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RAPPORTEUR
24th ordinary session: Commissioner Pityana
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 Dankwa
SUMMARY OF FACTS
1. Communication 222/98 was submitted by Law Office of Ghazi Suleiman, a law
firm based in Khartoum, Sudan, on behalf of Abdulrhaman Abd Allah
Abdulrhaman Nugdalla (unemployed), Adb Elmahmoud Abu Ibrahim (religious
figure) and Gabriel Matong Ding (engineer).
2. It is alleged that the three persons were put in jail and the necessary
investigations carried out in accordance with the 1994 law relating to
national security. The acts of these persons had terrorist and propaganda
objectives aimed at endangering the security and peace of the country and
innocent civilians.
3. The Complainant alleges that these individuals were arrested on 1st July
1998 or around this date and that they were detained by the Government of
Sudan without charge and were refused contact with their lawyers or their
families.
4. He adds that their lawyers requested, in vain, the competent authorities,
including the Supreme Court (Constitutional Division), authorisation to
visit their clients. The last of these requests was rejected on 5th August
1998. There are reasons to believe that these detainees are subjected to
torture.
5. The same Law Office of Ghazi Suleiman submitted a similar communication
229/99 on behalf of 26 civilians. These are civilians being tried under a
military court, accused of offences of destabilizing the constitutional
system, inciting people to war or engaging in the war against the State,
inciting opposition against the Government and abetting criminal or
terrorist organisation under the law of Sudan.
6. It is alleged that this court was established by Presidential decree and
that it is mainly composed of military officers. Of the four members of the
court, three are active servicemen. The communication adds that the court is
empowered to make its own rules of procedure which does not have to conform
to the established rules of fair trial.
7. The Complainant claims also that all these suspects were refused the
right to assistance of defenders of their choice and sufficient time and
access to their files with a view to preparing their defense. Violation of
the right to defense by lawyers of their choice is allegedly based on the
judgment delivered by the military court on 11th October 1998 with a view to
preventing the lawyers chosen by the accused to represent them. Mr. Ghazi
Suleiman, main shareholder of the complaining law firm, is one of these
lawyers. It is also reported that the decisions of this court are not
subject to appeal.
PROVISIONS THE AFRICAN CHARTER ALLEGEDLY VIOLATED
8. The Complainant alleges that Articles 5, 6 and 7(a), (b), (c) and (d) of
the African Charter have been violated.
PROCEDURE
9. The communication was received at the Secretariat on 28th September 1998.
10. During its 25th Ordinary Session held from 26th April to 5th May 1999 in
Bujumbura, Burundi, the African Commission decided to consider the
communication.
11. On 11th May 1999, the Secretariat of the African Commission notified the
two parties of this decision.
12. The African Commission considered the communication during its 26th
ordinary session held in Kigali, Rwanda, from 1st to 15th November 1999 and
requested the Complainant to submit in writing his comments on the issue of
exhaustion of local remedies. Furthermore, it requested the parties to
provide it with the relevant legislation and court decisions (in English or
French).
13. On 21st January 2000, the Secretariat of the African Commission wrote to
the parties informing them of the decision of the African Commission.
14. During its 27th Ordinary Session held from 27th April to 11th May 2000
in Algiers, Algeria, the African Commission heard the oral submissions of
the parties and decided to consolidate all the communications brought
against Sudan. The African Commission requested the parties to provide their
written submission on the issues of exhaustion of local remedies.
15. On 30th June 2000, these decisions were communicated to the parties.
16. 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 case to the 29th Ordinary Session and requested the Secretariat to
incorporate the oral submissions of the State delegate and the written
submissions of the Counsel into the draft decision to enable the African
Commission take a reasoned decision on admissibility.
17. During the 29th Ordinary Session held in Tripoli, Libya, 23rd April to
7th May 2001, the African Commission heard the parties on the case.
Following detailed discussions, the African Commission noted that the
Complainant had submitted a comprehensive dossier on the case. It was
therefore recommended that consideration of the communication be deferred to
the 30th ordinary session, pending the submission of detailed replies of the
Respondent State.
18. On 19th June 2001, the Secretariat of the African Commission informed
the parties of the above mentioned decision and requested the Respondent
State to send its written submissions within two months from the date of
notification of the African Commission's decision.
19. During the 30th Ordinary Session held from 13th to 27th October 2001 in
Banjul, The Gambia, the Respondent State and Dr Curtis Doebler presented
their oral submissions. The African Commission decided to defer
consideration of these communications to the 31st Ordinary Session and
requested the Government of Sudan to reply to the Complainant's submissions.
20. On 15th November 2001, the Secretariat of the African Commission
informed the parties of the decision of the African Commission and requested
the Respondent State to submit its written comments within two months from
the date of the notification of the said decision.
