77th ORDINARY PUBLIC SESSION
OF THE
AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS
20 October - 9 November 2023
Intersession report
Committee for the Prevention of Torture in Africa
Honourable Commissioner Hatem ESSAIEM
Chairman of the Committee
INTRODUCTION
1.This report is submitted in accordance with Rules 25 (3) and 64 of the Rules of Procedure (2020) of the African Commission on Human and Peoples' Rights (the Commission) which require each subsidiary mechanism and each member of the Commission to submit, at each Ordinary Session of the Commission, a written report on the activities undertaken between two Ordinary Sessions.
2.This report on the situation of torture and other ill-treatment in Africa is prepared in accordance with the terms of reference of the Committee for the Prevention of Torture in Africa (the Committee or CPTA) which mandates the Committee to monitor the implementation of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island Guidelines). The Robben Island Guidelines provide concrete guidance to State and non-State actors on how to implement Article 5 of the African Charter on Human and Peoples' Rights (the African Charter) which states that: "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"[ Article 5 of the African Commission on Human and Peoples' Rights' <https://www.achpr.org/legalinstruments/detail?id=49>.] .
3.I therefore submit this report in my capacity as Chairman of the Committee, member of the Commission and Country Rapporteur for the Republic of Djibouti, the Republic of Guinea, the Republic of Mauritius, the Republic of Madagascar and the Republic of Sudan.
4.This Report is presented on the occasion of the 77th Ordinary Session of the Commission. It summarises the intersession activities carried out under the various mandates entrusted to me. This Intersession Report covers the period between the end of the 75th and the 77th Ordinary Session of the Commission, i.e. the period from 24 May 2023 to 19 October 2023.
5.During the period covered by this report, I took part in all the activities scheduled in the Commission's Work Plan.
6.With the lifting of travel restrictions by the African Union and in collaboration with our partners, we were able to organise and participate in face-to-face activities. Other activities were conducted via webinars.
7.The detailed account of these activities is provided in this report, which is divided into four parts: this introduction, the activities carried out during the intersession period, the report on the situation of torture and other ill-treatment in Africa and the recommendations.
I.INTERSESSION ACTIVITIES
8.During the intersession period, I took part in the following activities in my capacity as Chairman and/or member of the subsidiary mechanism (A) and as a member of the Commission (B).
A.ACTIVITIES CARRIED OUT UNDER SPECIAL MECHANISMS
1.CHAIRMAN OF THE COMMITTEE FOR THE PREVENTION OF TORTURE IN AFRICA
General public debate on the draft General Comment on Article 4 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)
9.I took part in the webinar organised on 8 June 2023 by the Subcommittee on the Prevention of Torture (SPT) on the draft general comment on Article 4 of the Optional Protocol to the Convention on Torture. The participants emphasised the importance of adopting this comment, which will encourage the States parties to the UNCAT to facilitate visits to places of detention. For my part, I assured the SPT that the ACHPR and the CPTA would continue to support it in this endeavour.
Webinar to disseminate the Abidjan rules to Arabic-speaking African countries
10.On 14 June 2023, the Committee for the Prevention of Torture in Africa organised a virtual meeting to propagate the Abidjan Rules in Arabic-speaking African countries. The meeting was attended by 16 participants from the various States parties to the Charter, as well as CPTA members and experts from the drafting committee. It should be pointed out that this meeting was supposed to take place in-person, but the cessation of funding from our partner made it necessary to hold it virtually.
Participation in the African Conference on the practices of National Mechanisms for the Prevention of Torture (NPMs) in Africa
11.At the invitation of the Moroccan Human Rights Council, I took part, along with the Chairperson of our Commission, in the African Conference on the Practices of National Mechanisms for the Prevention of Torture in Africa, held in Marrakech on 23 and 24 June 2023. The meeting was attended by representatives of numerous torture prevention bodies from the continent's five sub-regions, who shared their experiences and highlighted the practices in use in their respective countries. It gave me the opportunity to present the Abidjan Rules and to spotlight our Commission's fight against torture. At the end of the meeting, the participants launched an initiative to set up a network of African bodies to combat torture.
