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 حقوقيون يكسبون شكوي ضد حكومة السودان لدي اللجنة الافريقية لحقوق الانسان#
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09:34 PM Feb, 17 2015
سودانيز أون لاين
زهير عثمان حمد - ï؟½ï؟½ï؟½ï؟½ï؟½ -ï؟½ï؟½ï؟½ï؟½ï؟½ï؟½ï؟½
مكتبتي في سودانيزاونلاين
كسب ثلاثة مدافعين بارزين عن حقوق الإنسان في السودان، شكوى لدى اللجنة الافريقية لحقوق الانسان والشعوب ضد حكومة السودان، على خلفية تعرضهم للإعتقال والتعذيب بأيدي جهاز الامن السوداني.
وأصدرت اللجنة الأفريقية لحقوق الإنسان والشعوب، قراراً – نشر في 13 فبراير الحالي- يدين حكومة السودان في الشكوى رقم (379/09) المقدمة للجنة من قبل ثلاثة من أبرز المدافعين عن حقوق الإنسان في السودان، وهم : الراحل عثمان حميدة، وعبد المنعم الجاك، وأمير سليمان.
واعتقل جهاز الأمن والمخابرات السوداني، حميدة، والجاك، وسليمان ، في 24 نوفمبر 2008م، من مركز الخرطوم لحقوق الإنسان وتنمية البيئة، الذي كان يترأسه وقتها، المحامي البارز أمير سليمان. وتعرض ثلاثتهم للتعذيب والمعاملة القاسية.
وفي العاشر من نوفمبر 2009، تقدم المدافعون الثلاثة بشكوى لدى اللجنة الأفريقية لحقوق الإنسان والشعوب، مثلتهم فيها الفيدرالية الدولية لحقوق الإنسان والمنظمة الدولية لمناهضة التعذيب.
وبناء على الشكوى، رأت اللجنة ان حكومة السودان انتهكت حقوق عثمان حميدة ، وأمير سليمان، وعبد المنعم الجاك المتعلقة بالحرمة من التعذيب، والحرية والأمان الشخصي، والإعتقال التعسفي، والحرمان من التعبير عن الأفكار ونشرها، وانتهاك الحق في إنشاء وتكوين الجمعيات، والحرمان من الحق في العمل، والحرمان من العناية الطبية.
كما وجدت اللجنة أن حكومة السودان انتهكت المادة 7 من الميثاق الافريقي لحقوق الانسان والشعوب المتعلقة بحق التقاضي والمحاكمة العادلة، بحق المدافعين الثلاثة.
والزمت اللجنة، حكومة السودان بدفع التعويض المناسب لأصحاب الشكوى، والتحقيق في الإنتهاكات التي تعرضوا لها، ومحاكمة جميع الأشخاص الذين شاركوا في اعتقال الشاكين وتعذيبهم واحتجازهم بصورة غير قانونية.
كما قررت اللجنة، على حكومة السودان إعادة فتح وفك الحظر على الحسابات المصرفية الخاصة بمركز الخرطوم لحقوق الإنسان وتنمية البيئة.
وطلبت اللجنة من حكومة السودان، وهي طرف في الميثاق الأفريقي لحقوق الانسان والشعوب، ان تبلغ اللجنة خلال 180 يوماً من تاريخ اتخاذ القرار، بالتدابير المتخذة من قبل حكومة السودان لتنفيذ قرار اللجنة.
نص القرار هنا
Communication 379/09 – Monim Elgak, Osman Hummeida and Amir Suliman
(represented by FIDH and OMCT) v Sudan
Summary of the Complaint:
1. The Secretariat of the African Commission on Human and Peoples’ Rights (the
Secretariat) received a Complaint on 10 November 2009 from Mr. Monim Elgak,
Mr. Osman Hummeida and Mr. Amir Suliman (the Complainants) represented
by the International Federation for Human Rights (FIDH) and World
Organization Against Torture (OMCT) against Sudan (the Respondent State).
2. The Complainants submit that they are prominent human rights defenders who
have had a close working relationship with each other at the time of the incident.
According to the Complainants, Mr. Osman Hummeida, a British national of
Sudanese origin, was the Director of the Sudan Organization against Torture
(SOAT) from 1996 to 2006. Since then, he worked as a human rights consultant
and advocate. Monin Elgak has worked as a human rights researcher and
advocate in the Middle East, Sudan and Uganda, while Mr. Amir Suliman
worked for the Khartoum Centre for Human Rights and Environmental
Development (KCHRED) until February 2009, when it was shut down by the
Sudanese authorities.
3. The Complainants allege that on 24 November 2008, National Security and
Intelligence Services (NISS) officers in Khartoum arrested Mr. Amir Suliman at
KCHRED offices and took him to an area close to the Central Khartoum Police
Station, where they arrested the other two.
4. The Complainants state that on the same day, they were taken to the NISS
headquarters, a building near Khartoum North Bus Station (Shendi) (hereinafter
NISS offices), where they were met by three NISS officers - Ismail Omar, who
had led the arrest, and by another officer who introduced himself as Wad Al
Nour, and by one other officer - who questioned them for about four hours about
their political background, education and current employment. The
Complainants state that after the questioning they were separated.
5. Later, according to the Complainants, the officers turned hostile when they
denied any knowledge about the existence and whereabouts of two bags and two
laptops that supposedly contained incriminating information about Mr. Osman
Hummeida’s and Mr. Monim Elgak’s alleged cooperation with the International
Criminal Court (ICC). Mr. Amir Suliman was questioned about his relationship
with the two other Complainants and the work of the KCHRED whereas Mr.
Monim Elgak was interrogated about his alleged involvement in ICC related
work. Mr. Osman Hummeida was taken outside to search Mr. Monim Elgak’s car parked outside and after an unsuccessful search he was taken inside and was
punched and forcibly grabbed by the neck by the three officers.
6. The Complainants aver that Mr. Amir Suliman and Mr. Monim Elgak were later
released whilst Mr. Osman Hummeida was interrogated for about an hour, and
after he denied having a working relationship with the prosecutor of the ICC, he
was taken in a van with a grill and darkened windows to Block G of the Eastern
Section of Kober Prison, where he had been held in the early 1990s, and was
subjected to long hours of interrogation. The Complainants also claim that the
security forces threatened to kill and rape him, and that he was denied access to
medical attention although he was suffering from high blood pressure. They
state that his request to contact the British Embassy was also denied.
7. The Complainants submit that Mr. Monim Elgak was summoned to the NISS
offices on 26 November 2008 where he was severely beaten with plastic pipes
and wooden canes by NISS officers until his face was swollen and he was not
able to walk.
8. According to the Complainants, Mr. Amir Suliman had meanwhile been
summoned to the NISS offices and was interrogated about the bags and laptops
of the two other Complainants. The Complainants submit that the interrogation
and harassment stopped only when they agreed to bring the bags, which
resulted in the release of Mr. Monim Elgak and Mr. Amir Suliman.
9. The Complainants state that Mr. Amir Suliman returned with the bags and one
laptop, as well as some documents and hence was allowed to leave after a
thorough search and further questioning.
10. The Complainants aver that Mr. Osman Hummeida was driven to the
headquarters of NISS where he was met by the then Director of Security, Salah
Abdallah Mohamed Gosh, who told him that he had been arrested because of
information that he had links with the Office of the Prosecutor of the ICC and
had entered Sudan to gather further evidence. Mr. Osman Hummeida was
released shortly after midnight on Friday, 28 November 2008.
11. They state that Mr. Osman Hummeida and Mr. Monim Elgak left the country
shortly thereafter in the first days of December 2008 as they could not have
remained in Sudan safely given the open-ended and serious nature of the
accusations of spying that had been leveled against them, including in the
Sudanese (pro-government) media,1 and the real risk of being rearrested at any
moment.
