Regional human rights systems, consisting of regional instruments and mechanisms, play an important role in the promotion and protection of human rights. They provide more accessible remedies and assist with the implementation of universal human rights. The African Charter on Human and Peoples’ Rights (ACHPR), which was adopted in 1981 and entered into force in 1986, was established for the promotion and protection of human rights in Africa.
Binding Regional instruments for the protection of persons in detention
In the African region, it is the African Charter on Human and Peoples’ Rights (ACHPR), also known as the Banjul Charter, which provides for the protection of persons in detention. It is supplemented in this function by its protocols, soft law instruments and specific mechanisms.
- African Charter on Human and Peoples’ Rights, the Banjul Charter
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. In its article 5, the Charter allows for the right of ‘every individual to the respect of the dignity inherent in every human being’ and provides that ‘all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited’. The ACHPR also provides for the right to an appeal, equality before the law, the right to defense, the right to be tried within a reasonable period (article 7), nondiscrimination, presumption of innocence, and freedom from coercion of any kind for persons who are detained.
- Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
Also known as the Maputo protocol, this instrument was drafted in 1995 and became effective in 2005. It guarantees a comprehensive set of rights to women and was adopted as a protocol to the ACHPR. Article 24 provides for the special protection of women in distress. States have the obligation under this article to “... ensure the rights of pregnant or nursing women or women in detention by providing them with an environment which is suitable to their condition and the right to be treated with dignity”.
- African Charter on the Rights and Welfare of the Child
The African Charter on the Rights and Welfare of the Child (ACRWC) was adopted by the then Organization of African Unity (OAU) in 1990 and entered into force in 1999. Its provisions are inspired from the ACHPR and other International human rights laws. Article 2 of the charter provides in its first paragraph that States should: ”ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.” This article goes further to protect child detainees by ensuring that they are separated from adults in their place of detention or imprisonment.
Soft Law provisions
- Kampala Declaration on Prison Conditions in Africa
In September 1997, a pan-African conference was held in Kampala, Uganda, which led to the Kampala Declaration on Prison Conditions in Africa. The Declaration stipulates that ‘any person who is denied freedom has a right to human dignity’ and declares, inter alia, that ‘the human rights of prisoners should be safeguarded at all times’. Similar instruments have been adopted by or on the initiative of the African Commission on Human and Peoples’ Rights, some of which refer to the Standard Minimum Rules.
- Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines), 2008
The Guidelines, adopted in 2002, promote the ratification by States of international and regional anti-torture instruments as well as the States’ co-operation with existing international mechanisms for the prevention of torture and ill treatment of detainees. They also prescribe the criminalization of torture in domestic law, as well as the establishment of complaints and investigation procedures. Furthermore, the Guidelines recommend the adoption of rules designed to contribute to the prevention of torture. It includes such basic safeguards as the right of detainees to notify relatives of their detention immediately after admission, the right to an independent medical examination and the right to legal representation. Guideline 33 stipulates that States should “take steps to ensure that the treatment of all persons deprived of their liberty is in conformity with international standards guided by the UN Standard Minimum Rules for the Treatment of Prisoners”. Finally, the instrument stresses the importance of establishing independent and impartial complaints and monitoring bodies. The Special Rapporteur on Prisons and Conditions of Detention in Africa is mandated to visit and examine places where people are being detained. He or she may “make recommendations to improve conditions of detention and may if necessary, propose that urgent action be taken”.
- The Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda Guidelines);
The Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda Guidelines) were adopted by the African Commission on Human and Peoples’ Rights (the Commission) during its 55th Ordinary Session in Luanda, Angola, from 28 April to 12 May 2014. Articles 2, 3, 5, 6, 7 and 26 of the African Charter on Human and Peoples’ Rights (the African Charter) set out States’ obligations to provide all people with the rights to life, dignity, equality, security, a fair trial, and an independent judiciary. The Luanda Guidelines will assist States in implementing these obligations in the specific context of arrest, police custody and pre-trial detention.
Other regional soft law instruments include:
- The Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa
- The Kadoma Declaration of Community Service, Zimbabwe 1997
- The Arusha Declaration on Good Prison Practice adopted in Arusha, Tanzania
- Kampala Declaration on Prison Health in Africa
- Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa
- Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa
Regional Human Rights Mechanisms
- The African Commission on Human and Peoples’ Rights
The Commission is a quasi-judicial body with three principal functions. It promotes, protect human rights and interprets the provisions of the Charter. It also receives complaints and makes recommendations accordingly. Numerous cases have been brought to the commission alleging violations of rights with respect to those held in detention. Through its decisions the commission interprets provisions for the protection of detainees and by so doing sets precedent.
- In 1997, the Commission appointed a Special Rapporteur on Prisons and Conditions of Detention in Africa, whose task is to visit and examine places of detention. In the past, the Special Rapporteur has undertaken visits to prisons in South Africa, Cameroon and Ethiopia and has published reports on these visits. In more recent years, however, the Special Rapporteur has been unable to undertake any visits due to resource constraints.
The mandate of the Special Rapporteur on Prisons and Conditions of Detention in Africa is to examine the situation of persons deprived of their liberty within the territories of States Parties to the ACHPR. The mandate of the Special Rapporteur extends to other detention centers such as reform centers and police cells, and covers detainees awaiting trial.
In one of his Reports (which also provide guidance on the treatment of prisoners) on prison conditions in South Africa, it was stipulated that the African Commission subscribes to the principles enunciated in the Standard Minimum Rules. In examining the South African Correctional Services Act of 1998, the Special Rapporteur considered it significant that ‘the Act incorporates principles espoused by the all-important Standard Minimum Rules for the Treatment of Prisoners and Kampala Declaration on Prison Conditions in Africa’.” the reports of the Special Rapporteur on Prisons and Conditions of Detention in Africa.
- Conference of the Central, Eastern and Southern African Heads of Correctional Service (CESCA)
The Heads of Correctional Services in the region, who had been holding regular consultative meetings, decided to regularize those meetings into a standing forum. They established the Conference of the Central, Eastern and Southern African Heads of Correctional Service (CESCA) in 1993. At its fifth meeting held in Windhoek in September 2001, they passed, among other things, a resolution on a Charter of prisoners' rights. The conference made a recommendation for the Charter to be adopted by all Africa countries.