INTERSSESSION ACTIVITY REPORT
THE COMMITTEE FOR THE PREVENTION OF TORTURE IN AFRICA
COMMISSIONER CATHERINE DUPE ATOKI
PRESENTED TO THE 52nd ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
09 – 22 OCTOBER 2012
YAMASOUKROU, COTE D’IVOIRE
This report is presented as part of the celebration of the 25th Anniversary of the African Commission on Human and Peoples’ Rights (the Commission). It is presented in accordance with Rule 23(3) of the Rules of Procedure of the Commission and takes into consideration the recommendations made by the Commission during its 12th Extra-Ordinary Session held in Algiers in July 2012.
The report outlines the progress made by the by the mechanism of the Committee for the Prevention of Torture in Africa, challenges faced, perspectives and recommendations.
Background to the establishment of the mechanism
The Prohibition of Torture in the African Charter
Torture constitutes a very serious violation of human rights and is strictly prohibited under international law. This prohibition is established in all core international/regional human rights and humanitarian law instruments as absolute and non derogable; which means that a State is not permitted to temporarily limit the prohibition against torture under any circumstance whatsoever, whether in a state of war, internal political instability or any other public emergency. The prohibition of torture is also recognized as a peremptory norm of international law, or jus cogens. Put simply, it overrides any inconsistent provision in another treaty or customary law.
Like other international and regional human rights instruments, the African Charter on Human and Peoples’ Rights (African Charter) establishes the absolute prohibition of torture in its Article 5 in the following words:
‘’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.’’
The imperative necessity to combat and prevent torture and other forms of ill-treatment
Despite of this absolute prohibition, it is a fact that no country is immune from practices that amount to torture or ill-treatment. What however varies from country to country is the intensity and scale of such practices and the response of the authorities. It is also a fact that torture is still a widespread and endemic problem in most parts of the African continent and that impunity for perpetrators is deeply entrenched. This state of affairs is influenced by the political and socio-economic situation in most parts of the continent, characterized by poverty, acute deficiencies in governance and the rule of law, corruption, discrimination, social exclusion, impunity, ignorance and a host of other factors. Added to these, the non-criminalization of torture in domestic legislation, inadequate independent monitoring of places of detention as well as the disregard of basic procedural safeguards for persons deprived of their liberty, have created conditions that enhance the practice of torture.
Therefore, it was imperative for the ACHPR to take the lead in addressing the issue of torture towards its effective prevention and prevention. Thus, in 2002 the Commission developed context-specific measures and guidelines to help State Parties better understand and implement the obligations arising from the Charter in respect of the prohibition and prevention of torture.
The Robben Island Guidelines
Alive to the reality of the practice of torture on the continent and the need for guidance to stakeholders on how to make its prohibition and prevention effective, the Commission in 2002, in collaboration with the Association for the Prevention of Torture (APT), took a significant step in addressing the problem of torture on the continent by drafting the Measures and Guidelines for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, commonly known as the Robben Island Guidelines or RIG.
The Guidelines were developed from a meeting organised by the African Commission in collaboration with the Association for the Prevention of Torture (APT) in February 2002 in Cape Town, South Africa. The venue was chosen for its symbolism for Africa as the place where President Nelson Mandela and other freedom fighters against the apartheid regime in South Africa were detained for years, and represents in the words of Ahmed Katharada, himself a former detainee on the island, ‘’the triumph of freedom and dignity over oppression and humiliation’'. These Guidelines were adopted by a resolution of the African Commission during the 32nd Ordinary Session in October 2002 and endorsed by the Assembly of Heads of State and Government in 2003, in Maputo, Mozambaique. It has to be understood that the RIG are a product of the collective endeavour of Africans whose main objective is to deal with the phenomena of torture on the continent in order that they can look to a future where every person is able to enjoy the right to be free from torture and other forms of ill-treatment.
The RIG have as objective, to help States Parties accomplish their national, regional and international obligations for the implementation of the effective prohibition and prevention of torture. They are therefore a tool at the disposal of states as well as other actors such as the African Commission, NHRI, NGOs, and NPMs, which enable these bodies to better hold the state to account on its obligations to implement the prohibition against torture.
The Committee for the prevention of torture in Africa
As is the case with other human rights instruments, the practical application of international principles and guidelines at the domestic level has been a perennial problem in Africa. Therefore, in order to ensure the effective implementation of the RIG, the Commission pursuant to its mandate under Article 45 of the African Charter, established in June 2004, the Follow-up Committee on the Implementation of the Robben Island Guidelines, as its Special Mechanism dedicated to promoting and facilitating the effective implementation of the RIG within State Parties. Due to the difficulties stakeholders had in associating the name of the above Committee with its torture prevention mandate, it was subsequently renamed the Committee for the Prevention of Torture in Africa (CPTA), in November 2009 by resolution ACHPR/Res158(XLVI).09, adopted at the 46th Ordinary Session of the African Commission.