1
‘Sudan human rights activist released but charged with espionage’, Sudan Tribune, 29 November
2008. 12. The Complainants also submit that in December 2008 and January 2009, Mr.
Amir Suliman and the KCHRED, of which he was a Director, were subjected to a
campaign of harassment and intimidation, and that the bank account of
KCHRED was frozen in February 2009. They further submit that in light of the
threats and the targeting of KCHRED, Mr. Amir Suliman decided to remain
outside the country after having left Sudan for his own safety in early February
2009.
Articles alleged to have been violated
13. The Complainants allege that Articles 1, 5, 6 7 9, 10 15 and 16 of the African
Charter on Human and Peoples’ Rights have been violated.
Procedure
14. The Secretariat received the Communication by email dated 10 November 2009,
and acknowledged receipt by letter dated 16 November 2009.
15. By Note Verbale and letter dated 30 November 2009 the Secretariat informed the
parties that the Commission was seized of the Communication at its 46th
Ordinary Session and forwarded a copy of the Complaint to the Respondent
State. The Respondent State was also requested to make its submissions on
Admissibility.
16. During the 47th Ordinary Session on 22 May 2010 the Secretariat received the
Respondent State’s submissions on Admissibility from the delegation of Sudan,
and the Secretariat acknowledged receipt and forwarded the submissions to the
Complainants by a Note Verbale and letter dated 16 June 2010.
17. On 23 September 2010 the Secretariat received additional submissions from the
Complainant and on the same date the Secretariat acknowledged receipt, and
forwarded the submissions to the Respondent State.
18. On 14 July 2011 the Complainants requested for an oral hearing, and the request
was considered at the 50th Ordinary Session and a decision was reached to hear
the parties at the 51st Ordinary Session. Accordingly, by Note Verbale and letter
dated 2 March 2012 both parties were informed to send their representatives to
the 51st Ordinary Session for the oral hearing.
19. During the 51st Ordinary Session the Complainants made their oral submissions
in the absence of the State delegates as the latter did not appear.
The Law on Admissibility
Submission of the Complainants 20. According to the Complainants they were not able to lodge Complaints
personally inside Sudan as they had to flee the country out of a well-founded
fear for their own safety. They further allege that human rights lawyers in Sudan
or others who may have in other circumstances been able and willing to bring a
complaint on behalf of their have been subject to intimidation2 and would face a
heightened risk to their personal safety if they were to take up such a high profile
case closely related to the ICC.
21. The Complainants also state that Mr. Monim Elgak wrote an open letter to Salah
Abdullah (Gosh), then Director General of the NISS, on 19 December 2008, which
was widely published inside and outside Sudan, in which he gave an account of
his arrest and torture, and referred to the arrest and torture of the other two
applicants.
22. The Complainants aver that no investigations have been commenced in response
to the open letter, or to the representations made by Embassy representatives, or
others.
23. They submit that the Respondent State stated, in response to recommendations
of the UN Expert Group on the Protection of Human Rights Defenders, that the
Complainants had been arrested and detained and “kept at the premises of
security services for hours for investigation.”3
24. The Complainants further submit that domestic remedies in the Respondent
State are ineffective and unduly prolonged. They submit that neither the
Criminal Procedure Act of 1991 (CPA) nor the National Security Forces Act of
1999 (NSFA), nor any other legislation for that matter, stipulate a duty on the
part of the authorities to commence an investigation upon coming to hear about
an allegation of torture or following a complaint of torture. There is no explicit
right or established procedure or precedent of using mandamus or other
remedies to compel the Sudanese authorities to commence an investigation. In
addition, NISS members benefit from immunity by law that would need to be
lifted for any investigation to proceed.4
25. According to the Complainants it is routine practice for the Director of the NISS
not to lift the immunity of NISS members. They allege that given that the former
Director himself, who is at present a Presidential Advisor, is implicated in the
2 Special Rapporteur, UN Doc. A/HRC/11/14, above n.3, para.10.
3 Report prepared by the Special Rapporteur on the situation of human rights in the Sudan on
status of implementation of the “Compilation of recommendations of the experts group to the
Government of the Sudan for the implementation of Human Rights Council resolution 4/8”3 pursuant to
Human Rights Council resolutions 6/34 , 6/35, 7/16, and 9/17, UN Doc. A/HRC/11/14/Add.1, June
2009, Recommendations 1.6.1. and 2.1.4.
4 Art 33 (b) NSFA.case forming the subject of this communication, it is highly improbable that his
immunity would be lifted, nor that of any of his subordinates for that matter. No
transparent and effective remedies are available to challenge inaction or refusal
to lift the immunity.5
26. They add that a private prosecution cannot be brought without the approval of
the Director of the NISS who will need to lift the immunity of the individual
officer(s) concerned6 and that there is no prospect of any immunity being lifted
in the present case.
27. The Complainants further argue that the local remedies are unduly prolonged as
10 months after Mr. Monim Elgak lodged his Complaint to the NISS authorities
no action has been taken to investigate the substance of the allegation and to
provide them with remedies. In cases of torture, the Complainants submit,
international standards recognize that authorities should open an investigation
promptly, as reflected in paragraph 19 of the Robben Island Guidelines.7
28. The Complainants conclude by stating that there are no effective remedies of
which the Complainants could avail themselves to compel a full investigation
without the approval of the security services and/or to seek other forms of
reparation.
Submissions of the Respondent State
29. The Respondent State states that the Complainants made no mention of any due
legal procedure they have pursued to lodge their complaints against NISS
members except the fact that their case was brought to the attention of Sudanese
authorities by Embassy representatives and Amnesty International and an open
letter was addressed to the Director General of NISS, which the Respondent State
submits cannot be considered as legal proceedings requested for the purpose of
satisfying the requirements of Article 56 of the African Charter as far as
exhaustion of local remedies is concerned.
30. The Respondent State argues that it is untrue that the applicants "were not able
to lodge complaints personally inside Sudan", and that the allegation that they
"had to flee the country out of a well-founded fear for their safety" is baseless.
5 Concluding observations of the UN Human Rights Committee: Sudan, UN Doc.
CCPR/C/SDN/CO/3/CRP.1, 26 July 2007, para.9.
6 Art 35 (c) CPA.
7 Art 19 of the Robben Island Guidelines: “Investigations into all allegations of torture or illand#65534;treatment, shall be conducted promptly, impartially and effectively, guided by the UN Manual on the
Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment (The Istanbul Protocol).”Acts of the NISS particularly with regards to detainees are closely monitored by
the Supreme Court where a competent judge member of the Supreme Court
receives complaints from persons detained by the NISS. The Respondent State
claims that the Complainants did not provide any document substantiating the
allegation that they or their representatives attempted to lodge complaints and
they were denied such right.
31. According to the Respondent State there are available and effective legal
remedies within the Sudanese legal system which the Complainants or their
representatives could have pursued. The Respondent State submits that as per
Article 34 (2) of the Criminal Procedure Act of 1991 the Complainants or their
representatives should have approached the Prosecution attorney to initiate
criminal cases against the NISS members.
32. The Respondent State also submits that Article 54 (1) and (2) of the NISS Act
2010 Article 40 (1) and (2) of the 1999 Act provide that:
(1) Where a member commits an offence, in contravention of this Act,
and the offence committed is, at the same time, an offence in accordance
with the provisions of the Criminal Act, 1991, the said member shall be
tried, under the provisions of this Act , and the Director, for objective
reasons, may commit him to be tried before criminal courts.
(2) Subject to the provisions of sub-section (1), the provisions of the
Criminal Act shall apply to members, in case of commission thereby, of
any offence, in contravention thereof, as may not be provided for in this
Act.
