The African Commission on Human and Peoples' Rights
EXAMINATION OF STATE REPORTS
11th Session March 1992: Egypt - Tanzani

The editors wish to thank the Danish Ministry of Foreign Affairs/Danida for financial support of the publications.

PREFACE

The African Commission on Human and Peoples' Rights was established in November 1987 to promote human and people's rights and to ensure their protection in Africa. One of the most important tools at the disposal of the Commission in the endeavour to reach these objectives is the state reporting procedure.

State reports submitted according to Article 62 of the African Charter on Human and Peoples' Rights are examined at public sessions of the Commission. However, the effects of the examinations are limited if records of the discussions are not available to a wider audience.

It was therefore gratifying that the Commission at its 16th Session in October 1994 was able to authorize the Danish Centre for Human Rights to publish, in the name of the Commission, the transcripts of the examinations of state reports which had taken place so far. Although the examination procedure is still evolving, the transcripts demonstrate the will of the Commission to reach its objectives and it is a vital step towards greater effectiveness in the protection of human rights in Africa.

The progress of human rights is a great collective project, and the Danish Centre for Human Rights has shown its dedication to this project. By undertaking this substantial and important piece of work, the Danish Centre for Human Rights has set an example to the advancement of human rights in Africa which we hope will be followed by others. I would like to take this opportunity to express the deep gratitude of the Commission to the Danish Centre for Human Rights for its dedication in helping the Commission fulfill its mandate, striving towards a better life for all on the African continent.

Banjul, August 1995

Mr. Isaac Nguema

Chairman of the African Commission

on Human and Peoples' Rights

INTRODUCTION

Under Article 62 of the African Charter on Human and Peoples' Rights, the states parties must submit a report every two years on their domestic human rights situtation. After a report has been submitted, states are invited to send representatives to a session of the African Commission to present the report in person. These reports are to include national constitutions and other legislation affecting human rights, such as the criminal code, and to discuss the status of the African Charter in domestic law. They furnish a unique source of information on law and human rights in Africa.

The history of this procedure is quite brief. The African Commission was established in 1987 and the first reports were examined in 1991. To date, only 15 states have submitted their initial reports, two states their second reports, and out of these, 14 have been examined. There have been long delays before state representatives appear before the Commission, and no official record of these examinations has yet been published.

In the interest of disseminating information on the work of the African Commission and the situation of human rights in Africa, the Danish Centre for Human Rights proposed to publish the state reports as well as transcripts of the examinations before the Commission. Authorization for this was given by the African Commission at its 16th session in October 1994, and the present volumes are the fruit of this undertaking.

The first volume contains the reports and discussions of Libya, Rwanda and Tunisia which were examined at the 9th Session in March 1991. No state reports were presented at the 10th Session, thus Volume II. covers Egypt and Tanzania, discussed at the 11th Session in March 1992. Volume III. contains The Gambia, Senegal and Zimbabwe, from the 12th Session in October 1992, and Volume IV. Nigeria and Togo examined at the 13th Session in April 1993. Finaly Volume V. covers the report of Ghana, discussed at the 14th Session in December 1993.1The reports of Benin and Cape Verde as well as the second reports of The Gambia, all examined at the 16th Session are not included. Where it has been possible, the discussions on procedural questions have been put in separate chapters. However, at the 14th Session the general remarks were integrated in the discussion of Ghana.

The state reports vary widely in their quality and content, and the character of the discussions likewise. The Commission began its first examinations with no clear procedure. Throughout the past several years, a modus operandi has evolved, but each examination has a distinct character, influenced by the framework set out by the report, the background and preparation of the state representatives, and the attitude of the Commissioners. A careful reader will find plenty of interest both in the text and between the lines.

Examinations begin with the state representative delivering an overview of the report. One Commissioner, the Special Rapporteur, is assigned to study the report in depth and prepare questions which are then put to the representative to open the discussion. After the questions of the Special Rapporteur, the floor is open to all Commissioners to ask questions. The state representative answers as many of these as possible, whereafter the Special Rapporteur is supposed to summarize and conclude.

The examinations have often been fora for wide-reaching discussions that give valuable indications of how the Commission interprets certain provisions of the African Charter. Subjects such as peoples' rights, traditional cultural practices, and the implementation of economic, social and cultural rights have been taken up.

The publication of these transcripts would not have been possible without the combined efforts of many people. The Danish Centre for Human Rights must recognize the work of Astrid Danielsen, who conceived this project and administered it throughout, and Julia Harrington, who compiled the index and summaries.

The Danish Centre would like to thank the Commissioners of the African Commission for having entrusted this important project to the Centre.

Copenhagen, August 1995

Mr. Morten Kjaerum

Director of the Danish Centre

for Human Rights

GENERAL DISCUSSIONS

Chairman: Dr. Ibrahim A. BADAWI El-Sheikh

BADAWI:

Then I am proposing also as a temporary measure to know what is our programme for tomorrow that to take the Report of Egypt in the afternoon. That we will have one meeting for the observers, that is in the morning, and then we will take the Report of Egypt in the part of the afternoon meeting from 3, the one from 3 to 7. Because we have to advise the representative of the state, who is already here that the report of his country will be discussed and then we have to prepare ourselves also for the discussion of this report. And I hope that the Secretary of the Commission will make sure that each Commissioner will have a copy of the Report of Egypt and then, also, if possible, the list of questions which had been addressed to the Egypt, should be also distributed to the members, so that the members will know the questions which have already been addressed, so this are not being repeated but they can pose other questions.

On that point also I want your guidance because definitely being Egyptian, I will not take part in the consideration of the Report of Egypt. But I am posing the question also for the being chairing that meeting. Would you think that it would be convenient that at that meeting the vice-chairman chaired that meeting or should I chair this meeting. I am opening the question - Commissioner Mokama.

MOKAMA:

Mr. Chairman, I think in fairness to you, it would be better if the vice-chairman chairs the meeting.

