persons with disabilities;
Freedom of movement and the right of asylum in Africa;
Ethnic conflict resolution in a human rights context; and
The right to development and the right to self-determination.
98.
The African Commission invited its traditional partners and State Parties to
collaborate with it in the organization of these seminars and conferences.
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SECTION III
Financial and administrative matters
99.
Under Article 41 of the African Charter, the Commission of the African Union is
responsible for meeting the cost of the African Commission‟s operations, including the
provision of staff, financial and other resources, necessary for the effective discharge of
its mandate. However, the funding/financial situation of the African Commission remains
a cause for concern.
100. During the 2006 financial year, the Commission was allocated One million one
hundred and forty-two thousand four hundred and thirty six United States Dollars (USD
1.142, 436). In the 2007 financial year, there has been a five per cent (5%) increase to
the 2006 budget. This brings the 2007 budget of the Commission to about $
1,199,557.8.
101. Out of this amount, only Forty-seven thousand United States Dollars (USD
47,000) has been allocated for programmes, including promotion and protection
missions of the Commission. This amount is enough to cover only four promotion
missions in a year, whereas the Commissioners are expected to undertake at east two
missions each in any year. There is no allocation for research, training/capacity building,
special mechanisms activities, projects, seminars and conferences, commemoration of
human rights events, such as the Africa Human Rights Day, etc. This amount does not
cover even a third of the cost of the promotion missions for Commissioners and special
mechanisms earmarked for a year.
102. The work of the African Commission thus continues to be severely compromised
due to inadequate funding. As a result of inadequate funding from the AU, the African
Commission continues to resort to extra-budgetary sources to supplement AU funding.
103. During the period under review, the African Commission benefited from financial
and material support from the following partners:
a.
Danish Human Rights Institute
104. The Secretariat of the African Commission continues to be supported by the
Danish Institute for Human Rights by financing the post of a an Expert ON Strategic
Planning. The African Commission is also working with the Danish Institute to develop
its next Strategic Plan.
b.
Rights and Democracy
105. The Canadian NGO - Rights and Democracy has supported the Commission with
personnel and has put at its disposal three Canadian cooperants since January 2006.
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c.
Danish International Development Agency (DANIDA)
106. DANIDA continues to support the activities of the Working Group on Indigenous
Populations/Communities through the International Working Group on Indigenous
Affairs (IWGIA). This support will continue until June 2007. The European Union,
through the International Labour Organization (ILO) is also supporting the activities of
the WGIP.
d.
Open Society Initiative for West Africa (OSIWA)
107. The Open Society for West Africa has provided to Commission with computers
and printers and made available money to improve the website of the Commission.
e.
The Republic of South Africa
108. The Republic of South Africa has provided funding for activities of the
Commission and also seconded one of its national to assist the Commission‟s Special
Rapporteur on the Rights of Women in Africa.
109.
The assistance received from donors can be summarized as follows:
No.
Organisation/State
Rights and Democracy
Amount
in US$
29,632.96
Duration of
contract
2005 - 2007
1.
2.
DANIDA/IWGIA
330,926.90
-
.
Danish Institute
Human Rights
06/05
05/07
05/06
07/07
4.
OSIWA
-
.
Republic
Africa
04/07
03/09
04/07
03/09
for
51,995.55
125,000.00
of
South
285,714.20
-
Remark
Balance as at
27 January
2007
Possibility of
renewal
Possibility of
renewal
-
110. The African Commission expresses its profound gratitude to all donors and
partners, whose financial, material and other contributions have enabled it to discharge
its mandate during the period under review.
111. The extra-budgetary resources, notwithstanding, the financial and human
resource situation at the Secretariat of the African Commission remains critical. As at
May 2007, the staff situation at the Secretariat of the African Commission stood as
follows:
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No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Position
Secretary
Legal Officer Protection
Legal Officers Promotion
Legal Officer/ Special
Mechanisms Coordinator*
Adm. and Finance Officer
Legal Officer (Promotion)
- NGOs and NHRIs affairs
*
Bilingual Secretary
Secretary*
Documentation Officer
No. recruited
Vacant since
January 2006
1
2
1
AU
AU
1
1
Vacant since May
2006
1
1
2
1
1
2
1
AU
AU
AU
Computer Technician *
Clerk*
Drivers
Receptionist *
Cleaner
Security guards
Legal Officer – Secretary
to the WGIP
17
Legal Officers –Assistant
to Special Rapporteurs
Expert on Strategic
Planning
3
Assistant to the Special
Rapporteur on Women
Total
1
19
*
AU
AU
AU
1
1
10
11
12
13
14
15
16
18
Funded by
AU
1
AU
AU
AU
AU
AU
AU
International
Working Group
on Indigenous
Affairs (IWGIA)
Rights and
Democracy
Danish Institute
for Human
Rights
Republic of
South Africa
23
Positions outside the Maputo structure.
112. It is also worth noting that the Commission of the African Union has recruited staff
members for some vital positions outside the approved Maputo structure. These
positions are being paid for from the budget of the vacant positions, that is, the
Secretary and the Documentation officer.
113. It is uncertain what will become of these positions with the recruitment of the
Secretary and the impending recruitment of the Documentation Officer. Without
additional financial support from the AU to pay for these posts there might be serious
budgetary implications. Although the cleaner post is within the Maputo structure, the
current post holder is also on temporary contract from the AU.
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114. To promote human and peoples rights and ensure their protection in Africa – a
vast continent of 53 independent States, the current staff strength is clearly inadequate.
The Commission considers at least fifty communications at each ordinary session and a
lot of research goes in finalizing a communication. Given the workload of the Special
Mechanisms each of them should have a full time legal officer to coordinate their
activities. At the moment however, only two Special Rapporteurs have been provided
with legal officers on short term basis. The Commission considers at least fifty
communications at each ordinary session and a lot of research goes in finalizing a
communication.
115. The staff provided to the Commission by the AU is clearly inadequate to
effectively supporting the very broad mandate of the Commission. At the same time, it
must be stated that the effectiveness of the Secretariat is critical for the success of the
African Commission.
116. For the Secretariat to effectively support the African Commission in the execution
of its mandate, it would need the following proposed staff structure, made pursuant to
Executive Council Decision EX.CL/322 (X) on the 21st Activity Report of the African
Commission on Human and Peoples‟ Rights adopted at its Tenth Ordinary Session held
from 25 – 26 January 2007 in Addis Ababa, Ethiopia. The decision “CALL[s] ON the
Commission of the African Union in collaboration with the ACHPR to propose a new
Structure for the latter to the next Ordinary Session of the Executive Council taking into
consideration the broad mandate of the ACHPR”.
Proposed new structure (staff composition) of the African Commission on Human
and Peoples’ Rights
No.
Position
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Secretary
Deputy Secretary
Legal Officers Protection
Legal Officers Promotion
Legal Officers/ Special
Mechanisms Coordinators
Researchers
Public Relations Officer
(PRO)
Administrative Officer
Finance Officer
Resource Mobilization Officer
Projects, Planning, Monitoring
and Evaluation Officer
Revisers/Proof Readers
Translators
No. of staff
needed
1
1
3
3
2
No. of Staff
recruited
1
0
1
2
1
2
1
0
0
1
1
1
1
0
1
0
0
2
3
0
0
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14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
Documentation Officer
Bilingual Secretary
Computer Technician/IT
Officer
Finance Assistant
Documentation Assistant
Clerk
Drivers
Receptionist
Cleaners
Security guards
1
2
1
0
1
1
1
1
1
2
1
2
2
0
0
1
2
1
1
2
Total
36
16
117. There is therefore an urgent need to recruit more staff to ensure the smooth and
effective running of the Commission.
Adoption of the Twenty Second Activity Report
118. In accordance with Article 54 of the African Charter on Human and Peoples‟
Rights, the African Commission on Human and Peoples‟ Rights submits the present
Twenty Second Activity Report to the 11th Ordinary Session of the Executive Council of
the African Union, for its consideration and transmission to the 9th Summit of Heads of
State and Government of the African Union holding in Accra, Ghana.
LIST OF ANNEXURES
Annexure I
Agenda of the 41st Ordinary
Session held from 16 – 30 May
2007 in Accra, Ghana
Annexure II
Decision
on
communication
finalised at the 41st Ordinary
Session
Annexure III The African Commission’s Report
of the Fact-finding mission to the
Republic of The Sudan undertaken
from 08 – 18 July
2004.
Annexure I
Agenda of the 41st Ordinary Session held
from 16 – 30 May 2007 in Accra, Ghana
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AGENDA OF THE 41st ORDINARY SESSION OF THE AFRICAN
COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
(16 – 30 May 2007, Accra, Ghana)
Item 1: Opening Ceremony (Public Session)
Item 2: Adoption of the Agenda (Private Session)
Item 3: Organisation of Work (Private Session)
Item 4: Human Rights Situation in Africa (Public Session)
a) Statements by State Delegates and Guests;
b) Statements by Intergovernmental Organisations;
c) Statements by National Human Rights Institutions; and
d) Statements by NGOs.
Item 5: Cooperation and Relationship with National Human Rights
Institutions and NGOs (Public Session)
a) Relationship with National Human Rights Institutions;
b) Consideration of applications for Affiliate status;
c) Relationship with NGOs; and
d) Consideration of applications for Observer status.
Item 6: (Private Session)
Hearings on the human rights situation in Zimbabwe
Item 7: Consideration of State Reports (Public Session):
a) Status of Submission of State Party Reports
b) Consideration of -:
I)
The Periodic Report of Zimbabwe
II)
The Initial Report of Zambia; and
III)
The Initial Report of Kenya.
Item 8: Promotion Activities (Public Session)
a) Presentation of the Activity Reports of the Chairperson, ViceChairperson and Members of the African Commission;
b) Presentation of the Report of the Special Rapporteur on Prisons and
Conditions of Detention in Africa;
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c) Presentation of the Report of the Special Rapporteur on the Rights of
Women in Africa and the status of ratification of the Protocol to the
African Charter on the Rights of Women in Africa;
d) Presentation of the Report of the Special Rapporteur on Refugees,
Asylum Seekers and Internally Displaced Persons in Africa;
e) Presentation of the Report of the Special Rapporteur on Human
Rights Defenders in Africa;
f) Presentation of the Report of the Special Rapporteur on Freedom of
Expression in Africa;
g) Presentation of the Report of the Chairperson of the Working Group
on the Implementation of the Robben Island Guidelines;
h) Presentation of the Report of the Chairperson of the Working Group
on the Indigenous Populations/Communities in Africa;
i) Presentation of the Report of the Chairperson of the Working Group
on Economic, Social and Cultural Rights in Africa;
j) Presentation of the Report of the Working Group on Specific Issues
Relevant to the Work of the African Commission;
k) Report of the Working Group on the Death Penalty;
l) Organisation of Conferences and Seminars; and
m) Consideration of the UN Declaration on the Rights of Indigenous
Peoples.
Item 9: Consideration and Adoption of Draft Reports (Private Session)
Consideration and adoption of mission reports of the African Commission:
Draft Reports on the Promotional Missions to:
a) Burundi;
b) Rwanda;
c) Mali;
d) Cameroon;
e) Uganda;
f) Swaziland;
g) Burkina Faso;
h) Report of the Research and Information visit to the Republic of
Uganda; and
i) Report of the Research and Information visit to the Central African
Republic.
Item 10: Consideration of: (Private Session):
a) Mandate of Special Mechanisms;
b) Report of Mission to the Inter-American Commission;
c) Progress Report on the establishment of the Voluntary Contributions
Fund;
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d) Progress report of the Strategic Plan for 2008 – 2012;
e) Harmonisation of human rights activities among AU organs;
f) Report of the retreat of the Secretariat;
g) Relationship between the ACHPR and the African Court;
h) Draft Report on the Study of Violence Against Women;
i) Study on Human Rights Violation by non-State Actors;
j) Progress Report on the “Know Your Rights” Project;
k) Proposal on the Rights of the Elderly in Africa;
l) 20th Anniversary of the ACHPR and the proposed Awards
Item 11: Protection Activities: (Private Session)
a) Report on the Follow-Up of the cooperation between the African
Commission and the International Criminal Tribunal for Rwanda;
b) Consideration of the response of Sudan to the “Report of the
ACHPR‟s Fact Finding Mission to Darfur; and
c) Consideration of Communications.
Item 12: Methods of Work of the African Commission: (Private Session)
Review of the mandate of the Special Rapporteur on Arbitrary
Executions and Extra-Judicial Killings in Africa.
Item 13: Administrative and Financial Matters: (Private Session):
a) Report of the Secretary on the administrative and financial situation
of the African Commission and its Secretariat; and
b) Construction of the Headquarters of the African Commission.
Item 14: Consideration and Adoption of Recommendations, Decisions,
and Resolutions including: (Private Session):
a) Recommendations of the NGO Forum; and
b) Concluding Observations on the initial reports of Zambia, Kenya and
the periodic report of Zimbabwe.
Item 15: Dates and Venue of the 42nd Ordinary Session of the African
Commission (Private Session):
Item 16: Any Other Business (Private Session)
Item 17: Adoption of the: (Private Session)
a) Reports of the 39th, 40th, and 41st Ordinary Sessions;
b) 22nd Activity Report of the African Commission; and
c) Final Communiqué of the 41st Ordinary Session.
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Item 18: Reading of the Final Communiqué and Closing Ceremony
(Public Session)
Item 19: Press Conference (Public Session)
Annexure II
Decision on communication finalised at the
41st Ordinary Session
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COMMUNICATION 275 / 2003- ARTICLE 19 / THE STATE OF ERITREA
Summary of Facts
1. On 14th April 2003, the Secretariat of the African Commission received a
communication brought by Article 19 against the State of Eritrea, a State
Party to the African Charter.
2. Article 19 states that it is concerned especially about the continued
detention incommunicado without trial of at least 18 journalists in Eritrea
since September 2001.
3. The 18 journalists who are reportedly detained incommunicado are -:
1. Zemenfes Haile, founder and manager of the private weekly Tsigenay;
2. Ghebrehiwet Keleta, a news writer for Tsigenay;
3. Selamyinghes Beyene, reporter for the weekly MeQaleh;
4. Binyam Haile of Haddas Eritrea;
5. Yosef Mohamed Ali, Chief Editor of Tsigenay;
6. Seyoum Tsehaye, Free-lance Editor and photographer and former
Director of Eritrean State Television (ETV);
7. Temesgen Gebreyesus, Reporter for Keste Debena;
8. Mattewos Habteab, Editor of Meqaleh;
9. Dawit Habtemicheal, Assistant Chief Editor, Maqaleh;
10. Medhanie Haile, Assistant Chief Editor, Keste Debena;
11. Fessahye Yohannes (or Joshua) Editor-in-Chief of Setit;
12. Said Abdulkadir, Chief Editor of Admas;
13. Amanuel Asrat, Chief Editor of Zemen;
14. Dawit Isaac, contributor to Setit;
15. Hamid Mohammed Said, ETV;
16. Saleh Aljezeeri, Eritrean State Radio; and
17. Simret Seyoum, a writer and general manager for Setit
4. The Complainants alleges that on August 2001, a dozen senior officials
and other members of the ruling elite, known as the G15 signed a public
letter criticising President Isaias Afewerki‟s rule. This letter allegedly
generated a political crisis which involved defections, resignations, the
dismissal of top officials, the imprisonment of government critics and
journalists and the cancellation of the general elections that had been
planned for December 2001.
5. The Complainant further alleges that on 18th and 19th September 2001, 11
former Eritrean government officials including former the Vice President
Mahmoud Sherifo and the former Foreign Minister Petros Solomon were
arrested in Asmara.
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6. Furthermore, on 18th September 2001, the Eritrean government banned
the entire private press comprising of the following newspapers -:
Meqaleh, Setit, Tiganay, Zemen, Wintana, Admas, Keste Debena and
Mana. Subsequently, many journalists were arrested and detained,
including the 18 journalists who are now being held incommunicado. The
reasons given by the government for these actions ranged from
threatening national security to failure to observe licensing requirements.
7.
The Complainant asserts that Hadas Eritrea, a government owned daily
newspaper, is the only publication allowed in the country
8. The Complainant states that on 4th October 2002, they sent appeal letters
to the President of Eritrea and to the Chairman of the African Commission
urging them to ensure the unconditional release or a fair trial of the
detainees. On 12th November 2002, the Complainant sent a letter to the
government requesting information on the detainees and permission to
visit the country and the detainees. Article 19 alleges that all requests sent
to the government have been ignored.
Complaint
9. Article 19 alleges a violation of the following Articles of the African Charter
-:
Articles 1, 3, 5, 6, 7, 9, 13, 18, and 26 of the African Charter
Procedure
10. By letter dated 21st April 2003, the Secretariat of the African Commission
acknowledged receipt of the communication and informed the
Complainant that the matter had been scheduled for consideration at the
33rd ordinary session of the African Commission.
11. At its 33rd Ordinary Session held from 15th to 29th May 2003, in Niamey,
Niger, the African Commission considered the communication and
decided to be seized of the matter.
12. On 10th June 2003, the Secretariat wrote informing the parties to the
communication that the African Commission had been seized with the
matter and requested them to forward their submissions on admissibility
within 3 months.
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13. On 27th August 2003, the Secretariat received a Note Verbale from the
Respondent State requesting the African Commission to advise Article 19
to exhaust all domestic remedies.
14. On 10th September 2003, Article 19 forwarded by fax its submissions on
admissibility.
15. On 15th September 2003, the Secretariat of the African Commission
acknowledged receipt of the Note Verbale from the Respondent State and
the submissions from the Complainant. The Secretariat of the African
Commission additionally advised the Respondent State to forward its
arguments supporting its assertion that the Complainant had not
exhausted domestic remedies. Article 19 was also reminded to forward a
copy of the Decree banning the entire private press.
