ARTICLES

Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?

Debra Long^I; Rachel Murray^II

^IResearch Associate, University of Bristol, United Kingdom
^IIProfessor of International Human Rights Law; Director, Human Rights Implementation Centre, University of Bristol, United Kingdom

SUMMARY

In 2002 the African Commission on Human and Peoples' Rights adopted a resolution containing the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines). This is the first instrument adopted by the African Commission focused solely on preventing torture and other forms of ill-treatment. Ten years on, the article aims to examine the background to the adoption of the Robben Island Guidelines in order to explore the motives behind their development and to identify reasons for their subsequent lack of impact. The article will demonstrate that the context and institutional setting within which the Robben Island Guidelines were developed have had an impact on their level of implementation. The article arises out of a four-year research project, funded by the Arts and Humanities Research Council in the United Kingdom, which is examining the implementation of soft law through an analysis of the use of the Robben Island Guidelines in practice. Through an analysis of this one document, the article hopes to offer some lessons for the drafting, use and relevance of other soft law documents in human rights law.

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* MA (Glasgow), Dip Law (College of Law, Surrey), MA (London); Debra.Long@bristol.ac.uk
** LLB (Leicester), LLM (Bristol), PhD (West of England, Bristol); Rachel.Murray@bristol.ac.uk
1 ACHPR Res 61 (XXXII) 02 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, http://www.achpr.org/instruments/robben-island-guidelines-2008/ (accessed 31 October 2012).
2 In this article torture and other forms of cruel, inhuman and degrading treatment or punishment will be referred to as torture and other ill-treatment.
3 Art 62 African Charter.
4 Arts 47-59 African Charter.
5 Position Paper of the APT submitted to the 27th ordinary session of the African Commission (2000), copy filed with the Human Rights Implementation Centre, University of Bristol.
6 As above.
7 See J Mujuzi 'An analysis of the approach to the right to freedom from torture adopted by the African Commission on Human and Peoples' Rights' (2006) 6 African Human Rights Law journal 423 434-435.         [ Links ]
8 As above.
9 See J Harrington 'Special Rapporteurs of the African Commission on Human and Peoples' Rights' (2001) 1 African Human Rights Law Journal 251;         [ Links ] R Murray 'The Special Rapporteurs in the African system' in M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights. The system in practice 1986-2006 (2008) 373-374.         [ Links ]
10 See Murray (n 9 above) 208.
11 The European Convention on the Prevention of Torture came into force in 1989.
12 For more information on the CPT, see http://cpt.coe.int/en/ (accessed 31 October 2012).
13 Position paper of the APT (n 5 above).
14 Oral statement made by Mr Jean-Baptiste Niyizurugero at the 28th ordinary session of the African Commission, 23 October-6 November 2000, copy filed with the Human Rights Implementation Centre, University of Bristol.
15 Interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
16 D Shelton 'Law, non-law and the problem of soft law' in D Shelton (ed) Commitment and compliance. The role of non-binding norms in the international legal system (2000) 12.
17 Shelton (n 16 above) 13.
18 Oral Statement made by the APT at the 29th ordinary session of the African Commission.
19 As above.
20 Interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
21 As above.
22 n 20 above.
23 The participants were Mr Andrew Chigovera, commissioner of the African Commission and Attorney-General of Zimbabwe; Mr Barney Pityana, commissioner of the African Commission; Mr Germaine Baricako, Secretary to the Africa Commission; Mrs Fiona Adolu, Legal Officer to the African Commission; Prof Renate Kicker, professor at the University of Graz, Austria and member of the European Committee for the Prevention of Torture; Mr Jody Kollapen, Deputy Chairperson of the South African Human Rights Commission; Mrs Antoinette Brink, South African Police Services; Mr Ephrem Gasasira, member of the Brussels Bar; Mrs Misie Mosarwa, Legal Officer for the Botswana Police Service; Prof Malcolm Evans, professor at the University of Bristol, UK; Mr Mabassa Fall, International Federation for Human Rights (based in Senegal); Mrs Karen McKensie, executive director of the Independent Complaints Directorate of South Africa; Mr Shadrack Mahlangu, officer at the Independent Complaints Directorate in South Africa; Mr Tommy Tshabalala, officer at the Independent Complaints Directorate of South Africa; Mrs Hannah Forster, executive director for the African Centre for Democracy and Human Rights Studies (based in The Gambia); Mr Guy Aurenche, International Federation of Action by Christians for the Abolition of Torture (FIACAT) (based in France); Dr Tertius Geldenhuys, South African Police Services; Mrs Henrietta Didgu, legal officer of the Economic Community of West Africa States (based in Nigeria); Mr Patrick Zahnd, International Committee of the Red Cross (based in South Africa); Father Michael Lapsley, Institute for Healing and Memories (based in South Africa); Prof Shabbir Wadee, Department of Forensic Medicine at Stellenbosch University (based in South Africa); Mrs Shelia Keetharuth, Amnesty International (based in Mauritius); Mr Vincent Saldanha, Legal Resources Centre (based in South Africa); Mr Honore Tougouri, President of the African Penitentiary Association (based in Burkina Faso); Mr Marco Mona, President of the APT (based in Switzerland); Mr Jean-Baptiste Niyizurugero, APT Africa Programme Officer (based in Switzerland); and Ms Debra Long, APT Programme Advisor (based in Switzerland).
