Wakilii

Mahmoud and Another v Arab Republic of Egypt (Communication 424-12)

African Commission on Human and Peoples' Rights · [2023] ACHPR 16 · 2023 Communication Upheld 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 following arrest, detention, and forced genital examinations of female protesters in Egypt
Decision
Communication upheld; violations found; compensation and remedial measures ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found that Egypt violated Articles 1, 2, 3, 5, 9(2), 11, 18(3) and 26 of the African Charter. The forced genital examinations of female protesters constituted rape and torture. The treatment was discriminatory, based on sex and political opinion. The military justice system lacked independence and impartiality. The State failed to investigate effectively, prosecute perpetrators, or provide adequate redress. The Commission ordered Egypt to compensate each victim 100,000 Egyptian Pounds, prosecute perpetrators in competent civilian courts, reform military prison procedures, and ensure civil courts have exclusive jurisdiction over allegations of violations by military personnel against civilians.

Outcome

Communication upheld; violations found; compensation and remedial measures ordered

Facts

On 9 March 2011, Samira Ibrahim Mahmoud and Rasha Ali Abdel-Rahman participated in a sit-in at Tahrir Square, Cairo, demanding a new constitution and protesting military brutality. Military forces dispersed the demonstration and arrested 18 female protesters. The victims were transported to a military prison where they were segregated by sex and marital status. Seven unmarried women, including the applicants, were subjected to beatings, electroshocks, verbal abuse, forced nudity in view of male soldiers, and forced genital examinations by a male military doctor without consent or explanation. The examinations involved vaginal penetration with the doctor's hands. The victims were forced to sign statements declaring themselves virgins. They were charged with offences including manufacturing weapons and destroying property, tried before a military court, and sentenced to suspended one-year sentences before release on 11 March 2011. The First Victim filed a complaint with the military prosecutor; the accused doctor was tried and acquitted by the Supreme Military Court on 11 March 2012. The Second Victim's complaint saw no investigation despite being transferred to the military prosecutor.

Issues

  1. Whether the forced genital examinations (virginity tests) conducted on female detainees constituted torture, cruel, inhuman or degrading treatment contrary to Article 5 of the African Charter.
  2. Whether the treatment of the applicants amounted to discrimination based on sex and political opinion contrary to Articles 2 and 18(3) of the African Charter.
  3. Whether the Egyptian military justice system satisfied the requirements of independence and impartiality under Article 26 of the African Charter.
  4. Whether the applicants were denied equality before the law and equal protection of the law contrary to Article 3 of the African Charter.
  5. Whether the arrest, detention and ill-treatment of the applicants violated their rights to freedom of expression and assembly under Articles 9(2) and 11 of the African Charter.
  6. Whether the Respondent State failed to adequately investigate, prosecute and provide redress for the violations suffered by the applicants.

Orders

  • The Respondent State violated Articles 1, 3, 5, 7, 9(2), 11, 18(3) and 26 of the African Charter.
  • The forced genital examination against the Victims was degrading, inhuman and torturous; the Respondent State must desist and eradicate such practice.
  • The Respondent State must prosecute the perpetrators of the sexual violations against the Victims in Courts with competent jurisdiction.
  • The Respondent State must reform the military prison procedures code to include strict guarantees for respecting bodily integrity and privacy rights of prisoners during searches, medical check-ups and detention.
  • Civil prosecutors and civil courts must have exclusive jurisdiction to investigate and adjudicate allegations of violations by military personnel against civilians.
  • The Respondent State must compensate each Victim 100,000 (one hundred thousand) Egyptian Pounds for physical and emotional damages.
  • The Respondent State must report on implementation steps within 180 days under Rule 112(2) of the Commission's 2010 Rules of Procedure.