BADAWI:

Very good, so we will take it that the afternoon session will be chaired by the vice-chairman, and that we have agreed on the procedure of the consideration of the report, that is, we will give a chance to the delegation to present the report and then members of the Commission will submit questions, and then the representative of the state will respond to these questions. And then I imagine that this will be done by the break time, by the time we reach the break, so we will inform, the vice-chairman, the chairman of the meeting will inform the representatives of Egypt that in the second part of the meeting, this is a closed meeting, but you will be called in, in half an hour or fifteen minutes so the Commission can say that we have examined the Report of Egypt, the usual formula by the cooperation of the government by submitting the report, and then if there are additional information to be requested that they be submitted either in the next report or separately.

So I think I take that. Now the last point -

KISANGA:

I am sorry, Mr. Chairman, I didn't quite get the procedure you outlined. I say this because I am particularly interested in the sense that I am the Rapporteur for the Egyptian Report and we are doing it for the first time. So can you please repeat the procedure you outlined?

BADAWI:

Yes, thank you very much, Commissioner Kisanga. First we have agreed that there is a sort of a leader for the consideration of the report, and this leader is actually a Special Rapporteur who at the beginning prepares the questions which have been submitted to the government concerned, in this case Commissioner Kisanga. So Commissioner Kisanga will very closely follow the discussion of the report. The discussion will start by the chairman giving the floor to the representative of Egypt. The representative of Egypt will make his statement - full stop. And then Commissioners will pose additional questions, not the same questions which have been addressed to the Egyptian government, but additional questions, or, additional questions on the basis of what he said.

Then comes the role of the discussion leader, who is following the discussion by saying 'I believe we have not heard an answer to such question or an answer to such a question'. And then the representative will respond again. By saying 'Well I have said what I have, I have nothing to add'. At that point, the chairman will close the discussion, and he will say 'We have considered, the first part of the discussion is over now.

Now the Commission will go into closed meeting and then we will call the representative of the state at a later point. When the meeting, at the closed point, the Commissioners, we will discuss among ourselves, with my own execption in this case, with the help of the discussion leader, Mr. Kisanga, Commissioner Kisanga will say, 'I believe with the report of the representatives of the state has given us enough information', or 'I think that there are inefficiencies on this and that point. And I believe that it is important to ask for the government of Egypt to give us more information in the next report'. Or whatever he may be saying. The Commissioners will complete Commissioner Kisanga

Once this is done, the chairman will be guided by the formula which you have finally come to. So I am chairing the meeting. I will say 'Well I thank the government of Egypt for having submitted the report under Article 62. I think this indicates the willingness of the government of Egypt, of Tanzania, of Nigeria, of whichever, to cooperate with the Commission. However, the Commission is of the view that some of the points have not been responded to and these points are: We would like the government of Egypt in its next report to contain this information'. This the chairman will say, you know, on the basis of what you have formulated.

So this is the procedure and I am not inventing anything. I am saying the procedure which we followed for four years and I think the Committee on the Economic, Social and Cultural Rights is still following. And this procedure has the advantage of creating a dialogue and at the same time giving the Commission certain privacy in making some comments among the Commissioners.

Commissioner Ndiaye.

NDIAYE:

C'est tout à fait cela, Monsieur le Président, personnellement je suis tout à fait d'accord avec vous. C'est la procédure qui est suivie également au comité des droits de l'homme. C'est la meilleure formule. En fait, ce n'est pas un examen, mais un dialogue qui se veut constructif. Mais encore Mr. le Président, je reviens toujours aux choses élementaires: Est-ce que nous avons le rapport disponible? Est-ce que nous avons le questionnaire disponible pour pouvoir le regarder avant l'arrivée du représentant de l'Egypte? Si le rapport de Monsieur Kisanga, Monsieur Kisenga est rapporteur je suppose que le rapport a dû lui être remis depuis longtemps et qu'il a fait son questionnaire, mais pendant ce laps de temps on a pu également multiplier ce rapport pour pouvoir le mettre à la disposition du commissaire.

BADAWI:

I thank Commissioner Ndiaye, and I ask the Secretary to respond to this point whether the Report of Egypt has been sent to all Commissioners or not, and the list of the questions.

MUTSINZI:

La liste des questions a été envoyée à l'état concerné, mais le rapport lui-même ne l'a pas été parce que, jusqu'à présent, les rapports n'étaient pas distribués à tous les membres de la Commission en dehors du membre qui a été désigné comme rapporteur. Parce que, si vous vous souvenez, cela pose la question de la traduction des rapports et cette situation n'est pas encore résolue.

BADAWI:

I thank Secretary Mutsinzi, and I would like to draw his attention to the following, with the approval of the Commission.

One, that the reports of the countries have to be translated as soon as possible and I would like to implicate here in front of the Commission that the Report of Egypt was available since the 9th session of Lagos. And I believe that from March 1990 or something like this, this report should have been translated. If the Secretary has a problem in translating a report which has been submitted since few months as six months, then he should have drawn the attention of the Chairman at that time, telling him, "I'm having a problem of ensuring the translation of the report".

The second point; the Report of Egypt is already available in two versions - Arabic and English. And I hope the Secretary will correct me on that. So if, already it is in Arabic and English, the report could be distributed to the two Commissioners who speak Arabic, in Arabic, and to the rest of the Commissioners in English. And then those who speak French will bear with us, but I believe you have it in English too. Am I correct, or am I wrong? Mr. Secretary, could you respond to this?

MUTSINZI:

Oui, Monsieur le Président, je crois que le rapport des sessions précédentes où cette question a été discutée, la question de la traduction des rapports, si vous vous souvenez que cette question a été discutée longuement et la Commission n'a jamais décidé, n'a jamais dit que les rapports devaient être traduits et distribués aux membres de la Commission. Et la difficulté que je vous ai indiquée demeure la même. Si vous décidez, il faudrait décider aussi qui va faire la traduction.

BADAWI:

Mr. Secretary, I am asking, is it available in English or not?

MUTSINZI:

Oui, oui nous avons des versions en anglais à Tunis.

BADAWI:

You have it with you here, in Tunis? Very good. So as far as the Report of Egypt is concerned, we have it in English and in Arabic. So please have it photocopied and distributed to the members, maximum tomorrow morning by 10 o'clock. So they can have time to look at it, in English at least.

