Africa has participated actively in the celebrations that mark June 26 every year as United Nations Day in Support of Victims of Torture. But regrettably, it has largely failed to turn the rhetoric of speeches and events organized to mark the day into tangible results.
The United Nations Convention against Torture (UN-CAT) and the related Optional Protocol to UN-CAT (OPCAT) call for two fundamental steps: that torture be made a criminal offense, and that states establish so-called National Preventative Mechanisms (NPMs).
Forty-two of fifty-four African states have signed and ratified UN-CAT. But only 25 percent of the ratifying states have met the requirement of article 4 to “ensure that all acts of torture are offences under its criminal law.”
It should be noted that non-ratification of UN-CAT or any international treaty prohibiting torture is not a justification for applying torture. The prohibition against torture forms part of customary international law, which binds every member of the international community regardless of ratification. Indeed, article 2(2) makes clear that no exceptional circumstances may be invoked in defence of torture—not a state of war or threat of war, nor internal political instability, nor any other public emergency.
Evidently, if torture cannot be excused on the basis of war, it should not be permitted under the well-worn excuse of lack of investigative capacity. State parties to UN-CAT are enjoined to take “effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction” and therefore ought to provide the resources to make recourse to torture unnecessary.
For its part, the OPCAT enjoins state parties to establish NPMs to primarily monitor places and conditions of detention. The operative word is “preventative” as it is the preferred method of reducing the incidence of torture amongst vulnerable populations, particularly those in detention facilities.
Regrettably, fewer African states have ratified the OPCAT—only 12 as of June 21, 2013. Of these only four have established NPMs: Mali, Mauritius, Nigeria, and Senegal. The first two gave their national human rights institutions the mandate to act as NPMs, while the others established new institutions. These NPMs have yet to achieve optimal performance.
As a continent, Africa has gone beyond the UN-CAT and OPCAT to set for itself soft law on the subject—Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa also known as Robben Island Guidelines (RIG), named after Nelson Mandela’s detention centre in South Africa.
Adopted in October 2002 by the African Commission on Human and Peoples’ Rights (Resolution ACHPR/Res.61(XXXII)02) following a workshop jointly organized by the Commission and Association for the Prevention of Torture (APT), RIG provides concrete guidance both for states looking to implement African Charter on the Prohibition and Prevention of Torture and individuals seeking redress for acts of torture visited on them. In 2004, the Commission established the Committee for the Prevention of Torture in Africa (CPTA), a follow-up mechanism to monitor implementation.
Reviewing its work over a decade of operation in 2012, Jean Baptiste Niyizurugero, vice chairperson of CPTA outlined the following achievements: publication of RIG in four African Union languages (Arabic, English, French, and Portuguese); publication of a practical guide on implementation; seminars for law enforcement officials in Benin, Cameroon, Liberia, and Nigeria; promotional visits to Benin, Mauritania, and Uganda; consultative meetings; proposed adoption of internal rules; and interaction with relevant international institutions including the UN Special Rapporteur on Torture.
In addition, he identified the following challenges: non-implementation of plan of action adopted in 2005; lack of financial resources; lack of secretarial staff; and lack of coordination and adequate communication between members.
Funding appears to be a major constraint to realizing a continent free of torture, but it is not fatal. Lack of political will and commitment to this cause has a more devastating consequence than funding. To make any appreciable impact, states must commit to specific and measurable initiatives to promote a continent with low torture threshold. They could begin with criminalizing torture in their respective national legislations. Then, ratifying the OPCAT and establishing effective NPMs. These will go a long way in changing the demographics on torture in Africa.