- Mandate of the Committee
The mandate of the CPTA as set out in the African Commission Resolution ACHPR/Res.61(XXXII)02 on the Robben Island Guidelines is the following:
- To organise, with the support of interested partners, seminars to disseminate the Robben Island Guidelines to national and regional stakeholders;
- To develop and propose to the African Commission strategies to promote and implement the RIG within Member States;
- To promote and facilitate the implementation of the RIG within Member States and,
- To make a progress report to the African Commission at each of its Ordinary Sessions.
The CPTA is comprised of member(s) of the Commission, the Association for the Prevention of Torture and any prominent African experts as the Commission may appoint. Members of the Committee are appointed by a resolution of the Commission for a two years renewable term. The Committee currently has five members as follows:
Commissioner Dupe Atoki, Chairperson;
Commissioner Med Kaggwa, Member;
Mr. Jean-Baptiste Niyizurugero, Vice-Chairperson;
Ms. Hannah Forster, Member,
Mr. Malick Sow, Member.
1) Promotion of the Prohibition and prevention of Torture
Twenty five years ago, torture and other forms of ill-treatment were systematic and its use in extracting confessions and punishing criminals was not widely condemned. Even in rare situations of condemnation of the practice, States response was always denial and/defense of its agents. Today, some positive changes have been registered. Eight years after its establishment, the CPTA has registered some successes in the accomplishment of its mandate. Since the adoption of the RIG and the establishment of the CPTA, some progress has been registered in building momentum and mobilizing various forces on issues of torture prevention on the continent, such that issues of torture prevention are gradually gaining prominence and attention in many countries.
The CPTA has achieved this through the organization of seminars/workshops/conferences and consultations; engaging in promotion missions as well as production of practical tools and publications. These activities are all geared towards encouraging States to generate the political will and capacity to prevent and prohibit torture; put in place and enforce legal frameworks on the prohibition of torture and to ensure that grassroots organizations have the expertise and training to carry out prevention work. The following achievements have so far been registered:
- The Robben Island Guidelines have been published and disseminated in all four AU languages (English, French, Arabic, and Portuguese). A practical guide on the implementation of the RIG has also been published. The CPTA also publishes a biannual newsletter, ‘the Africa Torture Watch’, to sensitize the public about thits work and clarify provisions of the RIG. Four editions of which have so far been published.
- The CPTA has organized various seminars for law enforcement officials and other concerned relevant stakeholders in Nigeria (2008), Liberia (2009), Benin (2009) and Cameroun (2012). It has also organized a regional conference on the OPCAT in Dakar (2010), a Seminar on the effective functioning of Senegalese National Preventive Mechanism (2011), and more recently, a Commemorative Seminar on the 10th Anniversary of the Adoption of the Robben Island Guidelines in South Africa (August 2012);
- The Committee has engaged in a constructive dialogue with authorities of State Parties and other relevant stakeholders during its promotion missions to Uganda (2009), Benin (2009) and Mauritania (2012);
- The Committee has developed a three years strategic plan to guide its work and improve its performance and visibility in the discharge of its mandate. It had also elaborated and adopted its internal rules. It holds regular meetings since 2010 and has established a working relationship with other international bodies such as the UN Special Rapporteur on Torture, the Subcommittee for the Prevention of Torture as well as NGOs and National Human Rights Institutions;
- The Committee has been active in engaging States Parties on the issues of torture prevention during the presentation of their Periodic Reports to the Commission. In that regard, the thematic of torture has featured prominently in all recent Periodic Reports examined by the Commission, notably those of Cameroon, Namibia, Uganda, DRC, Togo, Burundi, Nigeria, Libya, Angola etc.
- As a means of encouraging state to prioritize the criminalization of torture in national legislation and the ratification of OPCAT, the CPTA runs a data base on the website of the Commission which provides information on African States that have ratified CAT and OPCAT and those that have criminalized torture along with the applicable penalties. Thus, so far a small number of African States including Algeria, Burundi, Cameroon, the DRC, Egypt, Mauritius, Madagascar Tunisia, and recently, Uganda, have adopted legislations criminalizing torture. Others, such as Benin, Burkina Faso, Kenya, Liberia Nigeria, Namibia, Togo and South Africa, have bills on the criminalization of torture pending before their legislatures.