For the question of the translation of the reports and the distribution of the reports and the difficulties encountered, it will be taken as one aspect under the financial and administrative questions, because this is a financial and administrative question. So I think the point which was raised by the Commissioner Ndiaye is taken care of. We have only 15 minutes to go and I am grateful to the interpreters.

Now the last point, even in less than 15 minutes, is a question of - I wrote to every Commissioner seeking the support of the Commissioner on one item, because my idea was that given the limited time which we have and on the same line as the periodic reports, that there also will be a Special Rapporteur on the Report of Egypt and of Tanzania. There will also be a Special Rapporteur on each item in the sense that the Commissioner who is concerned with the item will follow the discussion, will try to put forward some concrete ideas and help the Commission to come to a conclusion on the item. Not only through the discussion which we will have here in the Commission, but also through the side contacts that for instance, Commissioner Mokama, if he is in charge of one item then he will talk to me, he will talk to Commissioner Buhedma, and we try on the side of our meeting to reach some sort of understanding. So I do hope this will come also between me and the Vice-chairman, we will inform you of the final distribution of the various items on the basis of what I have written, basically. Unless some Commissioners are not interested in what has been suggested to them.

The last point is when we take, tomorrow, the questions of the Report of Egypt in the afternoon and, if we have time, then under the Periodic Report, we will also be considering the status of reporting. And I have asked the Secretary to give us a document on the status of the report. You know, it is a list of the states when they should have submitted their report according to Article 62, and then we will indicate that the report is overdue. Because this will help us in communicating with the states and indicating the status of the reporting. And I believe the Secretary is already ready with that document so he will distribute it some time tomorrow. So this is one aspect of the consideration of the report which we will take.

Commissioner Nguema?

NGUEMA:

Je m'excuse Monsieur le Président, ce que je n'ai pas très bien saisi, ce que vous aviez indiqué tout à l'heure, à savoir que vous aviez écrit à chacun des commissaires pour qu'ils vous aident, je ne sais pas si vous nous avez envoyé cette lettre ou bien si c'est le secrétaire?

BADAWI:

C'est moi-même! Peut-être, je n'ai pas envoyé à tous les commissaires, je vais vérifier, parce que j'ai donné une copie au secrétariat de la Commission, je vais vérifier la copie de ce que j'ai envoyé, mais ça, on peut décider ensemble.

BEYE:

Je vous remercie beaucoup, Monsieur le Président, moi en tout cas, j'ai reçu par une des correspondances venant de vous-même directement, concernant la proposition d'un Programme d'Action pour la Commission des Droits de l'Homme et des Peuples, qui avait été examinée à notre dixième session, je crois. Je voudrais vous demander, Monsieur le Président, de faire en sorte que toute la Commission puisse discuter de ce document, car en raison de problèmes subjectifs regrettables, je ne me crois pas autorisé à être rapporteur de cette question et ai eu déjà à prendre des positions que vous savez sur ce problème. Il est préférable pour une bonne atmosphère de la Commission que ce soit toute la Commission qui se charge de l'examen de ce rapport. Je vous remercie.

BADAWI:

I thank Commissioner Beye. Commissioner Ndiaye?

NDIAYE:

Monsieur le Président, je voudrais rester dans le rapport de la question concernant le rapport périodique, parce que vous avez dit que demain après-midi, nous allons discuter le rapport périodique de l'Egypte. Je dis qu'il y a toujours la base qui manque dans la Commission. S'agissant du rapport de l'Egypte - nous allons en parler demain après-midi. A l'heure qu'il est, je n'ai jamais vu un rapport émanant de l'Egypte. Comment voulez-vous, si je n'ai pas le rapport ce soir, comment pourrais-je discuter avec le représentant de l'Egypte sur un rapport que je n'ai pas lu avant? Qui n'est pas disponible en français? Mais j'irai plus loin, je dis ce n'est pas une méthode de travail. Il faut mieux ne pas travailler que de faire des choses à moitié, ou au tiers, ou au quart. Je prends le rapport de la dixième session de la Commission, un rapport qui est donc adopté. Je lis que le secrétariat est chargé de transmettre cette liste de questions aux gouvernements de Tanzanie, du Togo, du Nigéria, de l'Egypte, dont les rapports sont disponibles au siège de la Commission. Ça, c'est adopté par la Commission. Où sont les rapports disponibles? Si les rapports sont disponibles, cela veut dire qu'ils sont en français, en anglais, en arabe, alors donnez-moi un rapport ou alors, votre rapport de la dixième session est un rapport faux. Je note, toujours s'agissant du rapport périodique, que le rapport annuel sur lequel nous reviendrons très certainement, un rapport annuel, le quatrième rapport annuel, note qu'à la neuvième session, c'est-à-dire à la session de Lagos si mes souvenirs sont bons, "la Commission a examiné le rapport périodique de la Grande Jamahitiya Libyenne Populaire, de la Tunisie et du Rwanda. Ces rapports sont des documents accessibles publics, ils sont disponibles au secrétariat permanent de la Commission". Je n'ai jamais vu, moi, le rapport de ces 4 pays. J'ai eu entre les mains le rapport de la Tunisie, j'ai parcouru le rapport du Rwanda, j'ai remis aussitôt ce rapport et je n'étais pas là peut-être à la neuvième session quand cela s'est discuté, mais puisque ces rapports sont disponibles on aurait dû, en même temps que le rapport annuel de la 4ème session, m'envoyer ces rapports pour que je les ai dans mes documents. Or pour me résumer, il y a quatre rapports périodiques accessibles au public et que les commissaires n'ont pas à l'heure qu'il est. Il y a quatre rapports qui vont venir à discussion et que les commissaires n'ont pas. Alors je pense qu'il faut faire le travail sérieusement ou alors ne pas le faire. Il ne sert à rien de discuter quand on n'a pas les bases pour discuter. Moi je n'ai pas les bases pour discuter avec le représentant de l'Egypte, donc je ne peux pas participer à une pareille discussion. Je vous remercie Monsieur le Président.

