acts that may be perpetrated by private parties. This duty calls for positive action on the part of governments in fulfilling their obligations under the human rights instruments." Relying on the European Court's findings in Osman v the United Kingdom34, they further aver that in order to determine whether the Respondent State has satisfied its positive obligations the Commission must use the "Due diligence" test and enquire "a) the state ' knew or ought to have known' that b) there was a real and immediate risk to rights, and c) the state failed to take measures of prevention reasonably within its power." 109. In their first substantive submission, the complainants explore whether the Respondent State violated Articles 5 of the Charter and Article 4(2)(g) of the Maputo Protocol for failing to take appropriate measures to prevent, condemn and respond to trafficking of the victim by providing redress and prosecuting the perpetrators. They submit that the Respondent State violated Article 5 of the Charter, which guarantees the right to respect for the dignity and prohibits cruel, inhuman and degrading treatment. The Complainants also refer to Articles 16(1) and (2) of the UN Convention against Torture which enjoin states to prevent cruel, inhuman and degrading treatment. On the determination of what amounts to "cruel, inhuman and degrading treatment, the Complainants rely on International Pen and Others v Nigeria in which the Commission stated that " Article 5 of the African Charter prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience." 35For the test, they rely on the jurisprudence of the European Court which has decided that to qualify an act as 'ill-treatment,' the act must" attain a minimum level of severity. The assessment of this minimum ... depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc".36 110. The Complainants proffer that the Respondent State has a due diligence obligation to respond to violations of Article 5 of the Ch~ further state that the Maputo Protocol incorporates due diligens in Articles 2', 4~25 and 26 calling on States to prevent, punish and eradicate violenee ag~t ~ ~men and girls, w~ether occurring ~ private or public. In additio t~ ~oto_col and Article 5, the Complainants make reference to Decla ation n e-Eli nation 1 of Violence against Women (DEVAW) and th - / ~~ •ofliu'o !,.fue EDAW ~e,JM:~ ,~:\ 'CM I 34 Appl. 23452/94, Judgment o f 28 October 1998, at para.116 • \• 35 Communica tion NO. 137/ 94, 139/94, 154/ 96, 161/ 97) [1998) ACHPR 1; (31 October 19 36 Jre land v UK (1978) ECHR (Series A) para 162. 22 I < · • ;,...,~· , •/. \)~<, / /