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146. Having said this, the burden of proof could, therefore, shift on the Respondent State to demonstrate that the law indeed protected the Victims and that there was no differential treatment given to both male and female Muslims to justify their intermarriages and any restrictions whatsoever. However, for what is considered in the record and all attempts, the Respondent State never submitted on merit, and there is no evidence to the contrary, the Commission finds a violation of Article 2 of the African Charter. 147. The Commission reiterates its position in Amnesty International and Others vs. Sudans? that it is unjust to apply religious laws against individ'llals¢who do not follow that religion, and also that non-Muslims have the right to b~,~~~g~&,gy: .a secular court and not by Shari' a tribunals. The Commission considers ili,e applicatio'l? of Sudan's criminal law discriminatory and violent in this context. ~,_" 148. ,';.t "': e COIPPl,issiort ffngs the Respondent On alleged Violation of Article 3: The R'isht to riq;uality BJfore the Law,qud Equal Protection of the Law. :\'W , 'i .}j ~< 149. Articles 3(1) and (2) of the African Chart~1'i\provid~:; "Every individual .1 be eq1;fqlbefore <,tMe.'flai~J and t 1 equal protection ', . <\{ , t ,very individual shall be entitled to ,,: 150. Conceptualizin the parameters of this, the Commission understands that Article 3 of the African Charter 1i:~stwo components: the right to equality before the law and the right to equal protection' e law. The right to equal protection of the law means that "the law shall prohibit an ,~p~rantee to aIL"persqn.s equal and effective protection against discri,binatioll to the'm~i:tning ascribe! ~, it under article 2 of the African Charter.P Thus, /:,>~dt> ";\'-f~1~11®" ';"~;,,,: " . I the right to \'egUj\Jity bef eans that all are equal before the courts and tribuna:f~;&'Asfor. t11~>right t rotection of the law, the Commission recalls its decision if! Spilg an:d/WJ.ack& DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) vs Botswana that it cpnsists of the right of all persons to have equal access to the law and the courts and to be treated equally by the law and the courts." As a result, to prove a violation of Article 3 of the African Charter, it must be shown that the victims did not receive favourablejprotection similar to that accorded to others in the same situation. In the context of this Communication, the question of whether there was unequal treatment of the people is raised. 151. The Complainants gave an account of events from the indictment sometime in 2013 on allegations by one Al Hadi for adultery charges, and the conviction of the first Victim for /. ,.,- - . "'f_D >, "'<'0:& 48/90, 50/91, 89/93 Para 72 and 73 -:. (..-;:"f1t.p. "r 83 Application 032/2015, Kijzji Isiaga vs. United Republic of Tanzania (2018) AfCHPR para 84 . ':;/' --......._ <~.' 84 Communication 277/03- Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) ~f- BO\fw~aw ~\ (2011), ACHPR para 159 (" ,) ~ " (", 0 Uijl '}, \;_, p.\J-\J~ ),2h.!J 82 Communications g' "j'f I ~/~v UfO ( J.t • I'~ ~~ ..,. ~v4"R1CI\\~~ ... " c)\''' O!V';lE ET Dt'.. ---=,,,...~ -:?' ~,.

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Communication 471/14 - Meriam Yahia Ibrahim and three more v. Sudan

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Cruel and Degrading Treatment
Detention Facilities/Conditions
Equality
Equality Before the Law
Freedom from Discrimination
Freedom of Movement
Freedom of Religion
Personal Liberty
Personal security
Pregnant women / mothers (with infant) in conflict with the law
Protection of Family and Vulnerable Groups
Right to be Heard before a Competent Court
Right to Dignity
Right to Fair Trial
Right to Family
Right to Health
Right to Life
Sexual and Reproductive Health Rights
Torture and Ill Treatment
Women in prison
Women's Rights

