An analysis of the approach to the right to freedom from torture adopted by the African Commission on Human and Peoples' Rights

Abstract

While the right to freedom from torture is one of the few non-derogable rights, it is also one of the rights commonly violated in Africa. The right to freedom from torture is protected under article 5 of the African Charter. This article looks at the measures the African Commission has put in place to protect the right to freedom from torture in the last 20 years that the African Charter has been in force. The definition of torture is given, the principle of jus cogens is discussed, and the general situation of torture in Africa is reviewed. The article also discusses the human rights instruments in Africa and how they protect the right to freedom from torture. In particular, the African Charter and the African Charter on the Rights and Welfare of the Child are discussed and emphasis is put on the mechanisms in those treaties and how such mechanisms have been used to protect the right to freedom from torture. On the role of the African Commission and how it has used its mechanisms to protect the right to freedom from torture, the article looks at how torture has been dealt with in the seminars and workshops organised by the African Commission, how the African Commission has laid down rules and co-operated with other African and international institutions to protect the right to freedom from torture, and how it has protected the right to freedom from torture through individual communications. The role of the Special Rapporteur on Prisons and Conditions of Detention in Africa in protecting the right to freedom from torture and the Robben Island Guidelines are also discussed in detail. The author recommends that Africa should adopt a torture-specific treaty, as has been the case in the European and Inter-American systems of human rights if the right to freedom from torture is to be protected effectively.