24 Letter to Prof Malcolm Evans dated 13 November 2002 [sic], copy filed with the Human Rights Implementation Centre, University of Bristol.
25 APT Ideas and principles for possible inclusion in the Draft Robben Island Plan of Action, filed with the Human Rights Implementation Centre, University of Bristol.
26 As above.
27 This was drafted between 21 and 26 September 1996 at an expert workshop organised by Penal Reform International, the African Commission, the Uganda Prison Services, the International Committee of the Red Cross, the Foundation for Human Rights Initiative and the Observatorie International des Prisons. See http://www.penalreform.org/files/rep-1996-kampala-declaration-en.pdf (accessed 31 October 2012).
28 The preliminary draft was prepared by Mr Niyizurugero, APT Africa Programme Officer and Ms Long, APT Programme Advisor.
29 The members of this core drafting team were Mrs Adolu, legal officer to the African Commission; Mr Baricako, Secretary to the African Commission; Prof Evans, Bristol University; Mrs Forster, Executive Director of the African Centre for Democracy and Human Rights Studies, The Gambia; Prof Kicker, member of the European Committee for the Prevention of Torture, Austria; Ms Long; and Mr Niyizurugero.
30 For further details of the presentations, see APT 'Preventing torture in Africa: Proceedings of a joint APT-ACHPR Workshop, Robben Island, South Africa' 12-14 February 2002, APT, Geneva 2003.
31 The two members of the core drafting group who finalised the draft document were Prof Evans and Ms Long.
32 See J-B Niyizurugero & GP Lissêne 'The Robben Island Guidelines: An essential tool for the prevention of torture in Africa' (2010) 6 Essex Human Rights Review 113.
33 Namely, Prof Kicker (Austria), Prof Evans and Ms Long (both from the UK).
34 The primary drafters were Prof Evans, Mr Niyizurugero and Ms Long.
35 Ideas and principles (n 25 above) 5.
36 Ideas and principles (n 25 above) 1.
37 As above.
38 See art 6 ICCPR.
39 Since the adoption of the Robben Island Guidelines in 2002, the African Commission's position on the application of the death penalty has been clarified, in particular with the adoption of a Resolution in 2008 calling for a moratorium on the death penalty, Resolution 136, and the establishment of a Working Group on the Death Penalty in 2005.
40 Ideas and principles (n 25 above) 1.
41 See Committee against Torture Concluding Observations on Saudi Arabia, UN Doc CAT/C/CR/28/5, 2000 para 8(b); Committee against Torture Concluding Observations on South Africa, UN Doc CAT/C/ZAF/10/1, 2006 para 25; Report of the UN Special Rapporteur on Torture, UN Doc e/cn.4/1997/7, 10 January 1997.
42 See provision 4 of the Robben Island Guidelines.
43 Since the adoption of the Robben Island Guidelines, the African Commission has also determined that 'there is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning state-sponsored torture under the [African] Charter and contrary to the very nature of this human rights treaty.' See Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003) para 42.
44 See art 5 of CAT.
45 See provision 6 of the Robben Island Guidelines.
46 R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2001] 1 AC 61; R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 3] [2001] 1 AC 147 (Pinochet [No 3]).
47 See Statute of the International Criminal Tribunal for the Former Yugoslavia UN Doc S/RES/827 (1993); Statute of the International Criminal Tribunal for Rwanda UN Doc S/RES/955 (1994); and Rome Statute of the International Criminal Court, A/CONF 183/9 (1994).
48 Arrest Warrant of 11 April 2000 (DRC vBelgium) (Merits), 14 February 2002, http://www.icj-cij.org 23 September 2002, para 54.
49 Provision 16(b) of the Robben Island Guidelines. Universal jurisdiction and immunity remain controversial issues within Africa in light of the number of decisions being handed down by the International Criminal Court against individuals from Africa.