PROTECTION ACTIVITIES
12.As part of the implementation of the protection mandate entrusted to me as Chairman of the Committee for the Prevention of Torture, as a member of the Commission and in my capacity as Country Rapporteur, I took the following actions:
-Statement on the occasion of the International Day in Support of Victims of Torture
Study on the impact of the application of laws on migrants
13.The group responsible for examining the draft study on "the impact of the application of the law on human rights of asylum seekers, refugees and migrants in Africa" held a virtual meeting on 7 August 2023, in the presence of the Vice-Chairperson and Commissioner Maria Teresa Manuela and the expert members of the group. On this occasion, I stressed the importance of this study and pointed out the absence of a role for the governments of the countries of origin and the international community in the development of migrants' countries of origin. We also drew attention to errors in the section on North Africa, and called for the deletion of the unacceptable adjectives used to describe certain governments. The version released in mid-September does not reflect the reality of migration to the north of our continent.
Meeting with the Association for the Prevention of Torture (APT) and African Policing Civilian Oversight (APCOF)
14.At the suggestion of the APT, I had a virtual meeting on 25 August 2023 with Ms Barbara Bernath, Chairperson of the APT, accompanied by Mr Juvenal Babona and representatives of APCOF to discuss our cooperation and future activities.
15.Following a review of the activities carried out in 2022 and during the first half of this year, we agreed to organise a parallel meeting alongside the 77th session devoted to the dissemination of the Mendez principles. We have also set the dates of 24 and 25 March 2023 for a meeting in South Africa on the Mendez principles and the Abidjan rules. CPTA has already written to SADC to this effect.
Webinar to disseminate the Abidjan rules to French- and Portuguese-speaking countries in Africa
16.The CPTA's work programme included a webinar to disseminate the Abidjan rules to French- and Portuguese-speaking countries. The documents were almost ready and the experts were well versed in this exercise. However, due to the final departure or leave of absence of the lawyers in charge of the CPTA, we were unable to organize this activity on the agreed date. It will be rescheduled to a later date before the end of the year.
2.CHAIRMAN OF THE ADVISORY COMMITTEE ON BUDGET AND PERSONNEL MATTERS
17.The report on the activities of this Committee will be presented at the Private Session.
3.ACTIVITIES CARRIED OUT AS COUNTRY RAPPORTEUR
i.REPUBLIC OF SUDAN
First Meeting on Sudan
18.In my capacity as Country Rapporteur for the Republic of Sudan under Resolution ACHPR/Res.540 (LXXIII) 2022, I held a virtual meeting on 16 June 2023 with the Representative of the Office of the High Commissioner for Human Rights in Sudan, Mr Radhouane Nouicer, and representatives of Sudanese civil and humanitarian organisations. The meeting gave us an insight into the suffering of the civilian population and the diplomatic blockages in the situation. At the end of the meeting, it was recommended that a joint OHCHR/APHRC fact-finding mission to Sudan should be undertaken as soon as security conditions are conducive.
Second Meeting on Sudan
19.In view of the deteriorating human rights situation in Sudan since the outbreak of the conflict on 15 April 2023, and in consultation with the FIDH, we agreed to hold a virtual meeting to find out more about the lives of the Sudanese people. The Vice-Chairperson of the Commission, two representatives of the FIDH and ten Sudanese civil society organisations took part in the meeting. The representatives of the Sudanese organisations told us about the violence suffered by civilians, the rapes, the looting of their property and the lack of medicines. They stressed that the situation in Darfur was catastrophic and akin to genocide. They specifically pointed out the role played by the rapid reaction forces in this region, where the Massalit ethnic group is particularly targeted by these forces and their Arab tribal affiliates.
Third meeting on Sudan
20.Mr Radhouane Nouicer, Representative of the Office of the High Commissioner for Human Rights in Sudan, kindly agreed to hold a virtual meeting on Saturday 26 August 2023 to share with us his assessment of the human rights situation in Sudan, which has been in the throes of civil war for four and a half months.
21.Mr Nouicer and the participants took stock of the situation and highlighted the suffering of the civilian population in both Khartoum and Darfur and the continuing increase in the number of civilian victims and displaced persons. The OHCHR representative underlined the diplomatic obstacles preventing the UN from taking effective decisions. The participants concluded that only a large and efficient international force could put an end to this fratricidal conflict.