16. At its 34th Ordinary Session held from 6th to 20th November 2003 in Banjul,
The Gambia, the African Commission examined the communication and
decided to defer further consideration on admissibility of the matter to its
35th Ordinary Session.
17. On 4th December 2003, the Secretariat of the African Commission wrote to
inform the parties of the African Commission‟s decision. The Respondent
State was furnished with another copy of the Complainant‟s written
submissions on admissibility and further reminded to forward its written
submissions on admissibility within 2 months.
18. On 23rd February 2004, the Secretariat of the African Commission
received submissions on admissibility from the Respondent State. The
Secretariat acknowledged receipt of the said submissions and transmitted
a copy of the same to the Complainants on 3rd March 2004.
19. On 17th March 2004, the Secretariat received submissions from the
Complainant in response to the submissions from the State of Eritrea. The
Secretariat of the African Commission acknowledged receipt of the said
submissions and transmitted a copy of the same to the Respondent State
on 18th March 2004.
20. At its 35th Ordinary Session held from 21st May to 4th June 2004, in Banjul,
The Gambia, the African Commission examined the communication and
decided to defer further consideration on admissibility of the matter to its
36th Ordinary Session pending receipt of information from the Complainant
on concrete steps taken to access domestic remedies in Eritrea. The
parties to the communication were informed accordingly
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21. By Note Verbale and letter dated 15 June 2004 the Respondent State and
the Complainant were respectively informed of the Commission‟s decision.
22. By letter dated 15th September 2004, the Secretariat of the African
Commission reminded the Complainant to send the information requested
by the African Commission during the 35th Ordinary Session
23. At its 36th Ordinary Session held in Dakar, Senegal from 23rd November to
7th December 2004, the African Commission considered the
communication and declared it admissible.
24. By Note Verbale of 13th December 2004 and by letter of the same date,
the Secretariat of the African Commission notified the parties of the
African Commission‟s decision and requested them to submit their
arguments on the merits within three months of the notification.
25. By Note Verbale dated 27th January 2005, the State of Eritrea wrote to the
Secretariat of the African Commission requesting the African Commission
to dismiss the communication on the grounds that: one of the subjects of
the communication had already been dealt in another communication
(communication 250/2002) and therefore would constitute a case of
double jeopardy, and that the Complainant had appeared before the
African Commission only once despite repeated requests to „face and
question the accuser – a legal right which was denied them‟…by the
African Commission.
26. By Note Verbale dated 23rd February 2005, the Secretariat of the African
Commission acknowledged receipt of the Respondent State‟s Note
Verbale and informed the Respondent State that its request would be put
before the African Commission for consideration during the 37th Ordinary
Session.
27. By letter dated 24th February 2005, the Secretariat of the African
Commission informed the Complainant that the Respondent State had
requested the African Commission to reconsider its decision on the
communication and declare the latter inadmissible.
28. By letter dated 30th March 2005, the Complainant acknowledged receipt of
the Secretariat‟s letter of 24th February 2005. The Complainant indicated
that they were of the belief that the African Commission had thoroughly
examined the communication before arriving at the decision on
admissibility and therefore urged the African Commission to consider the
communication on its merits.
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29. By letter dated 5th April 2005, the Secretariat of the African Commission
acknowledged receipt of the Complainant‟s letter of 30th March 2005 and
requested it to submit its arguments on the merits or confirm whether the
arguments contained in its complaint were sufficient.
30. By letter dated 13th April 2005, the Complainant acknowledged receipt of
the Secretariat‟s letter of 5th April 2005 and indicated that in their earlier
submissions they had addressed themselves on the merits the
communication but further indicated that they were available to make oral
submissions on the same.
31. By letter dated 13th April 2005, the Secretariat acknowledged receipt of the
Complainant‟s letter and informed them that the communication had been
scheduled for consideration at the 37th Ordinary Session of the African
Commission.
32. At its 37th Ordinary Session held in Banjul, The Gambia, the African
Commission deferred further consideration of the communication due to
the absence of the rapporteur of the communication.
33. By Note Verbale and a letter dated 10th June 2005, the Respondent State
and the Complainant were respectively notified of the African
Commission‟s decision.
34. At its 38th Ordinary Session held from 21st November to 5th December
2005, in Banjul, The Gambia, the African Commission considered the
Respondent State‟s request that the communication be dismissed but
decided to confirm its decision on admissibility.
35. By Note Verbale and a letter dated 15th December 2005, the Respondent
State and the Complainant were respectively notified of the African
Commission‟s decision and requested the parties to submit their
arguments on the merits of the communication.
36. On 6th March 2006, the Secretariat of the African Commission wrote to the
parties reminding them to submit their arguments on the merits before the
end of March 2006.
37. By electronic mail dated 3 May 2006, the complainant re-submitted its
arguments on the merits of the communication, which was immediately
communicated to the respondent state for its comments.
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38. By Note Verbale dated 19 May 2006, the respondent State submitted its
arguments on the merits of the communication.
39. At its 39th Ordinary Session held from 11th to 25th May 2006, the African
Commission decided to defer consideration of the merits to the 40th
Ordinary Session, in order to allow the Secretariat to consider the parties‟
arguments and draft an opinion on the merits.
40. By Note Verbale and letter dated 31st May 2006, the Respondent State
and the Complainant were respectively notified of the African
Commission‟s decision.
41. By letter dated 17th October 2006 and Note Verbale dated 18th October
2006, the Complainant and the Respondent State respectively were
reminded that the African Commission would consider the merits of the
communication at its 40th Ordinary Session.
42. By Note Verbale and letter dated 10 February 2007, the Respondent State
and the Complainant were respectively notified that the African
Commission had deferred the communication, as it was unable to
consider the said communication at its 40th Ordinary Session because of
lack of time. Both the Complainant and the Respondent State were
informed that the communication would be considered at the 41st Ordinary
Session of the African Commission.
The Law
Admissibility
43. The current communication is submitted pursuant to Article 55 of the
African Charter which allows the African Commission to receive and
consider communications, other than from States Parties. Article 56 of the
African Charter provides that the admissibility of a communication
submitted pursuant to Article 55 is subject to seven conditions.5 The
African Commission has stressed that the conditions laid down in Article
56 are conjunctive, meaning that if any one of them is absent, the
communication will be declared inadmissible.6
44. The parties to the present communication seem to agree that six of the
conditions set out in Article 56 have been met. They are however in
5
6
See Article 56 of the African Charter on Human and Peoples' Rights.
See African Commission, Information Sheet No. 3 Communication Procedure.
EX.CL/364
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dispute over the application of one of the conditions – Article 56(5), which
provides that communications relating to human and peoples‟ rights
referred to in Article 55 received by the African Commission shall be
considered if they “are sent after the exhaustion of local remedies, if any,
unless it is obvious that this procedure is unduly prolonged”.
45. The exhaustion of local remedies rule is a principle under international law
of permitting States to solve their internal problems in accordance with
their own constitutional procedures before accepted international
mechanisms can be invoked. The particular State is thus enabled to have
an opportunity to redress the wrong that has occurred there within its own
legal order. It is a well established rule of customary international law that
before international proceedings are instituted, the various remedies
provided by the State should have been exhausted.
46. The African Commission has held in previous communications that for
local remedies to be exhausted, they must be available, effective and
sufficient. In communication Nos. 147/95 and 149/96, the African
Commission held that a remedy is considered available if the Complainant
can pursue it without impediment, it is deemed effective if it offers a
prospect of success, and it is found sufficient if it is capable of redressing
the complaint.7
47. In terms of Article 56(5) therefore, the law on exhaustion of domestic
remedies presupposes: (i) the existence of domestic procedures for
dealing with the claim; (ii) the justiciability or otherwise, domestically, of
the subject-matter of the complaint; (iii) the existence under the municipal
legal order of provisions for redress of the type of wrong being complained
of; and (iv) available effective local remedies, that is, remedies sufficient or
capable of redressing the wrong complained of.
48. The second part of Article 56(5) which is the subject of contention
between the parties provides that a communication shall be considered if
they are sent after the exhaustion of local remedies “…if any, unless it is
obvious that this procedure is unduly prolonged”. It follows therefore that
the local remedies rule is not rigid. It does not apply if:
(i)
local remedies are inexistent;
(ii)
local remedies are unduly and unreasonably prolonged;
(iii)
recourse to local remedies is made impossible;
7
Communication Nos. 147/95 and 149/96, Sir Dawda K. Jawara / The Gambia, African Commission
on Human and Peoples' Rights.
EX.CL/364
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(iv)
(v)
from the face of the complaint there is no justice or there are no
local remedies to exhaust, for example, where the judiciary is under
the control of the executive organ responsible for the illegal act; and
the wrong is due to an executive act of the government as such,
which is clearly not subject to the jurisdiction of the municipal
courts.
Issues before the African Commission
49. The parties to the present case are in dispute over the question of the
exhaustion of domestic remedies in Eritrea and it is therefore for the
African Commission to make a determination on the matter.
50. On the one hand, the State argues that the stipulated requirement in
Article 56(5) has not been fulfilled by the Complainant and that none of the
abovementioned exceptions should therefore apply. On the other hand,
the Complainant alleges that the exception rule in Article 56(5) should
apply.
51. Whenever a State alleges the failure by the Complainant to exhaust
domestic remedies, it has the burden of showing that the remedies that
have not been exhausted are available, effective and sufficient to cure the
violation alleged, i.e. that the function of those remedies within the
domestic legal system is suitable to address an infringement of a legal
right and are effective.8 When a State does this, the burden of
responsibility then shifts to the Complainant who must demonstrate that
the remedies in question were exhausted or that the exception provided
for in Article 56(5) ) of the African Charter is applicable.
Submissions by the Complainant
52. The Complainant in the present communication argues that domestic
remedies are not available and notes that the fact that the victims have
been held for over three years (since September 2001) incommunicado “is
a manifestation of the fact that the administration of justice in Eritrea is
extremely abnormal”.
53. The Complainant further points to the fact that Section 17 of the Eritrean
Constitution provides safeguards against the arbitrary arrest and detention
of persons, and the Government of Eritrea has failed to abide by these
8
Inter-American Court of Human Rights, Case of Velasquez Rodriguez, Judgment of July 29, 1988,
para. 63.
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safeguards.9 The Complainant claims that the “deliberate failure of the
government to abide by its own Constitutional obligation shows that it is
hopeless and impractical or unreasonable for the detainees to seize the
domestic courts by way of habeas corpus.
54. The Complainant further argues that the Executive Branch of Government
in Eritrea interferes in the affairs of the Judiciary thus rendering the latter‟s
independence and effectiveness suspect. They cite the removal of the
Chief Justice by the President of the Republic when the former allegedly
requested the Executive not to interfere in the Judiciary. The Complainant
noted that “if the Chief Justice could be removed from office for merely
asking the Executive Branch of Government not to interfere with the
independence of the Judiciary, what will happen to any judge who dares to
order the release of the detainees marked out as „traitors‟ and „State
enemies‟ by the highest authority, the President”?
55. The Complainant notes further that the human rights violations
complained of are serious and massive and in terms of the jurisprudence
of the African Commission, such violations do not necessitate the
exhaustion of local remedies.
56. The Complainant concludes by stating that in fact, they had sent a writ of
habeas corpus to the Minister of Justice requesting that the victims be
brought to court but received no response from the Minister, and that they
had requested to visit the victims but were not granted permission by the
responding State.
Submissions by the State
57. The Respondent State in its submission maintains that the Eritrean
Judiciary is independent and that the Complainant should have exhausted
local remedies either directly or through local legal representatives. The
Respondent State submits that it informed the Complainant that they
should take the initiative to approach the courts directly in order to seek
justice for the detainees but no such efforts were made by the
Complainant.
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EX.CL/364
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58. The Respondent State further submits that the claims by the Complainant
that there is an “information black out” and that the Eritrean Judiciary lacks
independence are unfounded as they are not substantiated by concrete
examples indicating that there has been no interference in the actual work
of the judges and in the dispensation of justice in the country. With respect
to the dismissal of the Chief Justice, the Respondent State argues that in
Eritrea the President appoints the Chief Justice and therefore has the
power to dismiss him.10
59. Article 52 of the Eritrean Constitution provides for the removal and
suspension of judges. Sub article 1 provides that a judge may be removed
from office before the expiry of his tenure of office by the President only,
acting on the recommendation of the Judicial Service Commission,
pursuant to the provisions of Sub-Article 2 of this Article for physical or
mental incapacity, violation of the law or judicial code of ethics. Sub article
2 provides that the Judicial Service Commission shall investigate whether
or not a judge should be removed from office on grounds of those
enumerated in Sub-Article 1 of this Article. In case the Judicial Service
Commission decides that a judge should be removed from office, it shall
present its recommendation to the President. And Sub article 3 provides
that the President may, on the recommendation of the Judicial Service
Commission, suspend from office a judge who is under investigation. The
Stae did not indicate whether these procedural safeguards had been
followed but simply intimated that the Chief Justice is appointed by the
President and can be dismissed by the President
60. In his oral submission during the 35th Ordinary Session, the
Representative of the Respondent State reiterated that the allegations
made by the Complainant were false and unfounded as they had been
made without any serious attempts by the Complainants to ascertain the
facts before bringing the matter before the African Commission.
Furthermore, the Complainants had not submitted themselves to the
courts in Eritrea and as such it is the responsibility of the Complainant to
find ways and means of utilising the domestic courts prior to bringing the
matter before the African Commission. He reminded the African
Commission that all conditions of Article 56 must be met in order for a
matter to be admitted and if any one of the conditions is not met, the
communication must be declared inadmissible.
61. The Representative of the Respondent State informed the African
Commission that the incarcerated journalists had been arrested by the
police and were being held by executive authorities. However, following
10
Article 52 (1) of the Eritrean Constitution.
EX.CL/364
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investigation, an administrative decision was reached to release two of the
journalists and that the decision with respect to the remaining incarcerated
journalists would be forthcoming.
62. He conceded that the detainees on whose behalf this communication is
brought have not been brought before a court of law because of the nature
of the criminal justice system in Eritrea. He stated that the criminal justice
system in Eritrea does not have the institutional capacity to handle cases
expeditiously and as such there is huge backlog of cases in all the courts
in the country.
63. The Respondent State further stated that contrary to the claims by the
Complainant that they were not able to visit Eritrea in order to assist the
victims, everyone who was involved in the matter relating to the detained
journalists and the political detainees was invited to Eritrea including the
Complainant who chose not to visit the country.
Decision of the African Commission on admissibility
64. To determine the question of admissibility of this communication, the
African Commission will have to answer, among others, the following
questions -:
- who is required under the African Charter to exhaust local remedies –
the author of the communication or the victim of the alleged human
rights violations?;
- does the removal of a Chief Justice render domestic remedies
unavailable and insufficient?;
- does the fact that a State has failed to abide by its own laws render
domestic remedies “hopeless, impractical and unreasonable?”;
- does the communication reveal massive and serious violations of
human and peoples‟ rights?; and
- does the continuous incommunicado detention of the victims render
domestic remedies unavailable, ineffective and inefficient?
65. As regards who is required to exhaust local remedies, the African Charter
is clear. It indicates in Article 56(1) that the authors of the communication
must indicate their identity even if they claim anonymity. This presupposes
that domestic remedies are to be exhausted but by the authors. In the
consideration of communications, the African Commission has adopted an
actio popularis approach where the author of a communication need not
know or have any relationship with the victim. This is to enable poor
victims of human rights violations on the continent to receive assistance
from NGOs and individuals far removed from their locality. All the author
needs to do is to comply with the requirements of Article 56. The African
EX.CL/364
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Commission has thus allowed many communications from authors acting
on behalf of victims of human rights violations. Thus, having decided to act
on behalf of the victims, it is incumbent on the author of a communication
to take concrete steps to comply with the provisions of Article 56 or to
show cause why it is impracticable to do so.
66. As regards the removal of the Chief Justice, the Complainant fails to
demonstrate sufficiently how this removal prevented them from
approaching the domestic remedies or how it rendered such domestic
remedies
unavailable,
ineffective,
“hopeless,
impractical
and
unreasonable?” The Independence of the Judiciary is a crucial element of
the rule of law. Article 1 of the UN Basic Principles on the Independence
of the Judiciary11 states that "the independence of the Judiciary shall be
guaranteed by the State and enshrined in the Constitution or the law of the
country. It is the duty of all governmental and other institutions to respect
and observe the independence of judiciary." Article 11 of the same
Principles states that "the term of office of judges, their independence,
security ... shall be adequately secured by law." Article 18 provides that
"Judges shall be subject to suspension or removal only for reasons of
incapacity or behaviour that renders them unfit to discharge their duties."
Article 30 of the International Bar Association (IBA)'s Minimum Standards
of Judicial Independence12 also guarantees that "A Judge shall not be
subject to removal unless, by reason of a criminal act or through gross or
repeated neglect or physical or mental incapacity, he has shown himself
manifestly unfit to hold the position of judge" and Article 1(b) states that
"Personal independence means that the terms and conditions of judicial
service are adequately secured so as to ensure that individual judges are
not subject to executive control." Article 52 (1) of the Eritrean Constitution
provides an almost similar provision.
67. The issue however is, does the removal of a Chief Justice in a manner
inconsistent with international standards render the judiciary in a State
unavailable and ineffective? The Complainant was simply casting doubts
about the effectiveness of the domestic remedies. The African
Commission is of the view 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. In
this regard, the African Commission would like to refer to the decision of
11
12
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of
Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly
resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
IBA Minimum Standards Of Judicial Independence (Adopted 1982)
EX.CL/364
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the Human Rights Committee in A v Australia13 in which the Committee
held that “mere doubts about the effectiveness of local remedies or
prospect of financial costs involved did not absolve the author from
pursuing such remedies.”14 The African Commission can therefore not
declare the communication admissible based on this argument.
