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Safia Ishaq Mohammed Issa (Represented by The Redress Trust) v Republic of Sudan (Communication 443-13)

African Commission on Human and Peoples' Rights · [2022] ACHPR 7 · 2022 Communication Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication before the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from abduction, torture, and rape by state agents
Decision
Communication upheld; Republic of Sudan found in violation of multiple provisions of the African Charter; ordered to pay compensation, conduct investigations, prosecute perpetrators, and implement institutional reforms

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found that the Republic of Sudan violated Articles 1, 2, 3, 5, 6, 7(1)(a), 9(2), 10(1), 11, and 12(1) and (2) of the African Charter. The Commission held that the Victim was subjected to rape and torture constituting a violation of Article 5; that the gendered nature of the violence and the State's failure to investigate amounted to discrimination under Articles 2 and 3; that the State failed to exercise due diligence in investigating the abduction and detention under Article 6; that harassment of the Victim's lawyer violated her right to access justice under Article 7(1)(a); that the torture was aimed at punishing her exercise of freedoms of expression, association, and assembly under Articles 9, 10, and 11; and that threats and harassment forced her into exile in violation of Article 12. The Commission ordered Sudan to pay compensation, reform institutions to address sexual violence, investigate and prosecute perpetrators, and implement safeguards against torture.

Outcome

Communication upheld; Republic of Sudan found in violation of multiple provisions of the African Charter; ordered to pay compensation, conduct investigations, prosecute perpetrators, and implement institutional reforms

Facts

On 13 February 2011, Safia Ishaq Mohammed Issa, a Sudanese student activist affiliated with Girifna (a non-violent pro-democracy movement), was abducted by three men alleged to be National Intelligence and Security Services (NISS) officers. She was taken to a facility near Shendi bus station in Khartoum North, where she was subjected to severe beatings, verbal abuse, and gang rape by three men during interrogations about her participation in student rallies and regime change activities. On 16 February 2011, she underwent a medical examination and reported the crimes to the Attorney General and police. Authorities refused to register a complaint against NISS and threatened her and her family. She fled to South Sudan on 18 February 2011, published a video testimony online, and eventually settled in France where she was granted asylum on 31 March 2012 based on well-founded fear of persecution. Her lawyer in Sudan was also subjected to threats, harassment, and confiscation of case files, ultimately fleeing to the United Kingdom where he was granted asylum in April 2012. Sudanese authorities conducted an investigation that concluded in June 2011 with dismissal of the complaint, but neither the Victim nor her lawyer were notified of the investigation or its outcome.

Issues

  1. Whether the Respondent State violated Article 5 of the African Charter by subjecting the Victim to torture and ill-treatment through abduction, beating, and gang rape by state agents.
  2. Whether the Respondent State violated Articles 2, 3, and 18 of the African Charter through gender-based discrimination in the treatment of the Victim and the State's response to her allegations.
  3. Whether the Respondent State violated Article 6 of the African Charter through arbitrary arrest and detention of the Victim.
  4. Whether the Respondent State violated Article 7 of the African Charter by failing to provide the Victim with an effective remedy and access to justice.
  5. Whether the Respondent State violated Articles 9, 10, and 11 of the African Charter by punishing the Victim for exercising her freedoms of expression, association, and assembly.
  6. Whether the Respondent State violated Article 12 of the African Charter by forcing the Victim into exile through threats and harassment.
  7. Whether the Respondent State violated Article 16 of the African Charter by causing physical and mental harm to the Victim.
  8. Whether the Respondent State violated Article 1 of the African Charter by failing to adopt measures to give effect to the rights in the Charter and failing to exercise due diligence in investigating and prosecuting the violations.

Orders

  • The Republic of Sudan has violated Articles 1, 2, 3, 5, 6, 7(1)(a), 9(2), 10(1), 11, 12(1) and (2) of the African Charter on Human and Peoples' Rights.
  • The Republic of Sudan shall pay adequate compensation to the Victim for medical expenses, physical and emotional suffering, and damages in accordance with domestic law.
  • The Republic of Sudan shall undertake institutional and practical reforms to ensure effective redress for victims of sexual and gender-based violence.
  • The Republic of Sudan shall promptly and independently investigate, prosecute, and punish all actors, including State security agents, responsible for the abduction, rape and torture of the Victim.
  • The Republic of Sudan shall adopt and implement procedural safeguards for the prevention of torture and other forms of ill-treatment as required under the Robben Island Guidelines.
  • The Republic of Sudan shall train security officers on relevant standards concerning adherence to custodial safeguards and the prohibition of torture.
  • The Republic of Sudan shall inform the Commission within 180 days of the measures taken to implement this decision.

