PART C: Protection against Torture: Procedures before the African Commission
and African Human Rights Court
and stealing weapons.464 However, the Commission held that ‘even if the State was
fighting alleged terrorist activity, it was not justified to subject victims to torture,
cruel, inhuman and degrading punishment and treatment, and found the State to
be in violation of Article 5.465 Although not presented as justifying torture as such,
the Eritrean Government’s response to the allegations in Zegveld and Ephrem points
to national security as rationalisation of illegal detention. The Government argued
that the 11 detainees conspired to overthrow the legal government, ‘colluding with
foreign powers with a view to compromising the sovereignty of the country, undermining Eritrean National Security and endangering Eritrean society and the
general welfare of its people’.466
Related to arguments pertaining to national security are contentions about national legal standards and domestic sovereignty. In Zegveld and Ephrem, the Eritrean
Government referred to its national laws, arguing that the detention of the 11 persons was ‘in conformity with the criminal code of the country’.467 The argument
failed, however, because the Eritrean Constitution itself requires that all detainees
be brought before a court of law within 48 hours of their arrest.468
Another strategy used by States is to defend acts in violation of the Charter as
being necessary in a context of war. In Article 19 v. Eritrea, the State argued that the
alleged acts, including prolonged arbitrary detention and torture, were undertaken
‘against a backdrop of war when the very existence of the nation was threatened
and that, as a result, the government was duty bound to take necessary precautionary measures (and even suspend certain rights’. The Commission pointed out, however, that unlike other human rights instruments, the African Charter includes no
provisions allowing for derogation in times of war or emergency. The Commission
held that ‘the existence of war, international or civil, or other emergency situation
within the territory of a state party cannot therefore be used to justify violations
of any rights set out in the charter’.469
10. Acceptable Limitations
The Commission has held that the prohibition of torture in Article 5 of the Charter
is absolute and does not permit any exceptions or limitations.470 Moreover, the
African Commission has consistently held that ‘contrary to other human rights instruments, the African Charter does not allow for derogation from obligations due
464
465
466
467
468
469
470
ACHPR, Kevin Mgwanga Gunme et. al. v. Cameroon, Comm. No. 266/03, para. 113.
Ibid., para. 114.
ACHPR, Zegveld and Ephrem v. Eritrea, Comm. No. 250/02, para 47.
Ibid.
Ibid., para 49.
ACHPR, Article 19 v. Eritrea, Comm. No. 275/03, para. 87.
ACHPR, Huri-Laws v. Nigeria, Comm. No. 225/98.
109
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