Resolution on the situation in Sudan
22.In my capacity as Country Rapporteur for the Republic of Sudan, I proposed the adoption of the resolution on the human rights situation in the Republic of Sudan. - ADHP/Res.555 (LXXV) 2023 which was adopted by the Commission at its 75th virtual ordinary session in June 2023. Among other things, this resolution condemns the ongoing conflicts in Sudan, urging the parties to respect the commitments they have signed and to promote peaceful resolutions. It calls on the Sudanese authorities to restore peace, protect civilians, investigate human rights violations and provide adequate reparations to victims.
B.ACTIVITIES CARRIED OUT AS A MEMBER OF THE COMMISSION
Workshop on state reporting
23.The Centre for Human Rights at the University of Pretoria and the Tunisian NGO Kadirat organised a workshop in Tunis from 15 to 17 June 2023 on State reporting under the African Charter and the Maputo Protocol. The workshop was attended by MPs, judges, lawyers, students and civil servants responsible for drafting State reports on the application of international instruments. Professor Hajer Gueldich, President of the African Commission on International Law, and I facilitated the workshop, which enabled participants to familiarize themselves with African instruments and prepare a draft report under the Maputo Protocol.
Webinar on the use of force by law enforcement officers
24.Commissioner Maria Teresa Manuela convened a virtual meeting on 11 July 2023 to validate the study on the use of force by law enforcement officials in Africa. Following the presentation of the latest version of the study by the expert in charge of managing the project, the participants made their final comments and recommended that the study be adopted.
Participation in the 76th Ordinary Session
25.Like all my fellow Commissioners, I took part from 19 July to 02 August 2023 in the proceedings of the 76th Ordinary Private Session of the Commission, held virtually. The final communiqué issued at the end of the session highlighted the results.
II.REPORT ON THE SITUATION OF TORTURE AND OTHER ILL-TREATMENT IN AFRICA
26.“Torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, intimidating or coercing him or her or a third person, or for any other reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity".[ Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), <https://www.ohchr.org/en/professionalinterest/pages/cat.aspx>.]
27.The Committee promotes the implementation of the Robben Island Guidelines and other important instruments for the prevention and prohibition of torture and other ill-treatment, in particular the United Nations Convention against Torture (UNCAT) and the Optional Protocol to the UNCAT (OPCAT). It is also working to establish effective National Preventive Mechanisms (NPMs) in African States, in accordance with the OPCAT.
A.Positive developments
1.UNCAT
28.The UNCAT primarily calls on States to criminalise torture. To date, the following fifty-two (52) African States have ratified the UNCAT: Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cabo Verde, Cameroon, Comoros, Congo, Côte d'Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Equatorial Guinea, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, South Africa, Mali, Morocco, Mauritius, Mauritania, Mozambique, Namibia, Niger, Nigeria, Uganda, Central African Republic, Democratic Republic of Congo, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, Sudan, South Sudan, Swaziland, Chad, Togo, Tunisia and Zambia[ OHCHR, Status of Ratification Interactive Dashboard: Convention Against Torture and Other, Cruel, Inhuman, or Degrading Treatment or Punishment, <https://indicators.ohchr.org/> last accessed 31 March 2023.].
29.Only two (2) African States have not yet ratified the UNCAT: the United Republic of Tanzania and Zimbabwe[ Ibid.].
30.In April-May 2023, the United Nations Committee against Torture examined Ethiopia's periodic report.
2.OPCAT
31.The OPCAT is designed to help States fulfil their existing obligations to prevent torture and other forms of ill-treatment by creating a system of regular visits to places where people are or may be deprived of their liberty.
32.To date, the following twenty-four (24) African States have ratified the OPCAT: Benin, Burkina Faso, Burundi, Cabo Verde, Central African Republic, Côte d'Ivoire (March 2023), Democratic Republic of Congo, Gabon, Ghana, Liberia, Madagascar, Mali, Mauritania, Mauritius, Morocco, Mozambique, Niger, Nigeria, Rwanda, Senegal, South Africa, South Sudan, Togo and Tunisia[ OHCHR, Status of Ratification Interactive Dashboard: Convention Against Torture and Other, Cruel, Inhuman, or Degrading Treatment or Punishment, <https://indicators.ohchr.org/> last accessed 31 March 2023.] .
