The Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, also known as The Robben Island Guidelines, were developed by the Association for Prevention of Torture and The African Commission on Human and People’s Rights and adopted by the Commission in 2002.[i] The document provides clear guidance for African States on how to meet the international obligation of preventing and prohibiting torture. Such obligation arises from International Human Rights Law Treaties such as the International Covenant on Civil and Political Rights, the Convention Against Torture as well as the African Charter on Human and Peoples’ Rights.
Under these instruments, the state has a duty to respect and ensure to all individuals the right not to be tortured or subjected to inhumane or degrading treatment. This means that while on the one hand the state through its official must not directly violate the right, on the other it must also take appropriate steps to guarantee that no individual is victim of torture. Thus, if an individual’s right is violated the state can be responsible not only in the case in which a state official has perpetrated the act amounting to torture or other inhumane or degrading treatment, but also if it has not taken appropriate action to prevent the action from taking place. The state is further responsible to ensure that any victim of torture has access to appropriate remedies.
The Robben Island Guidelines specify a series of requirements which must be met and actions which must be taken in order for the state to ensure and respect the right. In doing so it specifies procedural safeguards and mechanisms which needs to be put in place to prevent acts of torture from taking place, guarantee access to justice for the victims, protect them from further rights violations, and ensure that their needs are met. The guidelines particularly focus on giving instructions on how to protect those deprived of their liberty as they are the individuals most susceptible to becoming victims of torture. By providing such guidance, the Robben Island Guidelines play a crucial role in promoting the human right not to be tortured.
Even though the document is not strictly hard law, it remains extremely important as it constitutes the first regional instrument specifically designed to combat torture in Africa.[ii]
At the same time, since it was adopted by the African Commission, it can be considered as testifying the existence of a consensus and shared objectives among the African States on how to fight torture.[iii] The relevance of the guidelines is further indicated by the fact that in 2004 the African Commission established a follow-up Committee (The Committee for the Prevention of Torture in Africa) to monitor its implementation and act as special mechanism dedicated to fighting torture.[iv] Contra Nocendi International follows the Robben Island Guidelines in carrying out its detention centre monitoring work.
The document is divided into three parts. The first deals with the prohibition of torture and its criminalization, the second provides guidance on preventing torture, and the third indicates how to respond to the needs of the victims. Although the importance of all the articles found in the guidelines could be discussed at length, this article focuses on five key provisions and discusses their relevance in relation to International Human Rights Law.
1) Article 10: Notions such as “necessity”, “national emergency”, “public order”, and “ordre public” shall not be invoked as a justification of torture, cruel, inhuman or degrading treatment or punishment.
The presence of Article 10 in the section concerned with the criminalization of torture is crucial for the protection from torture. Under international instruments such as the International Covenant on Civil and Political Rights, states can, under specific circumstances such as a declared situation of public emergency, derogate from certain human rights obligations. Still, different International Human Rights Law instruments indicate that the prohibition of torture is absolute, which means that under no circumstances a state can justify a failure to ensure, respect, and protect the right to be torture. For example, Article 4 ICCPR which allows a state party to derogate from part of its obligations under the Covenant, specifies that no derogations from Article 7 guaranteeing the right not to be subjected to torture or cruel, inhuman, or degrading treatment or punishment, is allowed.[v] Similarly, Article 2 of the Convention Against Torture indicates that ‘no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’[vi].
2) Article 17: Ensure the establishment of readily accessible and fully independent mechanisms to which all persons can bring their allegations of torture and ill-treatment.
Article 17 fits with the requirements of Article 13 of the Convention Against Torture which indicates that ‘State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities’[vii]. Providing mechanisms enabling individuals to bring allegations of torture and other ill-treatment is necessary for investigations to take place. This is crucial as the carrying out of investigations is a critical element of the state duty to ensure the right. As the alleged perpetrator might be a state authority, the provision of Article 17 that the mechanisms available to bring allegations are fully independent is fundamental in guaranteeing that the victims or other individuals can report cases without fear of repercussions.
