African Charter on Human and Peoples’ Rights
The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. The Charter, the African Commission on Human and Peoples’ Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples’ Rights was to be created. The protocol came into effect on 25 January 2005.
African Charter on Human and Peoples’ Rights, Organization of African Unity (“Banjul Charter”)
(Adopted by the eighteenth Assembly of Heads of State and Government 27 June, 1981 – Nairobi, Kenya)
Part I: Rights and Duties
Chapter I: Human and Peoples’ Rights
The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.
Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Part II: Measures of Safeguard
Chapter I: Establishment and Organization of the African Commission on Human and Peoples’ Rights
An African Commission on Human and Peoples’ Rights, hereinafter called “the Commission”, shall be established within the Organization of African Unity to promote human and peoples’ rights and ensure their protection in Africa.
Communication from States
If a State party to the present Charter has good reasons to believe that another State party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable, and the redress already given or course of action available.
If within three months from the date on which the original communication is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State shall have the right to submit the matter to the Commission through the Chairman and shall notify the other States involved.
The African Charter on Human and Peoples’ Rights establishes the absolute prohibition of torture, cruel, inhuman or degrading treatment or punishment. Article 5 of the Charter provides that “every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
The Charter also establishes a regional human rights body, the African Commission on Human and Peoples’ Rights, with the mandate to promote respect for the Charter, ensure the protection of the rights and fundamental freedoms contained therein, and make recommendations for its application.
To fulfill its mission, the African Commission works with different partners, which include the authorities of States party to the African Charter, national human rights institutions and non-governmental organizations (NGOs). It is in this context of cooperation that the Association for the Prevention of Torture (APT) – an international NGO with Observer Status at the African Commission – suggested, during the African Commission’s 28th ordinary session held in Cotonou, Benin, in October 2000, that a joint workshop be organized to draw up concrete measures for implementation of the provisions of Article 5 of the Charter and other international instruments aimed at preventing torture.
The African Union’s Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines or RIG) are an unprecedented instrument to fight against torture and ill treatment in Africa. The RIG is an essential tool for States in fulfilling their national, regional and international obligations to strengthen and implement the prohibition and prevention of torture. The African Commission on Human and Peoples’ Rights and NGOs can also use them as a basis for reminding States and other stakeholders of what actions they should take to prevent torture and other cruel, inhuman or degrading punishment or treatment.
The Robben Island Guidelines are divided into three parts:-
The first part ‘Prohibition of Torture’ calls on States on the one hand to ratify existing legal instruments and integrate them into domestic legislation. In particular, the act of torture must be ‘criminalized’ and prosecuted. On the other hand, it invites States to cooperate with regional and international human rights mechanisms.
The second part ‘Prevention of Torture’ presents a range of preventive measures, covering the different stages of criminal law procedure in which there is a real risk of torture occurring. It details the safeguards that should be provided, in particular, during arrest, custody, temporary detention, trial and imprisonment in general. The Guidelines also highlight the need to establish mechanisms of oversight, for example a system for regular visits to places of detention and independent bodies empowered to receive complaints. They further advocate for the setting up of educational and awareness-raising programmes for the public as well as human rights training, in particular for law enforcement officials.
The third part ‘Responding to the Needs of Victims’ looks at ways of responding to the needs of such victims. Indeed, assisting the victims is also a duty of States, which should take measures to treat, support and provide reparation and rehabilitation for the victims.
Read more:- African Charter on Human and Peoples’ Rights
Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), African Commission on Human and Peoples’ Rights, 32nd Session, 17 – 23 October, 2002: Banjul, The Gambia.
(available at: http://www1.umn.edu/humanrts/achpr/tortguidelines.html)
Part I: Prohibition of Torture
A. Ratification of Regional and International Instruments
1. States should ensure that they are a party to relevant international and regional human rights instruments and ensure that these instruments are fully implemented in domestic legislation and accord individuals the maximum scope for accessing the human rights machinery that they establish. This would include:
a) Ratification of the Protocol to the African Charter of Human and Peoples’ Rights establishing an African Court of Human and Peoples’ Rights;
b) Ratification of or accession to the UN Convention against Torture, Cruel, Inhuman and Degrading Treatment or Punishment without reservations, to make declarations accepting the jurisdiction of the Committee against Torture under Articles 21 and 22 and recognising the competency of the Committee to conduct inquiries pursuant to Article 20;
c) Ratification of or accession to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and the First Optional Protocol thereto without reservations;
d) Ratification of or accession to the Rome Statute establishing the International Criminal Court;
B. Promote and Support Co-operation with International Mechanisms
2. States should co-operate with the African Commission on Human and Peoples’ Rights and promote and support the work of the Special Rapporteur on prisons and conditions of detention in Africa, the Special Rapporteur on arbitrary, summary and extra-judicial executions in Africa and the Special Rapporteur on the rights of women in Africa.
3. States should co-operate with the United Nations Human Rights Treaties Bodies, with the UN Commission on Human Rights’ thematic and country specific special procedures, in particular, the UN Special Rapporteur on Torture, including the issuance of standing invitations for these and other relevant mechanisms.
C. Criminalisation of Torture
4. States should ensure that acts, which fall within the definition of torture, based on Article 1 of the UN Convention against Torture, are offences within their national legal systems.
5. States should pay particular attention to the prohibition and prevention of gender-related forms of torture and ill-treatment and the torture and ill-treatment of young persons.
6. National courts should have jurisdictional competence to hear cases of allegations of torture in accordance with Article 5 (2) of the UN Convention against Torture.
Part II: Prevention of Torture
A. Basic Procedural Safeguards for those deprived of their liberty
20. All persons who are deprived of their liberty by public order or authorities should have that detention controlled by properly and legally constructed regulations. Such regulations should provide a number of basic safeguards, all of which shall apply from the moment when they are first deprived of their liberty.
Part III: Responding to the Needs of Victims
49. Ensure that alleged victims of torture, cruel, inhuman and degrading treatment or punishment, witnesses, those conducting the investigation, other human rights defenders and families are protected from violence, threats of violence or any other form of intimidation or reprisal that may arise pursuant to the report or investigation.
50. The obligation upon the State to offer reparation to victims exists irrespective of whether a successful criminal prosecution can or has been brought. Thus all States should ensure that all victims of torture and their dependents are:
a) Offered appropriate medical care;
b) Have access to appropriate social and medical rehabilitation;
c) Provided with appropriate levels of compensation and support;
In addition there should also be a recognition that families and communities which have also been affected by the torture and ill-treatment received by one of its members can also be considered as victims.
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