25th Ordinary Session: Commissioner Pityana
26th Ordinary Session: Commissioner Pityana
27th Ordinary Session: Commissioner Pityana
28th Ordinary Session: Commissioner Pityana
29th Ordinary Session: Commissioner Pityana
30th Ordinary Session: Commissioner Pityana
31st Ordinary Session: Commissioner Pityana
32nd Ordinary Session:
33rd Ordinary Session: Commissioner Pityana
Summary of Facts:
1. The Complainant is a Law Firm based in Khartoum, Sudan. The complaint
dated 1 January 1999 was received in the Secretariat on 29 January 1999
2. The Complaint is submitted on behalf of Mr. Ghazi Suleiman, the principal
partner in the Law Firm of Ghazi Suleiman.
3. The Complainant alleges that Mr. Ghazi Suleiman was invited by a group of
human rights defenders to deliver a public lecture on 3rd January 1999 in
Sinnar, Blue Nile State. He alleges further that Mr.Ghazi Suleiman was
prohibited from travelling to Sinnar by some security officials who
threatened that if he made the trip, he would be arrested.
4. It is also alleged that this threat and the implied threat of
repercussions for the group prevented him from embarking on the trip.
5. The Complainant claims that the following actions were directed against
Mr Ghazi Suleiman in the period between January 1998 and May 2002 to which
this communication pertains:
a. Threats by security officials of the government of Sudan preventing
travel to Sinnar on 3 January 1999,
b. An arrest on 7 April 1999
c. An arrest 8 June 1999
d. An attack on his office and his person on 17 November 1999
e. An arrest on 26 March 2000
f. An arrest on 9 December 2000
g. An arrest on 9 May 2002
6. The Complainant alleges violations of Articles 9, 10, 11 and 12 of the of
the Charter on Human and Peoples’ Rights (the Charter) and that all these
rights have been suspended under the national Security Act 1994, as amended
7. At its 25th Ordinary Session held from 26th April to 5th May 1999 in
Bujumbura, Burundi, the African Commission on Human and Peoples' Rights (the
Commission) was seized of the communication.
8. On 18th August 1999, the Secretariat of the African Commission notified
the parties of this decision.
9. The African Commission considered the communication at its 26th Ordinary
Session held from 1st to 15th November in Kigali, Rwanda and requested the
Complainant to submit written submissions on the issue of exhaustion of
local remedies. In addition, the parties were requested to furnish the
African Commission with the relevant legislation and court decisions (in
either English or French).
10. On 21st January 2000, the Secretariat of the African Commission wrote to
the parties informing them of the decision of the African Commission.
11. At the 27th Ordinary Session held from 27th April to 11th May 2000 in
Algiers, Algeria, the parties made oral submissions and the African
Commission decided to consolidate this communication with all the other
communications brought against Sudan. It requested parties to address it
further on the issue of exhaustion of domestic remedies.
12. The above decision was communicated to parties on 30th June 2000.
13. At the 28th Ordinary Session held from 23rd 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 made by the Respondent State
and the Complainant into the draft decision to enable the African Commission
take a reasoned decision on admissibility.
14. At the 29th Ordinary Session held in Tripoli, Libya, the African
Commission noted that the Complainant had submitted a detailed brief on the
case. It was therefore recommended that consideration of this communication
be deferred to the 30th Session pending submission of a detailed response by
the Respondent State.
15. On 19th June 2001, the Secretariat of the African Commission informed
the parties of the above decision and requested the Respondent State to
forward its written submissions within two (2) months from the date of
notification of the decision.
16. During the 30th Session held from 13th to 27th October in Banjul, The
Gambia, the African Commission heard the oral submissions fromk both
parties. Following detailed discussions on the matter, the African
Commission noted that the Respondent State had not responded to the issues
raised by the Complainant. The African Commission therefore deferred
consideration of these communications to the 31st Session, pending receipt
of detailed written submissions from the Respondent State to those of the
17. On 15th November 2002, the Secretariat of the African Commission
informed the parties on the decision of the African Commission and requested
Respondent State to forward its written submissions within two (2) months
from the date of notification of its decision.