3) Article 20: All persons who are deprived of their liberty by public order or authorities should have that detention controlled by properly and legally constructed regulations. Such regulations should provide a number of basic safeguards, all of which shall apply from the moment when they are first deprived of their liberty. These include: a) The right that a relative or other appropriate third person is notified of the detention; b) The right to an independent medical examination; c) The right of access to a lawyer; d) Notification of the above rights in a language which the person deprived of their liberty understands;
Individuals deprived of their liberty are particularly vulnerable to be subjected to torture and other cruel, inhuman or degrading treatment. This is testified by the fact that the Optional Protocol to the CAT specifically focuses on protecting persons deprived of their liberty from being subjected to such violations.[viii] For this reason, ensuring essential safeguards for individuals deprived of their liberty constitutes a necessary step towards preventing torture from taking place. In particular, ensuring that appropriate persons such as relatives are notified of the detention is necessary to guarantee that the conditions of the individual deprived of liberty are checked upon. Similarly, the right to an independent medical examination guarantees that any acts of violence which can amount to torture are promptly discovered and reported.
4) Article 42: Encourage and facilitate visits by NGOs to places of detention.
NGOs engage in a series of activities such as reporting and advocacy, which are fundamental in ensuring accountability and transparency. Thus, allowing NGOs to visit detention facilities
can crucially contribute to prevent the occurrence of acts of torture in detention facilities as their presence would signal that such acts would be reported and would carry consequences. This type of work is vital in complementing the work of formal monitoring bodies.[ix] This is part of the work Contra Nocendi International and Contra Nocendi Cameroon conduct as part of its treatment in detention and access to counsel programming.
5) Article 50: The obligation upon the State to offer reparation to victims exists irrespective of whether a successful criminal prosecution can or has been brought. Thus all States should ensure that all victims of torture and their dependents are: a) Offered appropriate medical care; b) Have access to appropriate social and medical rehabilitation; c) Provided with appropriate levels of compensation and support;
States do not only have a duty to prohibit and prevent human rights violations from taking place, but also to provide remedies for the victims when violations do occur. The right to a remedy for victims of violations of human rights law is provided for in numerous international instruments.[x] The physical and psychological consequences of torture on victims are so grave and long-lasting that ensuring appropriate medical care, rehabilitation, and support is necessary to enable the victims to continue their lives and eventually recover from the trauma. Thus, providing remedies for victims of torture is not only a human rights obligation per sé, but it is also necessary for promoting and protecting other human rights such as the right to health.
Through the adoption of the Robben Island Guidelines the African Commission on Human and People’s Rights took a fundamental step in furthering the protection of the right not to be to tortured or subjected to inhumane or degrading treatment. If properly implemented the guidelines can effectively guarantee that the state fully adheres to its obligation to ensure and respect this right.
Contra Nocendi International firmly believes in the importance of the document in promoting human rights and follows its guidelines in its detention monitoring and counsel programming work.
[ii] African Commissionon Human and Peoples’ Rights and Association for the Prevention of Torture, Preventing Torture in Africa: Proceedings of a joint APT-ACHPR Workshop, Robben Island, South Africa, 12-14 February 2002, 3
[iii] Jean-Baptiste Niyizurugero and Ghislain Patrick Lessène, ‘The Robben Island Guidelines: An Essential Tool for the Prevention of Torture in Africa’ (2010) < http://projects.essex.ac.uk/EHRR/V6N2/NiyizurugeroLessene.pdf>
[iv] Association For the Prevention of Torture, ‘Committee for the Prevention of Torture in Africa’ <https://www.apt.ch/en/cpta/>
[v] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 4(2).
[vi] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) UNGA Res 39/46, art 2.
[vii] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) UNGA Res 39/46, art 13
[viii] Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 18 December 2002, entered into force 22 June 2006) A/RES/57/199.
[ix] Amado Philip de Andrés, María Noel Rodríguez, Guilherme Augusto Doin, Civil society and prisons: the “invisible bars” challenge (UNODC ROPAN Working Paper Series on Prison Reform) 1.
[x] See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (adopted 16 December 2006) UNGA res 60/147, preamble; African Commission on Human and People’s Right,
‘General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5)’ (Adopted 4 March 2017); OHCHR, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ GA Res 60/147 (Adopted 16 December 2005).