2017 | African Commission on Human and Peoples Rights, General Comment Nr.4 on Article 5 of the African Charter
Article 5 of the African Charter on Human and People’s Rights (hereafter African Charter) determines that States must ensure in law and in practice that a person’s human dignity must be respected and obliges States to prohibit all forms of exploitation and degradation, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.
In case of violation of the prohibition of these human rights, State Parties to the African Charter are obliged to ensure that victims have access to, and obtain redress. This General Comment elaborates on the scope and content of the right to redress for victims of torture and other ill-treatment in specific contexts of the situation on the African continent and gives guidance on the implementation and monitoring thereof.
For clarity’s sake, the term ‘victim’ also includes affected immediate family or dependants of the victim as well as other persons who have suffered harm while intervening to assist victims or to prevent victimisation, e.g. human rights defenders, lawyers, health-care personnel.
This Comment explains that the right to redress encompasses a) the right to an effective remedy and b) to adequate, effective and comprehensive reparation there to restore a person’s dignity, humanity and trust. More in detail, this encompasses:
- A victim’s access to justice: States must create possibilities for victims to promptly access and obtain redress, for instance through (quasi) judicial, administrative or traditional independent institutions legally mandated to provide redress. To effectively provide redress, these institutions should be well-equipped in terms of financial, human, technical and other resources.
Promptness relates to all mechanisms available to victims seeking redress as well as to the effective enforcement of decisions by domestic, regional and international judicial and quasi-judicial mechanisms. Failure to provide prompt access to redress constitutes de facto denial of redress. To this end, State Parties are required to establish effective independent mechanisms for verifying compliance and enforcement of such decisions.
Special measures should be taken vis-à-vis detainees and discriminated or marginalised persons or groups that provide access to full and effective redress. These measures may include the use of legal advice centres or mobile law clinics.
- Legal aid for victims in the form of assistance, representation, advice information and education.
- Immediate, impartial, independent and thorough investigations into the alleged torture or ill-treatment:
- Prosecuting the perpetrators. Amnesty laws protect perpetrators of torture and ill-treatment and therefore are considered to violate the right to redress.
- Reparation for victims who were subjected to torture and other ill-treatment outside their State’s territory.
- A victim’s protection against intimidation, retaliation and reprisals. Victims must be protected before, during and after the judicial and other proceedings which they pursue to obtain redress. In particular, States are required to ensure that they put in place specific protection mechanisms in situations where victims depend on perpetrators for care, such as in health-care institutions or detention facilities.
When providing reparation, State Parties must take into account the victim’s specific cultural, personal and historical background, which in practice may be shaped as follows:
Restitution measures aim at putting a victim back to the situation he or she was in before the violation occurred. This may entail the restoration of land or property rights, accommodations, the release of persons arbitrarily detained or restoration of the ability for victims to exercise the right to return. To remedy the socio-economic backlog, restitutive measures shall be complemented by measures designed to address the structural causes of the vulnerability and marginalisation.
Victims have a right to compensation for material, non-material and other harm suffered. This may include (future) medical expenses, loss of earnings and earning potential due to disabilities caused by the torture, legal aid and other costs associated with bringing a claim for redress.
Rehabilitation for victims should aim to restore, to the extent possible, their independence, and physical, mental, social, cultural, spiritual and vocational ability and full inclusion and participation in society. State Parties must adopt a holistic approach to rehabilitation embedding a wide range of interdisciplinary, specialised services to victims such as medical, physical and psychological services, re-integrative services, community reconciliation, family-oriented assistance and education.
Satisfaction and the right to the truth
Satisfaction includes the right to truth and full and public disclosure thereof, the State’s recognition of its responsibility, the effective recording of complaints, investigation and prosecution, effective measures aimed at the cessation of continuing violations. In practice, this may take the form of the search for disappeared victims, abducted children and the bodies of those killed, reburial of victims’ bodies in accordance with the wishes of the victims or affected families; official declaration restoring the dignity, punishment of the perpetrators, public apologies and commemorations and tributes to the victims.
Guarantees of non-repetition
Since torture or ill-treatment tends to take place in societies that not publicly condemn or adequately punish these acts, States should take measures to end impunity such as educate law enforcement officials and military and security forces on the prohibition of torture and ill-treatment, set up mechanisms to investigate torture allegations, ensure accountability and fair and impartial judicial proceedings, reform domestic laws in order to ban torture and ill-treatment.
This Comment also addresses effective redress for acts of sexual and gender based violence that may amount to torture and other ill-treatment in violation of Article 5 of the African Charter. To meet their obligations, States must develop measures such as identifying the causes and consequences of sexual and gender based violence, providing factual access to comprehensive health care, punish perpetrators and provide support to victims at all stages of the legal process and psychological and psychosocial support.
In the pursuit of transitional justice, meant to facilitate accountability, reparation, sustainable peace, healing and reconciliation, redress for victims of torture and other ill-treatment is of great importance. In this context, States should initiate institutional and legal reforms and help the victims and their relatives realizing their ‘right to know’ by helping holding perpetrators accountably or by facilitating victims acquiring relevant information pertaining to the torture or other ill-treatment. Also, States should repeal legislative measures that inhibit prospects for truth such as broad based laws on State secrecy and indemnity laws.