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Trends at the national level

The overall objective for the adoption of thematic instruments by the African Commission is for them to be used at the national level to assist states to implement and comply with their obligations in respect of the rights addressed by the instruments, and also for them to be used to monitor the level of state compliance with these obligations. In order to achieve these objectives these instruments have a number of potential uses and ‘users’ at the national level.

Thematic instruments of the African Commission have the potential to be used in a range of advocacy initiatives and to initiate national discussions on the particular issue that they address. In relation to the Robben Island Guidelines these have been used in various advocacy initiatives, including in training programmes [1] [2] [3]

on the prohibition and prevention of torture,38 and the drafting of national legislation criminalizing torture. For example the Robben Island Guidelines were used as a resource in Uganda by the Uganda Human Rights Commission, APT, and national CSOs, when drafting text for a Bill on the prohibition and prevention of torture, and in Burundi by FIACAT, an international NGO, when drafting text on the criminalization of torture. One of the most visible uses of the Robben Island Guidelines can be found in the 2011 draft anti-torture Bill of Liberia, which specifically references the Robben Island Guidelines in its Preamble^9 In these initiatives the Guidelines were perceived to be a useful tool for advocacy as they could be used ‘as a platform for continuously challenging States and other stakeholders to take action to prevent torture’.40 This was seen to be important ‘because it is almost like a renewed focus on various human rights and particular human rights standards’^1

Therefore the Robben Island Guidelines have been used directly in national activities on torture and other ill-treatment, partly because they could act as a ‘bridge’ between obligations contained in treaties and action required to implement these on the ground. As one person noted, ‘if the binding treaties have set the obligation to prohibit and prevent torture and also to respond to the needs of victims it is a set obligation so how then to reach the other side of the river? The Robben Island Guidelines act as this kind of bridge.’42 In other words, soft law instruments such as the Robben Island Guidelines can articulate and encourage practical measures to be taken at the national level to implement obligations contained in binding instruments.

However, notwithstanding the instances where the Robben Island Guidelines have been used at the national level, the Guidelines have, to date, been used only to a very limited extent by national actors in practice. It can be observed that most relevant national stakeholders, such as state representatives, law enforcement officials, and CSOs, are largely unaware of the existence of the Guidelines and/or lack knowledge of their content in order to apply them in their work in any meaningful way.43 the African Commission’, held in Addis Ababa, Ethiopia. For more information see: .

  • 38 E.g.: the Robben Island Guidelines have been used in training undertaken between 2010 and 2014 in Burundi, Kenya, Mozambique, Rwanda, South Africa, and Uganda, as part of the Article 5 Initiative partnership, see ; in 2008 a regional training and sensitization workshop in Nigeria for heads of police and prisons within West African states: ‘Report of Activities by Commissioner Dupe Atoki delivered at the 43rd ordinary session of the African Commission’: 2; and in 2008 training on the Robben Island Guidelines was organized by the Liberian Police Force and the African Commission, see also: J. B. Niyizurugero and G. P. Lessene, ‘The Robben Island Guidelines: An Essential Tool for the Prevention of Torture in Africa’, Essex Human Rights Review vol. 6 (2010): 80.
  • 39 A copy of the Act is available at: .
  • 40 ACHPR, APR, UNOHCHR, ‘Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa: Practical Guide for Implementation’ (2008).
  • 41 Interview with Amanda Dissel, Human Rights Consultant, 2010.
  • 42 Interview with Jean-Baptiste Niyizurugero, Africa Programme Officer for the Association for the Prevention of Torture, 2010.
  • 43 Murray and Long (2015): 75.

Overall two prevailing trends can be observed in relation to the use of soft law thematic instruments of the African Commission at the national level. First, within domestic litigation binding national instruments are, perhaps unsurprisingly, predominantly the first choice for litigators due to perceptions that they carry more legal ‘weight’ and force, as well as relevance to the national context.[4] [5] [6] [7] [8] In addition there is a general lack of knowledge of the existence and content of the instruments emanating from the African Commission.45

The second trend that can be observed is that while on the one hand it is often claimed that the merit and relevance of regional instruments comes from the fact that they emanate from the African system, and therefore can cut across concerns and arguments that they are ‘foreign’ impositions that do not take into account the regional context/6 in practice this has not translated into soft law instruments, such as the Robben Island Guidelines, being preferred over international soft law instruments on the same topic. In fact, apart from in litigation, there is evidence that there is a marked preference to use international instruments, binding or otherwise, at the national level.47 A number of reasons can be advanced for this preference.

First, as noted above key stakeholders are simply not aware of the range of existing regional instruments. Most people we interviewed had not heard of the Robben Island Guidelines nor were familiar with other instruments and decisions of the African Commission. Furthermore, the African Commission has not developed as much jurisprudence or authoritative interpretation of obligations as the UN human rights mechanisms. Many stakeholders feel better able to access the international standards and mechanisms and/or have received training on the international standards and human rights system/8 Therefore overall the UN instruments are generally better known and more visible.

