Torture and Human Rights in Africa

In an International and Regional Context

Torture at Abu Ghraib prison 2004

Torture and Ill-treatment in Africa

Amnesty International Report 2005

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Overview

General Prohibition against torture Sources of specific obligations Substance of the specific obligations

The UN Convention against Torture International and regional mechanisms Specific obligations in an African context African Mechanisms

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

General Prohibition

Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political

Rights (“ICCPR”), 1966, Geneva Conventions, 1949,

Rome Statute of the International Criminal Court, 1998,

European, American, African regional human rights treaties.

Peremptory Norm of Customary International Law

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Sources of Specific Obligations

Customary International Law Treaties Other Instruments

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Specific Obligations: Customary International Law

The obligation not to subject people to torture is a rule of customary international law.

Obligations of states: Respect the prohibition of

torture, prevent torture and punish acts of torture, whether or not they are party to a treaty

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Specific Obligations: Treaties

UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), 1984.

Inter-American Convention to Prevent and Punish Torture, 1985.

The African Charter on Human and Peoples’ Rights, 1986

European Convention for the Prevention of Torture, 1987.

Optional Protocol to the UNCAT (“OPCAT”), 2002.

UN Convention on Enforced Disappearances, 2006

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February 2009

Specific Obligations: Other Instruments

UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975.

UN Standard Minimum Rules for the Treatment of Prisoners, 1955/1977.

UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, 1988.

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Specific Obligations: Other Instruments

Kampala Declaration on Prison Conditions in Africa, 1996.

Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, 2002. (The Robben Island Guidelines)

UNCAT - African Ratifications

Morocco TunisiaAlgeria Libya Mauritania EgyptMali NigerSenegal Chad

Guinea EthiopiaBurkina Faso DjiboutiBenin UgandaSierra Leone SomaliaLiberia KenyaIvory Coast Burundi Ghana ZambiaTogoNigeria MalawiCameroon Botswana Eq. Guniea MozambiqueGabonCongo Seychelles

MauritiusNamibia SwazilandSouth Africa Lesotho Cape Verde

Total number of African ratifications: 41Total number of ratifications: 146

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Definition of Torture

• Torture is infliction of severe pain or suffering, whether physical or mental.

• Torture is a deliberate action.• Torture seeks to force confessions, information

or punishment or for any reason based on discrimination of any kind.

• Torture is carried out by a public authority – which encourages or consents to the use of torture.

UNCAT, Art. 1

Suspension

Sexual Torture

Sexual Torture

Falanga

Submarino – water torture

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Substance of Specific Obligations Prohibition:

State actors must not perpetrate or allow torture or other ill-treatment.

All torture must be criminalized.

No exceptions based on notions such as necessity, national emergency, public order or superior orders.

Persons cannot be sent to a real risk of torture or other ill-treatment elsewhere. (principle of non-refoulement)

No use of information obtained through torture in any proceedings.

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February 2009

Substance of Specific Obligations Prevention:

laws and other measures.

no secret detention.

judicial supervision and access to judicial review.

independent lawyers and medical care.

contact with the outside world, incl. family members.

Education of law enforcement agencies

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February 2009

Substance of Specific Obligations

Investigation, Punishment and Remedy:

Impartial investigation No impunity - Perpetrators of torture must be criminally

prosecuted.

Punishment should match the grave nature of acts of torture.

“No safe haven” for torturers.

Right to public redress, rehabilitation and compensation.

Institutional framework (UN)

Member States

GeneralAssembly

GeneralAssembly

Human Rights

Council

Human Rights

Council

Special Rapporteur on

Torture

Special Rapporteur on

Torture

Working Group on Arbitrary Detention

Working Group on Arbitrary Detention

Working Group on Enforced

Disappearance

Working Group on Enforced

Disappearance

Special Rapporteur on Terrorism and Human Rights

Special Rapporteur on Terrorism and Human Rights

Convention against Torture

Convention against Torture

Committee against Torture

Committee against Torture

State Reports

State Reports

Individual Complaints

Individual Complaints

Covenant on Civil and Political Rights

Covenant on Civil and Political Rights

Human Rights

Committee

Human Rights

Committee

State Reports

State Reports

Individual Complaints

Individual Complaints

High Commissioner

for Human Rights

OHCHR Treaties and Commission BranchOHCHR Special Procedures Branch

Charter Bodies Treaty Bodies

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

International Mechanisms

UN Treaty-based mechanisms

A distinguishing factor of most treaty-based mechanisms is that they are responsive to information submitted to them.

Committee Against Torture (CAT) Consideration of State Party reports. (Art. 19) Look into allegations of systematic torture by a State Party.

(Art. 20) Hear complaint from a State against another State. (Art. 21) Hear individual complaints. (Art. 22)

Only 8 African States have declared that they accept the CAT to hear individual complaints.

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

International Mechanisms

UN Charter based mechanisms

Special Rapporteur on Torture

3 man activities: Urgent Appeals and

allegations letters Fact finding missions Annual report

Shortcomings: Visits to States Parties

dependent on their accept Recommendations without

binding character

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

International Mechanisms

International Committee of the Red Cross (ICRC)

European Committee for the Prevention of Torture (CPT)

Optional Protocol to the Convention against Torture (OPCAT)

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February 2009

Specific Obligations in an African Context

Article 5

”Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

African Charter on Human and Peoples’ Rights, 1986.

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Specific Obligations in an African Context Article 5

All four forms of ill-treatment are mentioned. Torture, cruelty, inhuman and degrading treatment. No clear

categorisation elaborated in case law.

Violation of personal dignity (Krishna Achutan vs. Malawi)

Chaining persons for days without access to sanitary facilities,

no access to food water or sunlight, beating them with sticks and iron bars, keeping prisoners in solitary confinement

Inhuman Treatment (Ghazi Sulaiman v. Sudan)

Detention without contact to family

Lecture on Torture and Human Rights in AfricaCentre for African Studies

February 2009

Specific Obligations in an African Context

Robben Island Guidelines, 2002.

Part 1 – Prohibition of torture

Part 2 – Prevention of torture

Part 3 – Responding to the needs of victims

Follow-up Committee to ensure the implementation of the Robben Island guidelines set-up in 2002.

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February 2009

African Mechanisms

African Commission on Human and Peoples’ Rights, 1987. A body of 11 independent experts Promote, protect and interpret the rights of

the Charter Examination of States reports Visits to States Parties Consider States complaints Consider individual complaints

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February 2009

African Mechanisms

African Court on Human and Peoples’ Rights Protocol to the African Charter

Adopted 10 June 1998 – entered into force 25 January 2004. 23 States have ratified the Protocol Will be merged with the African Court of Justice Individual complaints only if state makes declaration Judgments are legally binding

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February 2009

African Mechanisms The Kampala Declaration on

Prison Conditions in Africa, 1996.

The Special Rapporteur on Prisons and Conditions of Detention in Africa, 1997.

3 means of action to fulfill mandate:

Examination of individual complaints

Urgent Action Procedure

Investigation and reporting through country visits

Upon invitation from Governments

Visit places of detention

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February 2009

African Regional Mechanisms

ECOWAS (Economic Community of West African States) ECOWAS Community Court

Human rights mandate since 2005 Individuals and NGOs may bring cases before the Court No requirement to exhaust domestic remedies Decisions of the court are final and legally binding Approximately 15 decisions on human rights cases since

2005