Part 1 The effectiveness of the African human rights system in responding to allegations of torture

By Christopher Kato Mpanga

Introduction

Despite being among the few non-derogable rights, freedom from torture is one of the most contravened rights on the African continent. This dissertation will examine whether the African human rights system has been effective in responding to torture perpetrated by security forces in Uganda, using a case study of the African Commission. In doing so, the paper will focus on article 5 of the African Charter on Human and Peoples’ Rights, also known as the Banjul Charter, which prohibits the use of torture among state parties.

According to article 5 of the African Charter on Human and Peoples’ Rights (the African Charter, or the Charter), “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.”

To assess if the African Commission has been effective in responding to allegations of torture by Ugandan Security Forces, this writer will examine a case study, and subsequent follow up, if any, of some torture cases concerning Uganda brought before the Commission.

In this dissertation, this author will write about the history and functioning of the Banjul

Charter, where the role of the African Commission will be highlighted. Thereafter,

this writer will use a torture case study concerning Uganda brought before the African Commission, and their subsequent follow-up, if any, as case studies to examine the effectiveness of the African Commission in responding to torture allegations in the country. The paper will then go ahead to discuss the African Commission’s communication procedure in handling reported cases of torture. Finally, this author will conclude the dissertation and make recommendations on how to enhance the Commission’s work against torture.


In terms of the time frame, this paper will focus on the period commencing 10th May 1986 when Uganda ratified the Banjul Charter, to date.

History of the establishment of the African Charter

The idea of establishing the African Charter on Human and Peoples’ Rights (ACHPR) was first proposed in the early 1960’s. At the inaugural meeting of African Jurists in Lagos, Nigeria in 1961, the jurists made a pronouncement imploring African governments to come up with an African treaty on human rights with a court and commission. This declaration is commonly known as the ‘Law of Lagos’. However, despite this pronouncement, African states were reluctant to take on the idea.

In spite of its preoccupation with human rights issues such as securing independence for African States, tackling racial discrimination, and solving refugee challenges among others, the Organisation of African Unity (OAU) did not have a clear mandate requiring African states to respect their citizen’s human rights. At a time when African dictators committed gross human rights violations, the OAU’s founding document only called on African governments to acknowledge their international obligation to protect people’s human rights as stipulated in the Universal Declaration of Human Rights

(UDHR). This was mainly because the OAU believed in the preposition of noninterference in the internal matters of member states.

Owing to a number of conferences and negotiations regarding the setting up of the African Charter on Human and Peoples’ Rights, a group of African specialists converged in Dakar, Senegal in 1979 to come up with the first draft of the proposed document.18 One of their main objectives was to come up with an African instrument on human rights that could address African needs, based on an African legal outlook. In their view, Africa’s unique challenges needed a separation from international and regional treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), among others.

After a drafting process of two years, the charter was adopted by the 8th Assembly of

Heads of State and Government of the OAU on 28th June 1981, in Nairobi, Kenya.

The instrument came into effect in October 1986 after being ratified by the prerequisite number of states. Uganda ratified the treaty on 10th May 1986.

The African Commission on Human and Peoples' Rights (the Commission)

As stipulated in article 30 of the Charter, the promotion and implementation of the African Charter is supervised by the African Commission. The commission is made up of 11 members chosen by the African Union (AU) assembly from respected human rights specialists submitted by state parties to the charter. The commissioners are elected for a term of six years, and are allowed to stand for re-election indefinitely.26 As opposed to serving as their country’s representatives, the commissioners work in a personal and non-partisan way. This helps to enhance their independence from their home countries governments, among others whilst executing their work for the Commission.

However, in a preliminary objection raised in Communication 428/12 where Dawit Isaak filed a case against the Republic of Eritrea before the Commission, the respondent country levied accusations of bias against the lead Commissioner handling this case. In this case, Eritrea alleged that the accused commissioner carried out a campaign against the country when she wrote a preface, approved the content of, and gave a welcoming speech at the launch of a report titled, “The Erosion of the Rule of Law in Eritrea: Silencing Freedom of Expression”, in 2015, on the side-lines of the Commission’s 56th Session that took place in Banjul, The Gambia. The concerned country argued that this would negatively influence the independence of the commission whilst making its decision on this matter. Well as the Commission found this accusation inconsequential, this raises questions on the independence of the Commissioners whilst handling cases. This would be a concern, especially in situations where a commissioner dealing with a case might have directly or indirectly lobbied the concerned countries to change certain policies at a personal, as opposed to an official level.

Article 45 of the charter outlined the mandate of the commission as the promotion and protection of human and people’s rights, the interpretation of the charter, and working on any other assignments given to it by the OAU assembly. As a result, the commission scrutinizes country reports on the state of human rights which are meant to be submitted by each state every two years.35 In the same regard, the commission adopts resolutions and pronouncements, visits countries and examines complaints passed on to it by individuals, Non-Governmental Organisations (NGOs), or states party to the charter, among others. On top of that, the commission put in place a framework of Special Measures constituting Special Rapporteurs to whom particular accusations of human rights violations can be reported, Working Groups that supervise and probe special concerns regarding the work of the commission, among others.