BADAWI:

I thank Commissioner Ndiaye. I give the floor to Commissioner Umozurike.

UMOZURIKE:

Mr. Chairman, to be fair to the Secretariat, the report was circulated in the language that they were written. The Report of Tanzania, the Report of Egypt, in English language was circulated. What was the result was the question of translating to the other languages and circulating. I would presume that that was why it was agreed it was given to the Commissioner who could understand that language. He would then lead the discussion.

It is clearly that they have not been translated, but I think we should proceed with the formula that for the meantime a Commissioner who reads that language should lead the discussion, and other Commissioners could comment.

BADAWI:

I thank Commissioner Umozurike, but the problem which Commissioner Ndiaye raises is a fundamental question, that each Commissioner should have the report of the state concerned and this is the responsibility of the Secretariat. If the Secretariat cannot give each Commissioner a report, then the Secretary should raise the point officially, in front of the Commission with the Chairman, saying; "Please note that I cannot make a translation, because I do not have the money". This has to be explicitly made.

Now we are in a position which is awkward. On one hand, we ask states to come and then on the other hand, as Commissioner Ndiaye properly said, we cannot do our work seriously, because some of the Commissioners who speak French do not have that report, which was available few months ago, in their own language. This is a real problem which we have to tackle, and we are going it to tackle under the administrative and financial questions, okay?

But for the time being, I will appeal to the French speaking Commissioners to bear with us, on an exceptional basis, to allow for the consideration of the report which we have. Actually, we are only going to have two reports. This we will come to, at a later stage we explain it. With the understanding that a Commissioner who reads English, who speaks English will explain to a French speaking Commissioner the content of that report. This is a temporary solution, but of course the Commissioner himself is free to accept this or not, but I will appeal to Commissioner Ndiaye to bear with us. He will be given the English text tomorrow. Each Commissioner will have the English text of the Egyptian Report - tomorrow morning at 9 o'clock. Each Commissioner will have the English text. And some of the English speaking Commissioners will take the responsibility of explaining or discussing the report with Commissioner Ndiaye, Commissioner Beye, and Commissioner Nguema, exposing the report and of course there could be some sort of understanding of this. But again with the freedom of the Commissioners concerned not to take part in the discussion.

A second part we can do, is to delay the consideration of the Egyptian Report, but I can see this is not acceptable to Commissioner Mokama, I meant actually not to delay completely, but to delay for two days or three days, but this would not solve the problem, because in two or three days the report, being reasonable voluminous, will not be able to be translated in two or three days. Therefore I will take it that - Commissioner Mokama?

MOKAMA:

Mr. Chairman, I also really wish to reendorse, I want to support you solidly. I think that if we are going to impose administrative strains on the Secretariat when it has got major problems which it has not tackled, we would really be unrealistic. I mean if a report had come in from Rwanda in French, I would be happy to have my colleagues here comment on it, because we know what we are looking for. They should equally be happy if I am doing it in English. We need to try to get on with our work and not to reapply the brakes by imposing a very heavy administrative mission on the Secretariat. I mean at the moment, we want the Secretariat to be sending questionnaires about communications and more urgent matters. Now for them to be bogged down and spending a lot of money on translation when I can happily have my colleague deal with French, I think it is unrealistic, Mr. Chairman, or I think we should really be very practical and economical as well. Thank you.

BADAWI:

I thank Commissioner Mokama. I take it that we are on agreement on two things.

One: In principal, the report should be translated into all languages. The money problem has to be solved. The reports have to be translated to all languages; Arabic, English, French. So each Commissioner can make his contribution.

The second point: On a temporary basis, we will settle for what Commissioner Mokama has just said, that we, the French speaking Commissioners, have to rely on the cooperation of the English speaking Commissioners in explaining the situation. But this is a temporary measure, and then we will take this in detail and we will take a decision on it, when we go on discussing the reporting item and under the financial and administrative item. So I take it that this meets the approval of the Commission.

So our programme for tomorrow morning from 9 am to 1 pm will be the observers. In the afternoon, it will be from 3 pm to 7 pm, it will be the Report of Egypt. I give the floor, the last speaker, Commissioner Umozurike.

UMOZURIKE:

Can I take this as a first session? What we have done this evening, is this the first session?

BADAWI:

Which first session?

UMOZURIKE:

This evening is the first session?

BADAWI:

The first meeting in the session.

Distinguished colleagues, brothers, friends, Commissioners, I thank you very, very much indeed and in your name again thanks to our sisters and brothers, the interpreters and we hope we can make up for that. The meeting is ajourned and we meet tomorrow, same place at 9 am, I thank you very much.

SUMMARY OF THE EXAMINATION OF THE STATE REPORT OF EGYPT

Vice-Chairman Janneh chaired the meeting. Egypt was represented by Counsellor Sanaa Sayed Khalil.

At the beginning of the meeting, Commissioner Beye noted that the report was not available in French.

Commissioner Janneh explained that Commissioner Kisanga would be the Special Rapporteur and lead the questioning, but that every Commissioner would have the right to ask questions. Observers from NGOs would not have the right to question the representative of Egypt directly.

Counsellor Khalil began his presentation with a review of some of the aspirational clauses of the Egyptian Constitution, relating to world peace, social justice, human dignity and the rule of law. He remarked that since the Constitution dates back to 1971 but Egypt ratified the International Covenant on Civil and Political Rights in 1967, Egyptian legislators had included principles of human rights from this Covenant in the Constitution. Chief principles of the Constitution relating to human rights are that human rights violations should be classified as crimes which should be punished; that no statement or proof obtained through torture shall be accepted by the courts; and that the state guarantees compensation to all who are injured by human rights violations.

After the Constitution of 1971 was adopted the Criminal Code was revised to guarantee conformity between the two texts. Democracy is also a safeguard for human rights, and Egypt practices democracy through multiparty politics and freedom of the press.