33. The Respondent State further submits that Article 59 of NISS 2010 Act (Article 46
of 1999 Act) provides that:
There shall be punished, with imprisonment, for a term, not exceeding
ten years, or with fine, or with both, every member, who abuses the
exercise of the powers conferred upon him, under the provisions of this
Act, or exploits his post, in the Organ, with intent to achieve material,
or moral benefit, for himself, or others, or causes injury to others.
34. With regard to the immunity of NISS members, the Respondent State submits
that Article 35 of the Criminal Procedures Act stipulates that if the person
against whom the criminal suit is initiated enjoys immunity, then a petition has
to be presented to the office of the Prosecutor General to proceed with Director
of the NISS to lift the immunity of the alleged perpetrator after conducting a
preliminary investigation into the allegation. 35. The Respondent State also avers that if directly approached, the Director of the
NISS can lift immunity of any member of the NISS in case there is a prima facie
evidence of a crime committed by the member. The Respondent State notes that
the Director of the NISS issued on 12 August 2007 Directives instructing the NISS
members to strictly abide by the national laws and the international human
rights standards in the performance of their duties, particularly with regard to
the rights of detainees. As for the immunities the Directives state that in case a
member of the NISS commits a crime in violation to any of the laws in force and
there is a prima facie evidence that justifies the filing of a charge, the NISS will
refer this member to the [ordinary] court or to the non-summary court of the
NISS as the law may decide.
36. Accordingly, the Respondent State is of the position that the Complainants, in
this Communication, neither approached any Prosecution Attorney Office to
initiate a case against the alleged perpetrators from the NISS nor did they file a
complaint to the Director of NISS through the prescribed channels. The
Respondent State notes that there is complaints' office belonging to the NISS and
directly affiliated to the Director General of the NISS established since 2007 and
receives complaints and queries from the public for 24 hours. Many cases have
been received through this office and actions were taken on them.
37. The Respondent State concludes by stating that the Complainants could also
approach the Constitutional Court if they have been denied the right to litigation
which is enshrined in Article 35 of the Interim National Constitution of the
Sudan 2005 which provides that "the right to litigation shall be guaranteed for all
persons; no person shall be denied the right to resort to justice".
Supplementary submission of the Complainants
38. The Complainants submit that the Respondent State’s claim that there is an
effective complaints procedure before the Constitutional Court is not adduced by
any evidence to show either the legal basis for the purported procedure and its
effectiveness. Furthermore, they submit that in the instant case the judges of the
Constitutional Court did not in fact monitor the detention of the applicants in
terms of being available to receive complaints adding that there are no cases in
which the Constitutional Court is known to have ordered complaints against
NISS members to be investigated, and no known practice of investigations and
prosecutions of NISS members upon the direction of the Court.
39. Regarding Article 51 (3) of the NISS Act (hereafter “NISS Act”), 2010, (Article 31
(3) of the NISS Act, 19998), the Complainants aver that the existence of this law
8 The Complainants note that the Respondent State has made an error with respect to this reference
intends to refer to article 32 (3) of the NISS Act 1999 and not article 31(3)) 1999 which deals with the
power of arrest, search and detention of various entities.does not mean that violations of its provisions do not occur, and that the
Respondent State appears to assume that the existence of a law precludes any
need to provide remedies for its violations with clear channel of accountability
for erring officials and access to due remedies for victims.
40. As to the existence of a Directive from the Director of the NISS issued on 12th
August 2007, the Complainants submit that there is no information available as
to how this internal circular has been implemented and adherence to it
monitored. The Complainants also aver that the Respondent State does not
provide any evidence that the Prosecution Attorney was requested to review, or
in fact reviewed, the conditions of custody of the applicants in the instant case.
41. The Complainants state that in order to lodge complaints against NISS officers
the Prosecution attorney must request the lifting of immunities of NISS members
from the NISS Director and the Director must accede to this request. According
to the Complainants, it is only the Director of the NISS who can lift the
immunities granted to NISS members under the NISS Acts, and that there are no
procedures available before Sudanese courts which can compel the Director of
the NISS to make a decision on such a request, order a review of a decision not to
lift immunities, or direct him to respond in the affirmative. According to them, a
decision by the Director of the NISS to lift the imunity is therefore an
administrative or political decision not a judicial one, and that there is no
provision in Sudanese law governing how it is exercised.
42. The Complainants claim that they are not aware of any prosecution – let alone
conviction – of an NISS member for torture9, despite the numerous allegations of
torture which have been documented, inter alia, by the United Nations and
international and national human rights organizations10.
43. The Complainants submit that the primary role of the complaints office of the
NISS is to receive applications to visit persons in NISS detention, and where
complaints are lodged, the information is simply shared with other branches of
the service: the office has no mandate to initiate investigations or legal action.
9 Remarks by the UN Human Rights Committee on Sudan in 2007, “[t]he Committee noted with
concern reports suggesting that torture and cruel, inhuman and degrading treatment are widespread in
the State Party, especially in prisons and is concerned that such abuse is carried out in particular by lawand#65534;enforcement officers. Moreover, these law-enforcement officers and their accomplices reportedly very
often go unpunished. The Committee regrets that there is no definition of torture in the Sudan’s Criminal
Code”. (CCPR/C/SDN/CO/3/CRP.1 17 July 2007 at para 26.
10 See the recently published, Amnesty International, Sudan: Agents of Fear: the National Security
Service in Sudan (2010) . 44. In relation to the personal risk that the Complainants took when they made
arrangements to leave the country, they aver that the official government media
centre (the Sudanese Media Centre) issued a public statement in March alleging
that the Complainants were “witnesses” for the ICC, and noting that the then
State Minister at the Ministry of Humanitarian Affairs, Ahmed Haroun, had
declared that the humanitarian organization which had allegedly assisted the
three individuals to travel to the Hague as “witnesses” had transcended its
mandate and engaged in activities harmful to the country’s security”11.
African Commission’s Analysis on Admissibility
45. Article 56 of the Charter provides seven admissibility requirements which need
to be cumulatively fulfilled before a Communication is declared Admissible. In
the present Communication, the Respondent State contests the fulfillment of only
one of the seven Admissibility requirements – exhaustion of local remedies.
Accordingly, the assumption here is that the Respondent State agrees that the six
other requirements have been fulfilled.
46. After carefully studying the submissions of the Complainants, the African
Commission is also convinced that the Communication does meet the other six
Admissibility requirements under Article 56 of the African Charter.
47. The Commission will therefore proceed to decide as to whether the
Complainants have met the requirement of exhaustion of local remedies as
provided under Article 56(5) of the Charter.
48. The Complainants contend that they were not able to exhaust local remedies
because the domestic remedies were not available, effective and sufficient. It is in
light of this submission that the African Commission will proceed to determine
on the availability, effectiveness and sufficiency of Sudanese local remedies to
the Complainants.
49. According to the well-established jurisprudence of the African Commission
Complainants are required to exhaust local remedies only if the local remedies
are available, effective and sufficient. A local remedy is considered available “if
the petitioner 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”12.
50. In the present Communication, the Complainants contend that they were not
able to pursue remedies in Sudan personally because they faced a genuine risk of
11 Statement by the Sudan Media Centre, 9 March 2009 translation by the Complainants.
12
Jawara v Gambia para 32. being subjected to further serious violations if they decided to return to Sudan,
and that the same risk applies to anyone pursuing a complaint on their behalf.
The Respondent State on the other hand denies the allegations as baseless as
according to the State the Complainants could have taken their cases to the
Supreme Court, which closely monitors the situation of detainees and also
receives complaints from detainees. Moreover, the Respondent State contends
that the Criminal Procedure Act of 1991, the NISS Act of 2012, and the Interim
National Constitution of 2005 provide for additional available remedies for the
Complainants.