50 Art 1(1) of CAT reads as follows: 'For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.'
51 See provision 4 of the Robben Island Guidelines.
52 See provision 31 of the Robben Island Guidelines.
53 See Guidelines on EU Policy towards Third Countries on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the Council of the European Union on 9 April 2001.
54 See UN Doc A/RES/56/143 3 para 11.
55 See provision 14 of the Robben Island Guidelines.
56 See Ideas and principles (n 25 above).
57 See R Baxter 'International law in her infinite variety' (1980) 29 International and Comparative Law Quarterly 549-566.
58 See A Boyle 'Some reflections on the relationship between treaties and soft law' (1999) 48 International and Comparative Law Quarterly 901-909.
59 See eg provisions 4-15 of the Robben Island Guidelines which are derived from CAT and ICCPR.
60 See eg provisions 33 and 34 of the Robben Island Guidelines. Guidelines were published by the APT, the East Africa Regional Office of the Office of High Commissioner for Human Rights and the African Commission in order to provide a commentary on the provisions and how they could be implemented at the national level. See Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa: A practical guide for implementation (2008) http://www.achpr.org/english/_info/index_RIG_Under_en.htm (accessed 31 October 2012).
61 See Shelton (n 16 above) 2.
62 See eg provision 4 of the Robben Island Guidelines which provides: '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.'
63 See eg provision 42 which provides that states should 'encourage and facilitate visits by NGOs to places of detention'.
64 See provisions 4, 6, 7, 9, 11, 12, 15, 18 & 19 of the Robben Island Guidelines.
65 See provisions 1, 2 & 3 of the Robben Island Guidelines.
66 See provisions 20, 25, 26, 27, 29, 31, 32, 35 & 36 of the Robben Island Guidelines.
67 See Human Rights Committee, General Comment 20, UN Doc HRI/GEN/1/Rev.6 (2003) para 11.
68 See Report of the Special Rapporteur on Torture, UN Doc E/CN.4/1995/434 para 926(d).
69 See eg Father Lapsley 'Measures required on rehabilitation and reparation. The case of South Africa' in 'Preventing torture in Africa' (n 30 above) 131-138; and the opening speech to the workshop on the Robben Island Guidelines by Dr P Maduna in 'Preventing torture in Africa' (n 30 above) 51-56.
70 See provision 14 of the Robben Island Guidelines which closely mirrors language used in the Guidelines on EU Policy towards Third Countries on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (n 53 above).
71 See Niyizurugero & Lissêne (n 32 above) 93.
72 See African Union Decision Assembly/AU/Dec.11 (II).
73 C Chinkin 'Normative development in the international legal system' in Shelton (n 16 above) 29.
74 See 'Preventing torture in Africa' (n 30 above) 171.
75 Interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
76 As above.
77 As above.
78 See the final declaration of the international seminar on torture 'Working together for an end to torture in Africa' http://www.fiacat.org/en/spip.php7article217 (accessed 31 October 2012).
79 See Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (n 1 above).
80 As above.
81 As above.
82 As above.
83 Interview with Prof Renate Kicker, 9 March 2009; interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
84 For more details on the role played by the APT in the establishment of the CPTA, see The Optional Protocol to the UN Convention against Torture: A manual for prevention (2004) 35-36.
85 Interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
86 See 17th Annual Report of the African Commission on Human and Peoples' Rights, 2003-2004, para 32.
87 As above.
88 African Commission Report on the Consultative Meeting on the Implementation of the Robben Island Guidelines held from 8-9 December 2003, Ouagadougou, Burkina Faso, African Union, 2.
89 As above.
90 Interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
91 As above.
92 Report on the Consultative Meeting on the Implementation of the Robben Island Guidelines (n 88 above) 3.
93 As above.
94 The participants included Commissioner Sanji Monageng; Leila Zerrougoui, Chairperson of the UN Working Group on Arbitrary Detention; Vincent Zakane, representative of the Ministry for the Promotion of Human Rights of Burkina Faso; Honore Tougouri, representative of the Association Penitentaire Africaine (APA); Malick Sow, co-ordinator of the Senegalese Human Rights Commission; and Jean-Baptiste Niyizurugero, Africa Programme Officer for the APT.
95 Report on the Consultative Meeting on the Implementation of the Robben Island Guidelines (n 88 above), Annex 1.
96 J-B Niyizurugero & GP Lessêne Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa: A practical guide for implementation (2008).
