PART B: Substantive Norms on Torture in the African Regional Human Rights System
i.
Safeguards
The Fair Trial241 and Robben Island Guidelines242 emphasise the interrelatedness
of procedural safeguards and the right to be free from torture and other forms of
ill-treatment. In the case of Egyptian Initiative for Personal Rights and INTERIGHTS v.
Egypt, the Commission held that the deprivation of procedural safeguards, denying
detainees access to a lawyer, for example, constitutes a violation of Article 5 of the
Charter. In its decision, the Commission held that ‘[i]t should be understood by
the Respondent State that there is a positive obligation on them to provide access
to independent legal assistance under the Charter, inherent in the international
prohibition of torture and ill-treatment’. The Commission also found that the rights
of detainees to undergo a medical examination as well as to be brought promptly
before a judge are also ‘vital aspects of the prevention and deterrence of torture
and other ill-treatment’. Similarly, the Commission has found that detention without charge constitutes an ‘arbitrary deprivation of liberty’ and therefore violates
Article 6.244
In Zegveld and Ephrem v. Eritrea,245 the Commission found a violation of Article 6
and observed that all detained persons ‘must have prompt access to a lawyer and
to their families’, and that ‘their rights with regards to physical and mental health
must be protected’.246 The Commission added that the lawfulness of detention
must be determined by a court of law ‘or other appropriate judicial authority’, and
it should be possible to challenge the grounds that justify prolonged detention
on a periodic basis. These observations amount to a requirement that domestic
law should allow for habeas corpus or similar proceedings. Suspects should be
charged and tried ‘promptly’, and States should comply with the fair trial standards set out in the Fair Trial Guidelines.247 In this case, the Commission found
a violation of Article 7(1), which encompasses various elements of the right to
have one’s case heard.
Taking steps to ensure that the legality of detention may be reviewed in habeas
corpus or similar proceedings are an important procedural safeguard. In cases
involving torture or similar violations of physical integrity, the best evidence is
241 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, ACHPR /
Res.41(XXVI) 99 (1999) [hereinafter ‘Fair Trial Guidelines’].
242 The Robben Island Guidelines, reproduced in full in Annex 4 to this Handbook.
243 ACHPR, Egyptian Intiative for Personal Rights and INTERIGHTS v. Egypt, Comm. No. 334/06, paras. 177,
179 and 183.
244 ACHPR, Constitutional Rights Project and Another v. Nigeria, Comm. No. 102/93, 24th Ordinary Session
(31 October 1998), para. 55.
245 ACHPR, Zegveld and Ephrem v. Eritrea, Comm. No. 250/2002.
246 Ibid., para. 55.
247 Ibid., para. 56.
63
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents