News

Contra Nocendi Cameroon and Contra Nocendi International have submitted their collective views of the draft revised Rules of Procedure for the African Commission on Human and Peoples’ Rights to the Commission itself. We did so being mindful of the need for the Rules of Procedure, or the rules for the operation of the Commission, to be reviewed at regular intervals. We also did so mindful of the fact that the need for such consultation cannot be understated when it comes to efforts of promoting the mandate of the Commission and its transparency.

Our submission raised deep concerns about the relatively short timeframe that the Commission provided for submissions. We are deeply concerned about the real possibility that interested parties may have been frozen out of the process due to this short window of time. We firmly believe that all organisations, big and small, should be encouraged to provide their views and given adequate time to do so. We were also concerned that this is not the first time we have raised such an issue in relation to a public consultation by the Commission. We think the Commission should do better and we hope to see it change its course in the future.

We were happy to see that the revised Rules of Procedure called for the Commission to have ability to take action to investigate and call witnesses and expert witnesses in order to clarify the facts of a case while examining a Communication. This will allow for all parties involved to have the relevant facts come to light and will afford them a Commission that is more empowered to be an effective and informed independent human rights body.  Calling witnesses is possible now, but the increase in detail in the draft revised Rules is important. The inclusion of the ability to undertake visits to the scene or “take evidence in any other manner” allows for a more objective process in which the outcomes are more likely to shed light on the truth of the matter. We were also appreciative of the provisions for the protection of witnesses. This is such a vital part of any process meant to objectively determine the facts.

We were also happy to see the inclusion of more provisions to encourage States to effectively comply with their obligations under the African Charter on Human and Peoples’ Rights in relation to their interactions with the Commission. We feel that the Commission can be a great venue for the positive promotion of human rights and that any State that truly embraces its human rights obligations will see the Commission as a vital tool in their human rights toolbelt.

We called on the Commission to include the role of civil society in express terms in the revised Rules of Procedure. This includes a rule for civil society to be a tool of the Commission in fulfilling its expanded mandate under the revised Rules of Procedure. We also called for the Commission to include in its public consultation process, a summary of stakeholder views, akin to other processes such as the Workgroup for the University Periodic Review that is part of the United Nations Human Rights processes.

Contra Noccendi Cameroon and Contra Nocendi International remain firmly committed to supporting the mandate of the African Commission on Human and Peoples’ Rights. We eagerly await the resulting revised Rules of Procedure. We hope that this endeavour will result in a greater appreciation for the fundamental human rights for all persons in Africa.

Introduction

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.

Conclusion

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.

[i] Association For the Prevention of Torture, ‘Robben Island Guidelines’ <https://www.apt.ch/en/robben-island-guidelines/>

[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).

Contra Nocendi International and Contra Nocendi Cameroon announced today that they are collaborating to provide pro bono legal services to a Cameroonian minor being held in prolonged pre-trial detention. The minor, whose name we are withholding for privacy reasons, was 14 at the time of their arrest in last 2017. This child must be returned to his parents and CNI and CN Cameroon intend to make sure that happens.

We have so far been provided no credible evidence that the minor was given access to counsel nor are we in possession of any credible evidence that the minor has been before a judge at any time during his detention.  Our on-going investigation also indicates that a writ of remand has not been issued by a competent judicial body for the detention of said minor. We are also deeply concerned about evidence of injury on the body of the minor that shows signs that the minor may have been exposed to acts of torture. Sadly, the heartbreak does not end there. Despite the minor’s injuries, we have nothing to prove that medical attention has been provided.

Following up on a referral to CN Cameroon, CNI’s legal team and CN Cameroon acted quickly to acquire as much documentation as possible. The initial assessment brought such concern to both teams that it was clear that we must act. A petition for a writ of habeas corpus has been filed on behalf of the minor and in respecting  the wishes of his family. CNI has also paid the filing fee for the minor.

We are hopeful of a swift resolution to this matter. This child deserves to be returned to their family immediately and we will fight for the child’s release.

Contra Nocendi International and Contra Nocendi Cameroon will make further statements on this matter as necessary.

Feelings on marking Torture Victims Day for Contra Nocendi is always something that cuts across the spectrum of emotions. Working with victims, we are troubled by their suffering and the lengthy legal process that can be required to confront their abusers, yet left without words that adequately express the strength that victims show when they demand accountability so that others do not go through what they have. We have also seen security officials grow in their concern for victims of torture and have seen the African Commission on Human and Peoples Rights show the human rights community true leadership by adopting guidelines on reparations for victims of torture. The first source of international human rights law on such matters.

