Report On Technical Meeting On Drafting A General Comment On The Right To Redress For Victims Of Torture And Ill-Treatment Under Article 5 Of The African Charter.

REPORT ON TECHNICAL MEETING ON DRAFTING A GENERAL COMMENT ON THE RIGHT TO REDRESS FOR VICTIMS OF TORTURE AND ILL-TREATMENT UNDER ARTICLE 5 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

Organised by the Committee for the Prevention of Torture in Africa

In collaboration with The Redress Trust, the Centre for the Study of Violence and Reconciliation, and the Kenya Human Rights Commission

6 to 7 July 2015

Miklin Hotel

Accra, Ghana

1. Introduction

From 6 to 7 July 2015, the Committee for the Prevention of Torture in Africa (‘the CPTA’ or ‘the Committee’) of the African Commission on Human and Peoples’ Rights (the African Commission), in collaboration with the Redress Trust (REDRESS), the Centre for the Study of Violence and Reconciliation (CSVR), and the Kenya Human Rights Commission (KHRC) convened a Technical Meeting on the Drafting of a General Comment on the Right to Redress for Victims of Torture and Ill-Treatment under the African Charter on Human and Peoples’ Rights in Accra, Ghana.

The objective of the Meeting was to bring together key experts to initiate the process for developing a General Comment, identify some of the major issues the General Comment could take into account and map out future steps in the drafting of the General Comment.

Participants at the Meeting included national, regional and international experts on torture prevention and prohibition, particularly in the area of victims’ right to redress; representatives of the Commission of Human Rights and Administrative Justice of Ghana; academics; medical and legal practitioners; and civil society organisations working with victims of torture in the continent. CPTA members who participated in the Meeting were Honourable Commissioner Lawrence M. Mute (Chairperson), Honourable Commissioner Lucy Asuagbor, Honourable Commissioner Med. S. K. Kaggwa, Mme Hannah Forster, and Mr Malick Sow.

Through plenary presentations, discussions and group work, participants explored the normative framework of the right to redress; the status quo regarding victims’ access to redress on the continent; and good practices as well as challenges and gaps at the national, regional and international levels that the General Comment could usefully address.

This report outlines the major points identified during the Meeting. It seeks to inform all stakeholders about the progress made and the way forward in drafting the General Comment. CPTA encourages all stakeholders to actively engage with it in the development of the General Comment.[1]

1. Rationale for Developing a General Comment on the Right to Redress for Victims of Torture and Ill-Treatment under the African Charter

Strategic objective 4 of CPTA’s Operational Work Plan tasks the Committee to provide technical tools and make recommendations to State Parties and other relevant actors on the effective prohibition and prevention of torture as well as on responding to the needs of victims. One of the means identified by CPTA to realise this is the preparation of a general comment(s) on Article 5 of the African Charter. It is expected that such (a) general comment(s) will provide tools for the interpretation and development of different aspects of Article 5 and guide States to adequately implement their obligations under Article 5 of the Charter.[2]  

Reflecting on existing gaps that require interpretation, the CPTA decided to start by developing a General Comment on victims’ right to redress for torture and ill-treatment under the African Charter, in order to assist State Parties and other stakeholders meet their obligations in that regard.

The CPTA considers that the right to redress requires further clarification. The Continent’s principal instruments on torture and ill-treatment, including the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (‘the Robben Island Guidelines’ or ‘RIGs)[3], neither  comprehensively set out nor adequately explain implementation of the right to adequate reparation. The Robben Island Guidelines for example only provide for compensation and rehabilitation, but fail to include the right to restitution, satisfaction and guarantees of non-repetition. Furthermore, the relevant provisions in part III of the Robben Island Guidelines lack sufficient specificity and clarity to be made operational, yet experience demonstrates that States struggle to meet their obligations to provide redress to victims.

