Michael Power | Justice disregarded and delayed: The African Commission decision in Elgak and Others v Sudan

25 March 2015 – On 10 March 2015 the African Commission on Human and Peoples’ Rights (ACHPR) handed down its decision in Elgak and Others v Sudan (379/09) ACHPR (2015) (Elgak).  The ACHPR found that the torture of three human rights defenders by Sudanese National Security and Intelligence Services (NISS) officers in 2009 violated multiple rights contained in the African Charter on Human and Peoples’ Rights (African Charter).  The ACHPR also ordered the Republic of Sudan (Sudan) to pay “appropriate compensation” to the complainants and to investigate and prosecute the complainants’ torturers.  The ACHPR’s decision emphasises Sudan’s deeply concerning human rights record and its unwillingness to engage with and improve it.  It also raises concerns about the ACHPR’s own effectiveness and efficiency.

Factual background

On 24 November 2008, NISS officers, Ismail Omar and Wad Al Nour, arrested and detained Monim Elgak (Elgak), Osman Hummeida (Hummeida) and Amir Suliman (Suliman) in an area close to the Central Khartoum Police Station.  At the time, Elgak was a human rights researcher; Hummeida, a former director of the Sudanese Organization Against Torture (SOAT), was working as a human rights consultant and advocate; and Suliman was the director of the Khartoum Centre for Human Rights and Environmental Development (KCHRED).  It is thought that the complainants were assisting the International Criminal Court (ICC) and its Prosecutor to gather evidence [presumably against Sudanese president Omar al‑Bashir, who has been charged with committing war crimes and crimes against humanity in Darfur].

Following their arrest and detention, the complainants were taken to the NISS headquarters and interrogated about the “existence and whereabouts of two bags and two laptops that supposedly contained incriminating information about [Hummeida’s] and [Elgak’s] alleged cooperation with the [ICC].”  Suliman was also questioned about the work of KCHRED.  The officers turned hostile when the three human rights defenders denied knowledge of the bags and the laptops which resulted in Hummeida being throttled around his neck.  Later that day Elgak and Suliman were released but — following a further denial by Hummeida that he had a working relationship with the Prosecutor of the ICC — Hummeida was transported to Block G of the Eastern Section of Kober Prison and threatened with rape and death.  He was further denied medical attention although he was suffering from high blood pressure.

On 26 November 2009, with Hummeida still in detention, Elgak was summoned to the NISS headquarters and he was “severely beaten with plastic pipes and wooden canes by NISS officers until his face was swollen and he was not able to walk.”  Suliman too had been summoned but negotiated with NISS officers to stop the “interrogation and harassment” of his colleagues in return for the two bags, one laptop and some documents.  After further questioning, Elgak and Suliman were released.  Hummeida was released after midnight on 28 November 2008 after being told by the then Sudanese Director of the NISS, Salah Abdallah Mohamed Gosh, that he was arrested because he had entered Sudan to gather evidence for the Office of the Prosecutor of the ICC.

In early December 2008, Elgak and Hummeida fled Sudan as a result of the “open-ended and serious nature of the accusations of spying that had been levelled against them”.  In February 2009, Suliman fled Sudan after KCHRED and its members were subjected to “a campaign of harassment and intimidation”.  KCHRED was shut down shortly thereafter.

The Communication to the ACHPR

On 10 November 2009 the Secretariat of the ACHPR received the Communication from the complainants alleging that articles 1, 5, 6, 7, 9, 10, 15 and 16 of the African Charter had been violated.  The complainants were represented by the International Federation for Human Rights (FIDH) and the World Organization Against Torture (OMCT).  Following a series of communications — between the 46th and 50th Ordinary Sessions of the ACPHR — the Complainants made their oral submissions during the 51st Ordinary Session between 18 April and 2 May 2012.  Despite being informed to send delegates in a Note Verbale and a letter dated 2 March 2012, delegates from Sudan failed to appear and make oral submissions.

Procedural issues

Despite failing to appear to make oral submissions in relation the merits of the complaint, during the 47th Ordinary Session on 22 May 2010, Sudan did file submissions on admissibility: that is, whether the ACHPR was empowered to hear the case at all.  Its primary argument was that the complainants had not exhausted internal remedies pursuant to article 56 of the African Charter before bringing the complaint to the attention of the ACHPR.  They claimed, in other words, that the complainants had to first seek adequate relief in Sudan’s domestic courts before the ACHPR was entitled to intervene.  The complainants argued that: (1) they were not able to lodge complaints personally inside Sudan as they had to flee the country out of a well-founded fear for their own safety; and (2) the domestic remedies in Sudan are ineffective and unduly prolonged and that it is routine practice for the Director of the NISS not to lift the immunity of NISS officers.

