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Samira Ibrahim Mahmoud and Rasha Ali Abdel-Rahman v The Arab Republic of Egypt (Communication 424-12)

African Commission on Human and Peoples' Rights · [2023] ACHPR 3 · 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 gender-based discrimination, torture, and cruel, inhuman and degrading treatment. The military justice system lacked the independence and impartiality required under the Charter. The State failed to adequately investigate and prosecute the perpetrators, and the applicants were denied equality before the law and equal protection. The arrest and detention violated their rights to freedom of expression and assembly.

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 in Cairo demanding a new constitution and protesting military brutality. They were arrested by military personnel during a dispersal operation. On 10 March 2011, they and 15 other female detainees were transported to a military prison where they were segregated by sex and marital status. The 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. They were charged with offences including manufacturing weapons and sabotaging 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 to the ordinary prosecutor was transferred to the military prosecutor but no investigation was conducted.

Issues

  1. Whether the forced genital examinations and other treatment of the applicants constituted discrimination based on sex and political opinion in violation of Articles 2 and 18(3) of the African Charter.
  2. Whether the forced genital examinations, beatings, electroshocks, and other treatment amounted to torture or cruel, inhuman and degrading treatment in violation of Article 5 of the African Charter.
  3. Whether the failure of the State to adequately investigate and prosecute the perpetrators constituted a separate violation of Article 5.
  4. Whether the Egyptian military justice system satisfied the requirements of independence and impartiality under Article 26 of the African Charter.
  5. Whether the applicants were denied equality before the law and equal protection of the law in violation of Article 3 of the African Charter.
  6. 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.
  7. Whether the Respondent State failed to fulfil its obligations under Article 1 of the African Charter to respect, protect, promote, and fulfil the rights guaranteed in the Charter.

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 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 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 Rules of Procedure.

Rules and key headnotes

Discrimination Against Women — Gender-Based Violence — Forced Genital Examinations
Violence against women, including forced genital examinations conducted by state agents against female detainees, constitutes discrimination based on sex under Articles 2 and 18(3) of the African Charter on Human and Peoples' Rights.
Torture and Cruel, Inhuman and Degrading Treatment — Forced Genital Examinations as Torture
Forced genital examinations involving vaginal penetration by a state agent, conducted under coercive circumstances of detention with use of force or threat of force, constitute rape and torture under Article 5 of the African Charter, regardless of whether conducted with a sexual organ or other body part.
State Obligations — Duty to Investigate and Prosecute Torture
A State's failure to conduct a prompt, impartial, and effective investigation into allegations of torture and cruel, inhuman and degrading treatment, and its failure to prosecute perpetrators, constitutes a separate violation of Article 5 of the African Charter.
Independence of the Judiciary — Military Courts Trying Civilians
Military courts composed of active military officers who are subject to hierarchical subordination, appointed by the executive, and lack guaranteed tenure do not satisfy the requirements of independence and impartiality under Article 26 of the African Charter, particularly when trying cases involving allegations of human rights violations by military personnel against civilians.
Jurisdiction of Military Courts — Human Rights Violations
Military courts should have jurisdiction only over offences of a purely military nature committed by military personnel. Cases involving serious human rights violations such as torture committed by military personnel against civilians must be tried by ordinary civilian courts with competent jurisdiction.
Equality Before the Law — Differential Treatment Based on Status of Perpetrator
Where victims of human rights violations are denied access to the same legal protections and remedies available to other victims solely because the perpetrator is a member of the military rather than a civilian, the State violates the right to equality before the law and equal protection of the law under Article 3 of the African Charter.
Freedom of Expression and Assembly — Arrest and Detention of Peaceful Protesters
The arrest, detention, and subjection to torture and ill-treatment of individuals for peacefully expressing political opinions and participating in peaceful protests constitutes a violation of the rights to freedom of expression and assembly under Articles 9(2) and 11 of the African Charter, where such measures are unnecessary, disproportionate, and designed to punish and intimidate.

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 (32)

  • 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)
  • Dawda Jawara v The Gambia (Communications 147/95 and 149/96)
  • 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
  • Iwanczuk v Poland (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)
  • Marcel Wetsh'okonda Koso and Others v DRC (Communication 281/03)
  • Law Office of Ghazi Suleiman v Sudan (Communications 222/98 and 229/99)
  • La Cantuta v. Peru
  • Pueblo Bello Massacre v. Colombia
  • Incal v. Turkey (App. No. 22678/93)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v Zimbabwe (Communication 294/04)
  • International PEN and Others v Nigeria (Communications 137/94, 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)
  • Velasquez Rodriguez v Honduras (IACtHR, Series C, No.4)
  • Prosecutor v Anto Furundzija (ICTY Case No IT95-17/1-T)
  • Miguel Castro-Castro Prison v Peru (IACtHR, Series C No 160)
  • Mejia v Peru (IACmHR, Case 10.970, Report No. 5/96)
  • Aydin v Turkey (ECtHR, Application No. 57/1996/676/866)
  • C. T. and K. M. v. Sweden (CAT, Communication No. 279/2005)
  • Ireland v UK (1978) ECHR (Series A)
  • John K. Modise v Botswana (Communication 97/93)
  • Maria da Penha v. Brazil (2001) IACHR

Full judgment

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Samira Ibrahim Mahmoud and Rasha Ali Abdel-Rahman v The Arab Republic of Egypt (Communication 424-12) [2023] ACHPR 3 (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.