Further referring to the principle that the Respondent State must first have an
opportunity to redress the alleged wrong within its own legal system.
59. The Respondent State further asserts that the judicial system of Sudan is easily
accessible, effective and independent, as guaranteed by the Constitution, stating
that the Complainant is thus casting unfounded aspersions in respect of the
availability and effectiveness of local remedies. In addition, the State asserts that
contrary to the submission by the Complainant that there is no provision in the
law for the remedy of habeas corpus, the Constitutional Court Act of 2005 in
Section 16 provides for the Court to have the power "to make an order to
anybody or person requiring him to bring before the court the arrested or
detained person to consider the constitutionality of the arrest or detention", and
further that Section 24 makes the decisions and orders of the Court binding on
all levels of government, the national and state organs as well as the entire
public.
60. The State submits that the only action taken by the Complainant to exhaust local
remedies was the complaint filed on his behalf with the NHRC. The State
submits that while the NHRC is independent of the judiciary it is competent to
consider human rights violations, but that the Complainant failed to appear
before the police administration inquiry committee "established to investigate
his complaint within the process of the NHRC's consideration of his case",
which record is still open. The State thus submits that the Complainant cannot
be considered to have exhausted or attempted to exhaust local remedies.
61. The State in addition submits that contrary to the assertions of the Complainant,
ill-treatment during detention or custody is prohibited and criminalised, and
that the police immunity referred to in the Complaint is procedural only and
does not extend to unauthorised or unlawful acts, and thus that it is common
practice to lift such immunities in cases of violations of human rights, noting
that more than 300 instances of lifting of immunities of police and NISS
members took place in the last two years.
62. The Respondent State submits that the Complainant did not file the Complaint
within a reasonable time as required under Article 56(6) of the Charter, stating
that he had remained free in his country for two months after his arrest and
thereafter of his free will left the country, filing the Complaint only eleven (11)
months later. The State submits that the Complainant has not provided a
manifestly reasonable justification for this delay.