51. The African Commission is of the view that for the Complainants to be able to
file their complaint before the Supreme Court while they were in detention, they
need to be in touch with their lawyers, but there is no indication that the
Complainants had any contact with their lawyers or even families or had been
afforded the opportunity to contact their lawyers. The Respondent State has not
either produced any record or proof to show that the Supreme Court was closely
monitoring their situation. If the Supreme Court had closely monitored the
situation as it is supposed to then it should at least have a record of when, how,
why and where they were detained, and the conditions under which they were
detained, interrogated and treated. However, there is no proof adduced by the
Respondent State to this effect. In the absence of this crucial information, it is
only logical to conclude that the Supreme Court did not monitor the situation of
the Complainants.
52. With regards to the remedies provided for under the CPA and NISS Act, it has
been indicated that the three Complainants were allegedly tortured for working
with the ICC in the indictment of the President of Sudan. Various credible UN
and media reports have shown that individuals and organizations that have been
suspected of working with the ICC have been subjected to harassment and
intimidation and have also been expelled out of the country. From the various
statements made and actions taken by the Government it is obvious that the
issue is evidently a politically sensitive issue to the Government of Sudan, and is
not tolerated by its officials and institutions. It is against this general
background that the case of the three Complainants should be looked at.
53. The Complainants have adduced affidavits recounting the way they were
arrested, interrogated, tortured and maltreated by NISS officers. They have also
referred to reports by UN Rapporteurs, Amnesty International and other
international and national NGOs as evidences attesting to the arrest and
detention of the Complainants by NISS officers, and the threat and intimidation
that individuals and organizations that are suspected of working or collaborating
with the ICC face in Sudan. The Government has however not produced any
evidence to rebut such strong allegations except merely pointing to laws in
Sudan that victims of torture could use. As the Commission had stated in the case of Jawara v The Gambia (the Jawara case)
13 a remedy “the availability of
which is not evident cannot be invoked by a state to the detriment of the
complainant”. In the same case the Commission went on to state that “the
existence of a remedy must be sufficiently certain, not only in theory but also in
practice, failing which, it will lack the requisite accessibility and effectiveness”.
54. The question here is not whether there are laws in Sudan that provide remedies
to victims of torture. Rather the question is can the victims or their
representatives utilize those avenues under the circumstances? The short answer
is NO. In a situation where the victims or their representatives cannot resort to
domestic remedies because of general fear of persecution, the Respondent State’s
assertion that the Complainants could have used the remedies as provided in the
CPA or NISS Act or the Interim National Constitution is unreasonable and
impractical. In the Jawara case14 the African Commission held that “a remedy is
considered available only if the applicant can make use of it in the circumstances
of his case”.
55. In the case at hand as the Complainants were subjected to intimidation,
harassment and persecution, it would be irrational to ask them to go back to their
country to pursue legal remedies. It would be equally repugnant to expect
anyone within Sudan who sympathizes with the cause of the Complainants to
file a complaint on their behalf before the relevant state organs. Therefore, for the
aforementioned reasons and in line with its rulings in the Jawara case, John D.
Ouko v Kenya15 and Rights International v Nigeria16, the Commission finds that
domestic remedies were not available for the victims and their representatives
because of fear of persecution.
56. The Complainants also submit that the local remedies are not effective as the
Government has failed to investigate and prosecute those responsible even
though it was sufficiently aware of the allegations. They further claim that the
relevant laws of the country do not impose a duty on the concerned authorities
to commence an investigation upon coming to hear about an allegation of torture
or following a complaint of torture. Moreover, they claim that to initiate a private
investigation the Director General of the NISS has to first lift the immunity of the
accused NISS officers and the decision is discretionary and is not subject to
judicial oversight.
57. In response to the above allegations the Respondent State submits that the
application by the Embassy representative, the Urgent Action request by
Amnesty International, the open letter by one of the Complainants to the
13 Jawara case paras 33 and 34.
14 Jawara case para 33.
15 Communication 232/99 – John D. Ouko v Kenya (2000) ACHPR para 19.
16 Communication 215/98 – Rights International v Nigeria (1999) ACHPR para 24. Director of NISS and media reports cannot be considered as legal proceedings
required for the purpose of satisfying the requirements of Article 56(5) of the
African Charter.
58. The Commission notes that Complainants are required to exhaust local judicial
remedies in accordance with the laws of the country concerned. The laws of the
country include laws that govern procedural matters. However, the requirement
of exhaustion of local remedies is not an absolute rule, it has exceptions put in
place to ensure that complainants will not be hindered from bringing potential
human rights violations before the Commission as a result of procedural
impediments emanating from unjust laws or practices.
59. In fact the Commission has in several cases made it clear that the rationale
behind the exhaustion of local remedies is to give states a chance to remedy
human rights violations through their own mechanisms and institutions. This is
based on the assumption that the state was not aware of the alleged human
rights violations.
60. In the case at hand, the Respondent State does not contest that the Government
received application from the British Embassy representative regarding the
unlawful arrest and detention of the Complainants, and an open letter was sent
by one of them to the General Director of NISS informing him of the human
rights violations that they allegedly suffered in the hands of NISS officers, which
was widely published inside and outside of Sudan. The Respondent State does
not also deny that the Government received an Urgent Action request from
Amnesty International in connection with the situation of the three
Complainants, and that there was wide media coverage about them. The defense
of the Respondent State is rather that all these do not amount to legal proceeding
as envisaged under Article 56(5) of the Charter.
61. The Government therefore was not unaware of the situation; rather it wanted a
formal legal compliant to be filed. In the case of Amnesty International and
Others v Sudan wherein lawyers, human rights activists and members of
opposition group were arbitrarily arrested, tortured and killed and where there
were reports by the media and UN organs about these violations, the
Commission found that “even where no legal action has been brought by the
alleged victims at the domestic level, the government has been sufficiently aware
to the extent that it can be presumed to know the situation within its own
territory as well as the content of its international obligations”17.
62. In a similar case against Eritrea where 18 journalists were detained
incommunicado for allegedly posing a threat to national security, and were
17
Communication 48/90, 50/91, 52/91, 89/93 - Amnesty International and Others v Sudan (1999)
ACHPR para 33.imprisoned for years, the Commission found that “the State has had ample
notice and time within which to remedy the situation,…..and is expected to have
taken appropriate steps to remedy the violations alleged”18. The Commission
further went on to rule 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’
19
63. Accordingly, in the present case the Government had ample notice about the
alleged human rights violations, and should have accordingly taken the
necessary steps to investigate the matter particularly since it has admitted that
the Complainants were under the custody of the NISS for some time, and that it
had enough information and notice to initiate investigation into the alleged
violations.
64. However, the Respondent State in its submissions has not shown that to date it
has taken any measures to investigate into the matter and bring those responsible
to justice. Based on this the Commission finds that the fact that the Government
has not taken any action means that domestic remedies are either not effective or
sufficient to redress the violations alleged20.
65. The Respondent State also contends that there were other remedies available for
the Complainants. The State submits that the Complainants or their
representatives could have approached the Prosecutor to initiate a criminal case
pursuant to Article 34(2) of the CPA of 1991, or file a complaint against the NISS
members in accordance with Article 54(1) and Article 59 of the NISS Act of 2010.
The Respondent State further submits that if the accused NISS members enjoy
immunity the Complainants could approach the Director of NISS directly or
through the Prosecutor General to lift the immunity of the alleged perpetrator(s).