As was clearly illustrated during the Meeting, while victims’ right to redress is firmly enshrined within a range of regional and international instruments, significant challenges exist that currently prevent victims from realising their rights, in addition to a lack of clarity, context and extensiveness of the right to redress specifically in the African context. For instance, the UN Committee against Torture’s General Comment No. 3, while comprehensively setting out the right to redress for victims of torture and ill-treatment, does not speak to specific regional contexts and challenges. These include the operationalization of the right to redress in the contexts of (post-) conflict and processes of transition, of the right to rehabilitation in light of scarce resources, redress for gender-based violence amounting to torture or ill-treatment as well as the linkages between the right to redress and torture or ill-treatment committed by non-state actors.  Accordingly, there is a need for an instrument addressing these gaps and reflecting the national and regional challenges to the comprehensive implementation of the right to redress for victims of torture and ill-treatment in Africa without undermining international standards.

Such an instrument would:

1. Emphasise the importance of adequate redress for victims and what this entails in practice;
2. Strengthen the existing provisions of the RIGs by setting out victims’ right to other forms of reparation under international law and by offering concrete, practical suggestions to State Parties on how to overcome the obstacles currently preventing victims from obtaining redress;
3. Provide further guidance to State Parties in implementing the African Commission’s decisions in cases where it found a violation of Article 5 and recommended States to provide adequate redress to victims;
4. Assist those working with victims and other actors in understanding the actions expected of them at the domestic level. A General Comment would provide further guidance on the scope and content of the right to redress for victims of torture beyond compensation and rehabilitation in line with developments under international law and practice. Such guidance could then also reflect victims’ needs and experiences on the continent.
5. Key Principles to be Followed in Drafting the General Comment

The following key principles were identified during the Meeting and would be observed by CPTA in moving forward with the drafting:

1. The General Comment will build on international and regional instruments and standards and take into account in particular General Comment No. 3 of the UN Committee against Torture on the implementation of Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 
2. The General Comment should complement the Robben Island Guidelines.
3. A broad range of stakeholders will be included in the drafting process, beyond participants of the Technical Meeting, particularly States and those working at the grass-root/community level.
4. The drafting of the General Comment should follow a holistic approach and include practitioners working in different disciplines for maximum output and aim at developing a General Comment that is victim-centred and non-discriminatory. It will reflect a balanced approach that is cognizant of all aspects of the right to redress, including the right to an effective remedy (including a right to prosecution) and an independent right to comprehensive reparation (including the State obligation to provide compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition). Further consultation may identify additional forms of reparation to be provided to ensure that victims also obtain restorative justice.
5. The General Comment should be drafted bearing in mind African realities, including the challenges and opportunities the continent presents. The General Comment needs to address the African context, grappling with the legacies of colonialism, apartheid and oppression with violence and violations of an individual and collective nature.
6. Challenges/Gaps: the State of Redress for Victims of Torture in Africa

Participants from Kenya, Senegal, South Africa, Swaziland, Uganda and Zimbabwe provided an overview of the right to redress in law and practice in their respective countries. The major cross-cutting challenges and gaps identified included:

