4.3 Scope of Application The Commission’s early decisions were characterised by a lack of detailed reasoning; often it would merely state whether or not a violation had occurred after a brief summary of the facts and applicable provisions. Determining the precise scope of application of the prohibition on torture and ill-treatment in the African system is therefore difficult. A number of recent cases have included deeper analysis, but uncertainty remains as to the scope of application applied by the Commission, and whether the decisions of the Commission will be approved by the Court when it begins consideration of the substance of the ACHPR. In contrast to other international human rights treaties, the African Charter does not contain a derogation clause. The Commission has therefore held that limitations on the rights contained within the ACHPR cannot be justified by a situation of war, emergency or other special circumstances.611 Furthermore, the Commission is of the view that “Even if it is assumed that the restriction placed by the Charter on the ability to derogate goes against international principles, there are certain rights such as… the right to freedom from torture and cruel, inhuman and degrading treatment, that cannot be derogated from for any reason, in whatever circumstances.”612 The AFrican Regional System 4.3.1 The absolute nature of the prohibition of torture and other ill-treatment 4 The Commission considers that, to be legitimate, any restriction on rights guaranteed under the ACHPR must aim to fulfil the condition in Article 27(2) that the rights “be exercised with due regard to the rights of others, collective security, morality and common interest.”613 Any such limitation must be “strictly proportionate with and absolutely necessary for the advantages which follow. Most important, a limitation may not erode a right such that the right itself becomes illusory.”614 Any domestic laws limiting rights must be in compliance with the See, for example: Constitutional Rights Project and Civil Liberties Organisation v Nigeria (1999), op. cit., §41; Commission Nationale des Droits de l’Homme et des Libertes v Chad (1995), op. cit., §21; Zegveld and Ephrem v Eritrea (2003), op. cit., §60; Article 19 v Eritrea (2007), op. cit., §87, 108. 612 Article 19 v Eritrea (2007), op. cit., §98. 613 Constitutional Rights Project and Civil Liberties Organisation v Nigeria (1999), op. cit., §41. 614 Ibid. §42. See also African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Republic of Guinea, AfrCommHPR, Communication No. 249/2002, 36th session, 23 November–7 December 2004, §71–72. 611 137