The Charter covers rights which may be violated in cases of sexual violence, such as the right to personal integrity,³⁰ the respect of the dignity inherent in a human being (article 5, as discussed in the introduction), the right of access to justice,³¹ and the principle of non-discrimination.³²

Under article 1, States must recognise such rights and adopt legislative or other measures to give effect to them.³³ In accordance with the Commission’s Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island Guidelines), States should:

• Ensure that acts falling within the definition of torture, ‘based on Article 1 of the UN Convention against Torture‘, are offences within States’ national legal systems;³⁴
• Criminalise all forms of sexual and gender-based violence;³⁵
• Prohibit and prevent ‘the use, production and trade of equipment or substances designed to inflict torture or ill-treatment’.³⁶

Private actors. Under article 1, States should protect their citizens not only through appropriate legislation and effective enforcement, but also by protecting them from violence perpetrated by private parties.³⁷ In conflict, the prohibition of torture and ill-treatment also applies to dissident armed forces and other organised non-State forces.³⁸

States may breach the Charter for acts of non-State actors if:

• The State lacks due diligence in preventing or responding to the violation;³⁹
• The State is complicit in the violations alleged;
• The State has sufficient control over non-State actors;
• The State fails to investigate those violations;⁴⁰ or
• The State does not take steps to provide victims/survivors with redress.⁴¹

In other words, States breach the Charter if they neglect to ensure its rights ‘even if the State or its agents are not the immediate cause of the violation’.⁴²

Under article 25, States must promote and ensure through teaching, education and publication, the respect and understanding of the rights and freedoms contained in the Charter.

States should create educational programmes and materials ‘that promote gender equality, combat discrimination and violence against women, and challenge sexist and gender stereotypes’. These programmes and materials should:

• Include specific modules on sex education, all forms of sexual violence, its causes and consequences and sexual and reproductive health;
• Be developed by specialists and age-appropriate, and adapted to young people’s learning capabilities;
• Be provided at all educational levels in all schools and universities and other educational settings.⁴³

Additionally, States should encourage and support:

• Public education initiatives, ‘awareness-raising campaigns regarding the prohibition and prevention of torture and the rights of detained persons’.⁴⁴ Awareness-raising campaigns focusing on sexual violence should cover its causes, the different forms it takes ‘and its consequences’. These campaigns should combat the perception that sexual violence represents an offence ‘to the honour of a person, their family or community’. They should inform people about the laws enacted ‘to combat violence against women and/or sexual violence, their provisions and the remedies available to victims under these laws’;⁴⁵
• The work of NGOs and of the media ‘in public education, the dissemination of information and awareness-raising concerning the prohibition and prevention of torture and other forms of ill-treatment’.⁴⁶ States should educate advertising professionals, journalists, and other communications specialists to combat sexual violence, its causes and consequences.⁴⁷

Training. States should establish and support training which reflects human rights standards and emphasises vulnerable groups’ concerns.⁴⁸ Training should combat sexual violence and its consequences in different professional and State settings and communities.⁴⁹

States should devise, promote and support codes of conduct and ethics, and training tools for law enforcement and security personnel, including personnel deployed in peacekeeping operations, and other relevant officials in contact with persons deprived of their liberty such as lawyers and medical personnel.⁵⁰

States should also provide professionals with training, including teachers, instructors and others who work in the education sector, psychologists and social workers, traditional and religious leaders and other stakeholders in religious institutions, and the private sector.⁵¹

Under article 2, everyone must be entitled to the enjoyment of the rights and freedoms recognised in the Charter ‘without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’. Under the non-discrimination principle, States should ensure equal treatment of an individual or group of persons irrespective of their particular characteristics.⁵²

Under article 18(4), States must provide ‘the aged and the disabled’ with special measures of protection ‘in keeping with their physical or moral needs’. Further, States should pay ‘particular attention to the prohibition and prevention of gender-related forms of torture and ill-treatment and the torture and ill-treatment of young persons’.⁵³