1. Absence of (comprehensive) anti-torture legislation frequently prevents victims of torture and ill-treatment from accessing redress. Victims of torture are unable to seek redress specifically for torture if it is not criminalised in domestic law
2. Widespread impunity for perpetrators of torture, even where anti-torture legislation is in place, frustrates victims’ right to redress. Such impunity is often fostered by amnesties, statutes of limitation and/ or immunities. Other obstacles to an effective prosecution are due to executive interference and control of prosecutions, as are absence of protection mechanisms for victims and witnesses, who frequently fear coming forward to complain and/ or testify.
3. Lengthy and frequently expensive proceedings often discourage victims from seeking adequate redress for violations.
4. Where victims are awarded compensation, implementation of the decision is rare. Even in cases where awards are enforced, victims experience significant challenges and delays as no procedures are in place, enforcement is at the discretion of judges and/ or perpetrators and the State is unwilling to pay.
5. Civil suits are time consuming and expensive, and frequently subject to statutes of limitation, preventing many victims from obtaining some form of redress.
6. Awards for reparation are mainly limited to financial compensation, and despite a need for psycho-social support, victims’ right to rehabilitation is usually ignored. The right to rehabilitation is frequently implemented by non-state actors, rather than the State itself. As a result, capacity to provide victims with adequate rehabilitation is a huge challenge.
7. Absence of protection mechanisms for victims, as well as for legal and health care providers despite threats of reprisals for assisting victims of torture.
8. Certain legislation provide for corporal punishment that could amount to torture or ill-treatment. Lately, legislation on terrorism frequently facilitates violations and prevents victims from obtaining reparation at the national level.
9. Access to redress in practice is frequently frustrated due to an absence of complaint mechanisms, absence of outreach programmes to victims in rural areas and failure to include marginalised victims.
10. Overview of main issues the General Comment should address

On the basis of the gaps and challenges identified in the existing normative framework as well as the law and practice in a variety of countries, participants identified key aspects for further discussion in small groups and plenary discussions:

1. Legislative frameworks: Group I considered how a legal framework that meets the realities victims find themselves in could be put in place. Accordingly, the General Comment should include a section setting out the need for a legislative framework in particular in relation to:
   1. An express right to redress for torture and ill-treatment including an effective remedy/reparation;
   2. A comprehensive definition of ‘victim’ based on international and regional standards with a particular focus on vulnerable groups and those subjected to penal punishments amounting to ill-treatment and the fight against terrorism;
   3. need for a specific anti-torture legislative framework taking account of amnesties and / or immunities, statues of limitations;
   4. Need for vicarious liability of the State allowing courts to adjudicate on unlawful behaviour of State officials;
   5. Refer to the rights of refugees in obtaining redress in their host countries; and
   6. Consider the immunity of UN and AU peacekeeping missions from prosecution and civil action in the context of enabling victims to obtain redress.
2. Government responses/interventions: Group II considered government responses and interventions to provide redress, including the need for holistic responses, the establishment of responsive reparation programmes and the strengthening of existing structures to provide redress. Issues identified include:

a.     ensuring holistic access of redress to victims, including for the most vulnerable (socially, economically or otherwise disadvantaged) and incorporating a gender perspective in the General Comment as well to ensure adequate redress to women and girls;

b.     right to redress for acts committed by non-state actors emphasising relevant due-diligence obligations of States;

c.     right to redress in the context of mass violations specifically in relation to redress individually and / or collectively;

d.     consider linkages between wounded leaders and wounded societies and emphasize rehabilitation and healing on the continent and give it equal prominence with political and social transformation;

e.     the role of oversight and control mechanisms in facilitating access to redress and adequate documentation of violations;

f.      States to put in place victim and witness protection mechanisms, legislative and institutional safeguards to encourage victims/witnesses to come forward;

g.     need for ‘transformative remedies’ to ensure that structural and systemic causes of violations are addressed and remedies contribute to prevention of future violations; and

h.     distinction to be made between remedies and services States are obliged to provide irrespective of violations.     

1. Judicial proceedings and other platforms to obtain redress: Group III examined the role of judicial proceedings in affording victims with an access to redress, components of a “victim-friendly” judicial proceeding and possible alternatives to formal court proceedings. Issues identified include:

a.     the General Comment to address current challenges including costs, delays, access, independence, absence of relevant legislative frameworks and mechanisms, enforcement;

b.     examine alternatives to judicial processes, such as within health centres and education facilities for immediate response to victims’ needs;

c.     explore traditional and administrative mechanisms provided they comply with constitutional values and due process rights;

d.     include a component on the right to prosecution of perpetrators of torture and ill-treatment;

e.     emphasise that victims of torture and ill-treatment are entitled to redress regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted;

f.      set out the burden and standard of proof for victims seeking to enforce their right to redress in court, given significant challenges for victims to access/ obtain relevant evidence;

g.     emphasise the need for relevant legislation ensuring that civil liability should be available independently of the criminal proceedings; and

h.     need for competent State authorities including courts to recognise the full scope of the right to reparation, which frequently is limited to compensation.