The Counsellor then outlined the report of Egypt, which consists of three chapters: Human rights principles and the Egyptian Constitution; Egyptian acts and human rights principles; and Egypt's participation in international human rights instruments. The implementation of human rights in Egypt is monitored by the Supreme Constitutional Court. Decisions of this court are binding on all state authorities. The court has decided many important constitutional cases in the past ten years, on such subjects as police surveillance and restrictions on the right to vote. The Counsellor cited passages from a recent judgement of the Supreme Constitutional Court relating to retroactive punishment, which noted that a law abiding state should not allow the rights and freedom of its citizens to fall below the accepted norm in democratic countries.

The representative of Egypt described aspects of Egyptian criminal law. He used as an example the right to defense. Certain criminal sentences had been overturned by the Court of Cassation because it was held that a defense must consist of more than a plea for mercy. Special procedures exist related to the death penalty.

The law of emergency in Egypt is covered in Chapter Four of its report to the African Commission. This law incorporates relugations, rules and judgements from Article 4 of the International Covenant on Civil and Political Rights. Detainees held in an emergency are entitled to a certain treatment. The report in Chapter Five covers the judiciary acts of Egypt and Chapter Six refers to Egypt's particpation in interantional instruments. He noted that under Egyptian law any treaty ratified becomes part of Egyptian law and has to be enforced domestically.

Commissioner Kisanga, the Special Rapporteur for the report, mentioned that a set of questions had been prepared and sent to the Counsellor in advance of the examination of the report, but that not all of them had been answered in the Counsellor's presentation. He asked how the African Charter was being disseminated to the Egyptian public.

Counsellor Khalill said that he had received the questions only a week ago. He said they had concerned three main issues: the African Charter in Egyptian law, human rights under the state of emergency, and peoples' rights. He said that under Article 151 of the Egyptian Constitution, the ratification of the African Charter had made it part of Egyptian law. Before Egypt had ratified a study had been conducted to determine whether the Charter contradicted any part of the Egyptian Constitution. It did not. If the Charter contradicted any lower acts, it would override them. The only confusion that could arise would be if the Charter contradicted some act of equal rank.

He said that the only obstacle in connection with the implementation of the Charter, was the right to development, which was impaired by the economic and social problems of Egypt. However, Egypt had an ambitious plan to overcome these problems.

The Egyptian judiciary is headed by the Supreme Constitutional Court. The Administrative Judiciary is a different branch concerned with settling appeals against adminstrative rulings. The third branch of the judiciary deals with regular criminal and civil cases and is headed by the Court of Cassation. Human rights violations that are considered crimes are taken up by the public prosecutor. Those not considered crimes are results of administrative rulings and may be appealed to the Administrative Court. The Counsellor said he had brought copies of the Egyptian Constitution, procedural law, the Criminal Code, the act governing the judiciary, and the act of the Supreme Constitutional Court. He presented them to the Commission.

Commissioner Umozurike thanked the state of Egypt for submitting its report. He noted that the report seemed to address human rights generally, whereas the Commission is specifically interested in the African Charter.

He asked what would happen if the Charter was in connection to the Constitution. He also asked about Egypt's goals in terms of spreading knowledge and promoting education on the Charter.

The Counsellor replied that the Charter nowhere contradicted the Constitution, and this had been carefully determined by legal experts before ratification had taken place. If the Charter contradicted other acts, the more recent and clear of the two would be applied.

He then spoke of the emergency act in Egypt, and specified that it does not interfere with parliamentary proceedings, constitutional rulings, or the work of the regular courts. A state of emergency has to be ratified by Parliament or it will be nullified.

Commissioner Beye noted that Egypt had declared a state of emergency following the assassination of President Sadat. He asked if the current emergency act was the one entering into force in 1981. He mentioned that he had received information from several NGOs concerning torture in Egypt, although Egypt had ratified the Convention against Torture. He wanted to know what the government had to say to the numerous allegations of torture and if it was agreeable to opening an inquiry to clarify the question.

Counsellor Khalil pointed out that a state of emergency is not such an unusual measure, and that the International Covenant on Civil and Political Rights even includes a provision for it. The emergency law of Egypt provides for the abridgement of certain rights, such as restrictions on people's movements, the detention of suspects, censorship and surveillance of public places. The legislation guarantees the rights of those affected by its restrictions. For example, a detainee has the right to be informed immediately of the reason for his detention and the right to communicate with whomever he wishes and to have a lawyer. Resolving appeals against detentions and cases related to violations of the emergency acts is the jurisdiction of the State Security Court, an independent authority. The Supreme Constitutional Court has ruled that this special jurisdiction of the State Security Court is constitutional.

Torture has been considered a crime under Egyptian law ever since the Criminal Code was issued in 1937. Perpetrators are prosecuted and statements obtained under torture are not acceptable in court. There is a special office within the public prosecution concerned with investigating complaints of torture lodged by accused people. Police officers have been punished for being involved in torture. Counsellor Khalil described the three stages of a criminal investigation which together safeguard the rights of the accused.

He said that various resolutions on human rights by the OAU were beyond his knowledge. Human rights constitute part of the curriculum at the police academy, the Faculty of Law and the National Centre for Legal Studies. Independence of the judiciary is guaranteed by the Constitution.

Commissioner Nguema explained that the lack of a French translation of the report presented an obstacle. He noted that it was absolutely vital for all the legislative texts specified in the general directives on state reporting be included so that Commissioners could verify what they were being told.

He described several resolutions of the OAU concerning human rights: mandating the celebration of African Human Rights Day, encouraging the teaching of human rights in schools, and encouraging the promotion of human rights through the media. He asked if any of these had been implemented in Egypt.

He asked if judicial independence was assured in practice, and if there were any women in the judiciary, and at what level.

The Counsellor responded that under the Criminal Code it was a crime to intervene to influence the judiciary. Women did hold different positions in the Administrative Prosecution, the Public Cases Organization and in the Public Attorney's Office. They worked as assistants to the Public Prosecution dealing with family related matters, and sat on juries in juvenile courts.

He affirmed Egypt's determination to cooperate fully with the Commission in submitting whatever clarifications of the report might be required.