Case Head Notes: The first victim, whose father was a Sudanese Muslim, and whose mother was an Ethiopian Christian, married a Christian and was consequently arrested for adultery. A charge of apostasy was also added against the first victim because her father was a Muslim, and according to Article 126 of the 1991 Criminal Code, she was prohibited from changing to another religion. The first victim was arrested with her child, and detained in prison. Upon convicting the first victim of apostasy, the Court gave her three days to recant her faith, or face the possible sentence of death. While the Court of Appeal revoked the convictions and sentences, and ordered the first victim's immediate release, in 2014, all victims (the first victim and her family) were arrested when they were about to leave the Respondent State. They were subsequently detained at a detention facility and denied access to lawyers. Following negotiations between Italy and the Respondent State, the victims left Sudan for Italy. The Commission found a violation of Article 2, stating that it is unjust to apply religious laws against individuals who do not follow that particular religion, and also because non-Muslims have the right to be judged by a secular court. They also noted that women and men experience differential treatment with respect to justifying their intermarriages. The Commission found a violation of Article 3 stating that there was no justifiable basis for the first victim's adultery conviction, particularly when her husband was not similarly found guilty for intermarriage. The Commission found a violation of Article 4, on account of the gravely inadequate and inhumane conditions in the detention facility, and additionally because the death sentence, and associated threats against the first victim were traumatic. Noting that it is a violation of Article 4 when individuals are forced to go into hiding, the Commission also stated that the Respondent State failed to protect the victims lives, despite the known threat from extremist groups, which forced the victims to leave Sudan for their safety. The Commission found a violation of Article 5 noting the physical and emotional trauma the victims experienced. Specifically, the ongoing intimidation of the victims, including demanding the first victim to change her religion or face the death penalty, and shackling the first victim for most of her detention contravened Article 5. The Commission found a violation of Article 6 because the Respondent State failed to safeguard the victims' physical well-being against maltreatement by government authorities, and private individuals, and, further, agreed with the Complainants' argument that the first victim was arrested and detained on a discriminatory basis. The Commission found a violation of Article 7 because the victims were denied access to lawyers, faced discrimination based on gender, and also becuase of incorrect assumptions by the Court regarding the Court's own jurisdiction, and the victim's relgious beliefs. The Commission found a violation of Article 8, stating that incorrect assumptions regarding the first victim's faith hindered her ability to profess and practice her religion, and further noting that the criminalization of her supposed change in religion also violated Article 8. The Commission found a violation of Article 12 stating that the continued threats by third parties, which the Respondent State has failed to protect the victims from, prevents the victims from returning to Sudan safely. They note that the Respondent State's failure to protect also forced the Complainants to leave Sudan against their will, in order to protect themselves. The Commission found a violation of Article 16 because the victims were deprived of basic needs, including access to food, basic hygiene, and medical care during their incarceration. They also specifically noted that the absence of antenatal and postnatal care, and neonatal care, violated the right to heatlh. The Commission found a violation of Article 18, generally, because of the interference in the victims' family life and, specifically, because of discrimination in the first victim's right to choose a spouse. On account of the other violations, the Commission found a violation of Article 1. The Commission urged the Respondent State to take all measures to provide effective remedies, including restitution, compensation, policy reforms, public apology, and legal reforms. They also recommended a prompt and impartial investigation into the First Victims's arrest, detention, conviction and sentencing and requested the Respondent State to provide an update on implementation.

Country

Sudan

Outcome: Decided on Merits

Year Decided: Mar 8, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 16: Right to Health
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 8: Right to Freedom of Conscience

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 12: Right to Freedom of Movement
ACHPR 16: Right to Health
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 8: Right to Freedom of Conscience

Duration of Procedure

Jun 2, 2014 ~ Mar 8, 2024

Country Geolocation

Latitude: 12.862807

Longitude: 30.217636

Country Geolocation (linked ACHPR Decision): Sudan

Primary Documents

Meriam Yahia Ibrahim and Three More v Sudan.pdf
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African Human Rights CLA 2.0

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Communication 471/14 - Meriam Yahia Ibrahim and three more v. Sudan

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