1. Implementation of the General Comment: Group IV discussed the need for the General Comment to address the issue of implementation, considering the relevance of treaty reporting and monitoring State Party compliance with obligations and whether the General Comment could provide indicators for reporting specifically with regard to the right to redress. Issues identified include:

a.     stress the obligation of States to report on implementation, and highlight the important role of the CPTA and other relevant regional and national human rights bodies;

b.     include a reference to ‘political accountability’ in light of the absence of political willingness to implement international and regional instruments;

c.     be drafted in such a way that it is very clear on what is to be achieved and this could be usefully complemented by a list of indicators for the implementation of the General Comment to be used by CPTA and national human rights institutions; and

d.     flag specific opportunities for implementation and stress the importance of collaboration between regional and international actors, including the CPTA and the UN Committee against Torture.

There was consensus among participants that the issues identified by / in the small groups do not constitute an exhaustive list of issues. Rather, during the consultation process with a broader range of stakeholders, additional aspects/ issues will emerge for inclusion in the General Comment. Further, while it is clear that the right to redress is firmly enshrined in international and regional instruments there is need to do a comprehensive literature review and to develop a comprehensive bibliography to have an entire ambit of these instruments and their bearing on the issues the General Comment should address, without unnecessarily duplicating existing instruments. Last, the CPTA will consider whether the General Comment will address the right to redress for victims of torture and ill-treatment specifically under Article 5 of the Charter, or also draw on other articles of the Charter.

1. Additional Points Arising from the Plenary Discussions
2. There is need for synergy amongst professionals working in different disciplines for maximum output, i.e. a holistic approach to ensure effective redress.
3. Oversight mechanisms, such as National Human Rights Institutions could play an instrumental role in ensuring redress for victims. It would therefore be important to emphasise their role and strengthen these bodies.
4. Need to take account of the implications of delayed justice.
5. Essentially the right to prosecution of perpetrators of torture has to exist whether or not the State is inclined to pursue prosecution. The option of private prosecution should be availed and sufficiently facilitated by State when utilized by a victim (legal aid, availing the necessary information and evidence, cooperation from law enforcement agencies).
6. The aspect of personal responsibility/liability is an essential tool of corrective behaviour/ non-repetition. However, evidence obtained either primarily or secondarily through torture as the pathway to ending the vice/non-repetition must be excluded.
7. Reporting and monitoring state's compliance with obligations under the United Nations Convention against Torture and the African Charter are important. Non-state actors, particularly civil society organisations have been found to be effective in putting pressure/advocating for the adoption of legislation criminalising torture. These bodies therefore also have a big role to play, especially in terms of putting pressure on States to ensure redress for victims of torture.  
8. A long-term solution for ensuring effective redress for victims especially in terms of prosecution of perpetrators is forensic training programmes or university courses on forensics.
9. Conclusion and way forward

The discussions throughout the Technical Meeting confirmed that a General Comment on the right to redress for victims of torture and ill-treatment under the African Charter is necessary and has great potential to contribute to realising victims’ access to redress on the continent. The need to have the victim in the forefront was reiterated throughout the Meeting and will guide the CPTA in drafting the General Comment.

The CPTA is currently engaged in developing a zero draft of the General Comment, which upon conclusion will be shared with all relevant actors before the end of 2015 for further comments and additional input. In addition, the CPTA will hold further stakeholder meetings to discuss more advanced versions of the General Comment. The upcoming 57^th and 58^th Ordinary Sessions of the African Commission will be opportunities for the CPTA to present on progress made and directly engage with relevant stakeholders.