Commissioner Ndiaye remarked that Egypt deserved congratulations and encuragement for having submitted its report. He noted that, unlike the Human Rights Committee of the UN, the Commission had chosen to make the requirement for the initial report very simple, composed solely of an outline of the institutional structure of the government and the courts. He asked if the principle of separation of powers applied in Egypt. He congratulated Egypt on the position of the Charter in terms of precedence in domestic law which is rather unique compared to the position in especially common law countries. He pointed out the distinction between initial and first periodic reports. He said that in the future Egypt would surely receive some questions to answer in their presentation. He said that his country, Senegal, had submitted its report, but that somehow it had disappeared between Dakar and Banjul. He therefore saluted the efforts of Egypt and predicted that with the next report, the dialogue would be even more enriching.

Commissioner Janneh asked if human rights NGOs are permitted to exist in Egypt. He had understood that there is no act under which they can be registered.

The Counsellor explained that a 1964 act on private associations regulates these activites. If the authorities fail to issue the necessary licence, NGOs may appeal to the State Council.

Commissioner Janneh thanked the representative of Egypt. He said that rather than asking the representative to return later in the session with more detailed answers to the questions on state reports prepared in advance, it had been decided to wait until the examination of the next Periodic Report.

EXAMINATION OF THE STATE REPORT OF EGYPT

Chairing: Vice-Chairman Janneh

JANNEH:

Ladies and Gentlemen, good afternoon, I hope you had a good lunch. In the absence of Dr. Badawi, the Chairman, who has been excused for obvious reasons, I am presiding over this meeting this afternoon. We are here to discuss the Periodic Reports submitted by Egypt to this Commission. The procedure we have decided to adopt is to call the representative of Egypt, who I understand is Counsellor Sanaa Sayed Khalil to deliver a short statement if he so desires. After that statement - yes?

NGUEMA:

Je vous remercie Monsieur le Président. Je m'excuse, je n'étais pas tout à fait au point... Oui Monsieur le Président, je disais que je n'étais pas tout à fait au point en ce qui concerne notre ordre du jour de cet après-midi. Effectivement ce que vous venez d'annoncer, c'est ce qui avait été initialement prévu. Il m'avait semblé que ce matin nous en étions à examiner les demandes présentées par certaines organisations au bénéfice du statut d'observateurs. J'avais commencé à exposer ce point, mais malheureusement les dossiers sont arrivés en retard, et il m'a semblé que nous devions terminer d'abord l'examen de ces demandes avant de passer peut-être à l'examen des rapports. Monsieur le Président, je crois que c'est peut-être un point que je voulais soumettre à votre appréciation. Je vous remercie.

JANNEH:

Thank you very much. I believe it was made clear by the Chairman before he left that in fact we would start with the report, the Periodic Report, because at the time we were leaving this place, it was not very clear to him that you had already received the other papers with which you are to deal. And since the representative of Egypt was invited and had in mind that he was going to start with us straight away I think, in my own opinion, it would be fairer for us to deal with this problem before we revert to the question of which NGO is to be granted observer status.

Unless other members have a contrary view, I think this - yes Mr. Beye.

BEYE:

Justement je suis en pleine compréhension puisque le représentant de l'Egypte est déjà là, vraiment on ne pouvait pas le faire attendre sans commencer par cela. Avec ce point c'est pour vous signaler toujours que les membres francophones de la Commission ne disposent pas du rapport dans le texte français. Donc vous ne serez pas étonnés que notre contribution ne soit pas décisive dans l'examen de ce document. Nous n'avons pas le texte en français, il n'est pas disponible. Merci!

JANNEH:

Well, thank you very much. We will continue then as I stated. We'll have the representative of Egypt making a statement and after that we will have the rapporteur, Mr. Kisanga, to lead us on this particular subject-matter. Now, there is also a questionnaire which I believe the Counsellor has already received. That does not mean that the Commission will be restricted to that questionnaire, because every Commissioner will have the right to ask further questions. The purpose of these questions is not really some form of cross examination, but really it is the basis for a dialogue, a friendly dialogue, from which we hope, we as Commissioners can learn a lot about the Egyptian system, and the Egyptian government would learn a lot whereby improvements could be made in both its Constitution and its legal practices, as they relate to human rights issues.

I shall say straight away that it has been decided that members of NGOs will not have the right to question directly the Counsellor from Egypt. Any questions that a member of an NGO may have could be delivered to any member of the Commission who in his discretion may pose any question he may wish to pose. With that preliminary statement, I will invite Counsellor Khalil to take the floor.

KHALIL [Statement No. 1, Translation from Arabic, Egypt]:

Mr. President, Dignified Commissioners, Ladies & Gentlemen. Allow me to begin my speech by expressing my pleasure for having the honour of representing my country before your dignified Commission in order to present its first report as well as to benefit from your knowledge and experience through any comments or questions presented by the Commission.

I would like, on this occasion, to wish the Commission all the success in achieving its esteemed aim, hoping that its continuous efforts will put an end to all the impediments that waste the capabilities of the African individual and hinder his creativity and progress, and hence enable our beloved continent, Africa, to acquire an appropriate status, as we are approaching the twenty first century.

Ladies and Gentlemen, I would first like to review some clauses of the preface of the Egyptian Constitution to reveal what the Legislators had in mind while drafting it.

The Constitution's preface states the following conceptions:

World peace is based on Justice and only free independent countries will achieve political and Social progress.

No civilisation will be achieved without denouncing all sorts of abuse.

There should be a sort of unification with the world human struggle to liberate human beings politically, economically and intellectually and to fight all forces of backwardness, suppress and abuse.

Respecting individual's humanity and pride is the light that paves the way for immense human development.

Human dignity is a natural outcome of the country's dignity, as the human being is the cornerstone in the structure of a country. The status and power of a country depend on the achievements and dignity of individuals.

The rule of law not only guarantees individuals' freedom but is also the only basis for a Legal authority.

These are some points from the Egyptian Constitution's preface reflecting Egypt's firm stand in supporting the continuous struggle of African states to fulfil their ambitious plans for development, security and peace.

As for the Egyptian Constitution it was enacted in 1971. Egypt had at that time already signed the International Treaty for Civil and Political Rights in 1967. Thus the Egyptian legislators derived from this treaty all human rights, principles and treaties and included them in the Constitution.