97 The first members were Commissioner Ms Sanji Monageng, elected Chairperson of the Follow-Up Committee; Mr Jean-Baptiste Niyizurugero, elected Vice-Chairperson of the Follow-up Committee - Programme Officer for Africa, APT; Mrs Hannah Forster, African Centre for Democracy and Human Rights Studies (ACDHRS); Mrs Leila Zerrougui, Magistrate and Professor of Law at the National Institute of Magistracy in Algiers and Chairperson of the United Nations Working Group on Arbitrary Detention; Advocate Ms Karen McKenzie, Director of the Independent Complaints Directorate of South Africa; and Mr Malick Sow, Executive Secretary of the Senegalese Committee of Human Rights.
98 See Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (n 1 above).
99 Report of the First Working Session of the Follow-up Committee on the Implementation of the Robben Island Guidelines 7.
100 Interview with Mr Jean-Baptiste Niyizurugero, 10 November 2009.
101 As above.
102 As above.
103 See Report of Activities by Commissioner Dupe Atoki, 2008 1-2 http://www.AfricanCommission.org/english/Commissioner%27s%20Activity /43rd%20OS/Special%20Rapporteurs/robben%20Island%20Guidelines.pdf (accessed 31 October 2012).
104 See Report of Activities by Commissioner Dupe Atoki delivered at the 43rd ordinary session of the African Commission 2.
105 See Activity Report of the Chairperson of the Follow-up Committee of the Robben Island Guidelines, delivered at the 46th ordinary session of the African Commission 1-2.
106 As above.
107 Commissioner Musa Ngary Bitaye was appointed as a member of the newly-named CPTA but has since retired as a commissioner. The members of the CPTA as at October 2012 are Commissioner Dupe Atoki, Chairperson; Mr Jean-Baptiste Niyizurugero, Vice-Chairperson; Mr Malick Sow, re-appointed as a member; and Ms Hannah Forster, re-appointed as a member.
108 See Zimbabwe Human Rights NGO Forum vZimbabwe (2006) AHRLR 128 (ACHPR 2006) para 208; Mouvement Ivoirien des Droits Humains (MIDH) v Cote d'Ivoire (2008) AHRLR 62 (ACHPR 2008) para 96; and Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 2011, paras 109, 112, 174, 179 & 184.
109 See Zimbabwe Human Rights NGO Forum (n 108 above) para 208; and Mouvement Ivoirien (n 108 above) para 96.
110 See Egyptian Initiative (n 108 above) paras 109 & 112.
111 Egyptian Initiative (n 108 above) para 174.
112 Egyptian Initiative (n 108 above) para 179.
113 Egyptian Initiative (n 108 above) para 184.
114 Shelton (n 16 above) 14.
115 Shelton (n 16 above) 15.
116 Murray (n 9 above) 374-375.
117 See Report of a workshop for East African national human rights institutions on the implementation of torture prevention standards, University of Bristol 18-19 October 2010 http://www.bristol.ac.uk/law/research/centres-themes/ihrsp/documents/eastafricareport.pdf (accessed 31 October 2012).
118 Niyizurugero & Lissêne (n 32 above) 113.
119 Chinkin (n 73 above) 30.
120 See provision 34 of the Robben Island Guidelines.
121 Report of East African Workshop (n 117 above) 19-20.
122 Shelton (n 16 above) 14.
123 Shelton (n 16 above) 15.
124 See 19th Activity Report (2005) para 46 & 20th Activity Report (2006) para 39.
125 See eg 13th Activity Report 1999-2000 paras 28 & 29.
126 Murray (n 9 above) 375.
127 F Viljoen 'Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities' (2005) 27 Human Rights Quarterly 135.
128 Harrington (n 9 above) 255-256.
129 See Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (n 1 above).
130 Shelton (n 16 above) 13-17.
131 Shelton (n 16 above) 14.
132 See Report of East African Workshop (n 117 above) 19-20.
133 Murray (n 9 above) 95-96.
134 Murray (n 9 above) 374.
135 As above.
136 Murray (n 9 above) 377.
137 University of Bristol, Summary report of an expert seminar on the strategic use of soft law human rights documents, Bristol, 4 July 2012 11, http://www.bristol.ac.uk/law/research/centres-themes/ihrsp/events.html (accessed 31 October 2012).
138 n 137 above, 10.
139 See The Johannesburg Declaration and Plan of Action on the Prevention and Criminalisation of Torture, http://www.apt.ch/content/files/region/RIG+10%20Seminar%20Outcome% 20Document.pdf (accessed 31 October 2012).
140 n 139 above, 5-6.
141 Report of the first working session of the Follow-up Committee on the implementation of the Robben Island Guidelines (n 99 above).