In implementing the Charter, States should be mindful of the needs of those ‘made susceptible’ to discrimination on grounds such as ‘race, colour, ethnicity, age, religious belief or affiliation, political or other opinion, national or social origin, gender, sexual orientation, gender identity, disability (including psychosocial and intellectual disability), health status, economic or Indigenous status, reason for which one is detained (including accusations of political offences or terrorist acts), asylum-seekers, refugees or others under international protection, or any other status or adverse distinction’.⁵⁴ States should recognise and combat intersectional discrimination based on a combination of those grounds.⁵⁵

Women. Under article 18(3), States must ensure the elimination of discrimination against women, and protect women’s rights. The Commission has recognised violence against women as a form of discrimination against women, encompassing sexual violence.⁵⁶ Together with article 2, article 18(3) requires States Parties to protect women from discrimination.⁵⁷

In Egyptian Initiative for Personal Rights (EIPR), which concerned ‘systematic sexual violence targeted at women’,⁵⁸ the Commission noted that the sexual abuse suffered by the victims was gender-specific, amounting to discrimination on the ground of sex.⁵⁹ To reach this conclusion, the Commission analysed whether, if women and men were in the same situation, they would be similarly treated and whether such treatment would be ‘fair and just’. As this was not the case, the Commission found a violation of articles 2 and 18(3).⁶⁰

Children. Under article 18(3), States must ensure the protection of the rights of children.

The Commission has noted that sexual violence against children includes the sexual abuse and exploitation of children, ‘as well as child prostitution, using children in pornographic activities and scenes or publications, and producing, disseminating, broadcasting, importing, exporting, offering, selling or possessing pornographic materials involving children’.⁶¹ There should be a presumption of absence of consent from minors who have not reached the age of sexual consent, which should not be below 16 years.⁶²

Under the African Charter on the Rights and Welfare of the Child (African Child Charter), States must comply with the rules of IHL in armed conflict that affect children⁶³ and ensure their protection and care.⁶⁴

Under article 16 of the African Child Charter, States must take specific legislative, administrative, social, and educational measures to protect children from all forms of torture and ill-treatment while they are in the care of a parent, legal guardian, school authority or any other carer. Further, under article 27, States must protect children from all forms of sexual exploitation and sexual abuse and, in particular, take measures to prevent;

1. The inducement, coercion or encouragement of a child to engage in any sexual activity;
2. The use of children in prostitution or other sexual practices;
3. The use of children in pornographic activities, performances and materials.

Migrants. Under article 5, States Parties must refrain from returning individuals to a place where their personal integrity may be at risk.

States should design regulations to monitor the detention of all persons deprived of their liberty. States should establish a number of basic safeguards, all of which should apply from the moment persons are first deprived of their liberty, including:

• The right that a relative or other appropriate third person is notified of the detention;
• The right to an independent medical examination;
• The right of access to a lawyer;
• Notification of the above rights in a language that the person understands.⁶⁵

Safeguards during the pre-trial process. States should:

• Establish regulations for the treatment of all persons deprived of their liberty in accordance with the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;
• Prohibit the use of unauthorised places of detention and punish officials who hold a person ‘in a secret and/or unofficial place of detention’;
• Prohibit the use of incommunicado detention;
• Immediately inform detained persons of the reasons for their detention;
• Promptly inform arrested persons of any charges against them;
• Promptly bring persons deprived of their liberty before a judicial authority, and ensure that they have the right to defend themselves or to be assisted by legal counsel, ‘preferably of their own choice’;
• Keep comprehensive written records of all interrogations, ‘including the identity of all persons present during the interrogation’.
• Ensure that any statement obtained ‘through the use of torture, cruel, inhuman or degrading treatment or punishment’ is not admissible as evidence, ‘except against persons accused of torture as evidence that the statement was made’;
• Keep comprehensive written records of those deprived of their liberty at each place of detention, including ‘the date, time, place and reason for the detention’;
• Provide all persons deprived of their liberty with access to legal and medical services and assistance, and the right to be visited by and correspond with family members;
• Ensure that all persons deprived of their liberty can challenge the lawfulness of their detention.⁶⁶

Conditions of Detention. States should:

• Treat all persons deprived of their liberty in conformity with the UN Standard Minimum Rules for the Treatment of Prisoners;
• Improve conditions in places of detention which do not conform to international standards;
• Hold pre-trial detainees ‘separately from convicted persons’;
• Hold juveniles, women, and other vulnerable groups in appropriate and separate detention facilities;
• Reduce overcrowding in places of detention.⁶⁷

Mechanisms of Oversight. States should:

• Ensure and support the independence and impartiality of the judiciary, in accordance with the UN Basic Principles on the Independence of the Judiciary;
• Establish and support effective and accessible complaint mechanisms which are independent from detention and enforcement authorities and able to receive and investigate allegations of torture and ill-treatment;
• Establish, support and strengthen independent national institutions such as ‘human rights commissions, ombudspersons and commissions of parliamentarians’ that are empowered to visit places of detention and to prevent torture and ill-treatment, in accordance with the UN Paris Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights;
• Encourage and facilitate visits by NGOs to places of detention;
• Consider ratifying the Optional Protocol to the UN Convention against Torture to allow the Subcommittee on Prevention to visit all places where States detain persons;
• Consider developing regional mechanisms for the prevention of torture and ill-treatment.⁶⁸

States should become a party to relevant international and regional human rights instruments and ‘ensure that these instruments are fully implemented in domestic legislation’. To accord individuals ‘the maximum scope for accessing the human rights machinery that they establish’, States should ratify:

• The Protocol to the African Charter of Human and Peoples’ Rights establishing an African Court of Human and Peoples’ Rights;
• The UN Convention against Torture, Cruel, Inhuman and Degrading Treatment or Punishment without reservations, ‘accepting the jurisdiction of the Committee against Torture under Articles 21 and 22 and recognising the competency of the Committee to conduct inquiries pursuant to Article 20’;
• The International Covenant on Economic, Social and Cultural Rights, ‘without reservations’;
• The International Covenant on Civil and Political Rights and its First Optional Protocol, ‘without reservations’;
• The Rome Statute.⁶⁹

To prevent and respond to torture and ill-treatment effectively, States should cooperate with:

• The Commission. States should also promote and support the work of the Special Rapporteur on prisons and conditions of detention in Africa, the Special Rapporteur on arbitrary, summary and extra-judicial executions in Africa and the Special Rapporteur on the rights of women in Africa;
• The United Nations Human Rights Treaty Bodies, the UN Human Rights Council’s thematic and country-specific special procedures, and the UN Special Rapporteur on Torture.⁷⁰

Under article 5, States must effectively investigate all acts of torture and ill-treatment and punish the perpetrators. States should:

• Establish readily accessible and fully independent mechanisms to receive allegations of torture and ill-treatment;
• Initiate an investigation when persons who claim or appear to have been tortured or ill-treated are brought before competent authorities; and
• Conduct investigations ‘promptly, impartially and effectively’, in accordance with the UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol).⁷¹

To facilitate the reporting of sexual violence, States should:

• Create confidential, toll-free national emergency numbers that are always available and provide information on and referrals to services;
• Permanently place social workers at police stations to ensure victims/survivors do not experience revictimization;⁷²
• Provide victims/survivors with the opportunity, when appropriate, ‘to present their views and concerns at each stage of the proceedings’ in a safe, confidential manner.⁷³

In Egyptian Initiative for Personal Rights (EIPR) and Interights v Arab Republic of Egypt, the Commission decided that the State had failed to investigate and prosecute the perpetrators of gender-specific violations against women, including sexual violence.⁷⁴ By failing to investigate effectively, the State showed a lack of commitment to take action, which could not be justified by lack of sufficient information to carry out a proper investigation.⁷⁵ Failure to investigate compromises States’ international responsibility, ‘both in the case of crimes committed by agents of the State and those committed by private individuals’.⁷⁶

With respect to sentencing, States should swiftly impose sanctions ‘that reflect the gravity of the offence’.⁷⁷ In particular, States should ‘provide for penalties that are proportional to the seriousness of the act of sexual violence’, taking into account ‘any aggravating circumstances’, including the vulnerability of the victim/survivor, while disregarding irrelevant factors, such as the sexual behaviour of the victim/survivor before or after the violence and the victim/survivor’s status as a member of a given group.⁷⁸

Extradition. States should make torture an extraditable offence, adopt the necessary legislation to prosecute or extradite alleged perpetrators of torture,⁷⁹ and ensure that the extradition of those suspected of torture ‘take place expeditiously’.⁸⁰

Under article 7, everyone has a right to have their cause heard, which comprises the following:

1. The right to an appeal to competent national organs against acts that violate their fundamental rights;
2. The right to be presumed innocent ‘until proved guilty by a competent court or tribunal’;
3. The right to a defence, including the right to be defended by counsel of their choice;
4. The right to be tried ‘within a reasonable time by an impartial court or tribunal’.