The Egyptian Constitution, as far as human rights are concerned focused on four main principles:

1) Classifying human rights' violations, and considering them crimes that should be punished.

2) Prescription will not apply to human rights' cases whether civil or criminal. The Constitution, exceptionally, drops the principle of prescription in criminal and civil cases related to human rights violations.

3) Disregarding any proof or statement attained by means of torture such proof or statement would not be accepted in Egyptian courts.

4) The state guarantees compensation to those injured as a result of such violations.

This is a quick review of the basic principle related to human rights according to the Egyptian law.

After issuing the Egyptian Constitution in 1971, the rulings of the criminal procedures law were amended to cover all actions violating individual's privacy or resulting in torture or abuse of authority. The forementioned human rights principles were also added.

One more basic guarantee of safe guarding human rights is democracy. The Egyptian Constitution adopted this principle by introducing the multiparty system in politics. It also highlighted press authority and freedom, considering them the two wings of democracy.

After this introduction, I would like to give a quick review of Egypt's report.

The preface of the report reviews the history of human rights movement ending with the African Charter issued in Nairobi 1984. It also covered all the relevant international treaties, declarations and conventions.

The report consists of three chapters which dealt with the following: Chapter One: Human rights principles and the Egyptian Constitution. Chapter Two: Some Egyptian Laws and human rights principles. Chapter Three: Egypt's participation in international human rights conventions.

Chapter One: Reviews all principles included in human rights treaties and conventions, linking them with their Egyptian counterparts. Some of the principles included are the people and the source of power, plurality of parties, principle of political freedom, equality of opportunities, equality between men and women, the right to work and prohibition of exploitation of labour. It referred also to the right to hold public jobs, the right to free education and the right to be provided with different services, such as cultural, social...etc.

Chapter Three: Includes principles related to freedom as well as rights such as right of personal freedom, of privacy and of having a private dwelling. It includes also freedom of means of communication, movement, immigration, beliefs, opinion, election, nomination, press, scientific research holding meetings, forming societies and unions, political asylum ...etc.

Chapter Four: It focuses on the supremacy of law, including principles such as: independence and immunity of the judiciary, the rights to litigate, to appeal, to contest, and the principle of prohibiting the immunization of any behaviour or decision against the authority of law. The chapter also refers to principles such as the individuality of punishment, the principle that no crime or punishment will be considered except after legal procedures and only then a sentence will be put into force. It also refers to the right of defence and that even if the accused can not afford it, lawyers should be appointed for him.

Other principles included in this chapter state that, no punishment sentence will be put into effect except after valid legal procedures, the accused should he informed immediately of the reasons for his detention and that he has the right to communicate with whomever he chooses as well as appeal against his detention.

The implementation of these human rights principles is monitored by the Supreme Constitutional Court, which supervises the constitutionality of the provisions of law. According to the Constitution, the judgements of the Supreme Constitutional Court are binding to all the state authorities. These judgements are printed in the official paper as is the case with Laws. This court has got the right to interpret the provisions of law and to settle the disputes resulting from contradictions that might occur between the different provisions.

For ten years now the Constitutional Court has seen many important constitutional cases, the judgments of which have laid important constitutional principles. Examples of these judgments are:

Unconstitutionality of the Legislative provisions which permit the confiscation of wealth on the basis of administrative rulings, considering that such a procedure should not be taken except according to a court judgment.

Unconstitutionality of provisions stating that a person can be put under police observation without a court judgment, as this contradicts the constitutional principle that no crime will be considered or punishment be enforced except according to a court Judgement.

Unconstitutionality of the provisions permitting the devolution of a person's wealth which is under receivership according to emergency law, to the state, as this is against article 34 of the Constitution which calls for the protection of private ownership.

Unconstitutionality of provisions fixing a maximum limit for the compensations that ought to be given to people whose possessions have been confiscated by the state.

Unconstitutionality of provisions prohibiting a class of people from their right to vote and nominate. This special provision relating to election and nomination was amended three times and as a result the parliamentary elections were repeated twice in one occasion.

Unconstitutionality of provisions allowing for immunizing a decision against appeal as this is against article 68 of the Constitution which prohibits such immunity.

Unconstitutionality of exceptional treatment in the field of education as this contradicts the principle of equality of opportunities.

Unconstitutionality of provisions allowing for the untimely termination of membership of unions' elected members by an authority other than the electing committee that represents the general assembly.

Allow me, as well, to read to you excerpts from the court's justifications for passing a judgment on the 4th of January 1993. The case in question relates to a disciplinary punishment imposed on a man who was demoted to the rank of a soldier in 1963 and his heirs contested the unconstitutionality of the provision that allows for the retroactive implementation of a punishment. Some of the court's justifications were as follows:

A law abiding state should not allow the secured rights and freedom of its subjects to descend below a minimum limit which should generally conform with the accepted norms in democratic countries. Moreover, the state should not impose on its subjects' rights and freedoms, any restrictions which are unlike those adopted within democratic systems. Our legislation should not violate the human rights which, in democratic countries, are considered the main principles for establishing a law abiding country and the main guarantee for securing human rights and dignity.

This is what was mentioned in the judgement of the Supreme constitutional Court, revealing its concept of a law abiding state and of the limits which a court sentence should not exceed.

The judgment in this case declared the unconstitutionality of the law which in 1963 allowed for implementing a retroactive punishment and even in an administrative case not a criminal one. This is, ladies and gentlemen the work of the Supreme Constitutional Court and its efforts in this field. Section two of the report relates to some of the Egyptian laws and human rights principles.

Chapter one: Relates to the Egyptian criminal law, and acts of human rights violation. It also includes human rights treaties and regulations such as the treaty for the prohibition of human torture, the regulations of recording the behaviour of the employees responsible for implementing law procedures, the regulations for the ideal treatment of prisoners, as well as laws relating to prisons, juveniles and prostitution.

