FOREWORD

The Guidelines on the Protection of All Persons from Enforced Disappearances in Africa were adopted by the African Commission on Human and Peoples’ Rights during its 71st Ordinary Session held virtually from 21 April to 13 May 2022. The Guidelines are developed pursuant to Article 45(1)(b) of the African Charter, which mandates the African Commission to formulate standards, principles and rules on which African governments can base their legislation.

The goal of these Guidelines is to provide guidance and support to Member States of the African Union on the effective implementation of their commitments and contributions to eradicate enforced disappearances throughout the African continent. The Guidelines are complementary, and do not aim to replace or limit in any way the standards and obligations contained in relevant international treaties and instruments, such as the Declaration on the Protection of All Persons from Enforced Disappearance, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Rome Statute of the International Criminal Court, which are the main international legal instruments that deal with enforced disappearance as a grave human rights violation and a violation of international humanitarian law respectively. The Guidelines intend to reinforce those international treaties and instruments and encourage African Union Member States to ratify them as a positive measure to prevent enforced disappearances on the continent.

The Guidelines build upon existing legal obligations of African States pursuant to regional treaties and documents, including (among others) the African Charter on Human and Peoples’ Rights, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the “Maputo Protocol”), the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa and the Protocol on the Prevention and Suppression of Sexual Violence against Women and Children of the International Conference of the Great Lakes. It also adds to the standards developed by the African Commission on Human and Peoples’ Rights through its jurisprudence and commentary, including (among others) the Guidelines on Human and Peoples’ Rights while Countering Terrorism, the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the “Luanda Guidelines”), General Comment No. 3 on the Right to Life and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (Fair Trial Principles).

On the African continent, the practice of enforced disappearances is widespread. However, the available data does not accurately reflect the magnitude of the problem as many cases are not reported or officially registered. The UN Working Group on Enforced or Involuntary Disappearances noted in its 2021 report that of 46,490 cases of enforced disappearances under consideration, only 4,765 relate to African countries. The lack of awareness about the crime, rule of law challenges, lack of political will and reprisals against the victims and their relatives when reporting the crime all contribute to a lack of systematised official data on the prevalence of the crime. Without being prescriptive, the Guidelines reflect the most prevalent contexts in which enforced disappearances take place in Africa, including in armed conflicts, civil unrest, situations of emergency, counter-terrorism, in the context of migration and as a tool to suppress dissent.

To eradicate enforced disappearances from the continent, it is necessary to strengthen collaboration and efforts at regional level. Yet, the primary responsibility lies with individual States. In recent years, some African States have taken important steps to combat enforced disappearances, including by ratifying the International Convention for the Protection of all Persons from Enforced Disappearance and the Rome Statute, adopting the Malabo Protocol, criminalising enforced disappearances and adopting other legal and policy reforms to prevent this crime. However, these efforts are insufficient, and there are still significant gaps in the framework for the protection against enforced disappearances on our continent.

Enforced disappearances have terrible and long-lasting impacts, both physical and psychological, for those who are disappeared as well as their relatives, friends, communities and peoples. Many victims live in anguish for years, not knowing the fate and whereabouts of relatives who were disappeared, and lacking access to redress. These Guidelines acknowledge the full range of civil, political, economic, social and cultural rights that are often breached by an enforced disappearance and the resulting harms on victims. The Guidelines recognise the central role that victims play in the fight against this heinous crime in Africa.

I would like to thank everyone who has contributed to the development of the Guidelines. I am grateful to the numerous experts who contributed to this process, including distinguished members of the UN Committee on Enforced Disappearances, and the Working Group on Enforced or Involuntary Disappearance, with whom the African Commission wishes to continue collaborating. I would like to thank civil society organisations, particularly the REDRESS Trust, academics, practitioners and others for their collaboration in the development of this tool.

I am also grateful to the following eminent African dignitaries who have long fought against enforced disappearances in Africa, and who have made great contributions to drafting these Guidelines: Aua Balde, member of the UN Working Group on Enforced or Involuntary Disappearance; the late Christof Heyns, former member of the UN Human Rights Committee; Houria ElSlami, former member of the UN Working Group on Enforced or Involuntary Disappearance; and Matar Diop, member of the UN Committee on Enforced Disappearances.

Last but not least, I would like to acknowledge the contribution of the late Hon. Ndiame Gaye, my predecessor as Chair of the African Commission Working Group on Death Penalty, Extra-Judicial, Summary or Arbitrary Killings and Enforced Disappearances in Africa, for having the vision and wisdom to initiate the process of drafting these Guidelines.

The African Commission on Human and Peoples’ Rights calls on all stakeholders to promote and use these Guidelines to inform their work in strengthening the protection against enforced disappearances, including African Union Member States, domestic human rights institutions, lawyers, magistrates and jurists, civil society organisations and victims’ groups, and the media, among others. The African Commission remains committed to combating enforced disappearances through the exercise of its mandate to promote and protect human and peoples’ rights on the continent.

Honourable Commissioner Idrissa Sow Chairperson of the Working Group on Death Penalty,
Extra-Judicial, Summary or Arbitrary Killings and Enforced Disappearances in Africa

Source: African Commission on Human and People’s Rights