On March 10, 2015, the African Commission on Human and Peoples’ Rights published a decision condemning Sudan’s mistreatment of human rights defenders, which remains a pressing concern in the country. In the case of Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan, the African Commission held that the government of Sudan violated several articles of the African Charter on Human and Peoples’ Rights when authorities arrested, detained, and tortured three human rights defenders who were accused of espionage based on their cooperation with the Office of the Prosecutor of the International Criminal Court. ACommHPR, Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan, Communication 379/09, 15th Extra-Ordinary Session, 7-14 March 2014. Since 2005, the Office of the Prosecutor has been investigating several Sudanese political leaders and other individuals charged with crimes against humanity, war crimes, and genocide in connection with the situation in Darfur.
The Alleged Facts
Monim Elgak, Osman Hummeida, and Amir Suliman were prominent human rights defenders who had been working together in Sudan in various capacities: Osman Hummeida, a British national of Sudanese origin, was the Director of the Sudan Organization against Torture (SOAT); Monim Elgak worked as a human rights researcher and advocate in the Middle East, Sudan, and Uganda; Amir Suliman worked for the Khartoum Centre for Human Rights and Environmental Development (KCHRED) until February 2009, when Sudanese authorities shut down the organization. Id. at para. 2.
On November 24, 2008 National Security and Intelligence Services (NISS) officers arrested Mr. Suliman, Mr. Elgak, and Mr. Hummeida and took them to NISS headquarters where they were questioned for four hours. When the men denied knowing about two bags and two laptops that allegedly contained incriminating information about Mr. Hummeida and Mr. Elgak’s cooperation with the International Criminal Court (ICC), the officers became hostile. The officers continued to interrogate them and they also searched Mr. Elgak’s car. While Mr. Suliman and Mr. Elgak were later released, Mr. Hummeida was taken to Kober Prison where he was subject to hours of interrogation as well as threats from security forces that they would kill and rape him. He was also denied medical attention despite his high blood pressure and he was not allowed to contact the British Embassy when he asked to do so. Id. at paras. 3-6.
Mr. Elgak was summoned to the NISS offices on November 26, 2008 where he was severely beaten with plastic pipes and wooden canes by NISS officers to the point where his face was swollen and he was unable to walk. Mr. Suliman and Mr. Elgak were released only after agreeing to return with certain bags, a laptop, and some documents. Id. at paras. 7-9.
Subsequently, Mr. Hummeida was taken to NISS headquarters and informed that he had been arrested because of his links with the ICC’s Office of the Prosecutor and that he had come to Sudan to gather evidence. In December 2008 Mr. Hummeida and Mr. Elgak left Sudan because of the threat of being arrested again, as well as related safety concerns. Between December 2008 and January 2009 Mr. Suliman and KCHRED were subjected to harassment and intimidation and the KCHRED bank accounts were frozen. Mr. Suliman then left Sudan in February 2009 and remained outside the country for safety reasons. Id. at paras. 10-12.
The International Federation for Human Rights (FIDH) and World Organization Against Torture (OMCT) represented the three human rights defenders before the African Commission. The Secretariat of the Commission received the complaint (“communication”) by email on November 10, 2009 and on November 30 informed the parties that the Commission was seized of the communication, meaning it was satisfied that the communication alleged a prima facie violation of the African Charter by a State party. Id. at paras. 14-15. On July 14, 2011 the complainants requested an oral hearing, which the Commission granted, and which was held during the 51st Ordinary Session in 2012. The complainants made oral submissions to the Commission, but the State did not send any representatives to the hearing. Id. at paras. 18-19.
With respect to admissibility of the case, the African Commission decided that six of the seven Charter admissibility requirements identified in Article 56 were clearly met. It went on to analyze whether the final requirement of the exhaustion of domestic remedies was met by examining whether local remedies were “available, effective and sufficient.”
According to the complainants, they could not pursue domestic remedies in Sudan personally because of the risk of further mistreatment if they returned to Sudan. Id. at para. 50. Further, anyone pursuing a complaint on their behalf would have faced similar risks.
On the other hand, the State responded that the complainants could have brought their cases to the Supreme Court or pursued other legal remedies. Id.
The Commission ruled that the complainants had not been able to be in contact with their lawyers, which would have been necessary for them to pursue their cases before the Supreme Court. Id. at para. 51. Additionally, the Supreme Court had not monitored their situation, as it should have and was thus unaware of the conditions of detention, interrogation, and treatment to which the complainants were subjected. Id. at para. 51. The Commission also took into consideration the context in which the case occurred, namely that the allegations involving cooperating with the ICC were very politically sensitive, as a result of which those who face such suspicions are especially vulnerable to being harassed and intimidated. Id. at para. 52. Based on this analysis, the Commission concluded that, given that neither the complainants nor their representatives were able to utilize certain forms of redress because of their fear of persecution, these remedies were not available. Id. at paras. 54-55.
Additionally, the Commission found that the Government’s failure to take any action, despite having knowledge about the alleged human rights violations, demonstrated that domestic remedies were neither effective nor sufficient. Id. at para. 64. The Commission also noted that additional remedies that the State claimed should have been pursued by the complainants were neither adequate nor effective. Id. at para. 68.
Thus, the Commission ruled that the complainants did meet the requirement of the exhaustion of domestic remedies and, on this basis, admitted the case for consideration on the merits. Id. at para. 71.