In declaring the Communication admissible in terms of article 56 of the African Charter, the ACHPR noted that of the seven requirements for admissibility listed in article 56, Sudan alleged that only the exhaustion of local remedies had not been met.  The ACHPR reasoned, amongst other findings, that:

The [c]omplainants were subjected to intimidation, harassment and persecution, it would be irrational to ask them to go back to their country to pursue legal remedies.  It would be equally repugnant to expect anyone within Sudan who sympathizes with the cause of the [c]omplainants to file a complaint on their behalf before the relevant state organs.  Therefore, for the aforementioned reasons and in line with its ruling in the Jawana case, John D. Ouko v Kenya and Rights International v Nigeria, the [ACHPR] finds that domestic remedies were not available for the victims and their representatives because of fear of persecution.

Merits

During oral submissions, the complaints submitted that the facts of the Communication reveal violations of no less than eight of the twenty four substantive human rights guaranteed by the African Charter.  These included violations of article 1 (the right to legal protection of the rights guaranteed in the African Charter); article 5 (the right to dignity and freedom from torture); article 6 (the right to liberty and security of the person); article 7 (the right to a fair trial); article 9 (the right to freedom of information and freedom of expression); article 10 (the right to freedom of association); article 12 (the right to freedom of movement); article 15 (the right to work); and article 16 (the right to physical and mental health).

Before coming to its findings on the merits, the ACHPR noted “with concern” that––

following its decision on admissibility, [Sudan] has failed to provide information on the merits of the Communication.  In the light of the failure of [Sudan] to engage with the Commission on the matter before it, due weight must be given to the allegations as submitted by the [c]omplainants to the extent that these have been adequately substantiated.

The ACHPR went on to find that Sudan had violated all of the rights complained of in the Communication except for article 7 — as the complainants were not detained in terms of law — and article 15 in relation to Hummeida and Elgak.  In doing so, it confirmed important precedents.  The most important are dealt with below.

In relation to its finding on the violation of article 5 and freedom from torture, the ACHPR recalled its decision in Sudan Human Rights Organization and Centre for Housing Rights and Evictions v Sudan (279/03-296/05) ACHPR (2009) (COHRE) at paras 156 and 255 where it outlined the principal elements that constitute torture under the African Charter.  It confirmed that torture is the infliction of severe pain or suffering, for a specific purpose — such as to obtain information, as punishment or to intimidate, or for any reason based on discrimination — by or at the instigation of or with the consent or acquiesce of state authorities.  The ACHPR also confirmed its adoption of the definition of torture as outlined in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984.

With regards to its finding on the violation of article 10 and freedom of association, the ACHPR, relying on its decisions in Huri Laws v Nigeria (225/98) ACHPR (2001) and Amnesty Internatuonal v Zambia (212/98) ACHPR (1999), found that the interference with this right by Sudan was not proportionate and therefore could not be justified in terms of article 27 of the African Charter.

Maybe most importantly, and in relation to the finding of the violation of article 12 and freedom of movement, the ACHPR confirmed its precedent in John D. Ouko v Kenya (232/99) ACHPR (2001) and COHRE that article 12(1) of the African Charter is violated where complainants, such as Elgak, Hummeida and later Suliman, are forced to flee their countries of residence as a result of persecution by authorities.

Analysis

The Elgak decision is a damning indictment of Sudan’s approach to the protection and promotion of human rights.  It also highlights its unwillingness to engage with the ACHPR and its paranoia regarding the ongoing investigations by the ICC — and ultimately, its disregard for justice.  The Elgak decision also calls into the question the efficiency of the Secretariat of the ACHPR who, after receiving the Complaint on 10 November 2009, have taken almost four and half years to hand down a largely unopposed decision which provides important legal backing to the complainants.  It is unclear whether its order will have any practical effect as there is no information as to whether the NISS officers responsible for the torture have been prosecuted in Sudan; and Sudan has remained silent both as to the merits of the complaint and following the decision of the ACHPR.

Ultimately, the Elgak decision is more important for its factual recordal of the events that occurred between November 2008 and February 2009 as opposed to its precedential value.  On the unchallenged facts that were placed before the ACHPR, Sudan will have difficulty defending and disguising its appalling human rights record, something that the international community and African regional mechanisms should continue to strongly condemn.  The decision also makes strong allegations against the named NISS torturers who, alongside their superiors, may now be considered hostis humani generis (enemies of all humankind) and therefore subject to prosecution, in any jurisdiction, on the strength of the prohibition against torture as a peremptory norm in customary international law.

Michael Power

About Michael Power

Michael is a Co-founder and the Managing Member of the African Legal Centre (ALC). He has read towards B.A., LL.B. and LL.M (International Law and Development) degrees at the University of the Witwatersrand and he is an admitted attorney of the High Court of South Africa (2014-). Following judicial clerkships with Judge Kathleen Satchwell in the High Court of South Africa (2011) and Justice Bess Nkabinde in the Constitutional Court of South Africa (2014), Michael now practises as an attorney at the Legal Resources Centre, a public interest law firm in Johannesburg.