Under article 26, States Parties must guarantee that cases are heard by independent judges. The concerns and interests of victims may only be addressed in judicial proceedings that are impartial and in line with the Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

Under article 7(1)(a), States should provide victims/survivors with unfettered access to a tribunal to hear their case.⁸¹ If States put obstacles which prevent victims/survivors from accessing tribunals to hear alleged human rights violations, they would be denying victims/survivors of human rights violations the right to have their cases heard.⁸²

Further, States should provide victims/survivors with an opportunity to appeal decisions when necessary to obtain full redress.⁸³ A failure to ensure the right to appeal is ‘contrary to the guiding principles and spirit of the African Charter’.⁸⁴

Other obstacles to justice which States should remove include:

• Defences of superior orders. Superior orders should never provide a justification or lawful excuse for acts of torture or ill-treatment. States should ensure that no one is punished ‘for disobeying an order that they commit acts amounting to torture or ill-treatment;⁸⁵
• Amnesty laws;⁸⁶
• Immunity. The scope of immunities for foreign nationals should be as restrictive as is possible under international law;⁸⁷
• Prescription (i.e., a period of time after which legal action is no longer possible if the victim/survivor has not taken steps to enforce their rights). States should not apply prescription to the most serious sexual offences;⁸⁸
• Rules of evidence that do not properly reflect ‘the difficulties of substantiating allegations of ill-treatment in custody’. Where criminal charges cannot be sustained because of the high standard of proof required, States should take other forms of civil, disciplinary or administrative action;⁸⁹
• Broad State secrecy and indemnity laws ‘utilised to obscure State responsibility for large-scale acts of torture in times of conflict and repression’. Further, at the conclusion of truth commissions or other transitional justice mechanisms, States should memorialise and honour victims of torture and ill-treatment;⁹⁰
• Religious laws in contravention of ‘international fair-trial standards’. States should provide everyone with the right to be tried by a secular court;⁹¹
• Barriers to justice caused by ‘stigma, feelings of guilt or shame, fear of retribution, and the unavailability of support or lack of information about available support’ in cases of sexual violence.⁹²

During proceedings. States should protect alleged victims of torture and ill-treatment, witnesses, those conducting the investigation, other human rights defenders and families from violence, threats of violence or any other form of intimidation or reprisal that may arise from a report or investigation.⁹³ State Parties should adopt measures to afford protection in an effective and independent manner.⁹⁴

Appropriate measures include protection orders ‘for victims in situations of immediate danger’,⁹⁵ legislation criminalising threats, harassment, intimidation and omission by State officials, ‘as well as the establishment of independent oversight institutions over all places of detention’.⁹⁶

In accordance with standards of due process, States should remove alleged perpetrators of or accomplices to torture and ill-treatment ‘from any position of control or power, whether direct or indirect, over complainants, victims, witnesses and their families as well as those conducting investigations’.⁹⁷

In cases of sexual violence, States should implement measures of protection such as:

• Protecting victims/survivors’ personal information, including by ‘redacting the names and locations of victims and witnesses from the transcripts of hearings, prohibiting those participating in the proceedings from revealing such information to third parties, and by using pseudonyms’;
• Allowing victims/survivors ‘to participate in hearings in a secure environment’. States should protect victims/survivors from the accused through the use of:
  1. Separate waiting rooms for victims/survivors and perpetrators;
  2. Protective cubicles for witnesses;
  3. Police escorts where required;
  4. Special methods to gather testimony and/or depositions, including video conference and altering the voice or image of the person speaking;
  5. Cameras or video-conferencing systems to film hearings;
• Ensuring that questioning ‘does not further traumatize the victims’;
• Closed hearings;
• Providing victims/survivors and witnesses with safe accommodation ‘during the trial and afterwards’.⁹⁸

Beyond proceedings. States should provide victims/survivors of sexual violence with protection and support regardless of whether they engage in legal proceedings or testify against the perpetrator. Support should include accessible, confidential, sufficient, adequately funded and professionally staffed shelters for the victims of sexual violence and their children.

