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RAPPORTEUR
27th Session: Commissioner Chirwa
28th Session: Commissioner Chirwa
29th Session: Commissioner Chirwa
30th Session: Commissioner Chirwa
31st Session: Commissioner Chirwa
32nd Session:
33rd Session: Commissioner Chirwa
SUMMARY OF FACTS
1. The Complainant alleges that on 13th June 1999, the students of the Nubia
Association at Ahlia University held a picnic in Buri, Khartoum along the
banks of the river. Although under the law no permission is necessary for
such a picnic, the students nevertheless sought permission and got it from
the local authorities.
2. After starting off for some hours, security agents and policemen accosted
the students, beating some of them and arresting others. They were alleged
to have violated 'public order' contrary to Article 152 of the Criminal Law
of 1991 because they were not properly dressed or acting in a manner
considered being immoral.
3. The Complainant avers that the acts constituting these offences comprised
of girls kissing, wearing trousers, dancing with men, crossing legs with
men, sitting with boys and sitting and talking with boys.
4. The eight students arrested were Hanan Said Ahmed Osman, Sahar Ebrahim
Khairy Ebrahim, Manal Mohammed Ahamed Osman, Omeima Hassan Osman, Rehab
Hassan Abdelmajid, Huda Mohammed Bukhari, Noha Ali Khalifa and Nafissa Farah
Awad.
5. On 14th June 1999, the eight students referred to in the above paragraph
were convicted and sentenced to fines and or lashes. The said punishment was
executed through the supervision of the court. This type of punishment is
widespread in Sudan.
6. Complainant alleges that the punishment meted out was grossly
disproportionate, as the acts for which the students were punished were
minor offences, which ordinarily would not have attracted such punishments.
The alleged punishments therefore constitute cruel, inhuman and degrading
punishment.
7. No written record of the proceedings is publicly available.
8. The Complainant submits on the issue of exhaustion of local remedies that
since the sentences have already been executed, domestic remedies would no
longer be effective.
COMPLAINT
9. The Complainant alleges violation of Article 5 of the Charter.
PROCEDURE
10. The complaint was received at the Secretariat of the African Commission
on 17th March 2000.
11. At the 27th Ordinary Session held from 27th April to 11th May 2000 in
Algiers, Algeria, the African Commission heard oral submissions from the
parties, decided to be seized of the communication and consolidated it with
all the other communications against the Republic of Sudan. The African
Commission then requested the parties to address it on the issue of
exhaustion of domestic remedies.
12. The above decision was communicated to parties on 30th June 2000.
13. At its 28th Ordinary Session held from23rd October to 6th November 2000
in Cotonou, Benin, the African Commission decided to defer consideration of
this communication to the 29th Ordinary Session and requested the
Secretariat to incorporate the oral submissions of the Respondent State to
enable the African Commission take a reasoned decision on admissibility.
14. At the 29th Ordinary Session held from 23rd April to 7th May 2001 in
Tripoli, Libya, t he representatives of the Respondent State present at the
session informed the African Commission that they were not aware of the
communications 235/00 and 236/00 - Curtis Doebbler/Sudan. During the
Session, the Secretariat provided the representatives of the Respondent
State with copies of the said communications. The African Commission decided
to defer consideration of these communications to the next session.
15. On 19th June 2001, the Secretariat of the African Commission informed
the parties of the decision of the African Commission and requested the
Respondent State to forward its written submissions within two (2) months
from the date of notification of this decision.
16. During the 30th Ordinary Session held from 13th to 27th October 2001 in
Banjul, The Gambia, the African Commission heard the oral submissions of the
parties with respect to this matter. Following detailed discussions, the
African Commission noted that the Respondent State had not responded to the
issues raised by the Complainant. The African Commission therefore decided
to defer consideration of these communications to the 31st Session, pending
receipt of detailed written submissions from the Respondent State in
response to the submissions of the Complainant.
17. On 15th November 2002, the Secretariat of the African Commission
informed the parties on the decision of the African Commission and requested
the Respondent State to forward its written submissions within two (2)
months from the date of notification of this decision.
18. At its 31st Ordinary Session held from 2 nd to 16th May 2002, in
Pretoria, South Africa, the African Commission heard submissions from both
parties and declared the communication admissible.