68. As regards the Complainant‟s argument that the Government has failed to
abide by its own constitutional obligations as provided for in Article 17 of
the Eritrean Constitution. The African Commission is of the view that the
whole essence why human rights violations occur is because
Governments fail to abide by their domestic as well as international
obligations. When this happens, individuals whose rights have been, are
being or are likely to be violated seize the local courts to invoke their rights
in order to compel Governments to abide by these obligations. The
Eritrean Constitution provides ample safeguards against persons who are
arrested and detained without charge or trial. Apart from sub-articles 1, 3,
and 4 of Article 17, sub article 5 of the same article is very instructive. It
provides that “every person shall have the right to petition the court for a
Writ of Habeas Corpus. Where the arresting officer fails to bring him
before the court of law and provide the reason for their arrest, the court
shall accept the petition and order the release of the prisoner”.
69. In the instant case therefore, the Complainant could, at the very least,
have seized the local courts by way of a writ of habeas corpus to draw the
court‟s attention to the constitutional provision they claim the government
has breached. Lawyers often seek the release of detainees by filing a
petition for a writ of habeas corpus. A writ of habeas corpus is a judicial
mandate to an arresting officer ordering that an inmate be brought to the
court so it can be determined whether or not that person is imprisoned
lawfully and whether or not he should be released from custody. A habeas
corpus petition is a petition filed with a court by a person who objects to
his own or another's detention or imprisonment. The writ of habeas corpus
has been described as "the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action."15 It serves
as an important check on the manner in which the courts pay respect to
constitutional rights.
13
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
14
See also L Emil K.aaber v Iceland, Communication No. 674/1995. UN Doc.
CCPR/C/58/D/674/1995 (1996). See also Ati Antoine Randolph v. Togo, Communication No.
910/2000, UN Doc. CCPR/C/79/D/910/2000 (2003).
15
Harris v. Nelson, 394 U.S. 286, 290-91 (1969).
EX.CL/364
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70. The Complainant in their submissions does acknowledge that they did
send a writ of habeas corpus to the Minister of Justice. The African
Commission is of the view that even though it expected the Minister to
advise the Complainant on the proper procedure to follow, the failure to do
so does not constitute a breach of the law. The Ministry of Justice is the
same arm of Government that has failed to “abide by its own constitutional
obligations…” and it is only the courts that can order it to do so. By
sending the writ to the Minister of Justice, the Complainant cannot claim
they were attempting the exhaustion of domestic remedies as Article 56(5)
requires the exhaustion of legal remedies and not administrative
remedies.
71. As regards the argument that the communication reveals serious and
massive violations of human rights, the African Commission would like to
reiterate its earlier decisions in communication Nos. 16/88,16 25/89,
47/90, 56/91, 100/93,17 27/89, 46/91, 49/91, 99/9318 that it […] cannot hold
the requirement of exhaustion of local remedies to apply literally in cases
where it is impractical or undesirable for the Complainant to seize the
domestic courts in respect of each individual complaint. This is the case
where there are a large number of victims. Due to the seriousness of the
human rights situation and the large number of people involved, such
16
Comite Culturel pour la Democratie au Benin/ Benin, 1988. Communication 16/88 concerns
the arrest of students, workers and pupils and their detention without trial
(some for several months), during which they were tortured and maltreated.
17
Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits
de l'Homme, Les Temoins de Jehovah / Zaire, African Comm. Hum. & Peoples' Rights.
Communication No. 25/89, 47/90, 56/91, 100/93 Comm. 25/89 alleges the torture of 15 persons by
a Military Unit, on or about 19 January 1989, in K.insuka near the Zaire River. On 19 April 1989 when
several people protested their treatment, they were detained and held indefinitely. Comm. 47/90, alleges
arbitrary arrests, arbitrary detentions, torture, extra-judicial executions, unfair trials, severe restrictions
placed on the right to association and peaceful assembly, and suppression of the freedom of the Press.
Comm. 56/91 alleges the persecution of the Jehovah's Witnesses, including arbitrary arrests,
appropriation of church property, and exclusion from access to education. Comm. 100/93, makes
allegations of torture, executions, arrests, detention, unfair trials, restrictions on freedom of association
and freedom of the press. It also alleges that public finances were mismanaged; that the failure of
the Government to provide basic services was degrading; that there was a shortage of medicines; that
the universities and secondary schools had been closed for two years; that freedom of movement was
violated; and that ethnic hatred was incited by the official media.
18
OMCT, Association Internationale des Juristes Democrates, Commission Internationale des Juristes
and Union Interafricaine des droits de l'homme / Rwanda, Communication 27/89, 46/91, 49/91,
99/93. The communications allege the expulsion of Burundi nationals who had been refugees
without the opportunity to defend themselves at trial; arbitrary arrests and summary executions; the
detention of thousands of people by the armed forces on the basis of ethnic origin; the destruction of
Tutsi villages and massacre of Tutsis.
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remedies as might theoretically exist in the domestic courts are as a
practical matter unavailable …”
72. However, as regards the continuous incommunicado detention of the
detainees, the African Commission would like to note the State Party‟s
acknowledgement that the victims are still being held in detention because
of the poor state of the criminal justice system in the country. With respect
to this argument by the State Party, the African Commission notes that
whenever there is a crime that can be investigated and prosecuted by the
State on its own initiative, the State has the obligation to move the criminal
process forward to its ultimate conclusion. In such cases, one cannot
demand that the Complainants, or the victims or their family members
assume the task of exhausting domestic remedies when it is up to the
State to investigate the facts and bring the accused persons to court in
accordance with both domestic and international fair trial standards.
73. The African Commission would also like to note that the State party has
made a general refutation of the claims alleged and has insisted that
domestic remedies do exist and that the Complainant did not attempt to
exhaust them. The African Commission notes however, that the State
party has merely listed in abstracto the existence of remedies without
relating them to the circumstances of the case, and without showing how
they might provide effective redress in the circumstances of the case.19
74. In the instant communication therefore, 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
African Commission can infer from the circumstances surrounding the
case and determine whether such remedies are in fact available, and if
they are, whether they are effective and sufficient.
75. The invocation of the exception to the rule requiring that remedies under
domestic law should be exhausted provided for in Article 56(5) must
invariably be linked to the determination of possible violations of certain
rights enshrined in the African Charter, such as the right to a fair trial
enshrined under article 7 of the African Charter.20 The exception to the
19
Albert Womah Mukong vs. Cameroon.
CCPR/C/51/D/458/1991 of 10 August 1994.
20
Inter-American Court of Human Rights, Case of Velásquez Rodríguez.
Preliminary Exceptions, cit., para. 91. See in this connection also Judicial
Guarantees during States of Emergency ( Articles 27.2, 25 and 8 of the American
Convention on Human Rights). Advisory Opinion OC–9/87 of October 6, 1987.
Series A. Nº 9, para 24.
Communication
No.
458/1991,
UN
Doc.
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rule on the exhaustion of domestic remedies would therefore apply where
the domestic situation of the State does not afford due process of law for
the protection of the right or rights that have allegedly been violated. In the
present communication, this seems to be the case.
76. Holding the victims incommunicado for over three years demonstrates a
prima facie violation of due process of the law and in particular, Article 7 of
the African Charter. By not taking any action to remedy the situation more
than twelve months after the African Commission had been seized of the
communication goes to demonstrate that the State has equally failed to
demonstrate that domestic remedies are available and effective.
77. Another rationale for the exhaustion requirement is that a government
should have notice of a human rights violation in order to have the
opportunity to remedy such violation, before being called to account by an
international tribunal. The African Commission is of the view that the State
has had ample time and notice of the alleged violation to at least charge
the detainees and grant them access to legal representation. However, if it
is shown that the State has had ample notice and time within which to
remedy the situation, even if not within the context of the domestic
remedies of the State, as is the case with the present communication, the
State may still be said to have been properly inform and is expected to
have taken appropriate steps to remedy the violation alleged. The fact that
the State of Eritrea has not taken any action means that domestic
remedies are either not available or if they are, not effective or sufficient to
redress the violations alleged.
78. The African Commission would like in this regard to refer to its decision in
Communication 18/8821 which concerned the detention and torture of the
Complainant for more than seven years without charge or trial, the denial
of food for long periods, the blocking of his bank account, and the use of
his money without his permission. The African Commission held that in
such circumstances it is clear that the State has had ample notice of the
violations and should have taken steps to remedy them. The African
Commission would also like to restate the position taken in communication
250/2002.22 In that communication, the African Commission was of the
view that the situation as presented by the Respondent State does not
afford due process of law for protection of the rights that have been
alleged to be violated; the detainees have been denied access to the
remedies under domestic law and have thus been prevented from
21
El Hadj Boubacar Diawara/Benin, July 1988.
22
Liesbeth Zegveld and Mussie Ephrem/Eritrea, (2003).
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exhausting them. Furthermore, there has been unwarranted delay in
bringing these detainees to justice.
79.
The situation as presented by the Respondent State does not afford due
process of law for protection of the rights that have been alleged to be
violated; the detainees have been denied access to the remedies under
domestic law and have thus been prevented from exhausting them.
Furthermore, there has been unwarranted delay in bringing these
detainees to justice.
80.
In the Albert Mukong case, the Human Rights Committee held that “a
State party to the Covenant, regardless of its level of development, must
meet certain minimum standards regarding conditions of detention”.23 This
reasoning of the Human Rights Committee can also include the fact that a
State party to the African Charter regardless of its level of development
must meet certain minimum standards regarding fair trial or due process
conditions”. The Committee concluded that "the legitimate objective of
safeguarding and indeed strengthening national unity under difficult
political circumstances cannot be achieved by attempting to muzzle …
democratic tenets and human rights".24
81. The continuous incommunicado detention of the victims without charge
bars them from any legal representation and makes it difficult for the
Complainant or any person interested in assisting them from attempting
whatever domestic remedies might be available. To leave the detainees to
languish in detention forever because of the inadequacy of the State‟s
criminal justice system or because there is no one to access the domestic
courts on their behalf would be grossly unjust, if not unfair.
82. In the absence of any concrete steps on the part of the State to bring the
victims to court, or to allow them access to their legal representatives
three years after their arrest and detention, and more than one year after
being seized of the matter, the African Commission is persuaded to
conclude that domestic remedies, even if available, are not effective
and/or sufficient.
For this reason, the African Commission declares the communication
admissible.
23
Communication No. 458/1991, para 9.3.
24
Albert Mukong supra.
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Decision of the African Commission on request by the Respondent
State to dismiss the communication
83. The present communication was declared admissible at the 36th Ordinary
Session of the African Commission‟s held in Dakar, Senegal from 23rd
November to 7th December 2004. In response to the African Commission‟s
request for written submissions on the merits, the Respondent State in a
Note Verbale dated 27th January 2005 wrote requesting the African
Commission to dismiss the communication. The Respondent State‟s
grounds for such dismissal were that -:
•
One of the 18 journalists in this matter had been the subject of
another communication – communication 250/2002 – Zegveld &
Ephrem/Eritrea which the African Commission had already
disposed of. The Respondent State therefore argued that dealing
with that person in this matter constitutes double jeopardy
•
The Complainant had appeared before the African Commission
only once despite repeated requests to „face and question the
accuser – a legal right which was denied them‟…by the African
Commission.
84. In dealing with the Respondent State‟s request that the communication be
dismissed the African Commission noted that Rule 118(2) of the African
Commission‟s Rules of Procedure stipulate that:
If the Commission has declared a communication inadmissible under the
Charter, it may reconsider this decision at a later date if it receives a
request for reconsideration…
85. No provision is made therein for the African Commission to dismiss a
matter after having declared it admissible. In any case, the victims who
are the subject of this communication are still being held in
incommunicado detention by the Respondent State and are accordingly
unable to access domestic remedies whether on their own or through legal
representatives. It is for these reasons that the African Commission has
decided not to dismiss the communication and will therefore consider it on
the merits.
Decision on the merits
86. The African Commission will not deal with any issue already decided upon
in Communication 250/2002.
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87. Eritrea submits that the acts alleged were undertaken “against a backdrop
of war when the very existence of the nation was threatened” and that, as
a result, the Government was “duty bound to take necessary
precautionary measures (and even suspend certain rights).” However,
unlike other human rights instruments,25
and as emphasised in
Communication 74/92,26 the African Charter does not allow States Parties
to derogate from it in times of war or other emergency. The existence of
war, international or civil, or other emergency situation within the territory
of a state party cannot therefore be used to justify violation of any of the
rights set out in the Charter, and Eritrea‟s actions must be judged
according to the Charter norms, regardless of any turmoil within the State
at the time.
88. The complainant alleges, and Eritrea does not deny, that 11 political
dissidents and 18 journalists have been detained, incommunicado and
without trial, since September 2001. It is also alleged by the complainant,
and admitted by the respondent state, that private newspapers were
banned from September 2001. Although Eritrea maintains that this ban
was temporary, it is not clear from the information available whether or
when the ban was lifted.
89. The basic facts are not therefore in dispute. However, the versions of the
parties vary as regards the motivation for the detention of the individuals
concerned and the ban on the press. According to the complainant the
arrests were due to the detainees having expressed their opinions and
spoken out against the Government; the respondent state on the other
hand claims that the 11 political opponents were arrested for breaching
Articles 259 (attacks on the independence of the state), 260 (impairment
of the defence powers of the state) and 261 (high treason) of the
Transitional Penal Code of Eritrea. As regards the ban on the press and
the detention of the 18 journalists, the respondent state claims that these
occurred because, “the stated newspapers and the leading editors were
recruited into the illegal network organised for the purpose of ousting the
Government through illegal and unconstitutional means.”
25
For example, the International Covenant on Civil and Political Rights and the European
Convention on Human Rights.
26
Commission Nationale des Droits de l’Homme et des Libertés v. Chad, paragraph 21: “The
African Charter, unlike other human rights instruments, does not allow for states parties to
derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chat
cannot be used as an excuse by the State violating or permitting violations of rights in the African
Charter.”
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90. Eritrea‟s argument, then, is that its actions were justified by the
circumstances prevailing within its territory during the relevant period, and
permissible under its domestic law. Reference is made to Articles 6 and 9
of the African Charter, the relevant sections of which provide respectively
that:
� No-one may be deprived of his freedom except for reasons and
conditions previously laid down by law; and
� Every individual shall have the right to express and disseminate
his opinions within the law. [Emphasis added]
91. Such provisions of the Charter are sometimes referred to as “claw-back
clauses,” because if “law” is interpreted to mean any domestic law
regardless of its effect, States Parties to the Charter would be able to
negate the rights conferred upon individuals by the Charter.
92. However, the Commission‟s jurisprudence has interpreted the so-called
claw-back clauses as constituting a reference to international law,
meaning that only restrictions on rights which are consistent with the
Charter and with States Parties‟ international obligations should be
enacted by the relevant national authorities.27 The lawfulness of Eritrea‟s
actions must therefore be considered against the Charter and other norms
of international law, rather than by reference to its own domestic laws
alone.28
93. The arrest and detention of the journalists and political opponents is
claimed by the complainant to breach Articles 6 and 7 of the Charter.
Article 6 provides that “no-one shall be arbitrarily arrested or detained.”
The concept of arbitrary detention is one which both the Commission and
other international human rights bodies have previously expounded upon.
In the Albert Mukong Case,29 the United Nations Human Rights
Committee stated that,
Arbitrariness‟ is not to be equated with „against the law‟ but must be
interpreted more broadly to include elements of inappropriateness,
27
See for example Communication 101/93 – Civil Liberties Organisation in respect of the Nigerian
Bar v. Nigeria, paragraph 16, and Communication 212/98 – Amnesty International v. Zambia,
paragraph 50.
28
See Communications 147/95 and 149/96 – Sir Dawda K Jawara v. The Gambia, paragraphs 57-59.
29
Human Rights Committee, Communication 458/1991 Albert Mukong v. Cameroon, 10 August
1994, paragraph 9.8.
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injustice, lack of predictability and due process of law…remand in
custody pursuant to lawful arrest must not only be lawful but
reasonable in all the circumstances…remand in custody must also be
necessary in all the circumstances.
From this case it can be inferred that an arrest or detention may be legal
according to the letter of domestic law, but arbitrary and therefore illegal by
reason of its inappropriate, unjust or unpredictable nature.
94. The Eritrean detainees have not been charged, or brought to trial. This in
itself constitutes arbitrariness, as the Commission has previously stated.
In Communication 102/93,30 the Commission held that, “where individuals
have been detained without charges being brought…this constitutes an
arbitrary deprivation of their liberty and thus violates Article 6.”
95. Furthermore, the length of time for which the detainees have been kept in
custody must be considered. Both parties agreed that the arrests occurred
in September 2001. The journalists and political opponents have therefore
been detained, without charge or trial, for a period of over 5 years.
96. Article 7(1)(d) of the Charter provides that all individuals shall have, “the
right to be tried within a reasonable time by an impartial court or tribunal.”
The Commission has expanded upon this provision in its Resolution on
the Right to Recourse and Fair Trial, which states that, “Persons arrested
or detained shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to trial
within a reasonable time or be released.”31
97. The question of what is reasonable cannot be expressed in terms of a
blanket time limit which will apply in all cases, but rather must depend on
the circumstances. This approach has also been espoused by the
European Court of Human Rights, which has held that the reasonableness
of the length of proceedings is to be assessed in accordance with all the
circumstances of a case. The European Court will look in particular at the
complexity of the case, and the conduct of the applicant and of the
relevant authorities.32
30
Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, paragraph 55.
