123. The Complainant submits that the abuse suffered left him with a chronic pain
on the left side of his head, as welJ as mental and emotional trauma that still
persist years after the events occurred. The Complainant further submits that
the Sudanese authorities have failed to take necessary measures to investigate
the abuse he suffered, and no mechanism exists under the laws of Sudan to
which he may seek redress. Accordingly, the Complainant submits that the
Respondent State has violated its obligation under Article 5 of the African
Charter.
Alleged violation of Article 6 of the African Charter
124. Article 6 of the African Charter provides for the right to liberty and to the
security of the person. The Complainant submits that in identifying whether an
arrest and detention violates Article 6, the African Commission must first assess
whether the measure was carried out in accordance with domestic law. He
contends that if this criterion has been observed, the African Commission must
then assess whether the domestic law meets the requisite international
standards. The Complainant cites in support of his argument the criteria as
elaborated in the African Commission's Principles and Guidelines on the Right
to a Fair Tri.al and Legal Assistance in Africa.45 He further refers to the case of
Monim Elgak & Others v Sudan in which the African Commission found an arrest
effected by the NISS to be arbitrary, as the victims were not formally arrested
with a warrant nor were any charges brought against them in the course of their
detention. 46
125. The Complainant submits that throughout his detention period he was never
informed of the reason for his arrest, or how Jong he would be detained. He
contends that he was never formally charged, but was rather informed by prison
authorities that he was being detained under provisions of the Emergency law.
The Complainant submits that an arrest under the Emergency law which
permits detention without charges constitutes a violation of ArticJe 6. Further
contending that merely stating that an arrest is made under the Emergency law
is akin to stating that an arrest was made "for public safety" or "to protect the
state" - and these do not constitute charges.
126.The Complainant draws the Commission's attention to a requirement of the
Emergency law. He states that the law grants the Governors the discretionary
power to arrest individuals suspected of involvement in offenses relating to the
declaration of emergency made by the President. The Complainant submits that
the arrest and detention violated the Emergency law in three respects: i) he was
ON HU1,1
African Commission on Human and peoples' Rights Princj •·"
Trial and Legal Assistance in Africa 2003 para M (2).
/10~~
46 Communication 379/09 - Monim Elgak para 104.
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45
the Right to a Fair
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