19. On 29th May 2002, the Respondent State and the Complainants were
informed of the African Commission’s decision.
20. At the 32nd Ordinary Session, the Representative of the Respondent State
made oral and written submissions requesting the African Commission to
review its decision on admissibility relating to all the communications
brought by the Complainant against the government of Sudan. The African
Commission informed the Respondent State that the issue of admissibility of
the communications had been settled and that the Respondent State should
submit its arguments on the merits .
21. At its 33 rd Ordinary Session held from 15th to 29th May 2003 in Niamey,
Niger, the African Commission considered this communication and decided to
deliver its decision on the merits.
LAW
ADMISSIBILITY
22. Article 56(5) of the Charter stipulates that "communications relating to
Human and Peoples’ Rights...received by the African Commission shall be
considered if they...are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged..."
23. The Complainant alleges that no effective domestic remedies exist as the
punishments were carried out immediately after the verdict and sentencing by
the Court of First Instance. As a result, any right of appeal was thus
illusionary and ineffective for preventing the cruel, inhuman and degrading
punishment to which the petitioners were subjected. The Complainant submits
that a remedy that has no prospect of success does not constitute an
effective remedy and states that the Criminal Code of Sudan had been
steadfastly applied in numerous cases and hence there was no reasonable
prospect of success of having it declared invalid.
24. He adds that a visa was denied to the legal representative of the
victims. By failing to ensure that the victims were given a fair hearing in
which their lawyers represented them in matters concerning their human
rights under the Charter, the government of Sudan denied the victims the
right to local effective remedies.
25. The Respondent State claims that the lawyers for the accused have not
submitted any appeal against the judgment of the Court of Cassation, and
after the expiry of the stipulated period for submitting an appeal to the
Supreme Court the judgment became final. The defendants had the possibility
of appealing against the judgment of the Court of Cassation to the Supreme
Court since Article 182 of the 1991 criminal procedure entitles them to this
right.
26. The Respondent State believes that the case does not deserve to be
considered and submits that the accused students committed acts deemed
criminal by the existing laws of the country; they legally appeared before
the courts and enjoyed their right to defence by a lawyer. They had an
opportunity to appeal, which they did only once, and have not exhausted the
opportunities which the law offered them. Article 56 (5) of the Charter
provides for the requirement of exhausting all local remedies before
appealing to the African Commission. He therefore requests the African
Commission to declare the communication inadmissible.
27. In order to exhaust the local remedies within the spirit of Article
56(5) of the Charter, one needs to have access to those remedies but if
victims have no legal representation it would be difficult to access
domestic remedies.
28. For the above reasons, the African Commission declares the communication
admissible.
MERITS
29. Article 5 of the African Charter reads: " 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"
30. Complainant alleges that eight of the students of the Ahlia University
were arrested and convicted by a public order court for acts that violated
the ‘public order’. He states that they were all sentenced to fines and
between 25 and 40 lashes, the lashes were carried out in public on the bare
backs of the women using a wire and plastic whip that leaves permanent
scares on the women.
31. He points out that the instrument used to inflict the lashes was not
clean and no doctor was present to supervise the execution of punishment and
that the punishment therefore, could have resulted in sever infections to
the victims.
32. Complainant alleges that the punishment of lashings are disproportionate
and humiliating because they require a girl to submit to baring her back in
public and to the infliction of physical harm which is contrary to the high
degree of respect accorded to females in Sudanese society.
33. The Respondent State argues that the court found the accused guilty and
decided to have them flogged with either a fine of fifty thousand Sudanese
pounds each, or one-month imprisonment.
34. The Respondent State informed the African Commission that the lashings
were justified because the authors of the petition committed acts found to
be criminal according to the laws in force in the country.
35. There is little or no dispute between the Complainant and the Government
of Sudan concerning the facts recounted above. The only dispute that arises
is to whether or not the lashings for the acts committed in this instance
violate the prohibition of article 5 as being cruel, inhumane, or degrading
punishment.
36. Article 5 of the Charter prohibits not only cruel but also inhuman and
degrading treatment. This includes not only actions which cause serious
physical or psychological suffering, but which humiliate or force the
individual against his will or conscience.
37. While ultimately whether an act constitutes inhuman degrading treatment
or punishment depends on the circumstances of the case. The African
Commission has stated that the prohibition of torture, cruel, inhuman, or
degrading treatment or punishment is to be interpreted as widely as possible
to encompass the widest possible array of physical and mental abuses (See
Communication 225/98 Huri-Laws / Nigeria).