33.Eight (8) other African States are signatories to the OPCAT: Angola, Cameroon, Chad, Congo, Guinea, Guinea-Bissau, Sierra Leone and Zambia[ ibid.] .
34.The UN Subcommittee on the Prevention of Torture visited Madagascar between 16 and 27 April 2023 and is due to visit Gabon in the first half of 2024[ https://www.ohchr.org/en/press-releases/2023/07/un-torture-prevention-b… (last accessed 21 September 2023).] .
3.OTHER POSITIVE DEVELOPMENTS
35.In June 2023, the United Nations Human Rights Committee, when examining Ethiopia's periodic report, welcomed the adoption of various laws in recent years, as well as the adoption of a national strategy to prevent crimes of trafficking in persons and a policy to prevent and combat child abuse, exploitation and trafficking, among others[ Committee Against Torture, Final comments on the second periodic report of Ethiopia, CAT/C/ETH/CO/2, 7 June 2023] .
36.FIACAT reported in June 2023 that the Senate of Côte d'Ivoire had voted in favour of a bill on the abolition of the death penalty which authorised the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights.
37.In July 2023, the Ghanaian parliament voted to abolish the death penalty in their legislation[ Amnesty International, Ghana: Landmark vote to remove death penalty from laws is a major step forward, 25 July 2023, https://www.amnesty.org/en/latest/news/2023/07/ghana-landmark-vote-to-r… (last accessed 21 September 2023).] .
B.Negative developments in the prohibition of the prevention of torture and other cruel, inhuman or degrading treatment or punishment in Africa
1.COMMITTEE AGAINST TORTURE
38.In June 2023, the UN Committee against Torture adopted final comments on Ethiopia's second periodic report[ Committee Against Torture, Final comments on the second periodic report of Ethiopia, CAT/C/ETH/CO/2, 7 June 2023.] . It expressed concern that the way in which torture is criminalised does not correspond to the definition in Article 1 of the UN Convention against Torture, nor does it clearly state the absolute nature of torture or impose penalties that reflect the seriousness of the crime. It also found that gender-based violence was widespread, citing in particular the lack of a comprehensive law, the low number of prosecutions and convictions, and the inadequate reparations for victims.
39.In June 2023, the UN Committee against Torture adopted the list of issues for Burundi's third periodic report[ Committee Against Torture, List of Issues relating to the third periodic report of Burundi, CAT/C/BDI/Q/3, 5 June 2023.] . It took note of its final comments on the second periodic report and requested that follow-up information be provided, although the State has not done so.
2.COMPLIANCE WITH OPCAT
40.In accordance with Article 17 of the OPCAT, States Parties must establish, designate or maintain a "National Preventive Mechanism" within one year of ratification or accession to the treaty.
41.The UN Subcommittee on Prevention of Torture reports that the following nine (9) African States do not comply with Article 17: Benin, Burundi, Central African Republic, Democratic Republic of Congo, Gabon, Ghana, Liberia, Nigeria and South Sudan[ UN Subcommittee on Prevention of Torture, https://www.ohchr.org/en/treaty-bodies/spt/non-compliance-article-17, (last accessed 21 September 2023).] .
3.SECURITY MEASURES, TERRORISM AND TORTURE
42.The Robben Island Guidelines provide that "public order", a "national emergency"[ Guideline 10 of the Robben Island Guidelines.] or "orders from a higher authority"[ Guideline 11 of the Robben Island Guidelines.] must not be used as a justification or excuse for acts of torture and other ill-treatment. Torture has been used against persons suspected of terrorism or against persons allegedly associated with persons suspected of terrorism, in order to obtain information and punish them for their alleged role in the terrorist act. Terrorist groups have also used means akin to torture on the populations.
43.In August 2023, several United Nations experts, including the Special Rapporteur on Torture, expressed concern about rape and sexual violence perpetrated by the Rapid Support Forces during the armed conflict in Sudan[ UN experts alarmed by reported widespread use of rape and sexual violence against women and girls by RSF in Sudan, 17 August 2023, https://www.ohchr.org/en/press-releases/2023/08/un-experts-alarmed-repo… (last accessed 21 September 2023).] .
