Wakilii

Ibrahim v Sudan (Communication 386-10)

African Commission on Human and Peoples' Rights · [2013] ACHPR 121 · 2013 Communication Inadmissible AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from detention and torture in 1989
Decision
Communication declared inadmissible for failure to comply with Article 56(6) of the African Charter

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission declared the communication inadmissible under Article 56(6) of the African Charter. While the Commission found that local remedies had been constructively exhausted due to their unavailability and ineffectiveness in Sudan, and that Article 56(4) was satisfied, the fifteen-month delay between the Constitutional Court's decision and submission of the communication was held to exceed a reasonable period without compelling justification.

Outcome

Communication declared inadmissible for failure to comply with Article 56(6) of the African Charter

Facts

Dr. Farouk Mohamed Ibrahim, a Sudanese university professor, was detained by National Intelligence Security Service (NISS) members on 30 November 1989 following a military coup. He was held incommunicado at Ghost House No.1 until 12 December 1989, during which time he was interrogated about his teaching and colleagues, and allegedly subjected to torture including repeated beatings, prolonged immersion in ice water, threats of rape and death, and sleep deprivation. He was transferred to Kober prison on 12 December 1989 where a doctor documented injuries consistent with torture. Released on 23 February 1990, he lodged complaints with various authorities which went unheeded. He left Sudan in June 1991 for safety reasons, returned in 2002, and in 2006 filed a constitutional petition challenging immunity provisions and statutes of limitation. The Constitutional Court dismissed his case in November 2008, holding the challenged provisions constitutional. The communication was submitted to the African Commission in May 2010.

Issues

  1. Whether the communication was based exclusively on news disseminated through the mass media contrary to Article 56(4) of the African Charter.
  2. Whether local remedies were exhausted as required by Article 56(5) of the African Charter.
  3. Whether the communication was submitted within a reasonable period of time as required by Article 56(6) of the African Charter.

Orders

  • Communication declared inadmissible in accordance with Article 56 of the African Charter.
  • Parties to be notified of the decision.
  • Decision to be attached to the Commission's Activity Report in accordance with Rule 107(3) of its Rules of Procedure.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Availability, Effectiveness and Sufficiency
A local remedy is considered available if the petitioner can pursue it without impediment, effective if it offers a prospect of success, and sufficient if it is capable of redressing the complaint. Complainants are required to exhaust local remedies only if they are available, effective and sufficient.
Admissibility — State Duty to Investigate Torture Allegations
Whenever there is a crime that can be investigated and prosecuted by the State on its own initiative, the State has the obligation to move the criminal process forward to its ultimate conclusion. One cannot demand that complainants or victims assume the task of exhausting domestic remedies when it is up to the State to investigate the facts and bring the accused persons to court. Where the State has had ample notice and time to remedy violations but fails to take appropriate steps, it forfeits its prerogative to deal with the matter domestically.
Admissibility — Constitutional Court as Final Domestic Remedy
Where a Constitutional Court is established by the national constitution with jurisdiction to protect human rights and fundamental freedoms, to declare legislation unconstitutional, and to compel authorities to take action to protect fundamental rights, and where its decisions are final and binding, resort to that Court constitutes exhaustion of local remedies and a final decision from the highest judicial body.
Admissibility — Effect of State of Emergency and Ouster Clauses
Where a decree introducing a state of emergency permits detention without reasons, denies detainees the right to contact family or access lawyers, and prohibits judicial challenge to the legality of detention or validity of the decree itself, such ouster clauses render local remedies non-existent and ineffective. It is reasonable to assume that not only will the procedure of local remedies be unduly prolonged, but also that it will yield no results.
Admissibility — Immunity Provisions as Impediment to Remedies
Immunity provisions that shield government officials from lawsuits by private citizens, and which can only be waived by the concerned officials after preliminary investigations, constitute an impediment to exhaustion of local remedies. Such discretionary extraordinary remedies of a non-judicial nature are not effective remedies contemplated by Article 56(5) of the African Charter, as they are purely discretionary, not subject to judicial oversight, and hence final.
Admissibility — Fear of Persecution as Exception to Exhaustion
The existence of a remedy must be sufficiently certain not only in theory but also in practice. If an applicant cannot turn to the judiciary of his country because of generalized fear for his life or that of his relatives, local remedies are considered unavailable. Fear of persecution is an exception used to waive the requirement to exhaust local remedies.
Admissibility — Reasonable Time Under Article 56(6)
Reasonable time under Article 56(6) of the African Charter does not pertain to the period when the alleged violations were committed, but is computed from the time when the communication was submitted to the Commission after exhaustion of local remedies, or when the complainant immediately realizes that local remedies are not available, sufficient or effective. A delay of fifteen months between the final domestic decision and submission of the communication, without compelling justification, exceeds a reasonable period.

Legislation cited (25)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 8
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 56(4)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • African Charter on Human and Peoples' Rights Article 56(6)
  • Decree No. 2 of June 1989 (Sudan)
  • Criminal Act 1983 (Sudan) Article 271
  • Criminal Act 1983 (Sudan) Article 282
  • Criminal Procedure Act 1991 (Sudan) Article 34
  • Criminal Procedure Act 1991 (Sudan) Article 35
  • Criminal Procedure Act 1991 (Sudan) Article 142
  • National Security Act 1990 (Sudan) Article 41
  • National Security Act 1994 (Sudan) Article 38
  • National Security Act 1999 (Sudan) Article 33
  • National Security Act 2010 (Sudan) Article 51(8)
  • National Security Act 2010 (Sudan) Article 52
  • National Security Act 2010 (Sudan) Article 54
  • Interim National Constitution of Sudan 2005 Section 119(1)
  • Interim National Constitution of Sudan 2005 Section 122(1)
  • Constitutional Court Act 2005 (Sudan) Article 15(1)(d)
  • Judiciary Act 1986 (Sudan)

Cases cited (16)

  • Sir Dawda Jawara v The Gambia (Communications 147/95 and 149/96)
  • Rafaat Makawi v Sudan (Communication 311/2005)
  • World Organization Against Torture v Zaire (Communications 25/89, 47/90, 56/91, 100/93)
  • Free Legal Assistance Group and Others v Zaire (Communications 25/89, 47/90, 56/91, 100/93)
  • Recontre Africaine pour la Defense des Droits de l'Homme v Zambia (Communication 71/92)
  • Article 19 v Eritrea (Communication 275/03)
  • Amnesty International and Others v Sudan (Communications 48/90, 50/91, 52/91, 89/93)
  • The Law Office of Ghazi Suleiman v Sudan (Communication 228/99)
  • Media Rights Agenda and Others v Nigeria (Communications 105/98, 128/94, 130/94, 152/96)
  • Alfred B. Cudjoe v Ghana (Communication 221/98)
  • Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and Others) v Nigeria (Communication 60/91)
  • Monim Elgak, Osman Hummeida and Amir Suliman v Sudan (Communication 379/09)
  • Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others) v Nigeria (Communication 87/93)
  • Rights International v Nigeria (Communication 215/98)
  • Michael Majuru v Zimbabwe (Communication 308/07)
  • Darfur Relief and Documentation Centre v Sudan (Communication 310/10)

Full judgment

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Ibrahim v Sudan (Communication 386-10) [2013] ACHPR 121 (25 February 2013)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.