DRC: OMCT intervention ahead of ACHPR

The World Organisation Against Torture (OMCT)
Intervention before the African Commission on Human and Peoples’ Rights (ACHPR), during the 44th Ordinary Session, Abuja, Nigeria, 10th – 24th November 2008

Item 4 d): The Situation of Human Rights in Africa

Mrs. Chair, Honourable Commission, Distinguished Delegates and Participants, as the largest coalition of non governmental organisations fighting against torture and all other forms of cruel, inhuman or degrading treatment, the World Organisation Against Torture (OMCT) would like to share its concern on the situation of human rights prevailing on the African continent.

Since August, the conflict in Nord Kivu, in the Democratic Republic of Congo (DRC), between the DRC Armed Forces (FARDC) and the troops of rebel general Laurent Nkunda of the National Congress for the Defense of the People (Congrès national pour la défense du people, CNDP) has intensified and has been accompanied by grave and massive human rights violations of the civilian population. Furthermore, whilst the DRC has, in principle, recently reinforced its legal framework for the protection of human rights at the internal, regional and international level, this improvement is not reflected in practice, and the situation of human rights on the ground has deteriorated dramatically. For instance, enforced disappearances, arbitrary arrests and detentions are commonplace in different parts of DRC. Torture and ill-treatment are also being perpetrated by State agents at security service offices, police stations and prison facilities, as well as by non state actors, in a climate of impunity.

OMCT calls on the Government and all relevant actors to solve this crisis by peaceful means and to take strong immediate measures to ensure the protection at all times, including in times of upheaval, of the right of every person to respect for his or her life, to be free from torture and other forms of ill-treatment and to be free from arbitrary arrest and detention.

With regard to Tunisia, on the systematic use of torture and ill-treatment by police during questioning of suspects and the refusal to conduct effective independent and impartial inquiries into complaints of torture and ill-treatment, it remains far below the strict international legal standards on these matters. Furthermore, the definitions contained in the Law on Terrorism from 2003 are being used to limit the freedom of expression and association and avoid any political dissent, even peacefully expressed. Finally, in spite of a reform of the High Council of the Judiciary, the magistrates remain under the influence of the executive power and unable to apply Tunisian law in general according to their professional deontology. More than the law itself, major shortcomings in its application by state agents remain an extremely serious preoccupation.

OMCT calls on Tunisia to urgently take immediate and determined measures to prevent and eradicate all forms of torture and ill-treatment in the country, to create effective independent complaints mechanisms for persons deprived of liberty and to establish independent and impartial investigations into all forms of ill-treatment that will be also be competent to prosecute persons suspected of ill-treatment.

In Sudan, although the government has agreed to new policies, this has failed to impact on the ground where gross violations continue. Laws which violate the Constitution and international human rights standards are still in use. In this respect, OMCT is particularly concerned about cases of women sentenced to death by stoning on adultery charges in application of the penal code.

Under the National Security Act, arbitrary arrests and detentions are carried out. Acts of torture and ill-treatment in custody have been reported.

The conditions in the newly formed ’Special Courts’, set up to try suspected rebels underSudan’s 2001 Anti-terrorism law, violate both national and international human rights standards. Defendants don’t have a fair trial, access to lawyers has been denied and confessions extracted by force in custody accepted as evidence.

The situation in Darfur continues to be a key focus particularly after the ICC Prosecutor issued the indictments against President Al-Bashir, including on the basis of genocide. Currently the security situation in Darfur is deteriorating: internal displacement, attacks on civilians perpetrated by government forces and widespread incidences of sexual violence have been reported. Such crimes remain uninvestigated with existing legislation often granting immunity to state officials.

To achieve widespread peace and stability in Sudan, the Comprehensive Peace Agreement (CPA) must be implemented, the Interim National Constitution fully applied, impunity firmly rejected and human rights law respected at all times.

In Zimbabwe, the power-sharing discussions between the country’s rival political parties have reached a deadlock, while extreme hunger affects more and more of the country’s population. OMCT expresses the sincere hope that a breakthrough will be made in these discussions and that finally there will be an opportunity to begin building a culture of human rights and, crucially, to end impunity for those who are responsible for torture, abuse and arbitrary killings.

