PART D: Torture in the Promotional Mandate of the African Commission b. Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture and Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) The Robben Island Guidelines are divided into three parts, dealing with the prohibition of torture, the prevention of torture and the needs of the victims of torture.551 Under the Guidelines, the primary obligation of States is effectively to prohibit torture under their domestic laws and legal systems.This means, first, that torture has to be criminalised in accordance with the definitional elements of Article 1 of the Convention Against Torture.552 Second, an accessible and effective system for investigating allegations of torture has to be in place.553 If an investigation reveals that the allegations are substantiated, effective prosecution must be instituted. Lastly, upon conviction, perpetrators should be punished appropriately.554 Under national law, torture must also be made an extraditable offence, but no one may be expelled or extradited where he or she is at risk of being subjected to torture in the receiving State.555 In these respects, the Guidelines draw heavily from the Convention Against Torture. In the formulation of laws pertaining to torture, and in domestic courts’ interpretation of these laws, States may not invoke any of the following as substantive ‘justification’ of torture or other ill-treatment: a state or threat of war, internal political instability or public emergency.556 States also may not justify ill-treatment on the following legal grounds: necessity, a declared state of emergency, public order (ordre public) or superior orders.557 By pre-empting and disallowing these justifications or ‘explanations’, the Guidelines go beyond the Convention Against Torture, and appropriately address concerns of particular importance in Africa. States must also take measures to prevent torture from occurring. Prevention of torture depends on the existence and implementation of safeguards during the 551 Robben Island Guidelines, supra note 63. 552 Ibid., para. 4. Many, though not all, African Constitutions prohibit torture explicitly (see e.g. the Constitutions of Benin (art. 18), Central African Republic (art. 3), Djibouti (art. 16), Malawi (art. 19(3)), Mali (art. 3), Mauritius (art. 7(1)), Nigeria (art. 34(1)(a)), South Africa (art. 12(1)(d)) Tanzania (art. 13(6)(e)) and Togo (art. 21)). Almost all African Constitutions contain guarantees against inhumane treatment, and of liberty, bodily security and dignity. These Constitutions are reprinted in C. Heyns, Human Rights Law in Africa, Vol. 2, Leiden: Martinus Nijhoff (2004). 553 Robben Island Guidelines, supra note 63, paras. 17-19. 554 Ibid., para. 12. 555 Ibid., para. 7. 556 Ibid., para. 9. 557 Ibid., para. 10. 129