- Before the establishment of the Commission, only six African States were parties to the Convention against Torture. Today, there are 43 States that have ratified the instrument and the Commission played an important role in advocating for this. The CPTA also actively encouraged African States to support the adoption of the OPCAT and has since its adoption by the UN General Assembly, been at the forefront of regional efforts to have African States ratify and implement the instrument.
- Eleven African countries have so far ratified the instrument namely: Benin, Burkina Faso, DRC, Gabon, Liberia, Mali, Mauritius, Nigeria, Togo, Tunisia, and Senegal. Amongst these, only four, including Mauritius, Nigeria, Mali and Senegal, have set up National Preventive Mechanisms as provided for under the protocol. Ten others, Cameroon, Republic of Congo, Ghana, Guinea, Madagascar, Mauritania, Sierra Leone, South Africa, Tchad and Zambia have also signed the protocol.
2) Protection activities
The Commission main grants relief to victims of torture through its individual Communications procedure under Article 55 of the Charter and the urgent appeals procedure. In its 25 years of existence, sixty seven (67) Communications alleging violation of the right to be free from torture and other forms of ill-treatment have been submitted to the Commission. Of these the Commission has found violations in 27 cases and made recommendations to the concerned States ranging from the rehabilitation and payment of compensation to the victim, the need to bring perpetrators to account, put in place procedural safeguards for people deprived of their liberty as well as other legislative measures.
The Commission as also issued numerous urgent appeals to Governments on behalf of persons who allege being at risk of torture.
The CPTA has encountered a lot of challenges that have impeded the accomplishment of its mandate. The very nature of the environment in which the mechanism operates, i.e., an environment characterized by acute deficiencies in governance, poverty and inequalities etc., are a major impediment to any effective torture prevention work. The CPTA has specifically faced the following challenges since its establishment:
a) Lack of political will to prevent torture on the part of State Parties to combat torture has significantly affected the work of the CPTA. Effective torture prevention requires a strong commitment from the State to adhere to its international obligations and collaborate with international mechanisms in that respect. However, many African countries have been remiss in fulfilling their obligations to prohibit and prevent torture. This explains why only a small number of African States have adopted legislation criminalizing torture even though they have ratified the CAT. Few countries have also ratified the OPCAT and even fewer have authorized promotion missions by the CPTA. The non-implementation of the decisions of the Commission in general and on issues of torture in particular could also be attributed to the lack of political will by African States to combat torture.
b) Lack of financial and human resources has also considerably affected the work of the CPTA. The CPTA is largely staffed and funded the Commission by the Commission which is itself under-staffed and under-resourced. There is no specific budget allocated to the mechanism and partner funding is very inadequate.
c) The part-time nature of the work of CPTA members also affects the smooth functioning of the mechanism since they are not entirely devoted to its work.
For the future, the CPTA envisages moving its focus from promotion to analysis of substantive issues and concepts in order to provide advice and technical support to national actors as well as authoritative guidance/views on the implementation of RIG provisions. It will also strive to improve its operational efficiency and strengthen its interaction/cooperation with the UN Subcommittee on the Prevention of Torture, the UN Special Rapporteur on Torture, National Human Rights Institutions relevant NGOs
a) To State Parties:
- Ensure that torture is criminalized in the national legal framework in conformity with the Convention against Torture and the Robben Island Guidelines. States Parties must go beyond the simple prohibition of torture in their constitutions and adopt specific legislation criminalizing torture that provides for adequate sanctions and a framework where victims of torture can be compensated and rehabilitated;
- For States Parties that have bills criminalizing torture pending before their gislatures, to speed up the process of adoption and enactment of this bills in to law;
- For states parties that have not yet done so, to ratify as soon as is practicable, the Optional Protocol to the UN Convention Against Torture and ensure its effective implementation, notably by setting up effective National Preventive Mechanisms (NPM) with all the requisite guarantees to undertake regular unannounced visits to places of deprivation of liberty.
- To ensure that adequate training on human rights standards and specifically on the Robben Island
- Guidelines is provided to all services responsible for dealing with persons deprived of their liberty, notably, judges and magistrates, the police, correctional services personnel, immigration officials, defense forces etc.;
- To take all necessary measures to ensure that allegations of torture are thoroughly investigated and that all perpetrators are subject to the legal process in order to curb impunity. Measures should also be put in place to ensure that victims of torture and other forms of ill-treatment are adequately compensated and rehabilitated.
b) To NHRIs and civil society organizations:
- To accompany the efforts of the CPTA in sensitizing the general public on the absolute and irrevocable nature of the prohibition against torture and help in disseminating the Robben Island Guidelines to various relevant actors in their respective areas of operation;
- Promote the criminalization of torture in national legislation and advocate for the ratification and effective implementation of the OPCAT and accompany the implementation of the CPTA strategic plan.