Rules and key headnotes

Torture and Cruel, Inhuman or Degrading Treatment — Forced Genital Examinations as Rape and Torture
Forced genital examinations (virginity tests) conducted on female detainees without consent, involving vaginal penetration by a male doctor's hands, under coercive circumstances of detention and accompanied by threats, beatings and electroshocks, constitute rape and torture under Article 5 of the African Charter on Human and Peoples' Rights.
Discrimination Against Women — Gender-Based Violence as Discrimination
Violence against women, including sexual violence perpetrated by state agents, constitutes discrimination based on sex under Articles 2 and 18(3) of the African Charter. Where women are targeted for violence solely because of their sex and are not assured necessary protection by the State, their fundamental human rights including the right to sexual equality are violated.
State Obligations — Duty to Investigate, Prosecute and Provide Redress
A State's failure to conduct prompt, impartial and effective investigations into allegations of torture and sexual violence, to prosecute perpetrators, and to provide adequate redress including compensation and rehabilitation to victims, constitutes a separate violation of Article 5 of the African Charter.
Military Justice — Independence and Impartiality of Military Courts
Military courts composed of active military officers who are subject to hierarchical subordination, appointed by the executive, and whose tenure is not guaranteed, do not satisfy the requirements of independence and impartiality under Article 26 of the African Charter. Military courts should not try offences which fall within the jurisdiction of regular courts, particularly allegations of human rights violations by military personnel against civilians.
Equality Before the Law — Differential Treatment Based on Status of Perpetrator
Where victims of abuse by military personnel are denied access to the same legal protections, remedies and procedural guarantees available to victims of abuse by civilians, including the right to join as a civil party, to appeal, and to have their case heard before an independent and impartial court, the State violates the right to equal protection of the law under Article 3(2) of the African Charter.
Freedom of Expression and Assembly — Restrictions on Peaceful Protest
Preventing individuals from peacefully expressing their political opinions and participating in peaceful protest through arrests, detention, and abuse cannot be justified as a permissible restriction under Articles 9(2) and 11 of the African Charter. Such disproportionate conduct amounts to a blanket restriction and violates the freedoms of expression and assembly.
Secondary Victimisation — Victim-Blaming by State Institutions
Secondary victimisation occurs when state institutions responding to victims of sexual violence engage in victim-blaming attitudes, behaviours and practices, including irrelevant questioning based on gender stereotypes, which result in additional trauma separate from the initial violations. Such conduct violates the State's obligations under Articles 2 and 18(3) of the African Charter.

Legislation cited (9)

  • African Charter on Human and Peoples' Rights Articles 1, 2, 3, 5, 9(2), 11, 18(3), 26
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  • UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • International Covenant on Civil and Political Rights (ICCPR) Article 7
  • Egyptian Penal Code Articles 267, 268, 278, 279
  • Egyptian Code of Military Justice Articles 1, 2, 4, 5, 7, 43, 48, 54, 117
  • Egyptian Code for the Conditions of Service and Promotion of Officers of the Armed Forces Law 232/1959 Articles 101, 110, 112, 134
  • Egyptian Criminal Procedure Code Articles 454, 455

Cases cited (30)

  • Institute for Human Rights and Development in Africa v Republic of Angola (Communication 292/04)
  • Kenneth Good v Republic of Botswana
  • Association Mauritanienne des Droits de l'Homme v Mauritania (Communication 210/98)
  • Egyptian Initiative for Personal Rights and Interights v Egypt (Communication 323/06)
  • Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v Sudan (Communications 279/03-296/05)
  • Malawi African Association and Others v Mauritania (Communications 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98)
  • Prosecutor v Anto Furundzija (ICTY Case No IT-95-17/1-T)
  • Miguel Castro-Castro Prison v Peru (IACtHR Series C No 160)
  • Curtis Francis Doebbler v Sudan (Communication 236/00)
  • Gabriel Shumba v Zimbabwe (Communication 288/04)
  • Purohit and Moore v The Gambia (Communication 241/01)
  • Campbell and Cosans v UK (ECtHR 1982)
  • Iwanczuk v Poland (ECtHR Application no. 25196/94)
  • Hawa Abdallah v Sudan (Communication 401/11)
  • Amnesty International and Others v Sudan (Communications 48/90, 50/91, 52/91, 89/93)
  • Law Office of Ghazi Suleiman v Sudan (Communications 222/98 and 229/99)
  • Marcel Wetsh'okonda Koso and Others v DRC (Communication 281/03)
  • La Cantuta v Peru (IACtHR)
  • Pueblo Bello Massacre v Colombia (IACtHR (ser. C) No. 140)
  • Incal v Turkey (ECtHR App. No. 22678/93)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v Zimbabwe (Communication 294/04)
  • Velasquez Rodriguez v Honduras (IACtHR Series C, No.4)
  • Dawda Jawara v The Gambia (Communications 147/95 and 149/96)
  • International PEN and Others v Nigeria (Communications 137/94, 139/94, 154/96, 161/97)
  • Kevin Mgwanga Gunme and Others v Cameroon (Communication 266/03)
  • Social and Economic Rights Action Center v Nigeria (Communication 155/96)
  • Ireland v UK (ECtHR 1978)
  • John K Modise v Botswana (Communication 97/93)
  • Aydin v Turkey (ECtHR Application No. 57/1996/676/866)
  • Maria da Penha v Brazil (IACHR 2001)

Full judgment

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Mahmoud and Another v Arab Republic of Egypt (Communication 424-12) [2023] ACHPR 16 (23 May 2023)
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.