Violation of Article 5
The Commission held that the State violated Article 5 (prohibition of torture) of the African Charter by failing to take any measures to investigate the allegations of torture and bring the perpetrators to justice or provide redress to the victims. Id. at paras. 100-101. The Commission noted that the complainants were subjected to severe beatings, credible threats and sleep deprivation, which resulted in severe physical and mental pain and suffering. Id. at para. 99. Additionally, the Commission found that the NISS officials intentionally inflicted this suffering on the complainants in order to punish them and to extract certain information. Id. at para. 99. Despite the fact that the allegations of torture were brought to the State’s attention, and despite its obligation to investigate, the State did not follow up on these allegations. Id. at para. 101.
Violation of Article 6
The Commission also found that the arrest and detention of the complainants was both arbitrary and illegal and therefore violated the Charter’s Article 6 prohibition against arbitrary arrest and detention. Id. at para. 107. This decision was based on the fact that NISS officials prohibited the individuals from leaving the meeting, failed to inform them why they were being detained, did not bring any charges against them, and failed to ensure procedural safeguards, such as informing the complainants that they had the right to a lawyer. Id. at para. 106.
Violation of Article 7
The Commission did not find a violation of Article 7 (fair trial) of the African Charter. Id. at para. 111. The Commission based its decision on the fact that the individuals were released within three days and that no formal charges were brought against them. Id. at para. 110.
Violation of Article 9
The Commission held that Sudan violated Article 9 (freedom of expression) of the African Charter, agreeing with the complainants’ arguments that the State arrested and interrogated them because of their human rights work and their perceived connection with the ICC Office of the Prosecutor. Id. at para. 113. Additionally, the Commission found that the State tried to prevent the victims from receiving and disseminating information about human right in the Sudan. Id. The Commission went on to note that the complainants’ perceived connections with the ICC did not in any way justify the restriction on freedom of expression, as it did not endanger the lives of others or cause any other harm. Therefore, there was no legitimate reason for the State to limit and interfere with the freedom of expression. Id. at para. 115.
Violation of Article 10
The Commission concluded that the State violated Article 10 (freedom of association) of the Charter by subjecting Mr. Suliman and KCHRED to harassment and intimidation. Id. at para. 116. The Commission noted that this right applies not only to individuals but also to groups, such as NGOs. Id. at para. 118. It also noted that while there are circumstances under which freedom of association may be restricted – for example to protect the rights and freedoms of others, or for collective security, morality and collective interests – there was no such basis for an exception in this case. Id. at para. 119.
Violation of Article 12 (1)(2)
The Commission also found that Sudan had violated Article 12 (freedom of movement and residence) because the complainants were unable to remain in Sudan due to their well-founded fear of further persecution. Id. at para. 123. The complainants also legitimately feared returning to Sudan because they continued to work as human rights defenders and the prior violations against them had gone unpunished. Id. at para. 125. The Commission also found that while there are exceptions to the right to freedom of movement, none applied in this case. Id. at para. 126.
Violation of Article 15
The Commission also found that Sudan violated Article 15 (equitable and satisfactory conditions of work) of the African Charter. The State violated this right by interfering with Mr. Suliman’s right to work when it closed down KCHRED without any legitimate reason. Id. at para. 127 and 131.
Violation of Article 16
The Commission held that Sudan had violated Article 16 (right to health) of the Charter on the basis of the physical and psychological harm that the complainants suffered due to their detention. Id. at para 135. The Commission also found that the State violated the right to health by not taking necessary steps to lower Mr. Hummeida’s high blood pressure when he was in State custody, which led to a life-threatening situation. Id. at para 137.
Violation of Article 1
Finally, the Commission held that Sudan violated Article 1 of the Charter, which requires that States fulfill the obligations of the treaty. Id. at 141. Given that the State violated multiple Charter provisions, the Commission found that Sudan failed to uphold its obligations and thus was in violation of Article 1. Id. at 141.
Holding and Reparations
The Commission held that the State violated articles 1, 5, 6, 9, 10, 12 15, and 16 of the African Charter in the case of Mr. Suliman; articles 1, 5, 6, 9, 10, 12, and 16 in the case of Mr. Elgak; and articles 1, 5, 6, 9, 10, 12(1), and 16 in the case of Mr. Hummeida. Id. at para 142(i). The Commission found that the State had not violated Article 7. Id. at para 142(ii).
The Commission ordered the State to compensate the victims in accordance with Sudanese domestic law. Id. at para 142 (iii)(a). Additionally, the State was ordered to investigate and prosecute all persons who participated in the illegal incarceration and torture of the complainants and to reopen and unfreeze the ACHRED bank accounts. Id. at para.142 (iii)(b)(c). Finally, the State was ordered to inform the Commission within 180 days of the measures taken to implement the decision. Id. at para. 142 (iv).
African Commission on Human and Peoples’ Rights
The African Commission on Human and Peoples’ Rights is a regional human rights body that promotes and protects human rights in the 54 Member States of the African Union. Tasked with interpreting and applying the African Charter on Human and Peoples’ Rights, the African Commission accepts communications from individuals, groups of individuals, nongovernmental organizations, and States concerning alleged violations of the African Charter committed by the 53 States that have ratified the Charter. When it finds that a violation has taken place, the Commission often issues recommendations to the respondent State to undertake reparative measures.