21. During its 31st Ordinary Session held from 2nd to 16th May 2002 in
Pretoria, South Africa, the African Commission heard oral submissions from
the two parties and declared the communication admissible. The African
Commission also decided to consolidate communications 222/98 and 229/99 due
to the similarity of the allegations.
22. On 29th May 2002, the Respondent State and the Complainants were
informed of the decision adopted by the African Commission.
23. At the 32nd Ordinary Session held from 17th to 23rd October 2002 in
Banjul, The Gambia, 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.
24. 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.
SUBMISSIONS OF THE COMPLAINANT
25. The Complainant informed the African Commission that the victims were
released at the end of 1999 following the pardon granted by the President of
Sudan. When they were released, the Government announced that the case was
closed and that no other legal proceedings could or would be initiated. The
pardon was granted on condition that the victims renounce their right to
appeal.
26. The Complainant informed the African Commission that there exists no
effective means of obtaining redress, and that even when an appeal is made
to the Constitutional Court, this has no effect because of the state of
emergency in force. He added that lack of appropriate means of obtaining
redress is a result of political restrictions which prevent its
implementation.
SUBMISSIONS OF THE RESPONDENT STATE
27. In its written submissions, the Respondent State stresses that the acts
committed by the accused amounted to a terrorist crime endangering national
peace and security. Considering the cruel nature of the crime characterised
by the use of lethal weapons and given that these crimes are provided for in
Parts 5, 6 and 7 of the 1991 criminal code of Sudan, the accused were judged
by a military court in conformity with the 1986 law relating to the peoples'
armed forces, following the assent of the Minister of Justice as applied for
by the military authorities under the law. The court's sessions were open to
the public and the accused were treated in accordance with the law which
guarantees them the right to fair trial. They exercised their right to
freely choose their legal counsel. The legal counsel was composed of nine
prominent names from the Sudanese Bar, presided by Abel Alaire Esq., former
Vice President of the Republic of Sudan.
28. The defense counsel submitted an appeal to the Constitutional Court,
thus suspending the course of military proceedings. The Constitutional Court
delivered a final judgment rendering void the decision of the military
court.
29. The President of the Republic then pardoned the accused in this criminal
case so as to promote national harmony and peace to which Sudan has always
aspired, and prepare a climate of understanding and comprehensive peace. In
the light of this Presidential proclamation, the Minister of Justice
instructed that the legal proceedings be discontinued and that the accused
to be released immediately.
30. The pardon was published in the media and neither the declaration of the
President of the Republic nor the decision of the Minister of Justice
expressly states the condition prohibiting the accused from appealing to the
courts or that they should renounce any of their rights.
31. The Respondent State is convinced that the Government of Sudan, has, in
all the procedures, complied with the provisions of the African Charter on
Human and Peoples' Rights as well as the principles of International Law on
Human Rights.
LAW
ADMISSIBILITY
32. The admissibility of the communications submitted in conformity with
Article 55 of the Charter is governed by the conditions set out in Article
56 of the same Charter. The applicable provision in this particular case is
Article 56(5) which stipulates that:
"communications....shall
be considered if they are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged..."
33. The case under consideration is a consolidation of two communications
with similar allegations.
34. In his oral submissions, the delegate of the State informed the African
Commission that after the adoption of the new 1998 Constitution, the
political situation in Sudan was marked by important political developments
which were characterised by the return to Sudan of many opposition figures
and leaders of political parties living abroad, and these could go about
their political activities in the country in a climate of peaceful
coexistence, freedom, pardon and dialogue with a view to building the unity
of Sudan. During this period, Sudan was distinguished by its respect and
commitment to the United Nations Charter and the OAU Charter in its
relations with neighbouring States, and it was able to re-establish
relations with a view to realizing cooperation and trust so as to strengthen
African unity and solidarity. Following these developments, the State
discontinued the legal proceedings against the Complainants. Since then,
they exercise their political activities freely and in a climate of
forgiveness and brotherhood.
35. The Respondent State insists that the Complainants were allowed access
to justice and were not deprived of their right to submit their applications
for the protection of their constitutional rights. It considers that the
Complainants did enjoy all their rights provided for by Article 9 of the
International Covenant on Civil and Political Rights.
36. The Complainant alleges that there are no effective means of obtaining
redress because the victims were forced to renounce their right to take
legal action against the Government. They were pardoned and released on
condition that they renounce their right to claim damages from the
Government. By renouncing the right to claim damages, the Complainants had
been denied access to domestic remedies but they had not renounced their
right to bring the matter before an international body.