44.On 26 June 2023, the African Commission on Human and Peoples' Rights, on the occasion of the International Day in Support of Victims of Torture, expressed concern about the rise in violence in the context of conflicts and threats to security[ African Commission on Human and Peoples' Rights, Statement on the occasion of the International Day in Support of Victims of Torture, 26 June 2023, https://achpr.au.int/en/news/press-releases/2023-06-26/statement-occasi… (last accessed 21 September 2023).] .
45.In June 2023, the Committee against Torture expressed concern that persons detained in Ethiopia for terrorism-related offences or during the state of emergency in the Tigray, Afar, Amhara and Ommia conflicts were not afforded fundamental legal safeguards, and noted the numerous violations committed in the context of these conflicts, including conflict-related sexual violence[ Committee Against Torture, Final comments on the second periodic report of Ethiopia, CAT/C/ETH/CO/2, 7 June 2023, para 12.] .
46.Also in June 2023, Human Rights Watch reported ethnic cleansing in the West Tigray zone of Ethiopia against Tigrayans, as well as their detention in official and unofficial locations in poor conditions[ Human Rights Watch, Ethiopia: Ethnic Cleansing Persists Under Tigray Truce, 1 June 2023, https://www.hrw.org/news/2023/06/01/ethiopia-ethnic-cleansing-persists-…, (last accessed 21 September 2023).] .
47.In a report published in July 2023, Amnesty International called on the Cameroonian authorities to investigate widespread violations, including torture, committed by armed separatists, militias and members of the defence and security forces in the country's English-speaking regions[ Amnesty International, With or against us: the population caught between the army, armed separatists and militias in north-west Cameroon, 4 July 2023, https://www.amnesty.org/en/latest/news/2023/07/cameroon-rampant-atrocit… (last accessed 21 September 2023).] .
48. In June 2023, civilians were reported to be at risk of war crimes and crimes against humanity, including ethnically motivated killings and sexual violence, in the conflict in West Darfur, Sudan[ Amnesty International, Sudan: Civilians at grave risk amid escalating violence in West Darfur, 19 June 2023, https://www.amnesty.org/en/latest/news/2023/06/sudan-civilians-at-grave… (last accessed 21 September 2023).] .
4.EXTRAJUDICIAL AND ARBITRARY KILLINGS AND ENFORCED DISAPPEARANCES
49.The right to life is expressly guaranteed by Article 4 of the African Charter, which enshrines the absolute prohibition of arbitrary deprivation of life. In its jurisprudence, the African Commission has also considered that executions may constitute cruel, inhuman and degrading treatment or punishment[ Communication 277/03: Spilg and Mack & Ditshwanelo (Kobedi) v Botswana (ACHPR 2011) para 167. ] . Enforced disappearances place people outside the protection of the law, making them vulnerable to torture and other rights violations. Enforced disappearance is a continuing violation that can affect a range of interrelated rights, including the right to life, liberty, security of the person and personal integrity.
50.As far as Ethiopia is concerned, the UN Committee against Torture has noted summary executions in the context of conflicts in various regions[ Committee Against Torture, Final comments on the second periodic report of Ethiopia, CAT/C/ETH/CO/2, 7 June 2023.] .
51.Amnesty International has called for the death sentences handed down by Zimbabwe's Harare High Court to two people in July 2023 to be commuted to terms of imprisonment[ Amnesty International, Zimbabwe: Commute death sentence to prison terms in Tapiwa Makore murder case, 13 July 2023, https://www.amnesty.org/en/latest/news/2023/07/zimbabwe-commute-death-s… (last accessed 21 September 2023).] .
52.Several people, including children, were killed during demonstrations in June 2023 in Senegal[ Amnesty International, Senegal: Amnesty International calls for independent enquiry into deadly crackdown on protests, 29 June 2023, https://www.amnesty.org/en/latest/news/2023/06/senegal-amnesty-internat… (last accessed 21 September 2023).] .
53.On 20 April 2023, more than 140 civilians were reportedly killed in a village in northern Burkina Faso[ Amnesty International, Burkina Faso: Responsibility of the army indicated in Karma massacre, 3 May 2023, https://www.amnesty.org/en/latest/news/2023/05/burkina-faso-la-responsa… (last accessed 21 September 2023).] . In a press release dated 30 April 2023, the African Commission on Human and Peoples' Rights expressed its indignation at the recurring massacres of civilians and the spiral of violence[ African Commission on Human and Peoples' Rights, Press release on the situation of human rights in Burkina Faso, 30 April 2023, https://achpr.au.int/en/news/press-releases/2023-04-30/press-release-si… (last accessed 21 September 2023).] .
