Regional Human Rights Systems

African Union System

I. Introduction🔗

Sexual violence has terrible consequences, both physical and psychological, for victims, those who are close to them, witnesses and society. To effectively combat such a plague, it is necessary to combine all our strength and initiatives; nevertheless, the primary responsibility lies with States.

Lucy Asuagbor, Special Rapporteur on the Rights of Women in Africa1

The African Union (AU) is ‘a continental body consisting of the 55 member states that make up the countries of the African Continent’. Previously known as the Organisation of African Unity, the AU ‘is guided by its vision of “An Integrated, Prosperous and Peaceful Africa, driven by its own citizens and representing a dynamic force in the global arena”‘. Within the AU, several organs ‘handle judicial and legal matters as well as human rights issues’.2 In this subchapter, the focus will be on the main ones: the African Commission on Human and Peoples’ Rights (ACHPR) and the African Court on Human and Peoples’ Rights (AfCHPR).

Established under the African Charter on Human and Peoples’ Rights (the centrepiece of human rights protection in the AU),3 the Commission monitors States’ implementation of their human rights obligations under the AU system.

Created by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the “African Court Protocol”), the Court’s mandate is complementary to that of the Commission. The Courts’ findings are, unlike the Commission’s, binding on the Parties to a case.4

Note to reader
On the authoritativeness and the question of bindingness of the Commission and the Court’s work, and for an explanation of the measures the Commission and the Court may adopt to enforce States’ human rights obligations, please consult the “Ratification and Enforcement of Treaties” chapter, “African Union System” subsection.

I.1 Sexual Violence under the African System🔗

The Commission has recognised that sexual violence is ‘one of the major forms of human rights violations that has become common in conflict and crisis situations on the continent, and mostly affects women’.5 The Commission has stressed that sexual violence is prohibited ‘irrespective of the sex or gender of the victim and the perpetrator, and of the relationship between the victim and the perpetrator’.6

Further, the Commission has highlighted that sexual violence is not limited to physical violence and that, in addition to the acts already covered by the Rome Statute and the report of the United Nation’s Secretary-General,7 it may also take the form of sexual harassment, compelled rape, attempted rape, sexual assault, anal and vaginal virginity tests, violent acts to the genitalia (such as burning, electrical shocks or blows), forced pornography, forced nudity, forced masturbation and any other forced touching that the victim is compelled to perform on themselves or a third person, castration, forced circumcision and female genital mutilation and other harmful practices,8 and threats of sexual violence used to terrorise a group or a community.9

Although the Charter does not include provisions directly mentioning sexual violence, sexual violence is prohibited through article 4, which protects the life and integrity of the person, and article 5, which:

  • Enshrines every individual’s right ‘to the respect of the dignity inherent in a human being’;10
  • Protects ‘the physical and mental integrity of the individual’;11
  • Prohibits ‘all forms of exploitation and degradation of man’, particularly ‘slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment’.12
Note to reader
The Commission has primarily addressed sexual violence through the lens of article 5. As such, all references to torture and cruel, inhuman or degrading treatment and punishment in this subchapter encompass sexual violence.

Human dignity is an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities, are entitled to without discrimination.13 Torture and cruel, inhuman or degrading treatment and punishment (“ill-treatment”) violate human dignity and include ‘not only actions which cause serious physical or psychological suffering’, but also those which humiliate the individual or force them to act against their will or conscience.14

While rape may constitute a violation of article 5,15 there are no express criteria on when sexual violence specifically may amount to torture or ill-treatment. However, the Commission has found that States should interpret the prohibition of torture and ill-treatment as widely as possible, ‘to encompass the widest possible array of physical and mental abuses’.16

Whether an act falls within the scope of article 5 ‘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’.17 Torture, as a more severe form of ill-treatment, is the intentional and systematic infliction of physical or psychological pain and suffering to punish, intimidate or gather information. Its purpose ‘is to control populations by destroying individuals, their leaders and frightening entire communities’.18