31
ACHPR /Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992), paragraph 2(c).
32
See Decision of the Human Rights Committee, Buccholz v. Germany, 7759/77 [1981] ECHR 2 (6
May 1981).
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98. Eritrea contends that the delay in bringing these particular detainees to
trial is due to the complexity and gravity of the offences committed, and to
the “precarious war situation” existing within the state. However, as
already stated, it must be borne in mind that States Parties cannot
derogate from the Charter in times of war or any other emergency
situation. Even if it is assumed that the restriction placed by the Charter on
the ability to derogate goes against international principles, there are
certain rights such as the right to life, the right to a fair trial, and the right to
freedom from torture and cruel, inhuman and degrading treatment, that
cannot be derogated from for any reason, in whatever circumstances.
99.
The existence of war in Eritrea cannot therefore be used to justify
excessive delay in bringing the detainees to trial. Furthermore, a backlog
of cases awaiting trial cannot excuse unreasonable delays, as the
European Court of Human Rights has held.33 Further, in the case of Albert
Mukong, referred to above, the Human Rights Committee stated that
States Parties to the ICCPR must observe certain minimum standards as
regards the condition of detention, regardless of their state of
development. The Commission considers that the same principle applies
to the length of detention before trial, and that states parties to the Charter
cannot rely on the political situation existing within their territory or a large
number of cases pending before the courts to justify excessive delay.
100.
Moreover, the detainees are being held incommunicado, and have never
been brought before a judge to face charges. In these circumstances, the
Commission finds that Eritrea has breached the requirement of trial within
a reasonable time set out in Article 7(1)(d). This is consonant with its
previous decisions, such as Communication 102/9334, in which 3 years
detention was found to be unacceptable, and Communication 103/9335, in
which the Commission stated that 7 years detention without trial, “clearly
violates the „reasonable time‟ standard stipulated in the Charter.”
100.
The fact that the detainees are being held incommunicado also merits
further consideration in terms of international human rights law. The
United Nations Human Rights Committee has directed36 that states should
make provisions against incommunicado detention, which can amount to a
33
Union Alimentaria Sanders SA, 7 July 1989, Series A Number 157.
34
Ibid.
35
Alhassan Abubakar v. Ghana, paragraph 12.
36
General Comment No. 20, 44th Session, 1992.
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violation of Article 7 (torture and cruel treatment and punishment) of the
International Covenant of Civil and Political Rights, to which Eritrea has
acceded. Furthermore, the Commission itself has stated that, “holding an
individual without permitting him or her to have contact with his or her
family, and refusing to inform the family if and where the individual is being
held, is inhuman treatment of both the detainee and the family
concerned.”37
101. Eritrea has not denied the complainant‟s contention that the detainees are
being held incommunicado, with no access to legal representation or
contact with their families, and as the Commission has enunciated in
many of its previous decisions, where allegations are not disputed by the
state involved, the Commission may take the facts as provided by the
complainant as a given.38 Nor does the political situation described by
Eritrea excuse its actions, as Article 5 permits no restrictions or limitations
on the right to be free from torture and cruel, inhuman or degrading
punishment or treatment. The Commission thus finds that Eritrea has
violated Article 5, by holding the journalists and political dissidents
incommunicado without allowing them access to their families.
102. In keeping with its earlier decisions on similar cases,39 the Commission
also finds that such treatment amounts to a breach of Article 18, as it
constitutes violation of the rights of both the detainees and their families to
protection of family life. Finally, the Commission holds that there has been
a violation of Article 7(1)(c), since the detainees have been allowed no
access to legal representation, contrary to the right to be defended by
counsel which is protected by that provision of the Charter.
103. The Commission turns its attention now to the question of whether there
has been a violation of the detainees‟ rights to express and disseminate
their opinions, as alleged by the complainant. The events which give rise
to this allegation are the ban by the Eritrean government of the private
press, and the arrest and detention of the 18 journalists. The respondent
State argues that these actions were justified by the activities of the
journalists and the newspapers in question, which it considered were
aimed at overthrowing the government. Further, the Eritrean government
37
38
39
Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International, Comite Loosli Bachelard,
Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of
East Africa v. Sudan.
Communication 74/92 – Commission Nationale des Droits de l’Homme et des Libertés v. Chad.
See for example Communications 143/95 and 150/96 – Constitutional Rights Project and Civil
Liberties Organisation v. Nigeria.
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claims that its actions did not constitute a breach of the Charter, as Article
9 only protects the expression and dissemination of opinions within the
law.
104. As explained above, permitting States Parties to construe Charter
provisions so that they could be limited or even negated by domestic laws
would render the Charter meaningless. Any law enacted by the Eritrean
Government which permits a wholesale ban on the press and the
imprisonment of those whose views contradict those of the Government‟s
is contrary to both the spirit and the purpose of Article 9. The Commission
reiterates its own statement in Communications 105/93, 128/94, 130/94
and 152/96:40 ccording to Article 9(2) of the Charter, dissemination of
opinions may be restricted by law. This does not mean that national law
can set aside the right to express and disseminate one‟s opinions; this
would make the protection of the right to express one‟s opinions
ineffective. To allow national law to have precedence over the
international law of the Charter would defeat the purpose of the rights and
freedoms enshrined in the Charter. International human rights standards
must always prevail over contradictory national law. Any limitation on the
rights of the Charter must be in conformity with the provisions of the
Charter.
105. By applying norms of international human rights law, the Commission has
previously found, and finds in this case, that the imprisonment of
journalists “deprives not only the journalists of their rights to freely express
and disseminate their opinions, but also the public, of the right to
information. This action is a breach of the provisions of Article 9 of the
Charter.”41
106. Moreover, banning the entire private press on the grounds that it
constitutes a threat to the incumbent government is a violation of the right
to freedom of expression, and is the type of action that Article 9 is
intended to proscribe. A free press is one of the tenets of a democratic
society, and a valuable check on potential excesses by government.
107. No political situation justifies the wholesale violation of human rights;
indeed general restrictions on rights such as the right to free expression
and to freedom from arbitrary arrest and detention serve only to
undermine public confidence in the rule of law and will often increase,
rather than prevent, agitation within a state. The Commission draws on the
findings of the UN Human Rights Committee:
40
41
Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional
Rights Project v. Nigeria.
Communications 147/95 and 149/96 – Sir Dawda Jawara v. the Gambia.
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The legitimate objective of safeguarding and indeed strengthening
national unity under difficult political circumstances cannot be
achieved by attempting to muzzle advocacy of multi-party
democracy, democratic tenets and human rights.42
For the reasons given above the Commission:
Holds a violation of Articles 1, 5, 6, 7(1), 9 and 18 by the State of Eritrea;
Urges the government of Eritrea to release or to bring to a speedy and fair
trial the 18 journalists detained since September 2001, and to lift the ban on
the press;
Recommends that the detainees be granted immediate access to their
families and legal representatives; and
Recommends that the government of Eritrea takes appropriate measures to
ensure payment of compensation to the detainees.
42
Mukong case, supra note 2, paragraph 9.7.
ANNEXURE III
THE AFRICAN COMMISSION’S REPORT OF THE FACTFINDING MISSION TO THE REPUBLIC OF THE SUDAN
UNDERTAKEN FROM 08 – 18 JULY 2004.
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REPORT OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS’
FACT-FINDING MISSION TO THE REPUBLIC OF SUDAN IN THE DARFUR REGION
(08 TO 18JULY 2004)
I- INTRODUCTION.
1. The African Commission on Human and Peoples‟ Rights was established in
1987, by the Organisation of African Unity - OAU - (currently the African Union,
AU), upon the adoption of the 1981 African Charter on Human and Peoples‟
Rights, with the mandate of ensuring the promotion and protection of human and
peoples‟ rights on the African continent. Within the framework of its mandate and
in order to maintain close contacts with State Parties and gather information
about the prevailing human rights situation on the ground, the African
Commission dispatches regular promotional and protection missions, as
situations demand, to the State Parties to the African Charter on Human and
Peoples‟ Rights.
2. The African Commission has followed closely, events in Sudan, especially the
humanitarian and human rights situation in the Darfur region. The African
Commission has been receiving reports from human rights NGOs, specialized
agencies of the United Nations and other reliable sources, drawing its attention to
the continuous deterioration of the human rights situation in the Darfur region,
mainly due to armed conflict which has persisted for more than a year, involving
the armed forces of the government of Sudan, armed rebel groups and armed
tribal militias.
3. The reports highlighted the killing of civilians, particularly men from the Fur,
Marsalit, and Zaggawa ethnic groups, who are indigenous to the Darfur region.
Attacks by government forces involving ground forces and bombing raids, and in
certain cases, allegations of coordinated government forces‟ attacks, involving
armed Arab militias, have led to the destruction of hundreds of villages, looting
crops, livestock and other goods, reportedly forcing hundreds of thousands of
often impoverished, starving and terrorized villagers, to flee to other parts of
Darfur, or outside the Sudan, in particular to the Republic of Chad.
4. International specialized agencies and humanitarian non governmental
organizations, wishing to provide humanitarian aid to hundreds of thousands of
displaced persons were, due to a number of reasons, particularly during the
period prior to the signing of the N‟djamena Humanitarian Ceasefire Agreement
on the 8th April, 2004, reported to have faced numerous constraints, to deliver
and distribute emergency relief supplies, whilst famine or epidemics were on the
increase or about to start in the region, in view of the onset of the rainy season.
The situation however improved when the government of Sudan lifted travel and
work restrictions, which it had imposed against the agencies.
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5.
The tens of thousands of Sudanese refugees currently in refugee camps in Chad
are also said to be living in extremely difficult conditions, with very little food,
water or shelter.
6. Under these circumstances, the African Commission on Human and Peoples‟
Rights is obliged to investigate and establish the human rights situation affecting
the people of Darfur, as a result of the conflict.
7. Article 45(2) of the African Charter on Human and Peoples‟ Rights mandates the
African Commission to ensure the protection of human rights in the State Parties
to the Charter and in accordance with the provisions stipulated by the said
Charter.
8. The Republic of Sudan ratified the African Charter on 18/02/1986 and is
consequently a State Party to the said Charter.
9. Cognizant of the information briefly outlined above and desirous of the need to
fulfil the mandate under the African Charter and its Rules of Procedure, and in
accordance with its practices43, the African Commission on Human and Peoples‟
Rights, at its 35th Ordinary Session44, adopted a resolution to send a fact-finding
mission to the Republic of Sudan, especially to the Darfur region, with a view to
establishing the facts regarding allegations of serious and massive human rights
violations in the said region.
10. The Fact-finding mission to Sudan was undertaken with the full approval of the
Republic of Sudan, whose consent was officially sought and obtained by the
Secretariat of the African Commission before dispatching the mission.
11. The objectives of the mission to Sudan were:
-
To discuss with the authorities in Sudan the human rights situation in the
Darfur region;
-
To consult and discuss with all other relevant stakeholders (United
Nations‟ agencies, national and international humanitarian NGOs, etc.) the
human rights situation in the Darfur region;
-
To hear all actors, stakeholders and victims, capable of providing the
mission with evidence to throw light on the human rights situation in the
43 Within the framework of its protection mandate, the African Commission has already conducted fact-finding missions
in some State Parties, notably Senegal (1-7 June 1996); Mauritania (19-27 June 1996); Sudan (1-07 December 1996);
Nigeria (7-14 March 1997) and Zimbabwe (24-28 June 2002).
44 The 35th Ordinary Session of the African Commission was held from 21st May to 4th June 2004 in Banjul, the Gambia.
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Darfur, particularly concerning allegations of serious and massive human
rights violations;
-
To verify allegations/facts relating to the human rights situation in the
Darfur and consider with all actors, possible medium and long term
solutions for arresting the situation;
-
To arrange with the authorities in Sudan and, eventually the Embassy of
Chad in Khartoum and officials of relevant specialized agencies of the
United Nations, visits to camps of displaced persons within the Darfur
region, and refugee camps located in Chad, and gather from displaced
persons and refugees evidence on their situation as well as information on
their needs.
12. The delegation of the African Commission on Human and Peoples‟ Right‟s
mission to Sudan comprised the following:
-
H.E Mrs. Salamata Sawadogo, Chairperson of the African Commission:
Head of mission;
Commissioner Angela Melo, Special Rapporteur on Women‟s Rights in
Africa;
Commissioner Bahame Tom Mukirya Nyanduga: Special Rapporteur on
Refugees, Internally Displaced Persons, in Africa;
Commissioner Mohammed Abdellahi Ould Babana: Commissioner in
charge of promotional activities in the Republic of Sudan; and
Mr. Robert Ayéda Kotchani, Legal officer at the Secretariat of the African
Commission, who accompanied and assisted the mission.
13. The mission of the African Commission on Human and Peoples‟ Rights to Sudan
took place from 8th to 18th July 2004. An earlier mission, which was planned to
take place in early March 2004, could not proceed due to communication
problems resulting in the late receipt of the request for authorization sent by the
Secretariat of the African Commission to the authorities in Sudan.
14. Due to logistical, mainly transport, and security constraints, the mission was
unable to visit all the places it intended to. The mission was, for instance, unable
to visit the Sudanese refugee camps situated in Chad, because it was logistically
not possible to cross the border from El Geneina into Abeche, Chad, without the
prior authorisation of the Chadian government. The mission was unable to meet
members of opposition political parties in Sudan. Several attempts to meet the
opposition parties through both official and informal contacts did not yield the
expected results.
15. Given the urgency of some issues observed by the mission, particularly:
insecurity, sexual and gender based violence, problems of access to IDPs in the
rural areas, involuntary repatriation of IDPs, the need to grant access to human
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rights monitors to the Darfur region and the arbitrary detention of members of the
political opposition and human rights activists opposed to the government
handling of the Darfur conflict, the Chairperson of the Commission sent a letter to
His Excellency Mr. Omar El Bashir, President of the Republic of Sudan, and
copied to His Excellency Alpha Oumar Konaré, Chairman of the African Union
Commission on 27th July 2004, requesting the adoption of urgent provisional
measures regarding the issues outlined above.
16. After a brief introduction on the origin of the crisis in Sudan, this report outlines
the essence of consultations held with different political and administrative
leaders, representatives or members of national and international organizations
operating in Sudan. The report then makes analytical observations on the various
issues, including the mission‟s visits to camps for displaced persons and
recommendations.
II-
A BRIEF INTRODUCTION TO THE CRISIS IN DARFUR.
17. Sudan is situated in the north-east of Africa and covers a surface area of
2,505,810 km2. It is the largest State on the African continent. It stretches about
2,250 km from north to south and about 1,950 km from east to west. Sudan has a
population of over 30 million inhabitants and is divided into 26 states, which form
a federal system of government. The southern part of the country, which has
recently come out of a long civil war, has important petroleum reserves.
18. With natural borders extending over 700 km along the red sea, Sudan has
borders with Kenya, Uganda and the Democratic Republic of Congo on the south;
Central African Republic, Chad and Libya on the west, Eritrea and Ethiopia on the
east and Egypt on the north.
19. Khartoum, the capital comprises Khartoum North, Khartoum and Omdurman, with
an estimated population of about 6 million inhabitants. There are other major
towns such as Port Sudan (the country‟s only major port situated on the Red
Sea), Wad Medani (administrative centre of the most fertile region in the country),
Gezira, Juba (capital of Equatoria region and the only major town in the south), El
Obeid, (capital of Kordofan region) and El Fasher (capital of North Darfur on the
western part of the country). Other major towns in the Darfur region are, Geneina,
(capital of West Darfur), and Nyala, (capital of South Darfur).
20. The Darfur region is situated on the western part of Sudan. The region is semidesert covering an area of about 500,000 km² and comprises the three States of
Sudan: West Darfur, North Darfur and South Darfur. Darfur had a population of
about 5 millions inhabitants composed of mainly the Massalit, Zaggawa, Fur,
Tama, Masharia, Gemer of the African tribes, the majority of whom are farmers.
There are also Arabs who are mainly pastoralists.
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21. Immediately after attaining its independence (in 1956), Sudan became a victim of
a civil war between the North and the South, which ravaged the country. An
interim peaceful period prevailed from 1972 to 1983. The civil war wrecked the
Sudanese economy, which is now classified as one of the poorest countries in
the world. Following the imposition of Sharia law by the Sudan government, and
the adoption of Islamist policies, in the early 1980s, a civil war broke out once
again between the Government of Sudan and the SLPM/A of Dr. John Garang
representing the African and Christian tribes of Southern Sudan.
22. The civil war in the south of Sudan ended effectively following the IGAD
sponsored talks and the signing of the Naivasha Peace Agreement in Kenya, in
May, 2004 between the SPLM/A and the Government of Sudan.
23. While the Machakos and Naivasha peace process was gaining momentum for
more than a year, commencing February 2003, an armed conflict broke out in the
Darfur region, involving armed rebel groups which attacked government garrisons
and security infrastructures, which included police stations, military aircrafts and
other government properties. Official account and reports received by the
Commission, corroborated by NGOs, indicate that small armed groups existed in
the region in the past. However their influence on the frequent communal conflicts
between pastoralist livestock keepers, and farmers was limited and, were often
resolved through traditional mediation.
24. The present situation which is characterized by an all out civil war between the
Government and the two rebel movements operating in the Darfur region,
namely the Sudanese Liberation Movement (SLM) and Justice and Equality
Movement (JEM), has seen the escalation of the conflict through the involvement
of heavy military hardware, regular and indiscriminate bombing by the Sudanese
air force helicopter gunships and Antonov planes, and the rampant abuses,
specified below, committed by the Janjawid militia.