18. At its 31st Ordinary Session held from 2nd 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 held from 17th to 23rd October 2002 in
Banjul, The Gambia, the Representative of the Respondent State requested the
African Commission orally and in writing 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
21. At its 33rd 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.
22. Article 56(5) of the Charter stipulates that communications relating to
human 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 remedies existed at the time
of the violation of human rights because the acts of security officers in
Sudan were not subject to review by judicial authorities and furthermore,
security officials were protected from prosecution by the National Security
Act of 1994.
24. The Complainant alleges that the National Security Act of 1994, which
was in effect at the time of Mr. Ghazi Suleiman’s arrest, “by its terms,
ensured that the security forces could and would operate completely outside
the law”. The result is that the threats of the security officials against
Mr. Ghazi Suleiman, as well as their ability to carry them out, were acts
conducted with impunity and against which Mr. Suleiman had no domestic
25. The Complainant states that in practice, procedures that may exist for
the redress of human rights abuses by the government of Sudan are often
inaccessible to individuals whose human rights have been violated because
the regular judicial and the administrative remedies have substantial
obstacles that prevent their use.
26. The Respondent State requested that this complaint be thrown out or
withdrawn on the grounds that it is lacking in veracity, evidence or
justification. It is submitted that the Complainant is trying to cause
damage to the Sudanese judiciary on the basis of baseless allegations that
bear no relationship to the substance of the complaint.
27. The Respondent State submits that Ghazi Suleiman is a human rights
advocate in Sudan and as such there is no way he could have failed to bring
a complaint with respect to the threat if it had really taken place. The
Respondent State further submits that the Complainant should have exercised
his constitutional rights by instituting court proceedings against the law
enforcement agencies for failure to comply with and violating the
Constitution and the law.
28. The Respondent State also submitted that the domestic remedies are
effective and provided legislation and case precedents to support this
29. The rule of exhausting domestic remedies is the most important condition
for admissibility of communications, there is no doubt therefore, in all
communications seized by the African Commission, the first requirement
considered concerns the exhaustion of local remedies in terms of Article 56
(5) of the Charter.
30. In applying Article 56(5) of the Charter requires:“ the exhaustion of
all domestic remedies, if they are of a judicial nature, are effective and
are not subordinate to the discretionary power of the public authorities”
(See para. 37 of Communications 48/90,50/91 and 89/93 Amnesty International
& al. / Sudan).
31. Furthermore, the African Commission has held that:“ a remedy is
considered available if the Complainant can pursue it without impediment, it
is deemed effective if it offers a prospect of success, and it is found
sufficient if it is capable of redressing the complaint” (See para. 32. of
Communications 147/95 and 149/96 Sir Dawda K. Jawara/ The Gambia).
32. The Respondent State’s assertion of non-exhaustion of domestic remedies
will therefore be looked at in this light. The existence of a remedy must be
sufficiently certain, not only in theory but also in practice, failing
which, it will lack the requisite accessibility and effectiveness. In the
present case, the Complainant submits that Ghazi Suleiman could not resort
to the judiciary of Sudan because of a general fear for his life.
33. In order to exhaust local remedies within the spirit of Article 56(5) of
the Charter, one needs to have access to those remedies, but if Mr. Suleiman
is constantly threatened, harassed and imprisoned, ofcourse he would have no
access to local remedies, they would be considered to be unavailable to him.
34. The National Security Act of 1994 introduces an unfortunate aspect of
the inexistence of remedies by stipulating that: “no legal action or appeal
is provided for against any decision issued under this law”. This manifestly
makes the procedure less protective of the victim.
35. The right to an appeal is a right falling under the right to have one
cause heard as provided under Article 7 of the Charter. The right of appeal
is also a determinant for the fulfilment of the requirement of exhaustion of
local remedies under Article 56(5) of the Charter.
36. It should be noted that the actual application of the law was also made
difficult due to the state of emergency obtaining in the country during this
period. The Complainants had difficulty to obtain justice and exhaust
existing local remedies due to the political situation of the country. In
this case, “it is reasonable to assume that not only the procedure of local
remedies will be unduly prolonged, but also that it will yield no results”.