In Egyptian Initiative for Personal Rights (EIPR) and Interights v Arab Republic of Egypt, the Commission decided that different invasive acts of a sexual nature, namely undressing women, touching them and kicking them in their ‘private parts’, amounted to physical and emotional trauma, and had physical and mental consequences.19 When analysing the level of suffering caused by such acts, the Commission stated that they were sufficiently severe to establish inhuman and degrading treatment, and thus breach article 5.20

Under the Maputo Protocol, sexual violence is prohibited as a form of violence against women.21

I.2 The Existence of a Link between Sexual Violence and Conflict🔗

A link between sexual violence and conflict is not necessary to obtain protection under the African system.22

The Commission has noted, however, that the existence of a conflict should raise suspicion: it is impossible for ‘victims of sexual violence to give their consent under the circumstances of generalized violence and mass atrocities in which international crimes are committed’. As a result, consent should not be presumed in cases of CRSV.23

Further, conflict is understood in a broader manner than in IHL. The Commission has described conflict as covering ‘violent and sustained political and/or social disputes’, and that it also includes other crisis situations of gravity short of armed conflict, ‘such as conditions of major instability or violence lacking the use of organised armed force’.24 Because the Charter does not contain a derogation clause, States cannot use conflict, emergencies or special circumstances to justify ‘limitation on the rights and freedoms enshrined in the Charter’.25

The Maputo Protocol similarly recognises that sexual violence can occur both in peacetime and during armed conflict. Under the Protocol, violence against women consists of ‘all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts’, ‘in private or public life in peace time and during situations of armed conflicts or of war’.26 As a result, violence against women expressly covers CRSV.

I.3 Who Is a Victim?🔗

An individual is a victim ‘regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted or convicted, and regardless of any familial or other relationship between the perpetrator and the victim’. ‘Victim’ also includes affected immediate family, ‘persons in whose care the victim is’ or dependants of the victim, especially children born from rape,27 as well as persons who have suffered harm while assisting victims or preventing victimisation.28

Any person, regardless of their gender, may be a victim of sexual and gender-based violence. While sexual and gender-based violence is predominantly perpetrated against women and girls, acts of sexual violence against men and boys, persons with psychosocial disabilities, and lesbian, gay, bisexual, transgender and intersex persons are of equal concern.29

II. Legal Framework🔗

III. Obligations under the African Charter on Human and People’s Rights🔗


III.1 States must adopt legislative or other measures to protect persons against CRSV🔗

III.2 States must educate their population on CRSV🔗

III.3 Special protection against CRSV is owed to persons susceptible to discrimination🔗

III.4 Special protection against CRSV is owed to persons deprived of their liberty🔗

III.5 States should ratify other instruments relevant to the eradication of CRSV🔗

III.6 States should promote and support co-operation with international mechanisms to end CRSV🔗

Justice and Accountability🔗

III.7 States must effectively investigate CRSV and bring perpetrators to justice🔗

III.8 States must ensure access to justice for victims/survivors of CRSV🔗

III.9 States should protect victims/survivors of CRSV from further violence🔗

Humanitarian Response🔗

III.10 States should provide victims/survivors of CRSV with appropriate care🔗


III.11 States should provide victims/survivors of CRSV with redress🔗

IV. Obligations under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)🔗


IV.1 States must adopt and implement appropriate measures to eliminate CRSV🔗

IV.2 States must protect women in armed conflict in accordance with international humanitarian law🔗

IV.3 Special protection against CRSV is owed to women at risk of discrimination🔗

IV.4 States must educate their population on CRSV🔗

IV.5 States must ensure and monitor the implementation of the Maputo Protocol to address CRSV effectively🔗

Justice and Accountability🔗

IV.6 States must appropriately and effectively punish perpetrators of CRSV🔗

IV.7 States must provide victims/survivors of CRSV with access to justice🔗

Humanitarian Response🔗

IV.8 States must ensure the sexual and reproductive rights of victims/survivors of CRSV🔗


IV.9 States must provide appropriate remedies to victims/survivors of CRSV🔗

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