25. The rebel movements claim to be fighting against the Khartoum Government
because of political and economic marginalisation of the Darfur region, and to
defend the marginalized black population against attacks by Arab militia
commonly known as the Janjawid. The government on the other hand says that it
is fighting a rebellion, and it has a responsibility to re establish law and order in
the Darfur region. This conflict has resulted in the killing of an estimated 30,000 to
50,000 civilians. Hundreds of villages have been destroyed, crops, livestock and
other goods have been looted, forcing about 1,200,000 people to move to internal
camps for displaced people within Darfur and about 150,000 refugees to flee to
Chad.
26. Allegations of massive human rights violation by Janjawid militia, apparently the
only force, which fought the rebels, when the violence broke out in early 2003
have been rampant. The Janjawid, were allegedly recruited among Sudanese
tribes claiming to be of "arabic" origin. According to Roland Marchal, Researcher
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for studies and international research (CERI), an expert on the Horn of Africa,
using such types of armed groups "dates back to the first Ottoman colonization in
the XIXth century. The British were also said to have resorted to the same
practice to destroy the Darfur sultanate in 1915. This practice resurfaced in 1991,
when a rebel leader in Southern Sudan attempted to take control of the Darfur."
27. Specialized agencies and NGOs seeking to channel humanitarian assistance to
the affected people are, for many reasons, said to be facing enormous difficulties
in doing so whilst famine and epidemic are on the increase in the region and that
refugees and displaced persons are reportedly living in extremely difficult
conditions with the imminent arrival of the rainy season: little food, difficult access
to drinking water, makeshift shelter, cold weather etc.
28. When the government of Sudan officially announced the lifting of the travel, visa
and work permit restrictions, international humanitarian organizations started
organizing, in relatively safe conditions, relief for the affected people. But the
situation is far from normal in the region as fighting continues in spite of the ongoing peace negotiations under the auspices of the African Union and
international community.
III-
ORGANISATION OF THE MISSION.
29. At the start of its mission the African Commission‟s mission met Dr. Abdelmonem
Osman Taha, the Rapporteur of the Advisory Council for Human Rights, the
organisation designated by the Government of Sudan to coordinate the mission‟s
programme. The mission then met H.E Ali Mohammed Osman Yassin, Minister of
Justice, H.E. Najeep Elkhair the State Minister of Foreign Affairs of Sudan,
Honourable Judge Abdel Diem Zumrawi, the Under Secretary, Ministry of Justice,
as well as senior civil servants and representatives of national and international
humanitarian organizations in Khartoum. The mission then visited the Darfur
region where it was able to visit camps for displaced persons and hold
discussions with political and administrative heads, humanitarian organizations
operating on the ground and IDPs.
30. Upon its return to Khartoum, the mission held meetings with various Sudanese
political and administrative leaders including, H.E Gen. Abdel Rahim Mohammed
Hussein, the Minister of Interior, Hon Mubark Al Fadii Al Mahadi, Assistant to the
President, Hon Dafalla El Haj Yousif, (former Chief Justice), Head of the National
Commission of Inquiry on the Human Rights Abuses in the Darfur region, and
officials of national and international humanitarian organizations.
31. While in Khartoum, the mission visited the African Union Mission in Sudan, and
held discussions with the Administrative Officer for AUMS with regard to
transportation logistics to and from, and within Darfur. The Government of Sudan
in cooperation with the WFP had arranged flight schedules, which the mission
utilised to go to El Fasher. Once the mission got into El Fasher, the daunting task
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of transportation within Darfur became a major problem. However through the
coordination between the AUMS in Khartoum, and the Chairman of the African
Union Ceasefire Commission (CFC), in El Fasher, Brigadier General Okonkwo,
the CFC provided an aircraft which enabled the Mission to visit the three Darfur
states and back to Khartoum.
32. The CFC also facilitated with ground transport when the mission visited an IDP
camp in Tawila, about one and half hour drive outside El Fasher, and Nyala.
Otherwise, ground transport was facilitated by the Sudanese authorities.
A-
Meetings and discussions with government officials.
33. Upon arrival in Darfur, the mission held discussions with the three Wallis
(Governors) of North, West and South Darfur, who were accompanied by various
state officials. The mission also met officials of the Office of the Coordinator for
Humanitarian Affairs (OCHA) and a number of humanitarian agencies, which
provided the mission with information on the Darfur crisis. A number of issues
concerning the conflict were raised.
a) Origins of the conflict.
34. Senior government Ministers, state and government officials identified different
causes of the conflict, and in particular gave the historical context of the conflict
arising as a result of natural factors, national and sub-regional geopolitical
conflicts, which had affected the Sudan for much of its post colonial history.
• the drought and desertification problem which began in the 1970s affecting the
Sahelian countries had worsened the economic situation in the Darfur region in
recent years. This situation has led to massive migration of livestock owners
towards greener pastures in the south of the Darfur region, which is inhabited by
farming tribes. The cyclical movement of the Arabic pastoralist due to shortage of
pasture and water, and the traditional divide between these nomadic tribes and
tribes of African origin, who are generally sedentary farmers have been at the
core of communal conflicts which previously involved loss of life, cattle and stock
theft and loss of property at a low scale compared to the current situation,
• a longstanding civil war in southern Sudan which has raged for over 20 years,
and wars between and within neighbouring states (Chad, The Central Africa
Republic, Ethiopia, Libya - Chad etc.) have encouraged the massive movement
of all kinds of arms in the Darfur region and entrenched a culture of carrying
firearms which already existed among the people. Furthermore, many irregular
foreign armed groups were said to have used Dafur‟s vast region as their bases,
particularly during the Chadian civil war. Chad and Sudan have similar tribes
across their common border,
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• furthermore, armed militia groups have, for the past years been intermittently
formed the Darfur region to safeguard the interest of different tribes. To underline
the culture of war and open possession and carrying of weapons, these groups
have assumed such names as the Pashtuns, the Tora bora, Peshmerga, etc. In
fact, 77% of persons aged 17 years and above living in the Darfur region possess
a firearm. The very low level of education in the Darfur region and generalized
poverty among the population, due to the region‟s enduring poor economic and
social development performance indicators also represent key factors to be taken
into consideration for a better understanding of the crisis affecting in the region,
thereby making these youth to be easily enlisted by the armed groups,
• more recently, since 2002, political tensions within the ruling party and between
the Government and opposition parties led to the withdrawal of a number of
politicians from the Darfur region and other parts of Sudan sympathetic to the
Darfur conflict from the ruling party (the National Congress Party) because of their
opposition to the government handling of the Darfur crisis, in support of the
armed rebel movements, which were fighting against the Government in
Khartoum. The Sudan Liberation Movement (SLM) and the Justice and Equality
Movement (JEM) were formed to defend interests of the people of Darfur, who
claim to be marginalised by the central government.
• the rebellion started in early 2003 when rebels attacked police and military
installations, which symbolised the Government‟s presence in the Darfur region.
For a period of nine months the government had not mobilised to defend their
positions. According to government ministers, at the beginning of the conflict the
rebels killed about 100 military personnel, 64 police officers, and lost 6 military
helicopters,
• as the conflict escalated, more than 80 police stations throughout the region were
destroyed, leaving the people without adequate police protection. The
government authorities saw their position weakened and overtaken. According to
government ministers, the vacuum left by this situation allowed the pastoralist
tribes to organise their own militia, the Janjawids to defend themselves against
the rebels. At that point the Janjawids militia served the same military objectives,
as that of the government.
b) Consequences of the conflict.
35. According to the Government:
•
the number of displaced persons caused by the conflict in Darfur was
estimated at about 1 million, who were split up among fifty or so camps
identified in the Darfur region. The government has embarked on a
repatriation programme, whereby it is « encouraging » internally displaced
persons to go back to their villages.
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•
number of refugees: the conflict in Darfur has resulted in a refugee
population estimated at close to 200,000. These refugees are living in
camps situated in Chad, across its common border with Sudan. The
government informed the mission that 100,000 refugees had voluntarily
repatriated back to Sudan, information which the mission was unable to
verify,
•
serious and massive human rights violations: the conflict in Darfur has
occasioned human rights violations: murders, rape, destruction, arson and
plundering of villages. The government denied that rape had been
committed, and stated that it had asked victims to report such cases to
police stations. Government further stated that the victims could not
identify the alleged offenders, therefore the rape allegations were not
verifiable. The Government denied having deployed its military aircrafts
and helicopters to attack villages indiscriminately, to have recruited or
armed the Janjawid militia, or even to have coordinated military attacks
with the said Janjawid militia,
•
the government stated that genocide or ethnic cleansing were not
committed in the Darfur, even though serious human rights violations might
have been committed in the region, just like any other place in a situation
of war,
•
the government stated that the security situation had improved
considerably compared to the period prior to the signing of the N‟djamena
Humanitarian Ceasefire Agreement, and due to the deployment of police.
By July 2004, the government stated that it had deployed 3912 out of 6000
policemen, and was planning to rebuild the 89 police stations destroyed by
the rebels, as part of government repatriation policy.
36. When asked to explain the problem concerning sexual and gender based
violence, the government stated that it could not verify victims‟ allegations of rape
by the Janjawids. The humanitarian agencies personnel however stated that they
were receiving reports of rape from women, when they report at health centres for
treatment.
37. Government ministers and officials explained to the mission that in the past when
inter ethnic conflicts occurred in the Darfur, they were generally resolved by the
government through the formation of traditional tribal Councils and Commissions
of reconciliation. The Government ensured that damages were paid to victims
and that the protagonists undertook to peacefully settle any future disputes.
During the current crisis the Government has undertaken a number of measures
to resolve the crisis. These include :
•
The establishment of a Commission of Inquiry responsible for receiving
complaints linked to the crisis in Darfur, commissioning of police
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•
•
•
•
•
•
•
investigations, which led to the arrest and prosecution of several suspects
including Janjawids. Those found guilty were sent to prison where they are
currently serving different sentences. Some of the cases are still in court;
The establishment of a Reconciliation Commission to reconcile communities
affected by the crisis ;
The establishment of Commissions for Humanitarian Affairs in each of the
three Darfur states ;
The establishment of a Ministry responsible for Humanitarian Affairs to
specifically manage the crisis ;
The establishment of three Women Committees composed of eminent
Sudanese women lawyers to look into the gender dimension of the crisis and
make concrete proposals to the authorities;
Distribution of food and other humanitarian assistances to displaced
communities, with support from the international community;
The gradual deployment of units from the police and army in the area affected
by the crisis in order to restore security;
Gradual restoration of social and developmental services (as in El Geneina
where the local government worked out a poverty alleviation plan), in
consultation with tribal leaders, for the return of displaced communities to their
villages of origin through the reconstruction of destroyed villages, water supply
systems, restoration of security, and health services, etc.
B- Meetings with national human rights organizations and international
humanitarian organizations.
38. The mission held meetings with officials of a number international and national
humanitarian organizations on humanitarian crisis in the Darfur region and best
ways of addressing it. The list of organizations met is annexed to this report. They
informed the mission about the following:
•
•
•
•
•
during the entire period of this crisis, neither the government of Sudan nor the
international community has put in place an effective system of protection for
the population in Darfur,
human rights observers should be deployed in the region in order to protect
the civilian population and investigate alleged crimes,
since 2000, the UN and the international community have received through
reliable sources accurate information on the situation in the Darfur, but
nothing was done about it then,
human rights violations in the Darfur region have been committed by all the
actors on the ground, which include government forces, the rebel forces, tribal
militias, and in particular the Janjawid militia,
some of the humanitarian agencies on the ground stated that the crisis in the
Darfur region could not be considered as ethnic cleansing or genocide, even
if the human rights violations are a cause of concern,
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•
•
•
•
the delivery of humanitarian assistance to affected communities and displaced
persons has, on the overall, been delayed, but had improved after the
government of Sudan lifted restriction to work and travel to the Darfur,
access to camps for displaced persons is relatively easy in the El Fasher and
El Geneina towns ; but humanitarian organizations find it difficult to obtain the
necessary authorization to do their work in the camps outside Nyala town,
human rights violations are still going on in the South Darfur region where the
Janjawid militia and rebel activity is still very active,
the government‟s policy of forced repatriation of displaced persons to their
villages of origin, is a problem in the sense that no practical arrangements for
their return has been put in place; and lack of consultations with humanitarian
agencies.
Security situation
•
the organisations stated that the security situation in Darfur remains
precarious. The on-going fighting in the region has lead to loss of human life,
destruction of villages and property, forcing the population to flee the villages
and preventing the free movement of persons and goods. The agencies were
continuing to receive displaced person in the various IDP camps throughout
the Darfur region. The mission was for instance discouraged from making any
visit outside Nyala, in South Darfur, because of recent fighting there,
•
when the mission arrived in El Fasher on 11th July 2004 at around 12: 15
(local time), the Chairman of the CFC had just arrived from Nyala where he
had gone to verify a ceasefire violation in South Darfur. While in El Fasher
itself, a ceasefire violation was reported on the same day when rebels
attacked a local community, about one hour drive from El Fasher and
captured the local emir. We learned upon return to Khartoum, five days
later that the emir had been released,
•
at the time of the mission, there was scarcity of aviation fuel at the three
major airports in the Darfur region. Local transporters had refused to send
their trucks from Khartoum, fearing rebel attacks, after a number of
vehicles, including trucks carrying fuel were looted in Darfur, allegedly by
rebel forces,
•
the humanitarian agencies personnel, while acknowledging that the
security situation in the IDP camps had improved, they indicated that there
was still insecurity in areas surrounding IDP camps, and that women were
attacked and raped by Janjawid militia whenever they ventured 3 to 5
kilometres radius outside the camps to fetch water and the ever dwindling
stock of firewood for their cooking,
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•
that notwithstanding the government‟s decision to lift work and travel
restrictions for humanitarian agencies‟ staff, bureaucratic red tape, and
roadblocks for security checks, restricted their capacity to deliver
humanitarian assistance to IDPs, some of whom were still scattered across
the vast Darfur region outside formal camps. The ICRC was conducting a
survey to determine the exact number of IDPs who are still scattered in the
rural areas, outside the established camps. OCHA identified a number of
major concerns facing IDPs,
(i) physical safety of the vulnerable population,
(ii) the possibility of forced relocation and repatriation of IDPs,
(iii) sexual and gender based violence,
(iv) restriction to access to humanitarian assistance,
(v) violence against the civilian population.
39. The mission was informed about the government repatriation policy. The
humanitarian agencies staff observed that the policy is implemented without
adequate preparations. They advised that repatriation must be conducted in a
voluntary manner. They gave an example of the relocation of 5000 IDPs from
Meshtal in North Darfur, within few hours, to the Abou Shouk camp without
adequate consultations, preparation nor adequate sanitary and relief supplies,
bringing the population of the Abou Shouk camp to more than 45000 IDPs.
40. The Commission took note of the existence of one government funded local
Sudanese NGO, El Zubeir Charity Foundation which is assisting in relief
assistance. This NGO is said to promote the government repatriation policy of
IDPs to their villages. The international humanitarian agencies, while not opposed
to repatriation as such, urge the Sudan authorities against forced repatriation,
and to coordinate the said efforts with the humanitarian agencies in order to
ensure that conditions of peace, security and stability are re established in the
villagers, so that IDPs and refugees repatriate voluntarily.
41. The mission was also informed that the civilian population was targeted because:
•
government believe that rebels often hide within the population. Some
villages were therefore attacked to dislodge rebels that sought refuge
there,
•
some of the villages were burnt by rebel groups, which have every interest
in ensuring that the international community maintains pressure on the
Government of Sudan, whilst the latter is making efforts to repatriate the
displaced persons to their villages so that it restores its authority.
42. The mission held a meeting with the Sudanese Women Union, which is a
federation of Sudanese women organisations, organised from the grassroots
level. They gave a detailed explanation of their work, and what they were doing in
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the Darfur region, which includes intervention with police and government officials
against cases of arbitrary arrest, providing legal aid to victims. They also
organized seminars for the IDP‟s and government leaders in Nyala. They
lamented the fact that the Sudanese Women Union is not taking part in the peace
negotiations on the Darfur conflict. They also highlighted some of the problems
they and other national NGOs face:
•
•
•
national NGOs do what they can to deliver humanitarian assistance to
displaced persons and morally support them in their moments of great
difficulty,
national NGOs launched a campaign against arbitrary arrest and detention as
well as against human rights violations, in particular of women‟s rights,
the humanitarian work done by local Sudanese NGOs towards the affected
communities of Darfur is constrained by the difficulty in accessing the Darfur
since the only practical and quick route to the region is by air.
The Janjawid phenomenon.
43. The mission enquired from the various personalities and actors to explain the
Janjawid phenomenon and their role in the Darfur conflict. Government ministers
and officials referred to them as outlaws, the name Janjawid being an Arabic
word for outlaws. The Janjawid was commonly identified as the Arab militia which
has been fighting on the side of government against the rebels, and is associated
with massive human rights violation in the Darfur, such as the looting of property
and cattle, burning of villages, rape, abduction of women, and wanton killing of
defenceless civilian population in the Darfur region.
44. According to humanitarian agencies‟ workers, men who are commonly identified
as Janjawid militia can be seen roaming streets of the three Darfur states, with
impunity, wearing military uniforms, with guns on their backs riding donkeys,
horses or camels, suggesting that they were known, and tolerated by the
government. When asked to confirm their association with the Janjawid, the
government denied either recruiting or arming the Janjawid militia, or coordinating
military activity with them. On the other hand, a number of the IDPs interviewed
by the mission at Dali near the Tawila village in North Darfur, and in Abou Shouk
camp, stated that they were attacked by the Janjawid Arab militia, prior to the
attacks which led to their eventual displacement, and again shortly after their
villages were bombed by government aircrafts and helicopters.