(See Communication 129/94 Civil Liberties Organisation/Nigeria)
37. For the above reasons, the African Commission declares the communication
38. The African Commission wishes to acknowledge the information brought to
its attention by the Respondent State outlining the development that the
Government of Sudan had undertaken in respect of the constitutional reforms
to guarantee the civil liberties of its citizens and the judicial system of
the country. The African Commission hopes that with these changes, the
judicial system will be able to handle matters relating to human rights
39. Article 9 of the Charter provides:“ Every individual shall have the
right to receive information. Every individual shall have the right to
express and disseminate his opinions within the law”
40. The African Commission affirms the “fundamental importance of freedom of
expression and information as an individual human right, as a cornerstone of
democracy and as a means of ensuring respect for all human rights and
41. The African Commission also holds that Article 9 “reflects the fact that
freedom of expression is a basic human right, vital to an individual’s
personal development, his political consciousness, and participation in the
conduct of public affairs in his country” (Communications 105/93, 128/94,
130/ 94 and 152/96 Media Agenda and Constitutional Rights Project/Nigeria)
42. The communication alleges that Mr. Ghazi Suleiman was arrested,
detained, mistreated, and punished for his promotion and encouragement of
human rights, which the Respondent State claims are inconsistent with its
laws. These activities consisted of speaking out about violations of human
rights, encouraging the government to respect human rights, encouraging
democracy in his public speeches and interviews, and discussing democracy
and human rights with others. These activities have not been conducted
secretly, but have been carried out in public by Mr. Ghazi Suleiman for many
43. It is alleged that Mr. Ghazi Suleiman was exercising his right to
freedom of expression to advocate for human rights and democracy in Sudan
and was stopped; or, he was contemplating the exercise of his human rights
for the same reasons but was prevented from exercising these rights.
44. During the 27th Ordinary Session of the African Commission, the
Representative of the Respondent State did not contest the facts adduced by
the Complainant, however, he states that the 1998 Constitution of Sudan
guarantees the right to freedom of movement (Article 23), right to freedom
of expression (Article 25) and the right to freedom of association (Article
26). He did not provide any defence to the allegations of arrests,
detentions and intimidation of Mr. Ghazi Suleiman.
45. The Respondent State did not submit arguments on the merits in respect
of this communication. In the view of the foregoing, the African Commission
shall base its argument on the elements provided by the Complainant and
condemn the State’s failure not to submit arguments on the merits.
46. In adopting the Resolution on the Right to Freedom of Association, the
African Commission noted that governments should be especially careful that
“in regulating the use of this right, that the competent authorities should
not enact provisions which would limit the exercise of this freedom…[and
that]…the regulation of the exercise of the right to freedom of association
should be consistent with State’s obligations under the African Charter on
Human and Peoples' Rights.” Mr. Ghazi Suleiman’s speech is a unique and
important part of political debate in his country.
47. Article 60 of the Charter provides that the African Commission shall
draw inspiration from international law on human and people’s rights.
48. The European Court on Human Rights recognises that “freedom of political
debate is at the very core of the concept of a democratic society…”
49. The African Commission’s view affirms those of Inter-American Court of
Human Rights which held that: “ freedom of expression is a cornerstone upon
which the very existence of a society rests. It is indispensable for the
formation of public opinion. It is also a condition sine qua non for the
development of political parties, trade unions, scientific and cultural
societies and, in general, those who wish to influence the public. It
represents, in short, the means that enable the community, when exercising
its options, to be sufficiently informed. Consequently, it can be said that
a society that is not well informed is not a society that is truly free.
50. The Inter American Court states that -: “when an individual’s freedom of
expression is unlawfully restricted, it is not only the right of that
individual that is being violated, but also the right of all others to
“receive” information and ideas”. It is particularly grave when information
that others are being denied concerns the human rights protected in the
African Charter as did each instance in which Mr. Ghazi Suleiman was
51. The charges levied against Mr. Ghazi Suleiman by the government of Sudan
indicate that the government believed that his speech threatened national
security and public order.