There is also a prevailing perception of the African Commission as a weaker body than the UN human rights bodies. Thus a preference to use the instruments from the UN bodies arises out of a perception that these carry more weight and can apply more pressure on states, or that the international arena provides more of a platform to raise awareness at home on a particular issue.[9] [10] [11]

Lastly, it was observed that those actors who were aware of the Robben Island Guidelines nevertheless sometimes chose to use relevant international non-binding instruments instead because these were considered to be more detailed, and therefore strategically useful, than the Robben Island Guidelines.50 This indicates that the content of soft law instruments is a determinant of its actual use in practice.

  • [1] Art. 5 of the African Charter states, ‘Every individual shall have the right to the respect of thedignity inherent in a human being and to the recognition of his legal status. All forms of exploitationand degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’
  • [2] 36 Research trips where undertaken to Egypt, Ethiopia, The Gambia, South Africa, Tanzania, andUganda. In addition participants from Botswana, Cameroon, Kenya, Nigeria, Rwanda, and SouthSudan took part in project seminars. .
  • [3] The following seminars and workshops were organized under the project: 2009, a seminar on‘Follow-Up and Implementation of Decisions by Human Rights Treaty Bodies’, held in Bristol; 2010,a workshop for East African national human rights institutions on the implementation of tortureprevention standards, held in Nairobi, Kenya; 2011, a seminar on the ‘Implementation of UN TreatyBody Concluding Observations: The Role of National and Regional Mechanisms in Europe’, held inBristol, and a seminar on ‘Identifying National Mechanisms to Follow up and Implement Decisionsof the African Commission’, held in Addis Ababa, Ethiopia; 2012, a seminar on ‘The Strategic Use ofSoft Law Human Rights Documents’, held in Bristol, and a seminar on ‘AU Follow up to Decisions of
  • [4] See e.g.: M. Killander and H. Adjolohoun, International Law and Domestic Litigation in Africa(Pretoria: Pretoria University Press, 2010); T. Maluwa, ‘International Law as an Aid in the Interpretationand Application of Law in Municipal Legal Systems’, in The Judiciary in Africa, ed. B. Ajibola and D.van Zyl (Cape Town: Juta, 1998): 47—63; Viljoen (2012): 527—43; Murray and Long (2015): 75—6.
  • [5] See e.g.: HRIC report, ‘Workshop for East African National Human Rights Institutions on theImplementation of Torture Prevention Standards’ (18—19 Oct. 2010): 18—20, available at: ; HRIC project report‘Summary and Recommendations from an Expert Seminar on identifying National Mechanisms toFollow up and Implement Decisions of the African Commission on Human and Peoples’ Rights’(11 Nov. 2011): 2—3, available at: .
  • [6] 46 See e.g.: B. Niyizurugero and G. P. Lessene, ‘The Robben Island Guidelines: An Essential Tool forthe Prevention of Torture in Africa’, Preventing Torture in the 21st Century: Monitoring in Europe TwoDecades on, Monitoring Globally Two Years on, Essex Human Rights Review, Special Issue (2010): PartII, 113. For more information on this issue see also: Murray and Long (2015): 77; Long and Murray(2012): 314-15.
  • [7] Murray and Long (2015): 77-8.
  • [8] HRIC report, ‘Workshop for East African National Human Rights Institutions on theImplementation ofTorture Prevention Standards’ (18-19 Oct. 2010): 20.
  • [9] See e.g.: HRIC report, ‘Workshop for East African National Human Rights Institutions on theImplementation ofTorture Prevention Standards’ (18—19 Oct. 2010): 11.
  • [10] See e.g.: HRIC report ‘Workshop for East African National Human Rights Institutions on theImplementation ofTorture Prevention Standards’ (18—19 Oct. 2010): 18.
  • [11] ‘Concluding Observations and Recommendations on the Seventh and Eighth Periodic Reportsof Arab Republic of Egypt’ (2005) para. 28; ‘Concluding Observations and Recommendations on thePeriodic Report of the Great Socialist People’s Republic of Libyan Arab Jamahiriya’ (2006) para. 20;‘Concluding Observations and Recommendations on the Ninth and Tenth Periodic Reports of theRepublic of Rwanda 2010’ para. 20; ‘Concluding Observations and Recommendations on the ThirdPeriodic Report of the Republic of Sudan’ (2009) paras 37 and 58. 52 ‘Concluding Observations and Recommendations on the Consolidated 2nd to 10thPeriodic Report of United Republic of Tanzania’ (2008) para. 40; ‘Concluding Observations andRecommendations on the Periodic Report of the Great Socialist People’s Republic of Libyan ArabJamahiriya’ (2006) para. 20; ‘Concluding Observations and Recommendations on the Third PeriodicReport of Uganda’ (2009) Part V (e); ‘Concluding Observations and Recommendations on the
 
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