37. The Complainant and the Respondent State are in agreement about the fact
that the applicants brought an action before the Supreme Court
(Constitutional Division) which on 13th August 1998 decided that the 1994
law on national security took precedence over international law on
individual's rights, including the African Charter on Human and Peoples'
Rights.
38. The Complainant adds that though the applicants were released at a later
date, there has been no compensation for violation of their human rights. He
affirms on the other hand that the applicants have exhausted all local
remedies with regard to compensation for violation of their human rights by
the decision of the Supreme Court (Constitutional Division) of 13th August
1998.
39. The African Commission feels that the obligations of the States are of
an erga omnes nature and do not depend on their citizens. In any case, the
fact that the victims were released does not amount to compensation for
violation. The African Commission has taken note of the changes introduced
by the Government of Sudan with a view to more protection of human rights
but wishes to point out that these changes have no effect whatsoever on past
acts of violation and that, under its mandate of protection, it must make a
ruling on the communications.
40. Supported by its earlier decisions, the African Commission has always
treated communications by ruling on the alleged facts at the time of
submission of the communication (See communications 27/89, 46/91 and 99/93 - Organisation Mondiale Contre la Torture et al/Rwanda). Accordingly, even if
the situation has changed for the better allowing the release of the
suspects, the position has not changed with regard to the accountability of
the Government in terms of the acts of violation committed against human
rights.
41. For these reasons, the African Commission declares this communication
admissible.
MERITS
42. Article 5 of the Charter stipulates that:
"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."
43. The Complainant alleges that in the two months of their detention, the
suspects were imprisoned, tortured and deprived of their rights. They
disputed their detention and treatment inflicted on them as being against
the international law on human rights and the law of Sudan.
44. Furthermore, detaining individuals without allowing them contact with
their families and refusing to inform their families of the fact and place
of the detention of these individuals amounts to inhuman treatment both for
the detainees and their families.
45. Torture is prohibited by the criminal code of Sudan and the perpetrators
are liable to imprisonment for three months or a fine.
46. The African Commission appreciates the Government's action of taking
legal action against those who committed torture but the scope of the
measures taken by the Government is not proportional to the magnitude of the
abuses. It is important to take preventive measures such as stopping secret
detentions, the search for effective solutions in a transparent legal system
and continuation of investigations of allegations of torture.
47. Considering that the acts of torture have been recognised by the
Respondent State, even though it did not specify whether legal action was
taken against those who committed them, the African Commission considers
that these acts illustrate the government's violation of the provisions of
Article 5 of the African Charter.
48. Article 6 of the Charter stipulates that:
"Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by the law. In particular, no one may be
arbitrarily arrested or detained."
49. Communication 222/98 alleges that the plaintiffs were arrested and
detained without being told the reason for their arrest and without charge.
The Complainant submits that their arrest was illegal and was not based on
the legislation in force in the country and that their detention without
access to their lawyers was a violation of the norms which prohibit inhuman
and degrading treatment and provide for the right to fair trial.
50. The Respondent State confirms that the detainees submitted their
application contesting their arrest and treatment received during their
detention. However, the Respondent State indicates that the plaintiffs did
not follow the lengthy procedure required for the restoration of their
rights and that, accordingly, the court rejected the said application by
decision no. M/A/AD/1998. It should be stressed particularly that the
Respondent State does not dispute that the victims were arrested without
being charged. This is a prima facie violation of the right not to be
illegally detained as provided for by Article 6 of the African Charter.
51. The Complainant alleges that Article 7(1) of the African Charter was
violated, in that it stipulates that:
"Every individual shall have the right to have his cause heard. This
comprises:
(a) The right to an appeal to competent national organs against acts
violating his fundamental rights as recognized and guaranteed by
conventions, laws, regulations and customs in use;
(b) The right to be presumed innocent until proven guilty by a competent
court or tribunal;
(c) The right to defense, including the right to be defended by counsel of
his choice;
(d) The right to be tried within a reasonable time by an impartial court or
tribunal."
52. All these provisions are inter-linked and when the right to have one's
cause heard is violated, other acts of violations may also be committed such
that the detentions become illegal and are detrimental to the proceedings of
a fair trial in the proper form.
53. Furthermore, in terms of form, the fact that the decisions of the
military court are not subject to appeal and that civilians are brought to a
military court constitutes a de jure procedural irregularity. Additionally,
to prevent the submission of an appeal to competent national courts violates
Article 7(1)(a) and increases the risk of not redressing the procedural
defects.
54. In the communication under consideration, the Complainant alleges that
the victims were declared guilty in public by investigators and highly
placed Government officers. It is alleged that the Government organised wide
publicity around the case, with a view to convincing the public that there
had been an attempted coup and that those who had been arrested were
involved in it. The Government showed open hostility towards the victims by
declaring that "those responsible for the bombings" will be executed.