Other support services include legal assistance, medical assistance, ‘including access to a forensic medical examination’, sexual and reproductive health care, care for the prevention and treatment of HIV, psychological and financial support, housing assistance, training, education and support in finding employment. States should provide these services with adequate human and financial resources and enough well-trained personnel.⁹⁹

Medical care. States should provide victims/survivors of sexual violence with medical services to mitigate and/or remedy the violence they have suffered. These services should include:

• Treatment by gynaecologists, proctologists, and urologists for potential injuries, including sexually transmitted infections, HIV and traumatic and obstetric gynaecological fistula;
• Pregnancy tests and contraception, including emergency contraception that prevents conception;
• Medical abortions, post-abortion care, and psychological support.

States should not require victims/survivors to lodge a complaint or report the violence to the police to obtain access to these services.¹⁰⁰

Social support. States should aid victims/survivors in achieving autonomy by facilitating access to:

• (New) housing;
• Care services for their children, including access to daily supervision, education and healthcare, especially for children born from rape;
• Access to financial assistance; and
• Assistance in returning to or obtaining work.¹⁰¹

States should work with civil society organisations, private sector stakeholders and technical partners to help victims/survivors of sexual violence regain control of their lives, including by assisting them to gain new skills and access new opportunities, ‘for example through income-generating activities’.¹⁰²

While the Charter does not expressly mention redress, article 7 indicates that every individual must have the right to have their cause heard. The Commission has clarified that article 7 ‘encompasses the right of every individual to access the relevant judicial bodies competent to have their causes heard and be granted adequate and prompt relief’.¹⁰³ Relief should be ‘available, effective and sufficient’. A remedy is sufficient ‘if it is capable of redressing the complaint’.¹⁰⁴ It is effective if it offers a prospect of success.¹⁰⁵ It is available if it can be pursued without impediment.¹⁰⁶ States should ‘establish judicial, quasi-judicial, administrative, traditional and other processes to enable victims to access and obtain redress’. States should provide their institutions with the necessary legal mandate and independence, and adequate financial, human, technical and other resources to effectively provide redress. Limited resources cannot justify a State’s failure to provide comprehensive reparation.¹⁰⁷

States should make redress procedures and mechanism accessible to ‘discriminated, marginalised or disadvantaged persons or groups’.¹⁰⁸ In particular, States should provide victims/survivors with legal aid, including ‘legal representation, legal assistance, legal advice, legal education and information, mechanisms for alternative dispute resolution, and restorative justice processes’. CSOs, community based organisations and others may complement services offered by State institutions.¹⁰⁹

States should offer reparation to victims/survivors of torture and ill-treatment irrespective of:

• Whether a successful criminal prosecution can or has been brought;
• Whether the perpetrator is identified, apprehended, investigated, prosecuted or convicted;¹¹⁰
• Where the torture and ill-treatment were committed. States should make reparation accessible ‘to victims who were subjected to torture and other ill-treatment outside their territory’;¹¹¹
• Whether torture and ill-treatment are committed by the State or non-State actors. States ‘should provide reparation to victims for acts and omissions which can be attributed to the State’.¹¹²

States should ‘protect the dignity of victims at all times and ensure that victims are at the centre of the redress process’. States should also enable victims/survivors to play ‘active and participatory roles in the process of obtaining redress, without fear of stigma and reprisals’.¹¹³ Further, States should tailor the reparation required to give effect to the rights and needs of ‘individual victims and victimised communities’ to specific African contexts, including ‘general policing, detention and imprisonment, post and on-going conflict situations, legacies of the colonial experience, and the fight against terrorism’.¹¹⁴