38. The European Court of Human Rights in Tyler v. United Kingdom [FN1],
applying article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 U.N.T.S. 221, entered into force 3
February 1953 , that is substantially similar prohibition of cruel, inhuman,
and degrading punishment as article 5 of the Charter, has similarly held
that even lashings that were carried out in private, with appropriate
medical supervision, under strictly hygienic conditions, and only after the
exhaustion of appeal rights violated the rights of the victim. The Court
stated that: "the very nature of judicial corporal punishment is that it
involves one human being inflicting physical violence on another human
being. Furthermore, it is institutionalised violence that is in the present
case violence permitted by law, ordered by the judicial authorities of the
State and carried out by the police authorities of the State. Thus, although
the applicant did not suffer any severe or long lasting physical effects,
his punishment whereby he was treated as an object in the power of
authorities "constituted an assault on precisely that which it is one of the
main purposes of Article 3 to protect, namely a person dignity and physical
integrity. Neither can it be excluded that the punishment may have had
adverse psychological effects".
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[FN1] Tyrer v. United Kingdom, European Court of Human Rights, 26
Eur.Ct.H.R. (ser. A) (1978), 2 E.H.R.R. 1 (1979-80) at para. 30 and Ireland
v. United Kingdom, European Court of Human Rights, 25 Eur.Ct.H.R. (1978), 2
E.H.R.R. 25 (1979-80) at para. 162
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39. The Complainant alleges that the punishment meted out was grossly
disproportionate, as the acts for which the students were punished were
minor offences, which ordinarily would not have attracted such punishments.
40. The Complainant submits that according to Islamic law the penalty of
lashings may be meted out for some serious crimes. For example, hadd
offenses may be punished with lashes under Shari’a because they are
considered grave offences [FN2] and strict requirements of proof apply.
Minor offenses, however, cannot be punished as hadd because the Qur’an does
not expressly prohibit them with a prescribed penalty. The acts committed by
the students were minor acts of friendship between boys and girls at a
party.
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[FN2] There are six crimes to which the hadd ("fixed") penalties apply,
namely, zina (fornication, Qur’an 24:2), qadhf (false accusation of
fornication, Qur’an 24:4), sukr (drunkenness, prescribed in the Qur’an and
Sunnah), sariqa (theft, Qur’an 5:38), ridda (apostasy), and haraba
(rebellion, Qur’an 5:33). Also see Abdullahi Ahmed An-Na’im, Towards an
Islamic Reformation: Civil Liberties, Human Rights, and International Law
(1990) at 108 and accompanying endnotes.
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41. The African Commission, however, wishes to assert that it was not
invited to interpret Islamic Shari’a Law as obtains in the Criminal Code of
the Respondent State. No argument was presented before it nor did the
African Commission consider arguments based on the Shari’a Law. The African
Commission hereby states that the inquiry before it was confined to the
application of the African Charter in the legal system of a State Party to
the Charter.
42. There is no right for individuals, and particularly the government of a
country to apply physical violence to individuals for offences. Such a right
would be tantamount to sanctioning State sponsored torture under the Charter
and contrary to the very nature of this human rights treaty.
43. The facts in this communication have not been disputed by the Respondent
State. In their oral submissions at the 33rd Ordinary Session, the
Respondent State confirmed this by stating that it was the opinion of the
Respondent State that it was better for the victims to have been lashed
rather than hold them in detention for the said criminal offences and as
such deny them of the opportunity to continue with their normal lives.
44. The law under which the victims in this communication were punished has
been applied to other individuals. This continues despite the government
being aware of its clear incompatibility with international human rights
law.
FOR THESE REASONS, THE AFRICAN COMMISSION,
Finds the Republic of Sudan violation of Article 5 of the African Charter on
Human and Peoples’ Rights and requests the Government of Sudan to:
a) Immediately amend the Criminal Law of 1991, in conformity with its
obligations under the African Charter and other relevant international human
rights instruments;
b) Abolish the penalty of lashes; and
c) Take appropriate measures to ensure compensation of the victims.
Done at 33rd Ordinary Session in Niamey, Niger from 15th to 29th May 2003. |
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