55. The Complainant alleges that in order to reconstitute the facts, the
military court forced the victims to act as if they were committing crimes
by dictating to them what to do and those pictures were filmed and used
during the trial. It is claimed that the authorities attested to the guilt
of the accused on the basis of these confessions. The African Commission has
no proof to show that these officers were the same as those who presided
over or were part of the military court that tried the case. These pictures
were not presented to the African Commission as proof. In such conditions,
the African Commission cannot carry out an investigation on the basis of
non-established proof.
56. However, the African Commission condemns the fact that State officers
carried out the publicity aimed at declaring the suspects guilty of an
offence before a competent court establishes their guilt. Accordingly, the
negative publicity by the Government violates the right to be presumed
innocent, guaranteed by Article 7(1)(b) of the African Charter.
57. As shown in the summary of facts, the Complainants did not get
permission to get assistance from counsel and those who defended them were
not given sufficient time nor access to the files to prepare their defense.
58. The victims' lawyer, Ghazi Suleiman, was not authorised to appear before
the court and despite several attempts, he was deprived of the right to
represent his clients or even contact them.
59. Concerning the issue of the right to defense, Communications 48/90,
50/91, 52/91, 89/93 - Amnesty International & others/Sudan are clear on this
subject. The African Commission held in those communications that-: "the
right to choose freely one's counsel is fundamental for the guarantee of a
fair trial. To recognise that the court has the right of veto on the choice
of a counsel of one's choice amounts to an unacceptable violation of this
right. There should be an objective system of registration of lawyers so
that those lawyers so registered are no longer prevented from assisting in
given cases. It is essential that the national Bar is an independent organ
which regulates the profession of lawyers and that courts do no longer play
this role contrary to the right to defense."
60. Refusing the victims the right to be represented by the lawyer of their
choice, Ghazi Suleiman, amounts to a violation of Article 7(1)(c) of the
African Charter.
61. It is alleged that the military court which tried the victims was
neither competent, independent nor impartial insofar as its members were
carefully selected by the Head of State. Some members of the court are
active military officers. The Government did not refute this specific
allegation, but just declared that the counsels submitted an appeal to the
constitutional court, thus suspending the course of military proceedings.
The constitutional court delivered a final judgment, rendering void the
decision of the military court against the accused.
62. In its Resolution on Nigeria (adopted at the 17th session), the African
Commission stated that among the serious and massive acts of violation
committed in the country, there was "the restriction of the independence of
the court and the establishment of military courts which had no independence
nor rules of procedure to try individuals suspected of being opponents of
the military regime"
63. The Government confirmed the allegations of the Complainants concerning
the membership of the military court. It informed the African Commission in
its written submissions that the military court had been established by a
Presidential decree and that it was mainly composed of military officers; of
the four members, three were active servicemen and that the trial had taken
place legally.
64. This composition of the military court alone is evidence of
impartiality. Civilians appearing before and being tried by a military court
presided over by active military officers who are still under military
regulations violates the fundamental principles of fair trial. Likewise,
depriving the court of qualified staff to ensure its impartiality is
detrimental to the right to have one's cause heard by competent organs.
65. In this regard, it is important to recall the general stand of the
African Commission on the question of civilians being tried by military
courts. In its Resolution on the right to a fair trial and legal aid in
Africa, during the adoption of the Dakar Declaration and Recommendations,
the African Commission noted that-: In many African countries, military
courts or specialised criminal courts exist side by side with ordinary
courts to hear and determine offences of a purely military nature committed
by military staff. In carrying out this responsibility, military courts
should respect the norms of a fair trial. They should in no case try
civilians. Likewise, military courts should not deal with offences which are
under the purview of ordinary courts.
66. Additionally, the African Commission considers that the selection of
active military officers to play the role of judges violates the provisions
of paragraph 10 of the fundamental principles on the independence of the
judiciary which stipulates that: "Individuals selected to carry out the
functions of judges should be persons of integrity and competent, with
adequate legal training and qualifications." (Communication 224/98 - Media
Rights Agenda/Nigeria)
67. Article 7(1)(d) of the Charter requires the court to be impartial. Apart
from the character of the membership of this military court, its composition
alone gives an appearance, if not, the absence of impartiality, and this
therefore constitutes a violation of Article 7(1)(d) of the African Charter.
FOR THESE REASONS, THE AFRICAN COMMISSION
Finds the Republic of Sudan in violation of the provisions of Articles 5, 6
and 7 (1) of the African Charter;
Urges the Government of Sudan to bring its legislation in conformity with
the African Charter;
Requests the Government of Sudan to duly compensate the victims.
Done at the 33rd ordinary session held in Niamey, Niger, from 15th to 29th
May 2003. |
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