67. In view of the above, the African Commission declares the Communication Admissible. The Merits The Complainants' Submissions on the Merits 68. The Complainants state that the Respondent State has violated the rights enshrined in the African Charter in several ways. They submit that the Respondent State failed in its obligation to protect the Victims from sexual violence. Alleged violation of Article 1 69. The Complainants state that the positive obligations imposed under Article 1 of the African Charter are manifested in two ways, including, the duty to prevent others from violating the rights protected, and the duty to protect. They argue that the duty to protect has been elaborated in detail by the European Court, which found that States must not only respect the rights and freedoms that the European Convention on Human Rights (the European Convention) embodies, but that "In order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels."7 70. The Complainants submit that, in line with the consistent approach of other regional human rights bodies, the African Commission has found that positive obligations arise not only in respect of violations by state actors, but also by private individuals. They refer to Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria (the SERAC case)8 where it was held that, governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement, but also by protecting them from damaging acts that may be perpetrated by private parties. This duty calls for positive action on the part of governments in fulfilling their obligations under international human rights instruments. 71. The Complainants submit that the second positive duty is to investigate when a violation has occurred. They argue that the Respondent State has an obligation to effectively investigate every situation involving the violation of rights. They refer to the Inter-American Court on Human Rights (the Inter-American Court) which held that if the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such right is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. 72. According to the Complainants, the same is true when the state allows private persons or groups to act freely and with impunity to the detriment of the rights recognised by the African Charter. The Complainants argue that where serious violations have taken place, it is the obligation of the state to ensure that criminal investigations are undertaken and effective prosecutions pursued. The Complainants further note that the European Court in M.C. v. Bulgaria held that the investigation must be independent, thorough and effective, and that access to a judicial remedy must be available and the state may be obliged to provide compensation9 . 73. The Complainants aver that, a state's compliance to its positive obligations towards its citizens is assessed by the due diligence test. They again make reference to the SERAC case where the African Commission recognised due diligence standard as a test for determining compliance by states in protecting the rights of citizens from being violated. 74. The Complainants submit that the Respondent State failed in its positive obligations to prevent and investigate the violations, which is a violation of Article 1 of the African Charter. They cite the African Commission's decision in the Legal Resource Foundation v Zambia,10 where it held that "Article 1 of the African Charter requires that the State not only recognize rights, but requires that they shall undertake... measures to give effect to them." Alleged violation of Articles 2 and 3 75. The Complainants argue that, according to the Victims, they were discriminated against in the enjoyment of their rights in violation of the African Charter on the basis of their sex and political opinion. They note that the African Commission in Legal Resource Foundation v. Zambia noted that, 'the right to equality' is very important.11 76. They submit further that, in Association Mauritanienne des droits de l'homme v Mauritania,12 the African Commission emphasized that "Article 2 of the African Charter lays down principles that is essential to the spirit of this Convention, one of whose goals is the elimination of all forms of discrimination and to 6