52. Because Mr. Suleiman’s speech was directed towards the promotion and
protection of human rights, “it is of special value to society and deserving
of special protection”
53. In keeping with its important role of promoting democracy in the
Continent, the African Commission should also find that a speech that
contributes to political debate must be protected. The above challenges to
Mr. Ghazi Suleiman’s freedom of expression by the government of Sudan and
violate his right to freedom of expression under Article 9 of the African
Charter. However, the allegations of arrests, detentions and threats
constitute also a violation of Article 6 of the Charter.
54. Articles 10 of the Charter provides: “Every individual shall have the
right to free association provided that he abides by the law”
55. Article 11 of the Charter provides: “ Every individual shall have the
right to assemble freely with others. The exercise of this right shall be
subjected only to necessary restrictions provided for by the law, in
particular those enacted in the interest of national security…and rights and
freedoms of others.”
56. By preventing Mr. Ghazi Suleiman from gathering with others to discuss
human rights and by punishing him for doing so, the Respondent State had
violated Mr. Ghazi Suleiman’s human rights to freedom of association and
assembly which are protected by Articles 10 and 11 of the African Charter.
57. The right to freedom of movement is guaranteed by Article 12 of the
Charter that reads in relevant paragraph 1: “Every individual shall have the
right to freedom of movement and residence within the borders of the State
provided he abides by the law”
58. The communication alleges that some security officials who prohibited
Mr.Ghazi Suleiman from travelling to Sinnar, threatened him that if he made
the trip, he would be arrested.
59. The Complainant states that Ghazi Suleiman was arrested and released
after being convicted, sentenced and incarcerated. Before his release, he
was made to sign a statement restraining his future freedom, which he
refused to sign.
60. The Respondent State argues that Mr. Ghazi Suleiman has never been
prohibited from delivering lectures on human rights. He indicates that Mr.
Ghazi Suleiman was free to travel and he in fact participated in a Human
rights Conference held in Milan, Italy without any intervention from the
authorities. The Respondent State adds that there is no control of movement
of the people within the national territory, which is in line with Article
12 of the African Charter on Human and Peoples’ Rights.
61. Mr. Ghazi Suleiman was acting to promote the protection of human rights
in his country, Sudan. This is not only indicated by his longstanding record
of human rights advocacy, but also by the events that transpired around the
time of each arrest or act of harassment. These events always concerned
actions or statements he made in support of human rights.
62. Such actions and expressions are among the most important exercises of
human rights and as such should be given substantial protection that do not
allow the State to suspend these rights for frivolous reasons and in a
manner that is thus disproportionate to the interference with the exercise
of these fundamental human rights.
63. The disproportionate actions of the government of Sudan against Mr.
Ghazi Suleiman is evidenced by the fact that the government has not offered
Mr. Ghazi Suleiman an alternative means of expressing his support for human
rights in each instance. Instead the Respondent State has either prohibited
Mr. Ghazi Suleiman from exercising his human rights by issuing threats, or
punished him after summary trial, without considering the value of his
actions for the protection and promotion of human rights.
64. By stopping Mr. Ghazi Suleiman from travelling to Sinnar, which is
located in the Blue Nile State, a part within the country under the control
of the government of Sudan, to speak to a group of human rights defenders,
the government of Sudan violated Mr. Ghazi Suleiman’s right to freedom of
movement in his own country. This constitutes a violation of Article 12 of
65. The fact that Mr. Ghazi Suleiman advocates peaceful means of action and
his advocacy has never caused civil unrest is additional evidence that the
complained about actions of the Respondent State were not proportionate and
necessary to the achievement of any legitimate goal. Furthermore, the
actions of the government of Sudan not only prevent Mr. Ghazi Suleiman from
exercising his human rights, but these actions have a seriously discouraging
effect on others who might also contribute to promoting and protecting human
rights in Sudan.
66. For the above reasons, the interference with Mr. Ghazi Suleiman’s rights
of freedom of expression, association and assembly cannot be justified.
Therefore, the African Commission:
Finds the Republic of Sudan in violation of Articles 6, 9, 10, 11 and 12 of
the African Charter on Human and Peoples’ Rights,
Requests the government of Sudan to amend its existing laws to provide for
de jure protection of the human rights to freedom of expression, assembly,
association and movement.
Done at 33rd Ordinary Session in Niamey, Niger from 15th to 29th May 2003.