45. Another problem relating to the Janjawids was the fact that, they are not a
structured force, nor are they part of the humanitarian ceasefire Agreement, and
are therefore not bound by it. They are not formally involved in the peace
process. The general consensus among many people the mission spoke to
seems to suggest that the Janjawids were armed by the Government of Sudan in
order to fight the rebels. Now that the Janjawids have become very strong,
disarming them seems problematic.
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C-
Visits to camps for displaced persons and other places.
In the North Darfur region.
46. In the North Darfur region, the mission visited camps for displaced persons in Dali
(near the Tawila village) and Abu Shouk, as well as the burnt down village of
Shekshegu. The Abu Shouk camp is located about 3 kilometres outside El
Fasher and is managed by the ICRC. At the time of the visit, it had more than
40,000 IDPs. The camp appeared to be well managed, security was good, health
and other services such as shelter, water supply and food distribution was well
organised.
47. The IDPs in the Dali camp near the village of Tawila were living without any
shelter, except for branches of shrub and cardboard cover, i.e. no cover at all. In
other words they were living under the scorching sun and the open sky. This
camp had not been visited by any government or international humanitarian
agencies‟ officials for supply of any essential humanitarian assistance. This was a
typical case of IDPs who are scattered through Darfur region who have not been
reached because of the insecurity. The mission visited the burnt out village from
where the Dali IDPs had escaped the bombardment by government aircrafts and
helicopters and Janjawid militia. It also visited the burnt out compound of tribal
headman.
48. The arrival of the mission in El Fasher coincided with news that members of an
unidentified armed group violated the cease-fire in the region by attacking two
towns the day before. The rebels were reported to have abducted a leader of the
Berthi tribe, looted a bank and set a police station and houses on fire.
49. The Walli then notified the CFC representative (General Okonkwo and his Vice
Chairperson were absent from El Fasher) that these attacks could end in intertribal conflicts because the targeted tribe might attempt to seek revenge against
the tribes that attacked it. The CFC representative had promised to report to the
CFC Chairperson so that necessary investigations are carried out.
Visit to IDP camp in Dali ,the village burnt in Shekshegu Tawila, North
Darfur.
50. The camp is situated about an hour and a half drive, on a poor stretch of the road
from El Fasher passing through the dry and semi desert conditions, to a local
trading town called Tawila. The head of the camp, one Taher Adam Shugar,
explained to the mission that the camp hosts about 1200 IDPs composed of
tribes of African origin: the Fur and Zaggawa forming the majority, who arrived at
the camp from 25 surrounding villages who were mainly engaged in farming.
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51. The inhabitants of the camp, totally left to themselves, had no shelter and were
consequently vulnerable to bad weather conditions. There was no infrastructure
for water supply, food, health care or education.
52. The mission had a meeting with the head of the camp and some displaced
persons, who gave accounts of air raids and land attacks by forces identified by
the displaced persons as those of the government. The displaced persons were
not able to provide exact dates for the attacks, contenting themselves with the
fact that the attacks happened twice on Fridays, and peak market days. They
also declared that men on horseback and camel provided support on the ground
to the attacks by forces of the government army.
53. When questioned by the mission, whether these attacks were done by rebel
forces, they stated that the attacks were mainly carried out by the armed forces of
the Government of Sudan and men on horseback and camels, and not by other
forces.
54. The displaced persons related cases of rape, abductions and disappearance of
children and girls as well as beating by men in military uniforms, and by men on
horseback and camel. They could not provide exact figures for victims, but stated
that at least 216 people were killed, unspecified numbers were wounded. They
stated further that, during the said attacks, houses were burnt and household
goods plundered, cattle and other goods were stolen.
55. When asked about the likely reasons for the attacks on their villages, the
displaced persons stated that they did not know any reasons why they were
attacked, and put down their misfortune to bad luck. They categorically denied
having any links to any rebel group opposed to the Government. They also
denied having any problems with other tribes and held the Government
responsible for their plight.
56. The displaced persons furthermore stated that few people had remained in the
abandoned villages. They also stated that whenever women IDPs returned to the
abandoned villages to tend their farms, they are often raped. As for the men,
when they return to the abandoned villages, they are killed.
57. Commissioner Angela Melo met with about one hundred women living in the
camp and interviewed 18 of them. These women essentially confirmed the
information provided by the men, notably the attacks. The women also stated that
rape and abduction of an unspecified number of women happened during the
attacks. The women were locked up in a room and raped by the assailants. They
said their children could not go to school and that there was no health facilities for
them.
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Visit to the village burnt in Shekshegu.
58. Located about 2 to 3 kilometres from the Dali camp, the village of Shekshegu,
which is inhabited by the Fur, Zaggawa and Berti tribes, was attacked and
partially destroyed by fire on 27/02/2004, according to the village head, Mr.
Mohamed Abubakar Ahmed, whose hut was burnt down. The mission counted
some 10 totally burnt down huts and had a meeting with the village head, in the
presence of some inhabitants of the village.
59. The attackers were identified by the villagers as soldiers belonging to government
armed forces, supported by men on horseback and camel who looted and burnt
down the huts before escaping.
60. The mission asked the inhabitants how certain they were that attackers were
members of the government armed forces when there were also armed rebel
groups that were operating in the region. The villagers respond that they were
able to identify the attackers because they were dressed in Sudanese army
uniforms.
61. The villagers stated that they have heard about rebel groups opposed to the
government, but they did not know the rebels because they do not have any links
to the village.
62. When asked about their views on the reasons for these attacks, the villagers
responded that the Government accuses them of being relatives of rebels and
opposition politicians. The attacks, mass murder and destruction are in retaliation
to the purported contacts between the villagers and the rebels.
63. The villagers declared that the village had an initial population of 1,300
inhabitants, which presently stands at 250. Everyone is afraid to venture far away
from the village because some time ago men on horseback, Janjawid militia,
attacked and raped women from that village.
64. The mission asked the villagers whether there were traces of these attacks:
cartridges, bullet marks, bomb fragments, etc. The villagers stated that these
could be seen at the nearby dry river valleys. Due to time constraints, and the
distance and conditions for travelling early back to El Fasher, the mission was not
able to have access to these elements before leaving the village.
Visit to the camp for displaced persons in Abu Shouk.
65. The camp for displaced persons in Abu Shouk is situated not far from El Fasher.
The mission visited it in the presence of Mr. Al Fatah Abdelaziz, Assistant
Director of the camp. The latter explained that the camp was established on
20/04/2004 and has 48,000 displaced persons of which 80% are women and
children, that come from all the villages attacked.
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66. The Assistant Director of the camp informed the mission about assistance that
the camp receives from humanitarian agencies such as UNICEF, ICRC, WFP,
etc., which provide water, food, shelter and medical care. The Sudanese
government provides staff for education and health services to the displaced
persons. The mission observed that the camp is well organised and provided with
adequate facility and basic supplies as stated above.
67. The mission met and interviewed IDPs who are resident in the camp. A group of
elders who agreed to talk with the mission stated that the majority of persons
living in the camps were from the Fur and Zaggawa tribes which were living in the
mount Djebel Mara region, whose villages were attacked and destroyed by
bombs and land attack by men in military vehicles, or on horseback and camel.
The raids and attacks were said to have been carried out regularly between the
months of March to July 2003 by planes during the day and land attack at night.
68. The IDPs said that they did not know why they were attacked. They confirmed
that there had been several cases of rape and abduction of women. They further
stated that they were afraid to return to their abandoned villages. They said that,
during previous communal conflicts, when pastoralists‟ herds had destroyed their
crops, they did not have any fundamental problems with members of tribes of
Arabic origin.
69. Commissioner Angela Melo interviewed over thirty women belonging to the Fur
tribe. The women confirmed the information relating to the attacks, plundering
and abduction of children by the armed forces identified as those of the
Government. Some of the women spoke about having experienced cases of rape
but did not give further details. The mission believes that it could not get further
information because interpretation was conducted by a man. The women refused
to return to their villages of origin as long as security is not fully restored there.
They complained about idleness in the camp.
70. Before its departure from El Fasher, the mission witnessed a march organized by
the inhabitants of the town to protest against rebel attack, which occurred 2 days
earlier in the region. The protesters, who gathered in front of the offices of the
Ceasefire Commission, were received by the CFC Chairperson and gave him
their petition, which called on the latter to quickly and effectively act to stop the
cease-fire violations. A delegation of elders from El Fasher also handed a similar
petition to the Chairperson of the African Commission‟s mission.
In the West Darfur region.
71. The mission visited camps for displaced persons in Ardamata and Droti in El
Geneina, West Darfur region.
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Visit to the displaced persons camp in Ardamata.
72. The mission met the camp supervisor, Mr. Ahmed Oubeid Eissa who said that the
Ardamata camp for displaced persons, hosted 34,000 persons mainly from tribes
of African origin: Fur, Massalit, Zaggawa, Tama, Mashiria and Gemer. The camp
was established in April 2003.
73. The displaced persons in this camp came from several villages following attacks
they described, as air raids and land attacks, by government forces supported by
men on horseback and camels. These attacks resulted in loss of human life,
injuries, destruction of villages and houses and theft of livestock.
74. The displaced persons affirmed that humanitarian organizations provided them
with relief in the form shelter, food, water and health services as a result of which
the camp did not face major difficulties.
75. The displaced persons informed the mission of on-going preparations with the
participation of tribal leaders for displaced persons to return to their villages of
origin. The displaced persons assured the mission that 50% of them are ready to
return to their villages of origin if the logistics and security conditions are
effectively met.
76. During the interview that Commissioner Angela Melo had with a group of
displaced women, the latter explained to her that during the attacks on their
villages, an unspecified number of women were raped by men described as light
skinned, who came on horse back and camels. These men were said to have
abducted an unspecified number of women. The women also talked about theft of
goods belonging to the women, such as jewellery, cash and other valuable items,
during the attacks.
77. In response to a specific question by Commissioner Angela Melo about
complaints against rape, the women said that they have lodged complaints
concerning theft, rape and other offences committed against them at the nearby
police station but that these complaints had not been investigated.
78. The mission was able to observe in the Ardamata camp the existence of a school
that had an enrolment of about 700 school children that were supervised by
teachers who also lived in the camp. The camp has a health centre with a
capacity of 100 beds. Shelter in the camp consists of tarpaulin provided by
international humanitarian organizations. The camp was relatively clean and well
kept.
Visit to the Drothi camp for displaced persons.
79. The Drothi camp had 4,132 displaced persons at the time of the mission‟s visit.
The camp did not have a school and children attended school at the Ardamata,
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situated some two or three kilometres away. The camp had a health centre, and
four water pumps, which were however inadequate due to the high number of
displaced persons.
80. The inhabitants of the camp informed the mission that the people who attacked
them were armed horsemen and men dressed in Khaki uniform, who identified
themselves and claimed to be members of government forces. These attackers
killed, looted and burnt down houses, destroyed crops and took away valuable
objects and livestock during the day and at night. The attackers also shot those
who dared to resist them. Many cases of rape, by horsemen of Arab origin, were
reported.
81. The displaced persons also stated that there were cases where displaced
persons were attacked within the camp and injured, security is not assured due to
nightly attacks by armed men. The most recent attack however was reported to
have taken place six month ago. According to one of the IDPs, unidentified
people come into the camp to intimidate the inhabitants and prevent them from
returning to their villages of origin.
82. The displaced persons consequently said that they were not in any way ready to
return to villages that were destroyed and rendered insecure. According to them,
some days before, one displaced person visited their village situated 20 km from
Drothi and some militias of an armed group intimidated and accused him of being
an opponent to the regime and he had to return to the camp, intimidated and
frightened.
83. Commissioner Angela Melo asked whether rape cases were investigated. The
displaced persons responded that complaints which were lodged since November
2003 had not been investigated to date. The police are accused of being
indifferent.
84. The mission also wanted to know from the displaced persons the reasons why
their villages were attacked and they responded that the government considered
them as members of the opposition, whilst they considered themselves merely as
poor farmers who are not in any way linked to the opposition or rebels. The
displaced persons believe that they were attacked because they were black.
85. The mission wanted to know whether the displaced persons heard about the
Janjawid militia, and they replied that these were bandits, Arabs or blacks,
normally riding horses or camels, who are guilty of numerous atrocities and that
even the police are afraid of them, justifying the abandonment of actions lodged
against them.
86. Commissioner Angela Melo separately met with a group of women living in the
camp. These women stated that 6 months ago their villages were attacked by
government forces, supported by men riding horses and camels. The attacks
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resulted in several deaths and injury of people. Some of these women who
sustained injuries, showed their wounds to the Commissioner. The women
furthermore stated that during the attacks, a number of cases of rape were
committed, some of the raped women became pregnant. Complaints were lodged
at the police but were yet to be investigated. They declared that the attackers
came back at night to intimidate the villagers who had not fled, accusing them of
supporting the opposition. Everyone had to run away from the villages.
87. The women indicated that they were traumatized by the violent nature of the
attacks and said that they would not want to return to the villages as long as their
security is not assured. They lamented lack of water and a school in the camp.
88. The mission visited the police station to verify complaints and the level of
progress made on the reported cases of rape and other offences, but the mission
was unable to have access to the files as the officer in charge of the said cases
was absent at the time. At one of its meetings in El Geneina, the mission was
informed by the authorities of West Darfur State that even though cases of rapes
were reported to the police, investigations could not be conducted because the
victims could not identify their attackers. Therefore the files were closed for lack
of identification of the perpetrators.
Visit to the hospital in El Geneina.
89. Following reports received during discussions with the humanitarian agencies
staff and a visit to the camp in Ardamata about most recent attacks, the mission
visited the hospital in El Geneina where it was able to observe that there were
two wounded civilians and a soldier. The mission interviewed one of the civilians
identified as Sherif, who agreed to talk to the mission. He said that he was
attacked together with other villagers by Arab horsemen who stole their goods
before running away.
South Darfur region.
90. Due to some logistical security and communication problems in the South Darfur
region, the mission was only able to visit the displaced persons at a makeshift
camp known locally either as the Deriberi or « UNICEF camp», outside Nyala
91. Upon its arrival at Nyala airport, the mission saw a huge 747 Jumbo cargo plane
which was unloading humanitarian relief supplies, which it learnt, was donated by
the Government of Nigeria to the displaced persons in the region.
Visit to the camp for displaced persons in Deriberi (UNICEF camp)
92. The camp, which is located within a stone throw of the last street of Nyala
towards the location of the local polytechnic, was set up on 03/07/2004, and was
said to have about 4,700 inhabitants mainly blacks from the Hotya tribe, who said
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to be of Arabic origin from the Deriberi village of South Darfur, and hence the
name Deriberi camp. The camp is also known as the UNICEF camp, because the
site it occupies used to be a holding ground for IDPs before they were moved to
bigger IDP camps outside Nyala.
93. The makeshift camp had no shelter of any kind apart from shrubs and dried
branches put together in the open air and no infrastructure or social services at
all. The mission observed that the number of displaced persons reported was
higher than the number of IDPs found on the ground, because, it was told that,
most of the IDPs had gone to town in search of food. The camp had previously
received visits by UNICEF and CARE staff, who made arrangements to supply
them with water. However government officials were discouraging the permanent
settlement of the said IDPs at the said site.
94. The displaced persons, who in times of peace are farmers, stated that they were
attacked on 03/07/2004 by groups of heavily armed black men travelling in
vehicles and identified as the Torabora militia. The displaced persons also
claimed that their villages were destroyed.
95. The displaced persons told the mission that they did not receive any help from
the government or humanitarian organizations. Only some good Samaritans,
students from the local polytechnic, and the local mosque provide them with
some food supplies. Food, water, shelter and health care are the main causes of
concern to the camp dwellers. They did not know the reasons why their villages
were attacked and confirmed that they were not involved in any dispute with the
rebels.
IV-
ANALYSIS OF THE SITUATION IN DARFUR.
96. The information gathered by the mission from the Sudanese authorities, the CFC,
the international and national humanitarian agencies, the observations and
interviews made with IDPs enabled the African Commission to make the following
analysis.
A-
Origins of the conflict.
97. The armed conflict in the Darfur region, began in February 2003, when two armed
groups, the Sudanese Liberation Movement/Army (SLM/A) and the Justice and
Equality Movement (JEM), launched an armed rebellion against the government,
attacked and destroyed military and police installations, killing many soldiers and
police stationed in the various towns of the Darfur region.
98. The mission enquired through the Chairperson of the CFC whether it was
possible to meet with representatives of the two rebel movements, a request,
which was very difficult to implement because of the inaccessibility to the South
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Darfur, an area that was still in active conflict. The Chairperson of the CFC
advised against venturing outside Nyala because of the insecurity.
99. We are therefore unable to reflect any of their opinion concerning their
understanding of the origins of the conflict. However, from the various interviews
and discussions, it was very clear to the mission that, at the core of the military
and armed conflict in the Darfur region, is a political power struggle, between the
two armed groups, representing the three major tribes of the Darfur, which
consider themselves to be of an African origin, namely the Fur, the Massalit and
the Zaggawa, and the central Government of Sudan, for the control of Khartoum,
and the Darfur region.
100.The Commission was told that the detention of 73 opposition politicians and
other persons, by the government in Khartoum, including the influential
politician, Mr. Hassan Al Tourabi, was a result of their support for the Darfur
rebellion.
Land, water and pasture disputes.
100.
A number of people whom the mission met, both in government and in the
international humanitarian community, agree that the conflict for land pasture
and water between the farmers and the pastoralists was a major problem. The
government said that in the past, it had set up inter-ethnic/community based
structures to resolve this type of conflict. However these structures were not
suited for dealing with the massive conflict which flared up in February 2003,
which involve large scale armament and indiscriminate killing of defenceless
and innocent civilians, whose only fault was to belong to the ethnic
communities of farming tribes in Darfur, whom the Government and the Arab
Janjawid militia consider to be the backbone of the armed groups.