Rules and key headnotes

Torture — Rape as Torture — Elements and State Responsibility
Rape committed by state agents against a detainee constitutes torture under Article 5 of the African Charter where it involves severe pain or suffering inflicted for a prohibited purpose such as obtaining information, punishment, intimidation, or discrimination, and is perpetrated by or with the acquiescence of state officials. The crime of rape is of such grave and cruel nature that it automatically fulfils the severity threshold for torture, and the severe suffering of the victim is inherent in rape even when there is no evidence of physical injuries.
Burden of Proof — Human Rights Violations — State's Duty to Rebut
In cases of human rights violations, the burden of proof rests on the Respondent State to provide evidence to contradict an allegation of human rights violation made against it. Where the State fails to discharge this burden, the Commission may consider the facts alleged as proven, or at least probable or plausible. Proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact.
Due Diligence — State Obligation to Investigate Torture Allegations
Where an individual raises an arguable claim of torture or ill-treatment, the State is obliged under Articles 1 and 5 of the African Charter to initiate an effective, prompt, impartial and independent investigation into the allegations. The investigators must be independent of the suspected perpetrators and the agency they serve. An internal inquiry conducted by the very agency accused of perpetrating the violations does not satisfy this obligation. Failure to conduct an effective investigation, identify perpetrators, and prosecute those responsible constitutes a violation of the Charter even where the State's direct responsibility for the underlying act cannot be conclusively established.
Discrimination — Gender-Based Violence — State Response and Access to Justice
Sexual violence against women in custody is inherently discriminatory under Articles 2 and 3 of the African Charter where the victim is targeted on account of her gender. A State violates the right to equal protection of the law where it fails to independently investigate allegations of sexual violence, subjects the victim and her legal representatives to threats and harassment that deny access to justice, and fails to inform the victim of the outcome of investigations, thereby rendering available remedies ineffective. Guaranteeing freedom from discriminatory treatment based on sex is a prerequisite to ensuring effective access to justice for victims of sexual violence.
Right to Liberty — Due Diligence in Investigating Alleged Arbitrary Detention
A State violates Article 6 of the African Charter where it fails to act with due diligence in verifying a victim's statement and clarifying the circumstances of alleged arbitrary arrest and detention. Where there are reasonable grounds to believe that a human rights violation has taken place, the State must ensure prompt investigation by independent and impartial authorities. The failure to guarantee protection from arbitrary arrest and detention, and to provide an effective remedy in this regard, constitutes a violation even where the identity of the perpetrators cannot be conclusively established.
Access to Justice — Protection of Lawyers — State Obligations
States have an obligation under Article 7(1)(a) of the African Charter to ensure that lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference, and to provide adequate safeguards where the security of lawyers is threatened. Where state security agents arrest a victim's lawyer, confiscate case files, and subject the lawyer to threats and harassment that ultimately force the lawyer to flee the country, the State violates the victim's right to an effective remedy and access to justice. The right to an effective remedy includes access to justice, reparation for harm suffered, and access to factual information concerning violations.
Freedom of Expression, Association and Assembly — Punishment for Exercise of Rights
Articles 9(2), 10(1) and 11 of the African Charter guarantee the freedoms of expression, association and assembly, and there is a close relationship between these rights such that actions of States may violate all three simultaneously. Where an individual is arrested, detained, and subjected to torture and rape in response to participation in pro-democracy demonstrations and affiliation with a non-violent resistance movement, and where the aim of the punishment is to discourage the individual from exercising these freedoms in future, the State violates Articles 9, 10 and 11. States have a responsibility to investigate, prosecute and punish perpetrators of attacks against human rights defenders and ensure victims have access to effective remedies.

Legislation cited (19)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • 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 9
  • African Charter on Human and Peoples' Rights Article 10
  • African Charter on Human and Peoples' Rights Article 11
  • African Charter on Human and Peoples' Rights Article 12
  • African Charter on Human and Peoples' Rights Article 16
  • African Charter on Human and Peoples' Rights Article 18
  • African Charter on Human and Peoples' Rights Article 56
  • National Security Act 2010 (Sudan) s.50
  • National Security Act 2010 (Sudan) s.51
  • Criminal Act 1991 (Sudan) s.149
  • Criminal Act 1991 (Sudan) s.162
  • Criminal Procedure Act (Sudan) s.44
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Cases cited (30)

  • Article 19 v Eritrea (Communication 275/03)
  • Samuel Muzerengwa & 110 Others v Zimbabwe (Communication 306/09)
  • Darfur Relief and Documentation Centre v Sudan
  • Micheal Majuru v Zimbabwe
  • Ouko v Kenya (Communication 232/99)
  • Anuak Justice Council v Ethiopia (Communication 299/05)
  • Prosecutor v Anto Furundzija (ICTY Case No IT-95-17/1-T)
  • Miguel Castro Castro Prison v Peru (IACHR Series C No 160)
  • Fernandez Ortega et al. v Mexico (IACHR 30 August 2010)
  • Rosendo Cantu et al v Mexico (IACHR 31 August 2010)
  • V.L v Switzerland (CAT/C/37/D/262/2005)
  • Egyptian Initiative for Personal Rights and Interights v Egypt (Communication 323/06)
  • Monim Elgak, Osman Hummeida Amir Suliman v Sudan (Communication 379/09)
  • Patrick Okiring and Agupio Samson v Republic of Uganda (Communication 339/2007)
  • Amnesty International v Sudan (Communication 48/90-50/91-52/91-89/93)
  • Amnesty International v Zambia (Communication 212/98)
  • William A. Curson v Equatorial Guinea (Communication 144/95)
  • Afet Süreyya Eren v Turkey (ECtHR App No 36617/07)
  • Prosecutor v Jean-Paul Akayesu (ICTR Case No ICTR-96-4-T)
  • Aydin v Turkey (ECtHR App No 57/1996)
  • Ireland v United Kingdom (ECtHR App No 5310/71)
  • Equality Now and Ethiopian Women Lawyers Association v Ethiopia (Communication 341/2007)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 293/04)
  • International PEN v Nigeria (Communication 137/94-139/94-154/96-161/97)
  • Constitutional Rights Project v Nigeria (Communication 140/94-141/94-145/95)
  • John D Ouko v Kenya (Communication 232/99)
  • Commission Nationale des Droits de l'Homme et des Libertes v Chad (Communication 74/92)
  • African Commission on Human and Peoples' Rights v Kenya (Application 006/2012)
  • Sudan Human Rights Organisation v Sudan (Communication 279/03-296/05)
  • Huri-laws v Nigeria (Communication 225/98)

Full judgment

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Safia Ishaq Mohammed Issa (Represented by The Redress Trust) v Republic of Sudan (Communication 443-13) [2022] ACHPR 7 (2 August 2022)
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.