66. According to these laws, to press criminal charges against members of the NISS,
the Director should first lift the immunity of the accused members. When the
accusations are lodged against the Director himself and people working under
him, it would be implausible to think that the Director would lift the immunities,
including that of his own. This is a case where the Director would become a
18 Communication 275/03 – Article 19 v Eritrea, ACHPR para 77.
19 Communication 275/03 – Article 19 v Eritrea, para 72.
20 Similarly in Article 19 v Eritrea the Commission held that “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”. judge in his own case, and it would be making mockery of justice to expect that
the Complainants would get justice from such discretionary remedy.
67. This kind of remedy is purely discretionary and even worse is not subject to
judicial oversight and hence is final. In several instances, the Commission has
made its position clear that when a remedy is discretionary, extraordinary
remedy of a non-judicial nature, then the Complainants are not required to
pursue it as part of the requirement of exhaustion of local remedies.
68. For instance in two cases against Nigeria, the Commission ruled that when the
remedy is discretionary extraordinary remedy of a nonjudicial nature “It would
be improper to insist on the Complainant seeking remedies from a source which
does not operate impartially and have no obligation to decide according to legal
principles. The remedy is neither adequate nor effective”21.
69. In line with the above reasoning, the Commission finds that the remedies that the
Respondent State claims to be available to the Complainants under the NISS Act
and Criminal Act of 1991 are inadequate and ineffective.
70. Having found that domestic remedies were not accessible to the Complainants or
their representatives, and that local remedies were not adequate and effective, it
would be an affront to justice to expect them or anyone else for that matter to
approach the Constitutional Court for the later to protect their right to litigation
as enshrined under Article 35 of the 2005 Interim National Constitution of Sudan.
71. The African Commission therefore holds that in the present Communication the
local remedies in Sudan were not available, effective and sufficient to the
complainants and hence the Complainants have constructively exhausted local
remedies pursuant to Article 56(5) of the African Charter.
Decision of the African Commission on Admissibility
72. In view of the above, the African Commission on Human and Peoples’ Rights
declares this Communication Admissible in accordance with Article 56 of the
African Charter.
Merits
The Complainants’ Submissions on the Merits
21 Communication 87/93 – Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others) v
Nigeria (1994) ACHOR para 8 and Communication 60/91 - Constitutional Rights Project (in respect of Wahab
Akamu, G. Adega and Others) v Nigeria (1994) ACHPR para 10. 73. The Complainants submit that the facts of the Communication reveal violations
of a number of human rights guaranteed in the African Charter, namely: the
right to dignity and to freedom from torture and ill-treatment (Article 5); the
right to liberty and security (Article 6); the right to a fair trial (Article 7); the right
to freedom of information and freedom of expression (Article 9); the right to
freedom of association (Article 10); the right to freedom of movement (Article 12
(1), (2)); the right to work (Article 15); the right to health (Article 16); and the
right to legal protection of the rights guaranteed in the African Charter (Article
1).
Alleged Violation of Article 5
74. The complainants submit that they were subjected to a series of acts that, singly
and in combination, caused severe physical and mental pain and suffering
inflicted by officials with the purpose of extracting information and inflicting
punishment, which amounted to torture.
75. It is submitted that Mr. Amir Monim Elgak and Mr. Osman Hummeida were
subjected to sustained and severe beatings. The Complainants describe various
acts to which they were subjected, including being punched and hit with a pipe
and wooden cane on their feet and soles. Mr. Osman Hummeida in particular
was allegedly subjected to sleep deprivation and denied access to medical
treatment. It is submitted that Mr. Elgak’s lower lip was split open as a result of
the beatings while Mr. Osman had severe pain and difficulties in walking.
76. It is also submitted that all three Complainants were subjected to credible threats
and a pervasive climate of fear that caused anxiety in them. Monim Elgak was
for example threatened with rape and putting out a cigarette in his eye; Osman
Hummeida was threatened with execution, having a gun pointed at his head, as
well as being exposed to torture instruments. He was also subjected to death
threats and made to witness the torture of his colleague and friend. Amir
Suliman was threatened with torture, his glasses were removed, the room
darkened and the interrogating officers brandished sticks and hoses known to be
used for purposes of torture. The Complainants submit that the pervasive nature
of the threats was both real and serious and the circumstances in which they
found themselves were so serious that they caused them severe mental pain and
suffering.
77. The Complainants contend that the acts described above were committed
intentionally by individuals acting on the instructions of a named NISS leader
and the acts were aimed at extracting information/confessions about the whereabouts of laptops and bags purportedly containing information about the
alleged crime of spying or colluding with the ICC.
78. The Complainants submit that these acts contravene Article 5 of the Charter as
well as other principles recognized by the Commission.
Alleged violation of Article 6
79. The Complainants submit that they were neither formally arrested nor were any
specific charges brought against them. It is pointed out that they had simply been
‘invited’ by the NISS to attend a ‘meeting’ and were not asked whether they
wanted to attend the meeting. According to the Complainant, it was clear that
their attendance was expected and not voluntary; taking into consideration the
nature of the questions posed in the formal interrogation that followed.
80. It is submitted that it is not clear whether some of the Complainants were
interrogated as suspects or witnesses. The Complainants submit that the facts
that the questioning related to activities that could have resulted in charges being
brought and that they were remanded involuntarily indicate that their status
was more akin to that of suspects under arrest than witnesses subjected to
questioning. These circumstances according to the Complainants demonstrate
the arbitrary nature of the deprivation of liberty. The complainants also state that
the arrests and detention were arbitrary because they were not based on a
reasonable suspicion.
81. In addition, it is submitted that custodial safeguards were violated in respect of
Mr. Osman Hummeida given that he was not informed of his right to
communicate with his Embassy nor was he allowed to do so on request. This,
according to the Complainants, violated his right to liberty guaranteed under
Article 6 of the Charter.
Alleged Violation of Article 7
82. It is submitted that Mr. Osman Hummeida was in detention for three and a half
days without being brought before a judicial authority. It is submitted further
that the relevant domestic law, namely Article 30 and 31 of the National Security
Forces Act of 1999, permits detention for a period of four months and three days
or six months (depending on the nature of the suspected offense) without any judicial review of the legality of the detention. The Complainants claim that Mr.
Osman’s detention and the aforementioned legislation is incompatible with
Sudan’s obligation under the Charter.
83. The Complainants also point out that they were not informed about the reasons
for their arrest; on the contrary, they were taken into custody on 24 November
2008 under the pretext of attending a meeting. They cite the Resolution on the
Right to Recourse and Fair Trial which provides that, it is not sufficient for the
persons who are arrested to be able to guess why they have been arrested but
they must be told by way of official notification.
84. It is also submitted that all three Complainants were not allowed access to a
lawyer during their interrogation. The Complainants maintain that all these
constitute a violation of the right to a fair trial.
Alleged Violation of Article 9
85. The Complainants submit that at the time of their arrest, they were widely
known in and outside Sudan for their work on human rights in Sudan. The
Complainants claim that they were arrested and interrogated on account of their
human rights work. They state that the purpose of their arrest, detention,
interrogation and subsequent torture and ill-treatment by NISS officers was to
intimidate them and to hinder if not altogether prevent them from fulfilling their
work as human rights activists. The Complainants state that measures taken by
the NISS were aimed at preventing them from obtaining and disseminating
information about human rights in Sudan and this constituted an unjustified
infringement of their right to freedom of information and expression and
amounted to a violation of Article 9 of the Charter.
Alleged Violation of Article 10
86. It is contended that in December 2008 and January 2009, Mr. Amir Suliman and
the KCHRED, of which he was a Director, were subjected to a campaign of
harassment and intimidation, which manifestly violated the Respondent State’s
obligations under Article 10 of the Charter. It is submitted that KCHRED also
had its bank accounts frozen in February 2009 and its licence revoked in early
March 2009 by the Government of Sudan. According to the Complainants, the
closing of KCHRED and its bank accounts is clearly a deliberate action by the
Respondent State aimed at destabilizing the work of the Mr. Amir Suliman and
his organisation which was accused of cooperating with the ICC Prosecutor’s Office, in breach of the right to freedom of association as protected by Article 10
of the Charter.