101.
The Minister for Internal Affairs, who has been charged with the responsibility
of overseeing the situation in the Darfur, said that 95% of the two rebel groups
are from the Zaggawa ethnic group, even though there are about 18 other
tribal groups in the Darfur, among whom are some African tribes which are
pastoralists, similar to the Arab pastoralist tribes.
Marginalisation and poverty.
102.
The government rejects the accusation of marginalising the Darfur region.
Ministers and government officials argued that poverty affected the whole
country. Poverty alone could not be a reason for the armed conflict which was
started by the rebels and for that reason the government was arguing that the
war in the Darfur region would stop only if the rebellion stopped. The drought
and desertification which affects the Darfur region for long periods, was the
main reason why pastoralist tribes stay longer in the south of Darfur (around
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the Djebel Mara area) where there is more rain, and hence water and pasture,
leading to conflict between farmers and pastoralists.
103.
The government informed the mission that during the 1979-84 drought
affecting the entire Sahel region, the World Bank assisted the Sahelian
countries with US$200million to address the consequences of the drought.
The Islamic Development Bank donated US $15 million. However this time
around the international community has not addressed the drought affecting
the Darfur.
104.
The government was indirectly admitting the poverty and marginalisation
question, but it stated that in the past ten years, it has built 3 universities in
Darfur, (out of a total of 40 universities countrywide) enrolling 5800 students,
out of a national total of 200,000. It admits that there are economic problems,
but that they are not restricted to the Darfur region.
Sub regional conflicts and the weapons culture.
105.
The civil or inter-state wars of the 1980s and 90s, in states bordering Sudan,
along the Darfur region undoubtedly encouraged the uncontrolled trafficking
and easy movement of arms in the region. Of particular significance were the
civil wars in Chad, the war between Libya and Chad, and the period of military
instability in Central Africa Republic. The ethnic composition along the border
regions in all those countries, are similar to the tribes in the Darfur. The tribes
got accustomed to carrying firearms to defend themselves leading to the
development of a culture of carrying firearms, which has now taken root in the
region.
Suppression of political dissent.
106.
The new political dissent within the ruling party (National Congress Party), and
support by the opposition for the Darfur rebellion, was viewed by the
Khartoum authorities as a threat to national security and integrity, and hence
the position taken to wage an indiscriminate all out war. In response to rebel
attacks, the central government in Khartoum launched a counter-offensive
that was often deadly against villages wrongly or rightly suspected of
sheltering the rebels or rebel sympathisers. This resulted in deaths,
destruction, plundering and other atrocities as well as a flood of refugees and
displaced persons.
B-
The role of the government forces, irregular armed groups, rebel
movements and the Janjawids.
107.
The armed forces of the government of Sudan, the rebel movements, namely
the Sudanese Liberation Movement /Army (SLM/A) and the Justice and
Equality Movement (JEM), as well as all irregular armed groups and the
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Janjawids, have generally taken an active part in fighting in Darfur, and have
to a varying degree been accused of committing human rights abuses, against
the civilian population.
108.
The persistent allegations of massive abuses and violations of human rights
by the Janjawids, which includes inter alia systematic murder, rape and
abductions for purposes of slavery, against defenceless and innocent civilian
population, constitute war crimes and crimes against humanity as per the
Rome Statute.
109.
The government armed forces have also been accused of committing massive
human rights violations such as widespread murder through air bombardment
of villages against defenceless civilian population, and this also constitutes
war crimes and crime against humanity.
110.
The general impression the mission got, when it met the displaced persons
and the humanitarian agencies, sustains the view that the Sudanese
Government supported the said militia, because they played a crucial
defensive role, particularly at the beginning of the conflict, after the police
stations and the military installations were destroyed. The fact that the
Janjawids have not been disarmed by the government of Sudan, indicates
that they still continue to play an auxiliary role in the conflict on the side of
government. The attacks against villages by the government armed forces,
though intended as a strategy to dislodge rebel strongholds or sympathisers
ended up dislodging the civilian population.
Ethnicity
111.
The demographic structure of Sudanese society in the Darfur, from the
mission‟s own observation, and from the account by government officials,
does not render itself to a clear cut racial division. While it is quite clear that
there are distinct tribes of African descent, particularly the Massalit, the
Zaggawa in West and North Darfur, and the nomadic Arab tribes who are
spread across the Darfur, there is a great deal of racial inter-relationship and
inter-marriages over a long period of time among the tribes in the Darfur and
Sudan generally. Similarly, the mission was told that there are those who said
to have Arab ancestry who however bear pure African features. The tribes
prefer to define themselves along those racial terms.
112.
When the mission visited the IDP camps, it observed that there were no Arab
IDPs in the said camps. However, at the Deriberi camp near Nyala in South
Darfur, the IDPs that the mission met said they were of an Arab ancestry.
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C - Consequences of the conflict.
113.
The conflict in Darfur has had disastrous consequences on the human rights
situation. It has caused displacement of thousands of refugees and more than
1.2 millions of displaced persons and tens of thousands of death and injured,
denying them their basic rights. The right to life of those who were killed in the
course of the conflict have been violated. The fundamental freedoms of the
refugees and IDPs have been greatly curtailed. Families have been
separated, with women and children suffering the most.
114.
When the mission visited the Dali IDP camp near Tawila, it noticed that an
open space had been converted into a praying area and a lone man was seen
praying under the hot sun. The mission was later on informed by the IDPs that
their village had been destroyed including the mosque. Their civil, political,
economic, social and cultural rights have been violated. Children are not
attending schools, and where they do, they face great constraints. The
mission noticed that some of the health centres did not have adequate
medical supplies.
115.
The violations of the rights of women, rape and sexual violence, even though
denied by government, have been committed during the Darfur conflict.
Generally speaking, women would not talk about such painful experiences,
because such acts violate their sense of dignity and honour. The culture of the
Sudanese women in Darfur, who are Muslims, makes it even more difficult for
the latter to talk in public about sexual violence they underwent. The mission
however heard reliable accounts detailing numerous cases of rape, and that
some of the women became pregnant as a result of the rape.
116.
At the time of the mission, the rains had just started and the humanitarian
agencies were concerned that there would be an outbreak of infectious
diseases, affecting particularly children and women, who are the most
vulnerable in any conflict. As for IDPs who were not in camp, ie. Dali near
Tawila and Deriberi informal camps, the mission notified their existence to
both the government authorities and the humanitarian agencies, and hopes
that adequate humanitarian and protection measures were taken to address
their immediate needs. The mission was informed about the existence of a
large number of IDPs who are still scattered in the rural areas at the mercy of
the elements and the Janjawid. At the Shekshegu village, which had been
almost totally destroyed, there were still a number of elderly people who had
remained behind with their families.
117.
For the majority of displaced persons who were traumatized by the fighting,
insecurity and an uncertain future, they can only count on the support of the
authorities and other humanitarian organizations for their protection and
survival since they have lost everything.
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118.
The social fabric has been badly affected by the crisis: tribal groups of African
origin consider tribal groups of Arab origin, and vice versa, as their
aggressors.
119.
The scarce socio-economic infrastructure that existed in the Darfur,
particularly in the rural areas, where the bulk of the displaced persons and
refugees come from, have been destroyed, whilst the prevailing situation
inhibits the implementation of development programmes, unless peace and
security is restored. Apart from rehabilitation of the social and security
services infrastructure, government must undertake a physical inventory of the
destroyed properties and compensate the victims.
D- Human Rights violations.
120.
The information provided by the victims established that the majority of the
population that have been dislodged from their villages are from the African
tribes, which are mainly farmers.
121.
The mission was able, however to establish that there was a pattern of gross
human rights abuses, which were committed during the armed conflict, by all
parties to the conflict. Having said that though, the weight of information from
the interviews conducted with the displaced persons, indicate that the
Janjawid were responsible for massive violations of human rights of the
civilian population, who are now living in the IDP camps. The IDPs in the
Deriberi camp near Nyala, indicated that they have been attacked by a militia
group known as the Torabora, which is one of several armed militia formed by
the various ethnic groups involved in the Darfur conflict.
122.
The crisis in the Darfur region has resulted in loss of life of an unspecified
number of people. Some sources have estimated the number of dead people
to be between 30000 and 50000 people. Many others were injured, lost their
property, villages were set on fire, cattle and various household goods were
plundered, and over a million people have been forced into exile as refugees
and internally displaced persons.
123.
The attacks on the civilian population are war crimes and crimes against
humanity. The displaced persons spoken to stated that their villages were
attacked indiscriminately by armed forces, using military aircrafts, helicopters
and vehicle of the Sudanese army. These military attacks were then followed
by attacks by militia, identified as the Janjawid, who killed people, burnt
houses, looted property, stole cattle and other livestock, food, and raped
women. The land is now allegedly occupied by the Janjawid militia
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E- Humanitarian assistance.
124.
The Commission commends the international and national humanitarian
agencies, which have responded to the crisis, and have provided
humanitarian assistance in the form of shelter, health services, water, food
supplies and other basic social services, in spite of very difficult working
conditions, particularly before the restrictions were lifted/eased by the
Government of Sudan. The Commission also learnt about the existence of
an undetermined number of IDPs who are still roaming the Darfur rural
areas and to whom international humanitarian agencies do not have access,
mainly because of the security situation.
125.
Efforts by humanitarian agencies to reach these zones in order to determine
the number of displaced persons and identify their needs are sometimes
frustrated by authorities in the Darfur states, particularly South Darfur. The
Commission urges the Government of Sudan to take all necessary
measures to identify the scattered IDPs, and to render any assistance
possible to the humanitarian agencies, to ensure that all displaced persons
are identified and afforded the necessary protection and given the
assistance they desperately need.
F- Security and repatriation.
126.
The Government of Sudan informed the mission that (by mid July 2004) it
had deployed 3,912 police officers, out of a total of 6,000 it intends to
deploy, in the Darfur region. During the mission‟s visits to the IDP camps,
the displaced persons expressed concern about the repatriation policy
promoted by the government, because they do not trust the police and
government. The displaced persons expressed lack of trust in the security
forces, because of the trauma they suffered as a result of the indiscriminate
attacks by government security forces in their villages. They also cited lack
of action, or cooperation from the police, when they report Janjawid attacks,
particularly complaints against gender based violence and case of rape
against women. The government however rejected those accusations and
said that, the fact that the major IDP camps were located within the outskirts
of major towns in the Darfur, was an indication that the people fled the
rebels to centres where security was still controlled and could be guaranteed
by the government.
127.
Attacks perpetrated by the Janjawids against civilians are continuing and
women who venture outside the immediate vicinity of some IDP camps for
water and firewood are physically and sexually abused. The men, when they
venture outside the camps, are killed.
128.
The Commission has found that the Government of Sudan did not pay
proper attention to reported cases of rape and other forms of violence
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against women, in the Darfur crisis. By denying the existence of these forms
of sexual and gender based violence, and by stating that they could not be
verified, it failed in its duty to protect women, who as citizens are entitled to
government protection.
129.
The establishment by the Government of the Commission of Inquiry is yet to
have any impact in terms of restoration of the confidence and trust by the
displaced persons. Up to the time the mission went to Sudan, the
Commission of Inquiry had not visited the Darfur region.
130.
The Government of Sudan has recently formed three Women‟s Committees
to investigate allegations of rape and sexual violence against women in the
Darfur during the crisis. These are steps in the right direction, but further
efforts and measures need to be taken by the government to guarantee the
independence of the two bodies, by giving them adequate financial
resources and expertise, to facilitate their investigations.
131.
The Government is implementing in consultation with tribal leaders a policy
of repatriation of displaced persons to their villages of origin. The
government has promised to provide them with security, social services and
basic infrastructures and eventually reconstruction of houses. On the
contrary a number of humanitarian agencies indicated lack of adequate
preparation by the government.
132.
The Commission is of the opinion that the government repatriation policy,
must conform to the voluntary wishes of the displaced persons and
refugees, upon the establishment of security and other favourable
conditions. Consultations with humanitarian agencies on the ground will
facilitate the restoration and promotion of the IDPs‟ confidence, which is
currently lacking in government.
133.
The government must compensate the people for the loss to their houses,
cattle, and other goods, which were looted, burnt or stolen by the Janjawid,
or destroyed during the military attacks.
G- Detention of opposition politicians.
134.
Due to the crisis in Darfur, 73 persons including members of opposition
political parties have been detained without trial for some months now. The
Commission raised its concern that the detentions without trial were a
violation of article 6 of the African Charter on Human and Peoples Rights.
H- Upper Nile Situation.
135.
In the course of its consultations with different people, the mission learnt that
an armed conflict is currently being fought in the Upper Nile state, where
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massive human rights of the civilian population are equally violated. The
tragedy of the situation is that the Darfur conflict has diverted attention from
that civil war. One of the senior government Ministers said that, that conflict
involves tribal factions of the former rebels movements in Southern Sudan
opposed to the Naivasha Agreement, and were jockeying for the control of
petroleum resources.
VI- Recommendations.
136.
The mission is making the following recommendations to the Government.
137.
The Government should accept the setting up of an International
Commission of Enquiry, which would include international experts from the
United Nations, African Union, Arab States, international humanitarian and
human rights organisations with the following terms of reference:
a) to investigate the role and involvement of the military, the police, and
other security forces in the Darfur conflict, and to establish those
responsible for committing war crimes and crimes against humanity,
violation of human rights and international humanitarian law and ensure
that they are brought to justice;
b)
to investigate the role of rebel movements, all armed militias, in
particular the Janjawids, the Pashtun, the Pashmerga,and the Torabora,
and to establish those responsible for war crimes, crimes against
humanity and
massive violation of human rights and international
humanitarian law and ensure that they are brought to justice.
c) to rehabilitate the destroyed physical security infrastructure, and to
suspend any police or security agents who are alleged to have been
involved in the violation of human rights, pending the finalisation of
investigations.
138.
The Government should allow the International Commission of Inquiry
unhindered access to the Darfur region to enable it to thoroughly investigate
alleged human rights violations with a view of further investigating as to
whether or not genocide has occurred.
139.
The Government should immediately stop the military and aerial
bombardment of the civilian population, and should take appropriate
measures to protect the civilian population against attacks by armed groups,
in particular the Janjawids, and rebel forces by accepting the deployment of
African Union peacekeeping/protection forces.
140.
The government should ensure that no more bombardment of civilian
population occurs.
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141.
The Government should disarm all irregular armed groups, in particular the
Janjawid militia, the Pashtun, the Torabora, the Pashmerga, and any such
militias operating illegally within the Darfur.
142.
The Government should undertake training programmes for the police and
security forces on human rights and international humanitarian law principles.
143.
In recognition of the existence of the weapon culture, which is a major
problem in the Darfur, the international community should assist the
government in a disarmament, demobilisation and rehabilitation programme
(DDR) for the militia, by creating a special fund to buy back the weapons
which are so readily available to the militia in Darfur.
144.
The Government should provide the National Commission of Inquiry and the
recently established Women‟s Committees with all the resources and
expertise, and where possible, accept international technical assistance from
the UN, AU, Arab League, or any international humanitarian and human rights
organisations, needed to effectively perform their mission.
145.
The Government should ensure that the terms of reference of the Commission
of Inquiry set up on 08 May 2004, specifically include investigation of all
human rights violations
146.
The government should ensure that all reports on rape already lodged with
the police should be immediately investigated by the police and the culprits
are brought to justice.
147.
The Government should bear the cost of medical care and psychological
treatment for victims of violence and sexual abuse, notably rape.
148.
The Government should take urgent measures to facilitate access by
humanitarian agencies to IDP camps which have not been accessed and
enable the supply of humanitarian assistance in the form of water, food,
shelter and other essential needs to them.
149.
The implementation of the government policy of repatriation should be strictly
voluntary, on condition that the security and social infrastructure is repaired
and the burnt out villages are rebuilt. To that end, the mission is
recommending that Government fully cooperate with international
humanitarian agencies and other relevant partners with a view to ensuring
that the above-mentioned conditions are fully adhered to, thereby ensuring
that displaced persons and the refugees return voluntarily to their villages of
origin.
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150.
The arbitrary arrest and detention without trial of opposition politicians, on
account of their political views concerning the Darfur conflict, under
emergency powers, is a violation of the African Charter. The Government
should either release the 73 political detainees including Mr. Hassan Al Turabi
or immediately bring them before the courts so that they can defend
themselves against the allegations made by the state.
151.
The Commission therefore recommends to the Government of Sudan to abide
by its international obligations under international human rights and
humanitarian law, and in particular the African Charter on Human and
Peoples‟ Rights to ensure that it guarantees the enjoyment by its people of
their basic rights, in spite of their cultural and ethnic diversity.
VII- General observations.
152.
The conflict in Darfur is but one of the persistent conflicts, which the Sudan
has experienced since independence, almost fifty years ago. The recent
peace agreements signed between the government of Sudan and the SLPM/A
in Naivasha, Kenya, under the IGAD peace process show that the
government of Sudan is capable of resolving its internal conflicts through
peaceful means. As stated hereinabove, the Darfur conflict has diverted
attention from another alleged crisis in the Upper Nile region of Sudan, which
could unravel the good work of the Naivasha process.
153.
The Commission is aware of the ongoing negotiations under the framework of
the African Union, to find a comprehensive political solution to the Darfur
conflict. The Commission calls on the Government of Sudan and the rebel
movements to consider the negative human rights ad humanitarian situation
on the civilian population, arising out their delay in adopting a peace
agreement on the Darfur conflict. The Commission urges them to resolve their
differences through negotiations, in the interest of peace in the Darfur.