When providing redress, States should treat victims/survivors ‘on a case-by-case basis without discrimination’, and take into account the gendered nature of torture and other ill-treatment, ‘including the particular effects of sexual and gender based violence, the aggravated impact of torture and other ill-treatment on children and the unique experiences of people with disabilities subjected to torture and other ill-treatment’.¹¹⁵

In cases of sexual violence, States should establish holistic reparation measures that:

• Meet the needs of victims/survivors arising from the sexual violence;
• Consider all forms of sexual violence and all consequences, including physical, psychological, material, financial, and social consequences, immediate or otherwise, suffered by the victims/survivors;
• Go beyond the immediate causes and consequences of sexual violence, and aim to remedy discrimination and structural and political inequality that negatively affect the lives of victims/survivors, ‘especially women and girls’.¹¹⁶

A failure to provide remedies in cases of torture or ill-treatment constitutes a breach of article 5.¹¹⁷ States should ensure that ‘victims of human rights abuses are given effective remedies, including restitution and compensation’.¹¹⁸ Beyond restitution and compensation, redress encompasses rehabilitation and satisfaction, including the right to the truth, and guarantees of non-repetition.

Restitution. In light of the specificities of each case, restitutive measures should ‘aim to put the victim back to the situation they were in before the violation’.¹¹⁹ In cases of sexual violence, restitution may include:

• The exercise and enjoyment of human rights, particularly the rights to dignity, security, and health, including sexual and reproductive rights;
• Enjoyment of family life; and
• Return to employment and education.¹²⁰

Where the violation was facilitated by the victims/survivors’ position of vulnerability and marginalisation which predated the violation, States should complement restitutive measures with measures addressing ‘the structural causes of the vulnerability and marginalisation, including any kind of discrimination’, such as measures designed to remedy socio-economic disadvantage caused by oppressive regimes.¹²¹

Compensation. Compensation should ‘be fair, adequate and proportionate to the material, non-material and other harm suffered’. It should be ‘sufficient to compensate for any economically assessable damage resulting from torture and other ill-treatment’. It may cover, where applicable:

• Legal aid or specialised assistance, ‘and other costs associated with bringing a claim for redress’;
• Reimbursement of medical expenses and provision of funds to cover future medical or rehabilitative services needed by the victim/survivor for as full a rehabilitation as possible;
• Material and non-material damage resulting from the physical and mental harm caused;
• Loss of earnings and earning potential due to disabilities caused by the torture or ill-treatment;
• Lost opportunities ‘such as employment and education’.¹²²

When assessing compensation, States should evaluate the unpaid domestic labour of women and girls at its fair value.¹²³

Rehabilitation. Rehabilitation refers ‘to the restoration of function or the acquisition of new skills required by the changed circumstances of a victim’. ‘It seeks to enable the maximum possible self-sufficiency and function for the victim (individual and or collective)’, and may involve adjustments to the victim/survivor’s physical and social environment.¹²⁴

Rehabilitation should aim to restore, as far as possible, victims/survivors’ independence ‘and physical, mental, social, cultural, spiritual and vocational ability; and full inclusion and participation in society’. State should adopt a holistic, long-term and integrated approach to rehabilitation, and provide victims/survivors with specialised services that are:

• Available;
• Appropriate;
• Promptly accessible in a confidential manner, when necessary, and in relevant languages;
• Considerate of ‘the strength and resilience of the victim and the risk of re-traumatisation’.¹²⁵

Satisfaction and the right to truth. Satisfaction includes the right to truth, the State’s recognition of its responsibility, the effective recording of complaints, and investigation and prosecution. Satisfaction also encompasses:

• Measures aimed at the cessation of continuing violations;
• Verification of the facts and full and public disclosure of the truth. States should ensure that disclosure does not cause further harm or threaten ‘the safety and interests of the victim, the victim’s relatives, witnesses or persons who have intervened to assist the victim or prevent the occurrence of further violations’;
• The search for disappeared victims/survivors, abducted children and the bodies of those killed, and assistance in the recovery, identification and reburial of victims’ bodies in accordance with the expressed or presumed wishes of the victims or affected families;
• Official declaration or judicial decision restoring the dignity, reputation and rights of the victims/survivors and of persons closely connected with the victims/survivors;
• Judicial and administrative sanctions against perpetrators;
• Public apologies, including acknowledgement of the facts and acceptance of responsibility; and
• Commemorations and tributes to the victims.¹²⁶