5.TORTURE IN PLACES OF DETENTION, POOR CONDITIONS OF DETENTION AND ARBITRARY DETENTION
54.The Robben Island Guidelines recognise that persons deprived of their liberty are vulnerable to torture and other ill-treatment and establish fundamental safeguards to prevent these forms of abuse. They also encourage States to improve conditions in places of detention[ Guideline 34 of the Robben Island Guidelines.] and to reduce overcrowding[ Guideline 37 of the Robben Island Guidelines.]. Poor conditions of detention can be equated with torture and other ill-treatment.
55.In August 2023, the High Court of South Africa, applying for the first time the Prevention and Combating of Torture of Persons Act 13 of 2013 (Torture Act), held the Minister of Justice and Correctional Services responsible for acts of torture committed by prison officers on five prisoners at Leeuwkop Maximum Correctional Centre in Gauteng in August 2014[ Redress, South African Court Decides in Favor of Torture Victims in First Case to Apply the South African Torture Act, 1 September 2023, https://redress.org/news/south-african-court-decides-in-favor-of-tortur… (last accessed 21 September 2023).] .
56.In June 2023, the UN Committee against Torture reported concerns in Ethiopia about persistent overcrowding in some prisons and poor conditions of detention, inadequate health care and high levels of violence, also highlighting restrictions on who could visit these places[ Committee Against Torture, Final comments on the second periodic report of Ethiopia, CAT/C/ETH/CO/2, 7 June 2023.] .
57.Amnesty International published a report in May 2023 calling the Lesotho government to account for the increase in deaths in custody under the previous administration[ Amnesty International, Turn the chapter: Human Rights Agenda for the New Government of Lesotho, May 2023, https://www.amnesty.org/en/documents/afr33/6771/2023/en/ (last accessed 21 September 2023).] .
58.Following a promotional visit to Namibia in June 2023, the African Commission on Human and Peoples' Rights noted the absence of an independent monitoring mechanism for places of detention to prevent torture and other forms of ill-treatment[ African Commission on Human and Peoples' Rights, Press Statement at the Conclusion of the Promotion Mission of the African Commission on Human and Peoples' Rights to The Republic Of Namibia, 17 June 2023, https://achpr.au.int/en/news/press-releases/2023-06-17/press-statement-… (last accessed 21 September 2023).] .
6.EXCESSIVE USE OF FORCE AGAINST DEMONSTRATORS
59.In accordance with Resolution 474 of the Commission on the Prohibition of the Excessive Use of Force by Law Enforcement Officials in African States, the use of force by law enforcement and public security officials must comply with the principles of legality, necessity, proportionality and responsibility and must not endanger human life[ African Commission on Human and Peoples' Rights, ACHPR/Res. 474 (EXT.OS/ XXXI) 2021, ˂https://www.achpr.org/sessions/resolutions?id=505˃ last accessed 4 April 2023.] .
60.In September 2023, the African Commission condemned the massacre of civilian demonstrators in the DRC[ African Commission on Human and Peoples' Rights, Press release on the massacre of civilian demonstrators against MONUSCO in the Democratic Republic of Congo, 1 September 2023, https://achpr.au.int/en/news/press-releases/2023-09-01/press-release-ma… (last accessed 21 September 2023).].
61.On 26 August 2023, in Zimbabwe, it was reported that political activist Nelson Mukwenha, after taking part in a demonstration to prevent suspected security agents from abducting another activist, was himself abducted, tortured and his body found in a forest on the outskirts of the capital, Harare[ Amnesty International, Zimbabwe: Authorities must investigate the disappearance and torture of political activist, 29 August 2023, https://www.amnesty.org/en/latest/news/2023/08/zimbabwe-authorities-mus… (last accessed 21 September 2023).].
62.In June 2023, tear gas and live ammunition were reportedly used to disperse demonstrators in Angola[ Amnesty International, Angola: Police must exercise restraint during nationwide protests, 9 June 2023, https://www.amnesty.org/en/latest/news/2023/06/angolan-police-must-exer… (last accessed 21 September 2023).].
