22
LEGAL AVENUES TOWARDS JUSTICE FOR
ENFORCED DISAPPEARANCE IN AFRICA
PRACTICE NOTE 5
STRATEGIC LITIGATION OF ENFORCED
DISAPPEARANCES IN AFRICA
there was undue delay. However, some human rights mechanisms are willing to
accept claims directly without exhausting domestic remedies, such as the Economic
Community of West African States' (ECOWAS) Court of Justice.
Reverse Burden of Proof. When submitting human rights claims related to enforced
disappearance, the victim bears the burden of proof to show a prima facie case
of enforced disappearance. This requires the victim to present ‘an arguable case’,
including arguments and some evidence showing that the victim has been subjected
to enforced disappearance. The burden of proof shifts to the State in a number of
contexts, including when:
a) The specific enforced disappearance can be linked to a widespread or
systematic practice of the State to use enforced disappearances, which follows
an identifiable pattern. In those instances, if the victim (his/her relatives
or representatives) can show that the case fits that context and pattern, a
presumption exists that the person has been disappeared and it is for the
State to clarify the whereabouts of the victim.
b) When the disappeared victim was last seen under the control of the State or
in a State-run detention facility or location.
c) When the State is not contesting the crime of enforced disappearance, has
control over the evidence of enforced disappearances, and fails to investigate
or provide information on the whereabouts of the disappeared.
Enforced disappearance is a continuous violation of several fundamental rights - some
of which are non-derogable - enshrined in many human rights treaties.
Enforced disappearance engages the following human rights:
• Right to life
• Right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment
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