Guarantees of non-repetition. ‘The overall aim of guarantees of non-repetition is to break the structural causes of societal violence’, which are often conducive to an environment in which torture and ill-treatment take place and are not publicly condemned or adequately punished. States should make appropriate guarantees, including:

• Training of public officials, ‘including law-enforcement officials as well as military and security forces, on the obligations of State Parties to the African Charter’, especially the prohibition of torture and ill-treatment, ‘and on the specific needs of marginalised, disadvantaged and discriminated populations’;
• Establishing independent investigative mechanisms ‘with the capacity, skills, powers and resources to effectively investigate allegations of torture and other ill-treatment’;
• Punishing ‘both individual perpetrators and those in command and/or management positions’;
• Ensuring that judicial proceedings ‘conform with international due process standards, fairness and impartiality’;
• Strengthening the independence of the judiciary;
• ‘Reviewing and reforming laws contributing to or allowing torture and other ill-treatment’;¹²⁷ and
• Undertaking security sector reforms ‘that advance civilian oversight, enable training of relevant personnel and enhance awareness among the public on relevant regional and international standards’.¹²⁸

Truth, Justice and Reconciliation Commissions. States that are unable to provide victims/survivors of sexual violence with truth, justice and reparation should use transitional justice tools, ‘including creating a Truth, Justice and Reconciliation Commission (TJRC) or other similar body’. These commissions, however, should ‘complement the mechanisms for justice and reparation’; under no circumstances may they take the place of ‘judicial proceedings or any other process enabling victims to obtain reparation.

States should mandate them ‘to research and establish the truth regarding acts of sexual violence, their motives and the circumstances under which they were committed, as well as measures of justice and reparation for the victims of these acts’ in both public and private reports.

States should ensure that there are enough women among TJRCs’ personnel, and that personnel is trained to adopt a gender-sensitive approach ‘focused on the victims of sexual violence, that pays particular attention to these victims, especially women and girls, but also men and boys’.¹²⁹

Under the Maputo Protocol, States must adopt and implement appropriate measures to:

• Protect every woman’s right to respect for her dignity, and protect women from all forms of violence, particularly sexual and verbal violence; ¹³⁰
• Enact and enforce laws to prohibit all forms of violence against women, including unwanted or forced sex, whether the violence takes place in private or public.¹³¹ States should criminalise all forms of sexual violence;¹³²
• Identify the causes and consequences of violence against women, and prevent and eliminate such violence;¹³³
• Provide adequate budgetary and other resources for the implementation and monitoring of actions aimed at preventing and eliminating violence against women.¹³⁴ States should grant the necessary resources to the police force ‘to enable it prevent and control the acts of sexual violence’.¹³⁵

Under article 11, States Parties must, in accordance with international humanitarian law, protect civilians including women, irrespective of the population to which they belong, in the event of armed conflict.

In particular, States undertake to:

• Protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation;
• Consider such acts as war crimes, genocide and/or crimes against humanity; and
• Bring their perpetrators ‘before a competent criminal jurisdiction’.

Under the Maputo Protocol, States must be considerate of the needs of groups of women at risk of human rights violations by virtue of their diverse identities. In protecting their reproductive rights, States should not read or interpret in isolation the Maputo Protocol’s provisions ‘dealing with the intersecting aspects of women’s human rights, such as gender inequality, gender-based violence, harmful customary practices, and access to socio-economic rights’.¹³⁶

Girls. Under article 11(4), States Parties must take all necessary measures to ensure that no child, especially girls under 18, take a direct part in hostilities and be recruited as a soldier. Girls who are recruited or take part in hostilities are frequently subjected to sexual violence at the hands of armed groups, including rape and sexual slavery.

Elderly women. Under article 22(b), States must ensure the right of elderly women to freedom from violence, ‘including sexual abuse, discrimination based on age and the right to be treated with dignity’.

Women with disabilities. Under article 23(b), States must ensure the right of women with disabilities to freedom from violence, ‘including sexual abuse, discrimination based on disability and the right to be treated with dignity’.

