Beyond the State: Reforming Africa’s Anti-Torture Framework to Address Non-State Violence – Lieber Institute West Point

Report on Reforming Africa’s Anti-Torture Framework to Align with Sustainable Development Goals

Executive Summary

This report examines the critical gap between international anti-torture commitments and national legislation in many African countries. The prevalent State-centric definition of torture in domestic law fails to address atrocities committed by non-State actors, undermining progress towards Sustainable Development Goal 16 (Peace, Justice and Strong Institutions) and SDG 5 (Gender Equality). Analysis of African human rights jurisprudence and progressive national laws in countries like Uganda, Nigeria, and Kenya provides a framework for reforms. The report concludes with recommendations for legislative action to ensure comprehensive accountability, strengthen the rule of law, and protect human rights, thereby advancing the 2030 Agenda for Sustainable Development.

1. Legislative Gaps Hindering SDG 16 and SDG 5

While many African nations have ratified the UN Convention Against Torture (UNCAT), their domestic legal frameworks often restrict the definition of torture to acts perpetrated by State agents. This limitation creates a significant accountability vacuum for abuses committed by non-State armed groups, militias, and other private actors. This legislative deficiency directly impedes the achievement of key Sustainable Development Goals.

• SDG 16: Peace, Justice and Strong Institutions: The failure to criminalize torture by non-State actors undermines Target 16.1 (reduce all forms of violence) and Target 16.3 (promote the rule of law and ensure equal access to justice). Impunity for perpetrators erodes public trust in institutions and perpetuates cycles of violence.
• SDG 5: Gender Equality: In conflict zones, mass rape and sexual violence are frequently used as weapons of war by armed groups. When national laws do not recognize these acts as torture unless committed by a State official, it constitutes a failure to meet Target 5.2 (eliminate all forms of violence against all women and girls).

The State’s due-diligence obligation under international law requires it to prevent, investigate, and punish such acts, even when committed by private actors. Failure to do so can amount to acquiescence, engaging State responsibility and demonstrating a lack of commitment to building strong, accountable institutions (SDG 16).

2. African Jurisprudence on Torture and Sexual Violence

Interpreting Torture to Uphold Human Rights

The African Commission on Human and Peoples’ Rights (ACHPR) has consistently interpreted Article 5 of the African Charter, which prohibits torture, to include acts of sexual and gender-based violence. This interpretation aligns regional standards with the global commitment to gender equality and justice.

Key Case Law

1. Safia Ishaq Mohammed Issa v. Sudan (2022): The ACHPR held that the gang rape of a student activist by security agents constituted torture, reinforcing the State’s direct responsibility under Article 5.
2. Democratic Republic of Congo v. Burundi, Rwanda & Uganda (2003): The Commission condemned the use of mass rape as a weapon of war by invading forces, classifying it as a grave human rights violation and an affront to human dignity, thereby linking the prohibition of torture to the laws of armed conflict.
3. Sudan Human Rights Organisation & COHRE v. Sudan (2009): The ACHPR held Sudan accountable for widespread rapes by government forces and allied militia in Darfur, establishing that a State’s failure to prevent abuses by non-State actors it supports constitutes a breach of its obligations.

These decisions underscore a regional consensus that mass rape constitutes torture and that States have a positive obligation to protect individuals, a cornerstone for achieving SDG 16.3 (access to justice).

3. National Best Practices in Legislative Reform

Several African nations have enacted progressive legislation that expands the definition of torture, offering models for continental reform and demonstrating tangible steps toward achieving SDG 16.

Uganda: A Comprehensive Model

Uganda’s 2012 Prevention and Prohibition of Torture Act (PPTA) explicitly includes “persons acting in a private capacity” as potential perpetrators. This broad definition closes the impunity gap and ensures that all acts of torture, regardless of the perpetrator’s status, are criminalized, providing a robust legal foundation for justice and accountability.

Nigeria: Criminalizing All Acts of Torture

Nigeria’s 2017 Anti-Torture Act omits the requirement for the perpetrator to be a State agent, effectively criminalizing torture by any person. Enacted amidst counter-insurgency operations, the law reinforces that national security cannot be a pretext for human rights violations, a principle essential for building legitimate and effective institutions (SDG 16).

Kenya: Judicial Enforcement of State Responsibility

In a 2020 landmark judgment, Kenya’s High Court held the government liable for failing to prevent and investigate post-election sexual violence perpetrated by non-State actors. This ruling operationalized the due diligence principle at the national level, affirming the State’s obligation to protect citizens from private violence and providing a pathway to redress for victims, which supports SDG 10.3 (ensure equal opportunity and reduce inequalities of outcome).

4. Recommendations for Aligning National Law with the SDGs

To accelerate progress towards SDG 16 and SDG 5, African States should undertake the following legislative reforms:

1. Adopt Broad Definitions: Define torture to include acts committed by non-State actors, closing impunity gaps and aligning domestic law with the reality of modern conflicts.
2. Codify Due-Diligence Obligations: Legislate the State’s positive duty to prevent, investigate, and punish torture by all actors, thereby strengthening institutional accountability.
3. Integrate International Humanitarian Law: Ensure domestic laws recognize that torture in armed conflict constitutes a war crime, reinforcing accountability under multiple legal frameworks.
4. Eliminate Safe Havens: Prohibit amnesties or immunities for torture and ensure that national security is not used to justify such abuses.
5. Implement Victim-Centric Measures: Establish legal and administrative mechanisms for victims of torture, whether by State or private actors, to access reparations and support, contributing to SDG 10 (Reduced Inequalities).