The lead-up to Zimbabwe’s presidential elections in March and the period of political uncertainty that followed have been marked by high levels of politically motivated killings, torture, abductions and forced evictions. Many of these atrocities were carried out against the opposition and its supporters by pro-Government militia such as the Zanu-PF youth militia and so-called “War Veterans” and by elements within the Police, including certain notorious homicide squads. Corruption and political bias within the judiciary have helped to ensure that perpetrators of these human rights abuses have not been brought to justice, while lawyers who have sought to represent victims of these acts have themselves been put at risk.

In addition to these politically-motivated human rights abuses that have been a focus for international media, OMCT wishes to underline that torture is also routinely employed by police in Zimbabwe as a means of obtaining confessions from alleged criminals.

OMCT encourages the African Commission to urge Zimbabwe to, inter alia, establish a free and independent commission to investigate politically-motivated torture and killings, to ensure an effective system of punitive justice for individuals responsible for these and other human rights abuses and to urgently undertake a review of police investigation practices.

Mrs. Chair, honourable Commission, distinguished delegates and participants, in May of this year representatives of 17 prominent human rights organisations from across Africa met inMaputo, Mozambique, to take part in an OMCT seminar to examine and address the root causes of torture and ill-treatment. During this seminar, and in response to their deep concern at the widespread practice of torture on this continent, these human rights defenders drafted a declaration that calls, inter alia, on African Governments to end torture and other cruel, inhuman or degrading treatment or punishment and to make Africa a continent free from such practices.

The Maputo Declaration against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which now enjoys the support of some 50 human rights organisations, addresses in particular two issues that require urgent attention.

The first of these is the fact that, across Africa, violations of economic, social and cultural rights are very often the root causes of torture and other forms of violence.

The second issue of particular concern is the current attempts by certain States and scholars to erode the absolute legal prohibition of torture. OMCT wishes to recall that the prohibition of torture is a peremptory norm, that torture can never be justified under any circumstances; there are no political, economic or ideological arguments that make this practice acceptable. Freedom from torture is a non-derogable right, affirmed by all relevant international and regional instruments.

In spite of the clear legal prohibition of torture and other forms of ill-treatment under international law, we have, in the last years, seen an unprecedented connivance in the commission of, and/or unwillingness to investigate, prosecute, punish and remedy such crimes by many countries, and this, in spite of their multiple legal obligations to do so. In this respect, OMCT would like to stress that, while there have in the last years been attempts by certain States and scholars to erode the absolute legal prohibition of torture, judgments by international courts and legal opinions adopted by other monitoring organs have consistently rejected such attempts.

OMCT acknowledges the legitimacy of the fight against terrorism. Indeed, it is the duty of States to ensure the security of their populations, but this security must be ensured on the basis of a democratic constitutional order, the Rule of Law and a strict respect for human rights and fundamental freedoms in general and the right to be free from torture and ill-treatment in particular.

It is contrary to the fundamental principles of international human rights law to allow perpetrators of human rights violations to act with impunity. Impunity sends the wrong message to persons committing torture and ill-treatment that they are above the law. Impunity also denies the victims and their relatives the right to have the truth established, the right to see justice done and the right to reparation. To end impunity, those guilty, directly or indirectly, of torture and other cruel, inhuman or degrading treatment or punishment have to be identified, prosecuted and punished, and to ensure justice, victims of torture and other cruel, inhuman or degrading treatment or punishment have to have access to effective remedies, reparation, assistance and rehabilitation.

While many obstacles exist to ending impunity, all too often simply the political will is lacking to fully investigate crimes of torture and to bring perpetrators to justice. OMCT recalls that States are responsible before the international community for effectively outlawing torture and other cruel, inhuman or degrading treatment or punishment, for preventing their occurrence, for prosecuting and punishing those guilty of such acts and for providing reparation to the victims.

Drawing inspiration from the principles contained in the Maputo Declaration, OMCT urges the Member States, the National institutions, the Commission and the NGO community to undertake all necessary efforts to ensure compliance by the States of their obligations under international and regional instruments regarding the absolute prohibition of torture and to take all necessary steps to ensure that freedom from torture, as a non-derogable right, is enjoyed by each and every individual on the African Continent, irrespective of his or her civil, political, economic, social or cultural status.

Thank you, Mrs. Chair.