Torture and Human Rights in Africa

1. Torture and Human Rights in Africa In an International and Regional Context

2. Torture at Abu Ghraib prison 2004

3. Torture and Ill-treatment in Africa Amnesty International Report 2005

4. 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 Africa Centre for African Studies February 2009

5. General Prohibition No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. • 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

6. Sources of Specific Obligations • Customary International Law • Treaties • Other Instruments Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

7. 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 Africa Centre for African Studies February 2009

8. 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

9. 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 Africa Centre for African Studies February 2009

10. 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) Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

11. UNCAT - African Ratifications Morocco Tunisia Algeria Libya Mauritania Egypt Mali Niger Senegal Chad Guinea Ethiopia Burkina Faso Djibouti Benin Uganda Sierra Leone Somalia Liberia Kenya Ivory Coast Burundi Ghana Zambia Togo Nigeria Malawi Cameroon Botswana Eq. Guniea Mozambique Gabon Congo Seychelles Mauritius Namibia Swaziland South Africa Lesotho Cape Verde Total number of African ratifications: 41 Total number of ratifications: 146

12. 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

13. Suspension

14. Sexual Torture

15. Sexual Torture

16. Falanga

17. Submarino – water torture

18. 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. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

19. 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

20. 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. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

21. Institutional framework (UN) Charter Bodies Treaty Bodies Member States

22. 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 Africa Centre for African Studies February 2009

23. 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 Africa Centre for African Studies February 2009

24. 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) Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

25. 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 Africa Centre for African Studies February 2009

26. 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 Africa Centre for African Studies February 2009

27. 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. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

28. 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

29. 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

30. 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 African Mechanisms Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

31. 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 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009