VIII-
ACKNOWLEDGEMENTS.
154.
The African Commission wishes to express its profound gratitude to the
Government of Sudan for the valuable assistance it provided to the mission
throughout its stay in Sudan. The Commission is particularly grateful for the
warm reception the authorities accorded to it both in Khartoum and during
visits in the Darfur region.
155.
The Commission also wishes to express its deep appreciation to the African
Union Commission for the valuable logistical support it provided through the
Cease-Fire Commission (CFC). Without the dedication of the soldiers and the
CFC pilots, the mission would not have been able to visit all the places and
camps, situated in some cases hundreds of kilometres from each other in the
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Darfur region, where means of transport and communication are scanty, within
the limited time at its disposal.
156.
To all the specialized agencies of the United Nations, national and
international humanitarian organizations operating in Sudan that provided
assistance to the mission, it expresses its gratitude.
Done in Pretoria,
Republic of South Africa,
September 20, 2004
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IX-
LIST OF PERSONALITIES AND ORGANISATIONS MET BY THE MISSION
A-
Authorities and civil servants:
•
•
•
•
•
•
•
•
•
B-
Others personalities:
•
•
•
•
•
•
C-
H.E.Mr. Ali Mohammed O Yassin, Minister of Justice of Sudan
H.E.Mr. Hon. Najeep Elkhair, Minister of Foreign Affairs of Sudan
Major General Abdel Rahim Mohd Hussein, Minister of Interior of
Sudan
H.E.Mr. Al-Haj Adam Atta- Al Munam, Walli of South Darfur
H.E.Mr. Osman Mohammed Yousif Kaber, Walli of North Darfur
H.E.Mr. Suleymane Abdallah Adam, Walli of West Darfur
Honourable Judge Abdel Diem Zumrawi, Under Secretary of the
Ministry of Justice
Dr. Abdul Moneim Osman Taha, Rapporteur of the Human Rights
Consultative Council
Dr Ali Hassan Taj Eldein, Adviser to the President of the Republic for
African Affairs
General Festus Okonkwo, Chairperson of the African Union Ceasefire
Commission (CFC)
Dr. Wilfred Asombang, African Union Mission in Sudan-Khartoum
Mr. Babukar Mohammed Babukar Al Tinighi, President of the Judicial
Commission of the state of West Darfur
M. Hassan Mohamed, Public Prosecutor of the state of West Darfur
General Ahmed Imam Mohammed, Police Commissioner of West
Darfur
M. El Tayed Haroun Ali, member of the Sudan Bar Association and
Assistant Director of the Committee against the Abduction of Women
and Children (CEWAC).
National and international humanitarian organizations and agencies:
•
•
•
•
•
•
•
•
•
ADVISORY COUNCIL FOR HUMAN RIGHTS
SUDAN BAR ASSOCIATION
SUDANESE WOMEN UNION
CEASE FIRE COMMISSION (CFC)
OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
OFFICE OF COORDINATION OF HUMANITARIAN ACTIVITIES
(OCHA)
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
UNITED NATIONS DEVELOPMENT PROGRAMME
UNITED NATION CHILDREN FUND
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•
•
•
•
INTERNATIONAL COMMITTEE OF THE RED CROSS
CARE
MEDECINS SANS FRONTIERE-BELGIQUE
MEDECINS SANS FRONTIERE-HOLLANDE
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Response of the Republic of Sudan
Response to the Report of African Commission on Human and Peoples’
Rights Fact- finding Mission to the Republic of Sudan in the Darfur Region
Introduction:
1. The Government of the Sudan would like to extend its thanks and gratitude to the
African Commission on Human and Peoples‟ Rights for its sincere effort and
interest in addressing the situation of human rights in the Sudan.
The
Government of Sudan takes this opportunity to reiterate its utmost willingness to
cooperate with the Commission to discharge its mandate effectively and
objectively.
2. Within the framework of its protection mandate, the African Commission on
Human and Peoples‟ Rights adopted a resolution at its 35th ordinary session to
send a fact- finding mission to Sudan with the view to establishing facts regarding
allegations of human rights abuses in the region of Darfur.
3. Five objectives were set for the mission in order to discharge the above said
mandate.
4. The mission visited Sudan in the period between 8th to 18th July 2004 and drafted
its report and submitted it to the Government of Sudan with a number of
recommendations to improve the situation in Darfur.
5. The report was then adopted at an extraordinary session of the African
Commission on Human and Peoples‟ Rights held in Pretoria South Africa on 20
September 2004.
The Mission’s difficulties in addressing its mandate
6. The time frame specified for the mission to take place was 10 days, namely: 8th to
18th July 2004, which is by far a short time with the view to the mandate and the
objectives sought to be achieved.
7. In para 14 (page 3) the mission admitted the logical – mainly- transportation and
security constraints it encountered in addressing its mandate. The mission
conceded that „due to logistical, mainly transport, and security constraints, the
mission was unable to visit all the places it intended to‟.
8. The delegation of the mission comprised only five commissioners unassisted by
any additional staff of investigators and legal experts. A five member mission to
investigate on an area the size of France and in only 10 days in an atmosphere of
the above said obstacles to reach verified and concrete findings is but outrageous
assertion.
9. Given the above facts, the Government of Sudan finds itself in a strong position
to believe that the mission was unable to adequately and effectively discharge its
mandate.
It neither allocated reasonable time nor adequate resources to
investigate into the many well documented abuses committed by the rebels. The
mission couldn‟t even reach some IDPs camps or visit areas under control of the
rebel and met with rebel leaders (see para 14, page3 of the report).
EX.CL/364
Annex
Page
10. The report of the mission is therefore can never be said to have covered the
whole areas it targeted nor addressed the situation in the required
comprehensive and adequate manner.
Alleged targeting of certain ethnic groups
11. In para 2 (page 1), the mission stated that the African Commission has been
receiving reports from human rights NGOs, specialize agencies of the United
Nations and other credible sources.
12. In para 3 (page 1) the mission stated that the (above said) reports highlighted the
killing of civilians, particularly, men from Fur, Marslit (Massalit) and Zaggawa
ethnic groups. Such misleading information would raise the question of the
criteria for assessing reports and other publications received by the mission,
particularly, with regard to the fact the a number of these NGOs (to which the
mission referred as credible sources) and in some time authors of these reports
and publications are well-known of their hostile and political opposition to the
Government of Sudan even before the crises of Darfur jumps to the surface. The
fact which has escaped the attention of the mission is that the tribal clashes in the
region of Darfur are not targeted against the ethnic groups mentioned in the
report. Many of these clashes are between arab tribes and of one ethnic origins
and even considerable numbers of those carrying weapons against the state
including prominent leaders from the rebel groups are from the arab ethnic origin.
13. The credibility of these sources is well-documented. An example is the alleged
employment of chemical weapons by the government in the military operations in
Darfur which was published in a number of European countries media based on
false information fabricated by rebels and some NGOs. The allegations soon
proved to be unfounded and hence were immediately refuted by the American,
German and British Governments as having „seen no credible evidence‟. This is
but an example of false claims that the pro-rebels NGOs rumoured deliberately
and just for the purpose of producing atrocity propaganda against the
Government of Sudan.
Selectivity in documenting human rights abuses
Attacks against civilians
14. It is a matter of record that the rebels have been harbouring within and launching
attacks from villages inhabited by civilians and in many times used the civilians as
human shield. In many cases the rebels deliberately gave wrong precautions to
villagers that they would be attacked by the „Jangaweed‟ in order to cause them
flee their homes. That system of victimizing and displacing the large numbers of
innocent civilians is often used by the rebels to inflate the magnitude of the crises
in Darfur. Those who oppose this abhorrent attitude of the rebels were often
killed.
EX.CL/364
Annex
Page
15. The fact of the rebel‟s presence among civilians was admitted by the rebels
themselves. The Sudan Liberation Movement (SPL) admitted the kill of 25 rebel
fighters in an attack by the Government to a village 25 miles South elFashir in
North Darfur. Unfortunately, the mission turned a blind eye to such warranted
facts.
Attack against aid workers.
16. The systematic and persistent practice of the rebels in attacking and abducting
humanitarian aid workers is also well documented. These attacks of the rebels
often hinder and delay vital humanitarian assistance to reach the often
desperately needy civilians whether in the IDPs camps or else where. UN
officials as well NGOs staff practically condemned such practices of the rebels.
Again and unfortunately enough, such facts were never mention in the mission‟s
report.
Killing of PWs.
17. The mission failed to investigate a number of well documented cases of human
rights abuses committed by the rebels brought to its attention. These cases
include murdering of government soldiers fell in the hands of the rebels. A case in
point is the burning alive of wounded soldiers in Buram hospital. This case and
many other amounted to war crimes and crimes against humanity didn‟t find room
in the mission report.
Using of children as combatants.
18. One of the major shortcomings of the mission‟s report is that it has ignored the
use of child soldiers by the two rebel factions. The rebel‟s systematic abduction of
children and their recruitment in their forces has been highlighted several times in
the international media illegal and a serious war crime. Hundreds of children are
now employed as fighters within the forces of the rebels, nevertheless, the
mission omitted to record a single mention in this regard.
Prosecuting human rights violation in Darfur.
19. A major break through in its endeavors to seriously address the situation in the
Darfur is the government decision dated 8th may 2004 establishing a ten member
national commission of inquiry into human rights
abuses in Darfur. This
commission is chaired by an ex chief justice of Sudan and other prominent
lawyers and human rights activists and administrators. The commission is
mandated to collect information on alleged human rights abused committed by all
parties to the conflict in Darfur and to determine responsibility for established
abuse. The national commission submitted its report to the president of Sudan in
January 2005.
EX.CL/364
Annex
Page
20. Pursuant to the finding of the national commission , three senior commissioners
were established to address three genuine issues:
1. Identification and prosecution of those guilty of human rights abuses.
2. The compensation of war crimes.
3. The issue of tribal boundaries.
21.
Based on its commitment to bring to justice those responsible for human
rights abuses in Darfur, and even before and during the work of the Nation
Commission of Inquiry, the Government of Sudan arrested, charged and
rosecuted many human rights violators in Darfur. A number of criminal
reports were filed in the three Darfur states against many accused persons
some of them are members of regular and semi-regular forces. Also many
cases have been filed against persons accused of the „Jangaweed‟ – type
crimes and they are now in detention or under investigation waiting trial.
22.
Enclosed to this response are statistics on cases pertaining to violence
against women brought to court in the three Darfur states (for the years 2004,
2005 and 2006).
Conclusion:
No
23.
The Government while recognizing the efforts exerted by the mission, yet, it is
of the belief that the report falls short beyond addressing the situation in
Darfur conceptually and methodologically. This may be attributable, in part, to
the obstacles that the mission encountered which we mentioned in the
introduction of this response.
24.
The Government of sudan takes note of the recommendations included at the
end of the report and is delighted to state that considerable portion of these
recommendations has already found its way to implementation.
1
Criminal
Report No
1237
Convict‟s Name
Date Of Verdict Jugement
2
3
137
1493
4
16
Adam
Haseebelnabi
5
1091
Abdella Musa Hamid
Adam Edrees Ahmed
Musa
Mohamed 2/11/2004
Abdallah And Others
Ahmed Yagoub Youssif
20/09/2004
Tigani Hassan Omar
27/11/2004
Abdella 30/09/2004
28/08/2004
Whipping 100 Lashes
Dismissal of report
Lodgement
at
the
Reformatory In ElFashir
For Two Years
1.
Imprisonment for 1
Year
2.
1Whipping
100
Lashes
Whipping 100 Lashes
EX.CL/364
Annex
Page
Year 2005
(West
Darfur State Continued)
1
1658
Anwar
Morsal
Abdelkreem
18/9/2005
2
3
4
5
462
12
1775
774
Haydar Hamad Abdella
Hamid Mohamed Gassi
Elmardi AliKdawi
Musa
AhmedSalaheldeen
23/06/2005
02/04/2005
03/09/2005
28/05/2005
6
68
21/05/2005
7
8
183
763
9
71
10
26
Ahmed Omar Abuta
Noor
Mohamed Adam Abdella
Abdelkhalig
Abdella
Elshekh
Khalel Adam Mohamed
Elhaj And Other
Elsaddig
Musa
Mohamed Essa And
Others
11
12
Adam Sultan Elsayer
25/01/2005
1. Whipping
40
Lashes.
2. 2Imprisonment for
1 month
Whipping 20 Lashes
Whipping 20 Lashes
Dismissal of the report
1.
Imprisonment for 7
years and 6 months.
(Consecutively)
2. Whipping 100 Lashes.
09/06/2005
30/04/2005
Whipping 100 Lashes
Dismissal of report
01/02/2005
Imprisonment for years
01/03/2005
1. Whipping Lashes And
Imprisonmentr for 2
years
InThe
First
Convict.
2. imprisonment for 3
months
To
The
Second Convict
Imprisonment for 1 year ,
And
Whipping
100
Lashes.
Year 2006
( West
Darfur State Continue)
1
2006
Abaker Mohamed Adam 03/05/2006
Ali
3
140/ 2006
19/2006
Adoar Ball Abdella
Ali Abdelraheem Abaker
27/06/2006
26/03/2006
1. Whipping Lashes.
2. Imprisonment For
Years As Of 1/ 9/2005
Whipping Lashes
Dismissal Of Report
EX.CL/364
Annex
Page
Judgments
In
Rape
Cases In South Darfur
State year 2004.
1
1723/
2004
Gaded
Mohamed
Abdella 14/12/2004
2
1031/2004
Noreldeen Adam Abaker
3
152/2004
4
5
904/2004
1817/2004
Abdelrahman Mohamed 25/5/2006
Haren
Unis Tebeg Abood
27/11/2004
Ismaeel Adam
1/2/2005
27/2/2005
Year 2005
(South
Darfur State Continued)
Elsaddig
Dawood 29/ 6/ 2005
Hussien And Other
1
1198/2005
2
1731/2005
Abaker Hussien Yahi
3
274/2005
4
975/2005
9/5/2005
Mokhtar Ahmed Yahi
Haroon
Mohamed
Haroon
Abdelazziz
Hassan 25/3/2005
Babker
5
385/2005
6
109/2005
7
2052/2005
5/10/2005
Mohamed
Elfadel 28/3/2005
Elnadeef
Radwan Ali Suliman
28/9/2005
Adam
Terab
Abaker
Adam
1.
Imprisonment for 2
Years.
2.
Whipping Lashes.
3.
3. Payment Of SD
199.700
1. Whipping Lashes.
2. Imprisonment For 3
Years.
Pending
Pending
Pending
Lodgement
At
The
Reformatory In El Fashir
For 1 Year.
1. Whipping Lashes.
2. Imprisonment For 2
Years
1. Imprisonment
For
5Years.
2. Whipping Lashes
1. Imprisonment For 5
Years.
2. .Whipping Lashes.
3. Payment Of100.000
SD
To
The
Complainant
Dismissal Of The Report
Imprisonment
For
5Years.(The
Appelate
Court
Ordered
The
Release Of The Accused
Under Trial
EX.CL/364
Annex
Page
1
161/2006
2
3
181/2006
541/2006
4
903/2006
Year 2006
(South
Darfur State Continue)
Gamal
Ali
Suliman
Abdelhameed
Abdelmahmoud
Hmid Gidoo Elesial
9/3/2006
Bakheet
Ahmed 29/4/2006
Mohamed
Mohamed
Hassan 26/6/2006
Mohamed
Whipping 20 Lashes
Pending
Pending
Pending
Jugement
InRape
Cases In North Darfur
State –Year 2004.
1
13/8/2004
25/8/2004
2
1764/2004
256/2004
1589/2004
6/9/2004,
5/9/2004
29/4/2006
3
4
26/6/2006
5
6
370/2004
9/9/2004
7
2211/2004
2/12/2004
8
256/2004
9
10
370/2004
1589/2004
1. Imprisonment For 7
Years.
2. 2.
Whipping
100
Lashes
Imprisonment For 1 Year
1. Whipping 100 Lashes
With Compensation For
The Victim.
2. Imprisonment For 2
Years And Whipping 50
Lashes.
Imprisonment
For
2
Years With Whipping
Acquital
1. Imprisonment For 1
Year.
2. Whipping 100 Lashes.
1. Imprisonm,ent For 3
Years.
2. 2. Whipping 100
Lashes.
1. Imprisonment For 1
Year
2. 2. Whipping 100
Lashe.
Acquital.
1. Imprisonment For 2
Years .
2. Whipping 1000 Lashes
EX.CL/364
Annex
Page
1
395/2005
2
115/2005
3
2104/2005
4
632/2005
5
1
1254/2006
2
64/2006
Year 2005
(North
Darfur State Continued)
Mohamed
Abdelazziz
Adam
Yahi
Abdelgadeer
Abdalla
Mosaab Eldaw Gsmalla
19/8/2005
17/5/2005
Mohamed
Ibraheem 18/8/2005
Mussa
Abubaker
Mohamed 27/9/2005
Elzber (Armed Forces
Member-Kutm)
Year 2006
(North
Darfur State Continued)
Gamal Mohamed
Abaker (Armed Forces
Member- Elfashir)
Essam Ahmed
Abdelraman (Armed
Forces MemberElfashir)
11/7/2006
10/7/2006
Imprisonment For A Term
Of 7 Days.
2. Whipping 100 Lashes.
Dismissal Of The Report.
1. Whipping 100 Lashes
With Compensation For
The Victim.
2. Imprisonment For 2
Years With Whipping 50
Lashes.
Imprisonment
For
2
Years With Whipping.
Acqital.
1. Imprisonment For 3
Years.
2. Whipping 100 Lashes.
Imprisonment
For
4
Years.