63.In July 2023, the African Commission on Human and Peoples' Rights condemned acts of violence and excessive use of force by the police in connection with demonstrations in Kenya, including reports that tear gas grenades had been thrown by police into a primary school, injuring children[ African Commission on Human and Peoples' Rights, African Commission calls for respect for the right to peaceful protests in Kenya, 21 July 2023, https://achpr.au.int/en/news/press-releases/2023-07-21/african-commissi… (last accessed 21 September 2023).]. It also condemned the use of force against protesters during demonstrations in the country in March 2023[ African Commission on Human and Peoples' Rights, The African Commission on Human and Peoples' Rights expresses concern over the excessive use of force against protesters in Kenya, 2 April 2023, https://achpr.au.int/en/news/press-releases/2023-04-02/african-commissi… (last accessed 21 September 2023).] .
7.ASSAULTS ON LGBTQIA+ PEOPLE
64.Lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual and other (LGBTQIA+) people in Africa face ongoing human rights challenges and institutional violence. In its Resolution 275, the Commission condemned the increasing incidence of violence and other human rights violations, including murder, rape, assault, arbitrary imprisonment and other forms of persecution of people on the basis of their sexual orientation or their assumed or real gender identity. The Commission called on States to put an end to all acts of violence and abuse, whether committed by State or non-State actors, in particular by enacting and effectively enforcing appropriate laws prohibiting and punishing all forms of violence, including those directed against persons on the basis of their sexual orientation or gender identity, whether assumed or real, by ensuring that perpetrators are properly investigated and promptly prosecuted, and by establishing judicial procedures that meet the needs of victims[ African Commission on Human and Peoples' Rights Resolution 275 https://achpr.au.int/en/adopted-resolutions/275-resolution-protection-a…, accessed 3 April 2023.] .
65.Furthermore, in Zimbabwe Human Rights NGO Forum v Zimbabwe, the African Commission reaffirmed that the objective of Article 2 of the African Charter is to "guarantee equal treatment of individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation"[ African Commission on Human and Peoples' Rights, Zimbabwe Human Rights NGO Forum v Zimbabwe {Communication No. 245/2002], 25 May 2006, paras.168-170, <http://caselaw.ihrda.org/doc/245.02/>, (last accessed 21 September 2023).] . As a result, States have an obligation to protect LGBTQIA+ people from harm and discrimination and to provide redress to victims.
66.At the time of writing, 32 African States had laws criminalising homosexuality, and three States applied the death penalty in response to homosexual relations (Mauritania, Nigeria, Somalia)[ Human Dignity Trust, https://www.humandignitytrust.org/lgbt-the-law/map-of-criminalisation/, (last accessed 21 September 2023).] .
67.On 26 June 2023, the African Commission on Human and Peoples' Rights, on the occasion of the International Day in Support of Victims of Torture, called on States to take measures to put an end to all violations, in particular against vulnerable people, such as LGBTQI+ people[ African Commission on Human and Peoples' Rights, Statement on the occasion of the International Day in Support of Victims of Torture, 26 June 2023, https://achpr.au.int/en/news/press-releases/2023-06-26/statement-occasi… (last accessed 21 September 2023).] .
68.In May 2023, the President of Uganda approved the Anti-Homosexuality Bill 2023, which criminalises sexual acts between consenting adults of the same sex[ Amnesty International, Uganda: President's approval of anti-LGBTI Bill is a grave assault on human rights, 29 May 2023, https://www.amnesty.org/en/latest/news/2023/05/presidents-musevenis-app… (last accessed 21 September 2023).] .
69.In May 2023, a report by the National Gay and Lesbian Human Rights Commission (NGLHRC) and Amnesty International documented violence, rape and other abuses against LGBTI refugees and asylum seekers in the Kakuma camp in Kenya[ NGLHRC and Amnesty International, Kenya: "Justice like any other person" - Hate crimes and discrimination against LGBTI refugees, 29 May 2023, AFR 32/6578/2023, https://www.amnesty.org/en/documents/afr32/6578/2023/en/ (last accessed 21 September 2023).] .