5. Conclusion: The Way Forward

Political reluctance and enforcement challenges remain significant obstacles. However, these do not diminish the State’s responsibility. Effective anti-torture legislation is the foundation for accountability and the rule of law. The forthcoming ACHPR Model Law on the Criminalization of Torture in Africa presents a vital opportunity to harmonize standards across the continent. By adopting comprehensive legal frameworks that hold all perpetrators accountable, African nations can make significant strides toward building the peaceful, just, and inclusive societies envisioned in the 2030 Agenda for Sustainable Development.

Analysis of the Article in Relation to Sustainable Development Goals

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 16: Peace, Justice and Strong Institutions

  The article is fundamentally about strengthening justice systems and promoting the rule of law. It discusses the failure of national laws to hold perpetrators of torture accountable, the need for legal reform to align with international standards, and the importance of providing access to justice for victims of violence. The focus on ending torture, combating impunity, and reforming legislation to create accountable institutions directly connects to the core principles of SDG 16.

• SDG 5: Gender Equality

  The article extensively discusses sexual and gender-based violence (SGBV), particularly mass rape, as a form of torture. It highlights how women and girls are disproportionately affected, especially in conflict situations. By examining “corrective rape” and the use of rape as a “weapon of war,” the article addresses the need to eliminate all forms of violence against women and girls and end discrimination, which are central to SDG 5.

2. What specific targets under those SDGs can be identified based on the article’s content?

• SDG 16: Peace, Justice and Strong Institutions
  • Target 16.1: Significantly reduce all forms of violence and related death rates everywhere.

    The article’s central theme is the prohibition and prevention of torture, which is an extreme form of violence. It details “atrocities committed by non-State actors,” including “conflict-related mass rape and other sexual violence,” directly addressing the need to reduce such violent acts.

  • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

    This is the most prominent target. The article critiques the “critical gap” between international commitments and national laws and advocates for reforms to “align national legislation with African and international standards.” It highlights how narrow legal definitions prevent victims of torture by non-State actors from seeking justice, and praises progressive laws in Uganda and Nigeria and a court ruling in Kenya that expand access to justice for victims.

  • Target 16.a: Strengthen relevant national institutions… to prevent violence and combat… crime.

    The article calls for strengthening national legal frameworks and institutions. It mentions the role of National Human Rights Institutions (NHRIs) and civil society in pushing for legal reforms and monitoring enforcement. The recommendation to “Codify due-diligence duties” and create “victim-centric measures” aims to build the capacity of national institutions to prevent and respond to torture.

• SDG 5: Gender Equality
  • Target 5.1: End all forms of discrimination against all women and girls everywhere.

    The article discusses “corrective rape,” which it defines as “targeted rape purportedly to ‘cure’ a person’s sexual orientation or gender identity.” This is a clear form of violence rooted in discrimination, and its recognition as torture under the African Charter on Human and Peoples’ Rights connects directly to this target.

  • Target 5.2: Eliminate all forms of violence against all women and girls in the public and private spheres…

    The article’s focus on mass rape and SGBV as torture directly addresses this target. It explicitly discusses violence perpetrated by both State actors (public sphere) and non-State armed groups and militias (private sphere), arguing that national laws must be expanded to hold all perpetrators accountable for these acts of violence against women.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• For Target 16.1 (Reduce violence):
  • Implied Indicator: Number and prevalence of reported cases of torture and sexual violence.

    While the article does not provide statistics, its entire premise is based on the existence of these violent acts, such as the “widespread rapes of women and girls by government forces and Janjaweed militia” in Darfur. Measuring the reduction of such incidents would be a key indicator of progress.

• For Target 16.3 (Rule of law and access to justice):
  • Implied Indicator: Existence of national legislation that criminalizes torture in line with international standards, including acts by non-State actors.

    The article explicitly measures progress by analyzing national laws. It praises Uganda’s 2012 Prevention and Prohibition of Torture Act for expanding the definition of torture to “include persons acting in a private capacity” and Nigeria’s 2017 Anti-Torture Act for not restricting the perpetrator to State agents.

  • Implied Indicator: Number of prosecutions and convictions for the crime of torture.

    The article notes that despite Uganda’s progressive law, “prosecutions under the Act have been limited,” implying that the number of prosecutions is a crucial measure of effective implementation and access to justice.

  • Implied Indicator: Number of victims of violence who receive remedy or compensation.

    The article highlights the landmark Kenyan High Court judgment that “awarded compensation to some survivors of rape by private perpetrators,” presenting this as a tangible outcome of access to justice and a measure of State accountability.

• For Target 5.2 (Eliminate violence against women):
  • Implied Indicator: Existence of legal frameworks that protect women and girls from all forms of violence, including sexual violence by non-State actors.

    The article’s core argument is the need to reform laws to address SGBV. The discussion of the African Commission’s interpretation that a “State’s failure to prevent such violence—’may amount to torture'” points to the need for legal frameworks that codify this due diligence and protect women from violence regardless of the perpetrator’s status.

4. Table of SDGs, Targets, and Indicators

Source: lieber.westpoint.edu