The act of torture, under international law, is not permissible under any circumstance. As a jus cogens norm, there is no legally permissible excuse for the use of torture. There is no need for a lengthy argument padded by legalese to make this point. The prohibition of torture is a natural development in response to the very horrific act that is torture. It should be this cut and dry.

Unfortunately we still see torture as a very serious issue. Some countries do not have the international norm effectively including in their national legislation, while others do not give effect to the norm in a way that is meaningful in the everyday life of their citizens. The use of torture as a means to extract evidence during a criminal investigation does not always lead to exclusion of that evidence during criminal proceedings despite the evidence being fruit from the forbidden tree (Redress and Fair Trials have a very important new report on this: https://fairtrials.org/news/new-report-reveals-torture-evidence-still-routinely-used-around-world).

On Torture Victims Day, Contra Nocendi International stands up for the prohibition of torture and vows to continue its support for victims of torture. There is no place in society for the use of torture and we will keep pushing that point through advocating for its practical prohibition at every opportunity and by continuing to be a strong voice for victims of torture.

Last year we celebrated the de-criminalisation of sexual conduct between persons of the same sex in Burundi. While there is much still to be done to create an environment of equality and dignity for LGBTIQ+ persons, the decriminalisation was a step forward for SOGIE rights in Burundi. Unfortunately, 72 countries and territories around the world still criminalise sexual conduct between persons of the same sex according to the United Nations Development Programme.

This May 17^th, we mark the International Day Against Homophobia, Transphobia and Biphobia and embrace this year’s aim of promoting justice and protection for all. Contra Nocendi has engaged international human rights bodies to make clear that any discrimination based on gender identity and sexual orientation is contrary to international human rights law. This has included being extremely critical of the criminalisation of sexual conduct between persons of the same sex. We believe that such practices are arbitrary and in clear contradiction to international human rights law. We are unwavering in our support for SOGIE rights and have even entrenched SOGIE rights in our founding document.

While we were happy to see the decriminalisation of sexual conduct between persons of the same sex in Angola, we are still deeply concerned about the practical exercise of SOGIE rights in Africa. Far too many countries in Africa still criminalise sexual conduct between persons of the same sex and have other legislation on the books meant to discriminate LGBTIQ+ persons. Not only do such laws discriminate directly, they can also be seen as encouraging others to discriminate and view LGBTIQ+ persons as a threat. This is unacceptable and the governments of Africa must stop ignoring their obligations related to SOGIE rights.

This year also brought an amazing project called the Voices of Kenya, which provides a platform for LGBTIQ+ persons in Kenya to voice their experiences. Not only is the project a noble endeavour, it re-engages the world about the issue of discrimination against LGBTIQ+ persons ahead of an important judgement set to be handed down by Kenya’s High Court on 24 May.

As we mark the International Day Against Homophobia, Transphobia and Biphobia; we wish to remind all LGBTIQ+ people in Africa exposed to discrimination and harm due to their sexual orientation or gender identity that there are many people out there that recognize their right to equality and justice. CNI will always be in your corner.

Press freedom, or freedom of the press, is invaluable right of all persons and is vital to the practical exercise of all human rights. In many parts of the world, journalists risk their safety and sometimes pay the ultimate price in order to bring to light some of most horrific abuses of power and of human dignity.

According to the International Press Institute, 12 journalists have died so far in 2019. This is such startling number. Journalists should not be targets of violence, but somehow these courageous human beings continue to sacrifice in the name of press freedom.

Contra Nocendi International condemns all efforts to violate press freedom. In Burundi and Cameroon, press freedom continues to be a serious issue. According to Reporters without Borders, Burundi ranks 159^th in the 2019 World Press Freedom index, while Cameroon is 131^st. Both countries create serious concerns for the ability of journalists to operate within their borders and bring much needed objective journalism to the people of Cameroon and Burundi as well as the world. Both governments must take a clear stance in support of press freedom.

We are concerned with the issue of press freedom, especially during elections. With Burundi and Cameroon, both countries will be holding elections in 2020. As we noted in our submission to the African Commission’s Special Rapporteur on Freedom of Information in Africa related to the Draft Guidelines on the Freedom of Information and Elections in Africa, access to information during the electoral process is vital to a free and fair election. A free and fair election is not possible without freedom of the press.

As we mark World Press Freedom Day on 3 May, we pause to appreciate the sacrifices of so many journalists who suffered in pursuit of press freedom, and re-iterate our unwavering support in press freedom. As we look to the elections in Cameroon and Burundi next year, it is our sincere hope that both elections are able to be observed and reported on in a manner that promotes the freedom of the press.