Alleged violation of Article 12 (1) (2)
87. The Complainants submit that they were arrested, tortured and detained on
account of their human rights work which was subsequently followed by a
campaign of harassment and intimidation by the authorities, eventually leading
to the shutdown of KCHRED. It is submitted further that the open ended and
serious nature of the accusations of spying that had been levelled against them,
and the real risk of being rearrested at any moment, forced Mr. Osman
Hummeida and Mr. Monim Elgak to flee the country in early December 2008 and
Mr. Amir Suliman to do so in early February 2009.
88. The Complainants point out that their continued human rights work including
their outspoken criticism of the government of Sudan, in combination with the
complete impunity with which the authorities perpetrated the violations against
them, has prevented them from returning to Sudan for fear of further
persecution by state authorities, in particular the NISS. The Complainants cite
the Commission’s decision in John D. Ouko v Kenya22 in which the Commission
found a violation of Article 12 of the Charter where a human rights defender was
forced to flee the country on account of his human rights work.
Alleged violation of Article 15
89. It is submitted that Mr. Amir Suliman’s right to work was directly interfered
with by the Respondent State following the closure of KCHRED which
prevented the organization from carrying out any of the work from which he
was earning his living. The Complainant cites the Commission’s decision in
Institute for Human Rights and Development in Africa v. Angola23, in which
the Commission agreed that the Respondent State’s actions of arbitrary arrest,
detention and subsequent deportation resulting in persons who were lawfully
working in Angola losing their jobs, was a violation of Article 15 of the Charter.
It is the Complainants’ contention that the respondent State’s action to close
KCHRED’s offices and bank accounts was the main reason behind Mr. Amir’s
22 Communication 232/99.
23 Communication 294/2004. loss of employment and opportunity and constitutes a breach of Article 15 of the
Charter.
Alleged violation of Article 16
90. The Complainants submit that the right to health includes the right to be free
from torture and a positive obligation to provide access to adequate medical
treatment in detention. It is the Complainants’ contention that the treatment to
which they were subjected, which caused physical and psychological harm,
violated their right to enjoy the best attainable standard of physical and mental
health.
Alleged violation of Article 1
91. The Complainants submit that the Respondent State has failed in its positive
obligations to recognise the rights, freedoms and duties enshrined in the Charter
and to adopt legislative or other measures to give effect to them. It is also
submitted that the state failed to in upholding its positive obligation to provide
effective remedies as required by Article 1 read in conjunction with Articles 5, 6,
7, 9, 10, 12, 15 and 16 of the Charter.
92. It is further submitted that the Respondent State has failed in its positive
obligation to carry out an effective investigation, as required by article 1,
particularly if read in conjunction with article 5 of the Charter. The state
authorities have not taken any investigative measures more than four years after
the violations took place and almost four years after Mr. Monim Elgak published
his open letter and complaint on 18 December 2008. Sudanese legislation does
not provide sanctions and effective remedies in cases of breaches such as
arbitrary arrest and detention and torture. The offence of unlawful detention
carries the inadequate punishment of one year, or, in aggravated circumstances,
three years imprisonment.
The Commission’s Decision on the Merits
93. The Commission is called upon to determine whether the actions of the
Respondent State as described above constitute a violation of Articles 1, 5, 6, 7, 9,
10, 12, 15 and 16 of the African Charter as alleged by the Complainants.
94.95. The Commission notes with concern that following its decision on admissibility,
the Respondent State has failed to provide information on the merits of the
Communication. In the light of the failure of the Respondent State to engagewith
the Commission on the matter before it, due weight must be given to the
allegations as submitted by the Complainants to the extent that these have been
adequately substantiated.
Alleged violation of Article 5
96. The Complainants allege that the conduct of the Respondent State’s agents
described above violates Article 5 of the Charter. Article 5 of the Charter
provides as follows:
Every individual shall have the right to 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
or treatment shall be prohibited.
97. The Commission observes that the present Communication does not raise any
issues related to slavery and slave trade and will therefore confine its analysis of
Article 5 to the allegations of torture, cruel, inhuman or degrading treatment or
punishment.
98. The Commission recalls its decision in Sudan Human Rights Organization and
Center for Housing Rights and Evictions v Sudan,
24 in which it set out the
principal elements that constitute torture under the Charter, namely, that severe
pain or suffering has to have been inflicted; for a specific purpose, such as to
obtain information, as punishment or to intimidate, or for any reason based on
discrimination; by or at the instigation of or with the consent or acquiescence of
state authorities. The Commission has also in its interpretation of Article 5 of the
Charter, adopted the definition of torture contained in the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.25
24 Communication 279/03 – 296/05 – Sudan Human Rights Organization and Center for Housing Rights
and Evictions v Sudan (2009) ACHPR para 255 and 156,
25 See Article 4 of the Resolution on Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines)
adopted by the Commission in October 2002. 99. The Commission notes the description of the treatment described above to which
the Complainants were subjected while in NISS detention. The Commission also
notes that these acts, characterized amongst other things by severe beatings,
credible threats and sleep deprivation, resulted in severe physical and mental
pain and suffering on the three complainants. The Commission also observes
that these acts were intentionally inflicted by public officials (NISS officials) for
the purpose of punishing the Complainants and obtaining information about
laptops and bags purportedly containing evidence of their collusion with the
ICC.
100. The Commission observes that the Complainants have adduced evidence
in the form of a medical certificate26 and sworn testimonies27 to prove these facts.
These facts have also not been contested by the Respondent State. The
Commission recalls that States are under an obligation not only to make sure that
torture is absolutely prohibited in their legislation, but also in practical terms.
Where torture is allegedly inflicted and this is brought to the attention of the
State, it is also under an obligation to initiate a prompt, impartial and effective
investigation in order to determine the veracity of the allegations and to bring
the perpetrators to justice if the allegations are founded, as well as to afford
redress to the victims.28
101. The Commission observes that it has already been established that the
allegations of torture in the present Communication were duly brought to the
attention of the authorities of the Respondent State. However, there is no
indication that the Respondent State took any measures to investigate the
allegations and bring the perpetrators to justice. In the circumstances, the
Commission considers that the Complainants rights under Article 5 of the
Charter were violated.
Alleged violation of Article 6
102. The Complainants contend that their deprivation of liberty is contrary to
Article 6 of the Charter. Article 6 of the Charter provides that ‘’every individual
shall have the right to liberty and to the security of the person. No one may be
26 In the respect of Mr. Osman Hummeida
27 In respect of Mr. Amir Suliman and Mr. Monim Elgak
28 See the Commission’s Resolution on Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, paras 18 and 19. deprived of his freedom except for reasons and conditions previously laid down
by law. In particular, no one may be arbitrarily arrested or detained.’’
103. The Commission observes that not all actions that constrain an
individual’s physical freedom can amount to a deprivation of liberty in terms of
Article 6 of the Charter. However, a deprivation of liberty that falls outside the
strict confines of the law, or for reasons that are not acceptable or simply
arbitrary, will amount to a violation of Article 6 of the Charter.
104. The Complainants have explained that they were invited for a meeting by
the NISS and subsequently detained. They were not formally arrested with a
warrant nor were any charges brought against them in the course of their
detention. It has not been shown that their arrest was based on any reasonable
suspicion that they had committed an offense. During their detention, they were
not informed of their right to access a lawyer and in the case of Mr. Hummeida,
was denied access to consular assistance on request. It is also evident that the
arrest and detention of the Complainants had no basis in Sudanese law.