8.ASYLUM SEEKERS, REFUGEES, MIGRANTS AND TORTURE
70.The rights of migrants are protected by the African Charter on Human and Peoples' Rights, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), and other international and regional instruments. However, during the intersessional period, asylum seekers, refugees and migrants continued to be exposed to a range of human rights violations, including torture and other ill-treatment. Under international law, people must not be returned or sent to countries (turned back) where they are at risk of torture or ill-treatment.
71.In July 2023, UN experts highlighted the torture, detention in unknown locations and enforced disappearances of migrants and refugees in Libya[ Libya: UN experts alarmed at reports of trafficking in persons, arbitrary detention, enforced disappearances and torture of migrants and refugees, 21 July 2023, https://www.ohchr.org/en/press-releases/2023/07/libya-un-experts-alarme… (last accessed 21 September 2023).] .
72.With regard to Ethiopia, in June 2023 the UN Committee against Torture raised concerns about the impact of the armed conflict on Eritrean, Somali and Sudanese nationals and refugees, including targeted violence against Eritreans in particular[ Committee Against Torture, Final comments on the second periodic report of Ethiopia, CAT/C/ETH/CO/2, 7 June 2023.] . The UN experts also condemned, in July 2023, the mass expulsion of Eritreans from Ethiopia and their arbitrary detention[ UN experts urge Ethiopia to halt mass deportation of Eritreans, 13 July 2023, https://www.ohchr.org/en/press-releases/2023/07/un-experts-urge-ethiopi… (last accessed 21 September 2023).] .
III.RECOMMENDATIONS
73.In light of the above, the following recommendations are made, particularly with regard to the CPTA's mandate to prevent and prohibit torture and other ill-treatment:
i.States that have not yet done so should ratify the UNCAT.
ii.States that have not yet done so should ratify the OPCAT and establish National Preventive Mechanisms to monitor places of detention.
iii.All States should criminalise torture and other ill-treatment in accordance with the UNCAT.
iv.All States should ensure that no statement obtained as a result of torture is admitted as evidence in any proceedings, except against a person accused of torture to prove that the statement was made.
v.All States should ensure that all measures and restrictions imposed during the COVID-19 pandemic that may have facilitated or constituted torture or ill-treatment are fully removed.
vi.States should take steps to avoid the use of general laws such as anti-terrorism legislation, state of emergency laws and other state security laws to carry out arbitrary arrests, searches and detentions contrary to international and regional standards.
vii.States should take steps to improve conditions of detention in accordance with the Guidelines on Conditions of Arrest, Police Custody and Pre-trial Detention in Africa (Luanda Guidelines).
viii.States should review their national legislation to protect individuals from enforced disappearance, torture and other ill-treatment by prohibiting incommunicado detention, prolonged solitary confinement and criminalising the use of secret or unauthorised detention centres, in accordance with the Robben Island Guidelines, UNCAT and OPCAT.
ix.States should set up mechanisms to receive complaints of torture and other ill-treatment.
x.States should promptly, thoroughly, independently and impartially investigate all allegations of torture and other ill-treatment and ensure that perpetrators are held accountable and subject to appropriate sanctions reflecting the gravity of the offences, in accordance with relevant international and regional standards.
xi.States should ensure that security personnel do not use excessive force against civilians and that they respond to demonstrations in accordance with the Guidelines for the Maintenance of Order at Gatherings by Law Enforcement Officials in Africa.
xii.States should respect and protect the rights of persons or groups that are most at risk of torture and other ill-treatment, including persons with intellectual or psychosocial disabilities, the homeless, women and children, persons with albinism, the LGBTQIA+ community, migrants, refugees and internally displaced persons, and ensure that perpetrators are held accountable.
xiii.States should ensure that victims of torture and other ill-treatment have the right to all forms of redress, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, in accordance with General Comment No. 4 of the African Charter on Human and Peoples' Rights: The Right to Reparation for Victims of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 5).
xiv.All parties to conflicts must respect international humanitarian law, as set out in the Geneva Conventions, in their treatment of civilians and civilian objects.
xv.States should ensure that they implement the recommendations made by the African Commission on Human and Peoples' Rights and United Nations bodies to prohibit and prevent torture and other ill-treatment.
xvi.Anyone with information concerning allegations of torture and other ill-treatment should bring these allegations to the attention of the CPTA.
