PART B: Substantive Norms on Torture in the African Regional Human Rights System
treatment and punishment as ‘examples’ of exploitation and degradation. Slavery,
servitude and forced labour are usually dealt with under a separate article in other
international conventions leaving open the possibility of a dual violation of the
prohibition of slavery, servitude or forced labour and the prohibition of torture and
inhuman treatment or punishment. Notably, in the case of Hadijatou Mani Koraou v.
Niger, the ECOWAS Community Court of Justice found that ‘it is trite that slavery
may exist without the presence of torture’. However, although the Court found that
the ‘condition of slavery has caused the Applicant undeniable physical, psychological and moral harm’, it found a violation of Article 5 on grounds of slavery but did
not make a separate finding of torture or ill-treatment.169
The African Commission has clarified the meaning of ‘human dignity’ as ‘an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities, are entitled to without discrimination. It is an inherent right
which every State is obliged to respect and protect by all means possible’.170 In other
cases when finding an Article 5 violation, the Commission has not distinguished
between failure to respect ‘dignity’ and a violation of the prohibition of ‘torture,
cruel, inhuman and degrading treatment and punishment’.171
This limited analysis undermines attempts to come to a clear understanding of
the distinct elements of Article 5. Not only are these two main elements often
conflated, but the Commission does not always distinguish between acts that constitute ‘torture’ and acts that constitute ‘cruel, inhuman or degrading’ treatment or
punishment, preferring to simply pronounce a violation of Article 5. This tendency
is explained with reference to two main factors.
The limited analysis is also part of a jurisprudential trend on the part of the
Commission. Especially at the beginning, the Commission did not elaborate on its
findings, but merely stated the essential facts and the applicable provision before
making a simple conclusion about whether or not there had been a violation without attempting to show how the particular legal provisions relate or are applied
to the specific facts.172 For example, in the case of Krishna Achuthan v. Malawi, the
Commission did not specify whether the solitary confinement, shackling, extremely poor food quality and denial of access to medical care experienced by the victims
169 ECOWAS Court of Justice, Hadijatou Mani Koraou v. Niger, App. No. ECW/CCJ/APP/08/08.
170 See, e.g., ACHPR, Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE)
v. Sudan, Comm. Nos. 279/03 & 296/05, 45th Ordinary Session (27 May 2009), para. 163; Egyptian
Initiative for Personal Rights & INTERIGHTS v. Egypt, Comm. No. 323/06, 10th Extraorindary Session
(12 October 2013), para. 190.
171 See, e.g., Amnesty International and Others v. Sudan, Comm. Nos. 48/90, 50/91, 52/91, 89/93, para. 57.
172 See, e.g., ACHPR, Free Legal Assistance Group and Others v. Zaire, Comm. Nos. 25/89, 47/90, 56/91 &
100/93, 18th Ordinary Session (4 April 1996), para. 41 (‘The torture of 15 persons by a military unit
… as alleged in [the] communication constitutes a violation of [Article 5]’).
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