Women in distress. Under article 24, States must provide women in distress with special protection. In particular, States must ensure the protection of poor women and women heads of families, including women from marginalised population groups, and create an environment suitable to their condition and their special physical, economic and social needs. States must also provide pregnant or nursing women or women in detention with an environment suitable to their condition and the right to be treated with dignity.

States must take appropriate and effective measures ‘to actively promote peace education through curricula and social communication to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women’.¹³⁷ States should sensitise the population to the causes and consequences of HIV/AIDS, ‘particularly by supporting the initiatives of civil society in this area’.¹³⁸

Training. States should ensure that police and military forces, as well as all the members of the judiciary, receive adequate training on international humanitarian law, women’s rights and children’s rights.¹³⁹

States should also offer ‘adequate training on investigating and prosecuting crimes of sexual and gender-based violence to personnel in the criminal justice system, including police, forensic examiners, prosecutors, lawyers and judges.¹⁴⁰

Under article 26, States must ensure the Protocol’s implementation at the national level and provide it with sufficient budgetary and other resources.

In their periodic reports,¹⁴¹ States must describe the legislative and other measures adopted to implement the Protocol.

The Commission, in collaboration with the University of Pretoria, has issued a document with guidelines for State reporting under the Protocol.¹⁴²

Under article 4(2), States must adopt appropriate and effective ‘legislative, administrative, social and economic measures’ to eradicate all forms of violence against women, and punish the perpetrators.

Under article 11(3), States undertake to bring the perpetrators of all forms of violence, rape and other forms of sexual exploitation ‘before a competent criminal jurisdiction’.

Under article 8, States must:

• Provide women with effective access to judicial and legal services, including legal aid;
• Support local, national, regional and continental initiatives providing women access to legal services;
• Establish adequate educational and other appropriate structures to sensitise everyone to the rights of women;
• Equip law enforcement organs at all levels to effectively interpret and enforce gender equality rights;
• Ensure that women are represented equally in the judiciary and law enforcement organs;
• Reform existing discriminatory laws and practices to promote and protect women’s rights.

Under article 14, States must respect and promote ‘the right to health of women, including sexual and reproductive health’. Women’s right to health includes:

• The right to control their fertility;
• The right to decide ‘whether to have children, the number of children and the spacing of children’;
• The right to choose ‘any method of contraception’;
• The right to self-protection and to be ‘protected against sexually transmitted infections, including HIV/AIDS’;
• The right to be informed on their health status and on the health status of their partner, ‘in accordance with internationally recognised standards and best practices’;
• The right to have ‘family planning education’. States should make such education ‘available, accessible, acceptable and of good quality.¹⁴³

States must provide women with:

• Adequate, affordable and accessible health services, ‘including information, education and communication programmes’, especially in rural areas;
• Pre-natal, delivery and post-natal health and nutritional services ‘during pregnancy and while they are breast-feeding’;
• Medical abortion ‘in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’. States should not subject women to criminal proceedings or other ‘legal sanctions for having benefited from health services that are reserved to them such as abortion and post-abortion care’.¹⁴⁴ Further, States should not punish health personnel for providing these services.¹⁴⁵

States should also prevent third parties from interfering with women’s sexual and reproductive rights,¹⁴⁶ and ensure that such rights are enjoyed in a non-discriminatory manner.¹⁴⁷

Under article 25, States must provide appropriate remedies to any woman whose rights or freedoms under the Protocol have been violated. States must ensure that remedies are determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by law.

Under article 4(2)(f), States must take measures to establish mechanisms and accessible services ‘for effective information, rehabilitation and reparation for victims of violence against women’, including campaigns ‘to raise awareness on existing remedies for cases of sexual violence’, and ‘efficient and accessible reparation programmes’ that involve women in their elaboration, adoption and implementation.¹⁴⁸

Beyond compensation and rehabilitation, reparation may also include restitution, satisfaction and guarantees of non-repetition. Reparation programmes should address the consequences of violence against women in a comprehensive manner. In conflict situations, States should involve victim/survivors ‘throughout the post-conflict peacebuilding and consolidation processes’.¹⁴⁹