Nevertheless, various state signatories have not been consistent in submitting their biennial reports on the state of human rights in their countries to the Commission. For example, as of 2020, Uganda last submitted its state report in 2012. Going by the biennial basis, this means that in the past seven years, Uganda has not submitted three state reports to the commission. This inevitably affects the Commission’s effectiveness in monitoring and promoting good human rights practices in the country. Some of the reasons for the failure of various state signatories to submit their biennial reports to the commission include lack of political will from the concerned state governments, and the fact that state signatories have to submit reports to other international human rights bodies whose treaties they ratified. In addition, absence of sufficient coordination between different state departments to help issue the reports to the Commission, among others, equally contributes to the failure of various states to promptly submit their country reports.

Committee for the Prevention of Torture in Africa

One of the frameworks that was put in place by the African Commission to deal with torture is the Committee for the Prevention of Torture in Africa (CPTA), set up to deal with torture cases on the continent.44 Before the CPTA, a Follow-up Committee on the Robben Island Guidelines (Follow-up Committee) was set up owing to the decision of the 35th Ordinary Session of the African Commission that took place in the Gambia from the 21st of May to the 4th of June 2004. The Follow-up Committee was put in place to promote the Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa: The Robben Island Guidelines (RIG).

The RIG constitutes concrete guidelines for member states on how to implement the sections of the African Charter concerning the prohibition and prevention of torture and other related acts. In addition, the document put in place procedures regarding the rehabilitation of people who had undergone torture. The document was drawn up in an experts meeting that took place on Robben Island, South Africa in February 2002. Consequently, the African Commission adopted the RIG by way of its resolution (African Commission Resolution on the Robben Island Guidelines, also known as the ACHPR, 2002) in October 2002. The commission’s decision also included establishing a special mechanism to ensure effective implementation of the RIG. After two years, this special mechanism was finally established in the form of the CPTA.

The mandate of the CPTA, stipulated in the ACHPR, 2002, outlined four key issues. First, to work with interested parties to organise workshops to publicize the RIG to national and regional stakeholders. Second, to develop and suggest to the African Commission ways of advancing and implementing the RIG at national and regional levels. Third, to foster and help enable the implementation of RIG within state parties. Lastly, to publish a report detailing their progress to every ordinary session of the African Commission.

However, the RIG and CPTA are seen as having so far failed to achieve their potential to be utilized by the African Commission to help in effectively preventing torture on the continent partly because of definitional and normative limitations affecting the concept of prevention. The RIG does not clarify what exactly it means by prevention of torture, and it does not clearly explain the details and scope of the obligation to prevent torture. Instead, the RIG constitutes various sections regarding the outlawing and prevention of torture, as well as sections entailing the redress for the victims of torture, all in one document.

In addition, a significant number of the RIG’s provisions are derived from various international human rights law instruments, thus portraying the RIG as a patchwork of different human rights practices and standards. Consequently, the copiousness of the RIG’S provisions affects its clarity.

Furthermore, the subsequent efforts by the CPTA to clearly outline states responsibilities to deal with torture seemed to combine the prevention of torture, with the reasonably more advanced legal framework for the prohibition of torture. Yet the obligation to prevent, much as it is related to the responsibility to prohibit torture, is a different and distinct legal obligation. Therefore, the RIG’s lack of conceptual clarity affects the effective execution of the CPTA’s mandate to help in the prevention of torture on the continent.

The African Court on Human and People’s Rights (the Court)

The African Court on Human and People’s Rights was created by African states to enhance the protection of human rights on the continent. The court reinforces and supplements the work of the African Commission. It was established by Article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol). In June 1998, the protocol was approved by state parties of the Organisation of African Unity (OAU) in Ouagadougou, Burkina Faso.

The court has the jurisdiction to handle cases regarding the interpretation and implementation of the African Charter, the Protocol, and other important human rights conventions ratified by its state parties. To be more specific, the court constitutes two types of jurisdiction, namely, advisory and contentious. Consequently, the court can handle cases submitted by the African commission, countries party to the protocol, or African Intergovernmental Organisations.

The court can also deal with cases filed by Non-Governmental Organisations (NGOs) and individuals accorded observer status by the African Commission on condition that the country being complained against made a declaration accepting the court’s jurisdiction to handle cases from individuals and NGOs. However, much as Uganda ratified the Protocol on February 16th 2001, it has not made a proclamation allowing NGOs and individuals who have been granted observer status by the African Commission to submit cases to the court. This means that it is only the state which can file cases to the court.63

This is an impediment to the justice system of the Court as the state can hardly be reported by individuals or NGOs with observer status for the torture it has committed against its citizens. Consequently, human rights activists need to pressure the Ugandan government to allow NGOs and individuals with observer status to file torture cases to the court.