105. The Commission has established in the Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa, regarding the right to
liberty and security of the person, that:
States must ensure that no one shall be subject to arbitrary arrest or detention and arrest,
detention or imprisonment shall only be carried out strictly in accordance with the
law…pursuant to a warrant, on reasonable suspicion or for probable cause.29
106. The Commission observes that the fact that the Complainants were
invited for a meeting from which they were not allowed to leave voluntarily and
were subsequently detained and not given reasons for the detention is arbitrary.
The Commission also observes that no charges were brought against the
Complainants while in detention and that procedural safeguards relating to their
arrest and detention in terms of being informed of their right to access a lawyer
29 See the Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa; see also the Communication 27/89, 46/91, 49/91, 99/93 Organisation Mondiale Contre La Torture
and Association Internationale des juristes Democrates) Commission Internationale des Juristes (C.I.J)
Union Interafricaine des Droits de l'Homme/Rwandaand consular assistance in respect of Mr. Hummeida, was not respected.30 The
Commission notes also that the acts of the NISS were not in conformity with
Sudanese law.
107. The Commission therefore considers these acts were not only arbitrary,
but also illegal and constitute a violation of Article 6 of the Charter.
Alleged Violation of Article 7
108. The Complainants contend that their right to a fair trial under Article 7 of
the Charter was violated by the Respondent State. Article 7 of the Charter
provides that ‘’every individual shall have the right to have his cause heard. This
comprises:
a) The Right to an appeal to competent national organs against acts violating his
fundamental rights as recognized and guaranteed by conventions…;
b) The right to be presumed innocent until proven guilty;
c) The right to defence, including the right to be defended by counsel of one’s
choice;
d) The right to be tried within a reasonable time by an impartial court or
tribunal’’.
109. The Complainants have submitted that there was no judicial review of the
lawfulness of their detention; that they were not allowed access to a lawyer and
were not informed of the reasons for their arrest. It has also been submitted that
Article 30 and 31 of the National Security Act of Sudan is incompatible with
Sudan’s obligations under the Charter.
110. The Commission notes that after their arrest and detention, which has
already been determined to have violated the provisions of Article 6 of the
Charter, the Complainants were all released within three days. The Commission
also notes that no formal charges were brought against the Complainants. The
Commission consequently considers that a violation of Article 7 of the Charter
cannot be sustained on the basis of the facts adduced by the Complainants.
30See views of the Human Rights Committee in Fongum Gorji-Dinka v. Cameroon, Communication No.
1134/2002, U.N. Doc. CCPR/C/83/D/1134/2002 (2005), para 5.1, in which a violation of the right to
liberty was found on similar facts. 111. Regarding the incompatibility of some of the provisions of the National
Security Act with Sudan’s obligations under the Charter, the Commission
observes that it has not been shown that the Complainants were detained in
application of this law. The Compatibility of the law with Sudan’s obligation
under the Charter cannot therefore be called into question in the present
Communication.
Alleged violation of Article 9
112. It is the Complainants’ contention that their right to freedom of expression
under Article 9 of the Charter was violated through the conduct of the
Respondent State. Article 9 of the Charter provides that:
‘’every individual shall have the right to receive information’’
31 and ‘’the right to express
and disseminate his opinions within the law’’
32.
113. The Commission notes the Complainants submission that they were
arrested on account of their human rights work, specifically because of their
perceived links with the office of the prosecutor of the ICC. The Commission also
notes that the interrogation of the Complainants by NISS officials was essentially
based on their links with the ICC and their human rights work. The Commission
notes further that the measures taken against the Complainants were aimed at
preventing them from obtaining and disseminating information about the
situation of human rights in Sudan.
114. The Commission recalls that according to its Declaration of Principles on
Freedom of Expression in Africa, freedom of expression and information,
including the right to seek, receive and impart information and ideas, either
orally, in writing or in print, in the form of art, or through any other form of
communication, including across frontiers, is a fundamental and inalienable
human right and an indispensable component of democracy.33 The Commission
recognises that the exercise of this right carries with it special duties and
responsibilities, which therefore in general allow for certain restrictions or
31 Article 9 (1)
32 Article 9 (2)
33 See also Communications 105/93, 128/94, 130/94 and 152/96) - Constitutional Rights Project, Civil
Liberties Organization and Media Rights Agenda v Nigeria.limitations on the right. The Commission considers that any restrictions on
freedom of expression must be provided by law, serve a legitimate interest and
be necessary in a democratic society.
115. The Commission observes that in the present Communication, the only
reason for which the Complainants were prevented from exercising this right
was due to their perceived links with the ICC. It has not been shown that the
Complainants’ links with the ICC, if any, endangered the lives of others, national
security, morality, common interest or caused any other legitimate prejudice. The
Commission considers that there was therefore no justifiable reason to limit or
interfere with the right to freedom of expression and finds as a consequence, a
violation of Article 9 (1) and (2) of the Charter.
Alleged violation of Article 10
116. The Complainants contend that the campaign of harassment and
intimidation to which Mr. Amir Suliman and the KCHRED of which he was a
Director, the closure of the latter and the freezing of its bank accounts constitute
a violation of Article 10 of the Charter.
117. Article 10 of the Charter provides that ‘’every individual shall have the
right to free association provided that he abides by the law…’’.
118. The Commission notes that the right to freedom of association is both an
individual and collective right which allows individuals to join together to
pursue and further collective interests in groups, such as NGOs, political parties
and trade unions. This right comprises the right to form and join associations
freely; any interference with this right must be prescribed by law and meet the
conditions prescribed under Article 27 of the Charter, namely the protection of
the rights and freedoms of others, collective security, morality and collective
interests. The Commission considers, recalling its decisions in Huri Laws v
Nigeria34 and Amnesty International v Zambia,35 that any interference with this
right that is not proportionate and cannot be justified under Article 27 of the
Charter will be considered to be arbitrary.
34 Communication 225/98 – Huri Laws v Nigeria, (2001) ACHPR, 14th Activity Report.
35 Communication 212/98 - Amnesty International v Zambia (1999) ACHPR, 12th Activity Report.119. In the present Communication, it appears that the only reason that
KCHRED and its director were targeted was on account of their perceived links
with the ICC. The Respondent State has not provided any information showing
that the activities of the organization endangered national security, morality, or
the rights of other people in Sudan. In the circumstances, the Commission
considers that the State’s interference with the activities of the organization and
its staff was unjustifiable and arbitrary and finds a violation of Article 10 of the
Charter.
Alleged violation of Article 12 (1) and (2)
120. The Complainants submit that the fact that they were forced to flee the
country as a result of the harassment and intimidation to which they were
subjected as well as their apprehensions about what awaited them should they
return to Sudan, is a violation of their rights under Article 12 (1) and (2) of the
Charter.
121. Article 12 (1) of the Charter provides that ‘’every individual shall have the
right to freedom of movement and residence within the borders of a State
provided he abides by the law’’.
122. The Commission recalls its decisions John D Ouko v Kenya,36 and in
Sudan Human Rights Organization and Center on Housing Rights and
Evictions v Sudan,
37 in which the Commission found a violation of Article 12 (1)
of the Charter in circumstances where the complainants were forced to flee their
country of residence because of persecution by the authorities.
123. The Commission notes that it has already been established in the present
Communication that the Complainants had a well-founded fear of the risk of
further persecution should they have stayed in Sudan considering the treatment
to which they were previously subjected and the nature of their jobs. The
Commission considers that the fact that they were prevented by such fear of
persecution from residing in Sudan constitutes a violation of Article 12 (1) of the
Charter.
36 Communication 232/99 – John D ouko v Kenya (2001) ACHPR, 14th Activity Report.
37 Communication 279/05 – 296/05 – Sudan Human Rights Organization and Center on Housing Rights
and Evictions v Sudan (2010) ACHPR, 28th Activity Report 124. Article 12 (2) of the Charter provides that ‘’every individual shall have the
right to leave any country including his own, and to return to his country. This
right may only be subjected to restrictions provided for by law for the protection
of national security, law and order, public health or morality.
125. The Complainants have submitted that their continued human rights
work, coupled with the complete impunity with which the authorities
perpetrated the violations against them, has prevented them from returning to
Sudan.
126. As Sudanese nationals, the Commission considers that Mr. Monim Elgak
and Mr. Amir Osman have a right of return to their country except if it can be
shown that their return will be a danger to national security, law and order or
public health or morality. This not being the case in the present Communication
and without any information from the Respondent State to the contrary, the
Commission considers that their apprehension of a well-founded fear of
persecution by the authorities should they return, is a violation of Article 12 (2)
of the Charter in respect of Mr. Amir Suliman and Mr. Monim Elgak.
Alleged Violation of Article 15
127. The Complainants submit that the Respondent State’s closure of KCHRED
directly resulted in Mr. Amir Suliman and his staff losing their jobs and as a
consequence violated Article 15 of the Charter.
128. Article 15 of the Charter provides that ‘’every individual shall have the
right to work under equitable and satisfactory conditions, and shall receive equal
pay for equal work.’’
129. The Commission has established in its Principles and Guidelines on the
Implementation of Economic, Social and Cultural Rights in the African
Charter on Human and Peoples’ Rights that the right to work should not be
understood as an absolute and unconditional right to obtain employment.
Rather, the State has the obligation to facilitate employment through the creation
of an environment conducive to the full employment of individuals within
society under conditions that ensure the realisation of the dignity of the
individual.38
38 See para 58 of the Guidelines. 130. The Commission observes that the right to work, in a broad sense, implies
the right to enter employment, and the right not to be deprived of employment
unfairly. In that regard, the Commission recalls its decision in Zimbabwe
Lawyers for Human Rights and Associated Newspapers of Zimbabwe v
Zimbabwe,39 in which it found a violation of Article 15 of the Charter where the
Respondent State had without just cause, closed down the Complainant’s
business premises.
131. The present Communication is no different. It has not been shown that the
Respondent State had any legitimate reason for closing down KCHRED and
freezing its bank account, which resulted to a loss of Mr. Amir’s source of
income. The Commission considers that such unjustified interference with Mr.
Amir’s employment was arbitrary and contravenes Article 15 of the Charter.
Alleged Violation of Article 16
132. It is submitted by the Complainants that their treatment under NISS
detention resulted to physical and psychological harm, in violation of their right
to enjoy the best attainable standards of physical and mental health, in violation
of Article 16 of the Charter. It is also submitted that the denial of medical care to
Mr. Osman Hummeida violated Article 16 of the Charter.
133. Article 16 of the Charter provides as follows:
‘’Every individual shall have the right to enjoy the best attainable state of physical and
mental health. State parties to the present Charter shall take the necessary measures to
protect the health of their people and to ensure that they receive medical treatment when
they are sick.’’
134. The Commission observes that according to its Principles and Guidelines
on the Implementation of Economic, Social and Cultural Rights in the African
Charter on Human and Peoples’ Rights, the right to health includes the right to
control one’s health and body and the right to be free from interferences, such as
the right to be free from torture and other forms of ill-treatment.40
39 Communication 284/03 – ZLHR and Associated Newspapers of Zimbabwe v Zimbabwe (2009) ACHPR
40 See ECOSOC Guidelines paras 64 and 65. 135. The Commission notes, as established above, that the Complainants were
subjected to torture and other forms of ill-treatment while in NISS detention
which resulted to physical and psychological harm. The Commission considers
that this was an unjustified interference with the Complainants’ right to health.
136. With regards to the denial of medical care to Mr. Osman Hummeida, the
Commission recalls that States are under the obligation to respect the right to
health by, inter alia, refraining from denying or limiting equal access for all
persons, including detainees, to health services. The Commission recalls further
its decision in Media Rights Agenda and Constitutional Rights Project v
Nigeria, in which the Commission held that the State’s responsibility in the event
of detention is even more evident to the extent that detention centers are its
exclusive preserve, hence the physical integrity and welfare of detainees is the
responsibility of the competent public authorities. 41
137. The Complainants have submitted that even though Mr. Hummeida
suffered from high blood pressure, the medication given to him was not
adequate to guarantee his health. The Commission notes that the treatment still
left him in a situation which was both life threatening and jeopardized his health.
The Commission considers that the State in this circumstance violated his right to
health by failing to take the necessary measures to protect his health especially
given that he was in the custody of State authorities.
Alleged violation of Article 1
138. The Complainants have submitted that by failing to take measures to
protect them from the violations they suffered and to investigate the allegations
of torture as well as having an inadequate legal framework that does not
effectively guarantee some of the rights guaranteed under the Charter, the
Respondent State violated provisions of Article 1 of the Charter.
139. Article 1 of the Charter stipulates that …’’parties to the Charter shall
recognise the rights, duties and freedoms enshrined in the Charter and shall
adopt legislative or other measures to give effect to them’.
41 Communication 105/93 – 128/94 – 130/94 – 152/96 – Media Rights Agenda and Constitutional Rights
Project v Nigeria (1998) ACHPR, para 91140. The Commission recalls its decision in Sudan Human Rights
Organization and Centre on Housing Rights and Eviction v Sudan in which it
held that a violation of any provision of the Charter by a State Party
automatically engages its responsibility under Article 1.42
141. The Commission considers that if a State Party fails to respect, protect,
promote or fulfill any of the rights guaranteed in the Charter, this constitutes a
violation of Article 1 of the Charter. In the present Communication, the
Commission has reached the conclusion that the Respondent State violated
Articles 5, 6, 9, 10, 12, 15 and 16 of the Charter. As a consequence, the
Commission considers that the Respondent State failed in upholding its
obligation to take measures to give effect to the rights violated.
Decision of the African Commission on Merits
142. Based on the above, the African Commission on Human and Peoples’:
i. Finds that the Republic of The Sudan has violated the rights of Mr. Amir
Suliman in relation to Articles 1, 5, 6, 9, 10, 12 15 and 16; Mr. Monim Elgak in
respect of Articles 1, 5, 6, 9, 10, 12 and 16 and Mr. Osman Hummeida in
respect of Articles 1, 5, 6, 9, 10, 12(1) and 16of the African Charter on Human
and Peoples’ Right.
ii. Finds that the Republic of The Sudan is not in violation of Article 7 of the
Charter.
iii. Requests the Republic of The Sudan to:
a) Pay adequate compensation to the Complainants named in the present
Communication in accordance with the domestic law of The Sudan for the
rights violated;
b)
Investigate and prosecute all those persons who participated in the illegal incarceration
and torture of the Complainants; and
c) Reopen and unfreeze the bank accounts of KCHRED.
42 See Communication 279/03-296/05 - Sudan Human Rights Organisation and Centre on Housing Rights
and Evictions (COHRE) / Sudan (2010) ACHPR, para 227.iv. Inform the Commission, in accordance with Rule 112 (2) of the Commission’s
Rules of Procedure, within one hundred and eighty days of the notification of
the present decision, of the measures taken to implement the present
decision.
Done in Banjul, The Gambia at the 14thExtra Ordinary Session of the African
Commission on Human and Peoples’ Rights held from 07 to 12 March 2014.
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زهير عثمان حمد
فيس بوك
تويتر
انستقرام
يوتيوب
بنتيريست