Chapter Two: Pertains to the criminal procedure law and the relevant regulations. It also refers to human rights principles including the fore-mentioned constitutional principles, such as the illegality of prescription in criminal and civil human rights' cases, disregarding any proof that is attained through torture or by force, notifying the accused immediately of the reason for his detention, or for the renewal of his jail term and his right to appear in front of the judge if his jail term is to be renewed. The chapter also covered the regulations for searching homes of the accused and gave an analysis of all human rights regulations whether during the stages of investigation, trial or post trial.

It is my pleasure at this point to give a simple example for the right of defence.

The Egyptian Law states that even in criminal law cases, which are considered among the most serious, the court should appoint lawyers to defend the accused. In one case, the Court of Cassation, which is the highest Egyptian court, passed a judgement repealing previous sentences against some accused as their lawyer who was appointed by the court confined his defence to a request of mercy or innocence.

The Court of Cassation stated that the right of defence is not just a lifeless principle and that the act of defence should be real, serious and based upon a thorough perusal of the relevant papers. The lawyer's attendance should not be a mere formality, just because he has been appointed by the court.

As a result of the above, the Court of Cassation repealed the previous judgments and ordered the re-opening of the trial which reveals how the Court supervises the implementation of the right of defence.

This chapter also includes all human rights principles related to the prisoners during their term of jail as well as the guarantees and special procedures related to the death penalty which is still valid in Egypt.

Chapter Three: Relates to juvenile law and relevant human rights principles. It states that the capital punishment is not to be given to juveniles, and that they should be separated from older prisoners. Special penalties should be given to them through juvenile courts and they should be sent to juvenile disciplinary institutes to carry out their punishment terms. All these principles conform with the relevant juvenile regulations stated by the United Nations.

Chapter Four: Pertains to the Egyptian emergency law and human rights principles. This law states all the regulations related to the state of emergency. However, this law has been amended according to article 37 for the year 1972, one year after the issuance of the Egyptian law in 1971. The amendment inserted the regulations, rules and judgements included in article four of the International Covenant on Civil and Political Rights.

Declaring the state of emergency in Egypt will only take place according to a law which should be ratified by the parliament. The same applies to extending it.

The law states the special procedures which might be taken in an emergency as well as the human rights guarantees. Some of these guarantees are; to inform the detainee immediately of the reasons for his detention and to treat him as a provisional detainee. A detainee has got the right to appeal to the State Security High Court and to complain from the detainer or the authority which detained him and even if the appeal is refused he has the right to re-appeal. The Interior Minister has the right to contest any release decision and can request the case to be transferred to another area of jurisdiction. However, the second judgement in this case will be final and binding.

The appeals against detention orders are currently dealt with by special courts and not by the president as it was before. These courts are legally established and their juries consist of one judge for simple crimes and three high ranking judges for major cases. The judgements of these courts should be ratified by the president. The ratification procedure is considered a re-examination of the case as specialized judges will review all the relevant papers and present their opinions on the case. The president is not allowed to aggravate the court sentence though he can reduce it to any extent. He has the right, also, to order a re-trial but he will have to abide by the second judgement. The law also states the regulations related to ending the state of emergency.

Chapter Five: Relates to the judiciary law and the immunities enjoyed by the different ranks of judges and members of the public prosecution. It confirms the independence of the judiciary. A Supreme Council is responsible for dealing with all the judiciary's affairs. This council consists of the president who is the head of the Court of Cassation, two of his deputies and three senior judges from the courts of appeal in addition to the attorney general. This Supreme Council has got full authority as far as judiciary affairs are concerned.

Chapter Six: Refers to Egypt's participation in international human rights conventions. It reviews all the international conventions which Egypt joined and ratified. It is worth while mentioning here that according to the Egyptian Constitution ratifying any treaty gives it the power of a law. In fact it becomes part of the Egyptian law and has to be enforced.

After this quick review of Egypt's report, I would be pleased to hear your queries and benefit from your valuable comments.

JANNEH:

Thank you very much Counsellor Khalil, for your rather comprehensive and very clear statement. As I said before we shall now ask members of the Commission led by Commissioner Kisanga, to ask questions which we hope you will be in a position to answer. So I give the floor to Commissioner Kisanga.

KISANGA:

Thank you, Mr. Chairman. I think it is right and proper for us to say thank you very much indeed to the Counsellor for his detailed and informative statement.

I would, however, like to say that a set of questions was prepared and sent to him in advance. I hope that he received it, but if my hearing was correct I am not so sure if he addressed himself specifically to those questions which were addressed to him. And those questions numbered 20 in all. Now, if he did receive them, and if he has them, we would kindly request that he answers them one after the other. In addition to that, I have additional questions which I would like to pose after receiving answers to the first 20 questions.

I do not know, Mr. Chairman, if it would be in order for me to read out the questions, but surely I think that he has got the questions.

JANNEH:

Well, Commissioner Kisanga, because we have already had a general statement it would be a better procedure if you posed your questions one by one. You may find that perhaps in the course of his statement, he has answered one or two or three perhaps of those questions and you may skip them. So you choose among your questionnaire and pose specific questions, because only in that way can we have specific answers.

KISANGA:

Thank you Mr. Chairman. As I said we are grateful to his exposition on the working of the laws in Egypt. Now I would like to pose a few specific questions as follows.

The first question is, how was the African Charter on Human and Peoples' Rights disseminated to the Egyptian public, and how was it received there? This, Mr. Chairman, is relevant in the sense that we, the Commission, are entrusted with the duty, the role of giving effect to the Charter, seeing to it that the Charter works. Now we would like to know how it was received there, and what problems it caused, and the spirit, generally, of the people. This might give us some idea of how easy or how difficult our task in that country is in carrying out our role as Commissioners.

JANNEH:

Sorry, yes. Commissioner Mokama.

MOKAMA:

Mr. Chairman, can we know, for clarity, for a fact that the Counsellor did receive the questions in the first place?

JANNEH:

Yes, that is fair enough. Over to you Counsellor Khalil.

KHALIL [Statement No. 2, Translation from Arabic, Egypt]:

In fact we received the questions only a week ago, however they are mainly concerned with three basic points.

Firstly, the status of the African Charter in relation to Egyptian Law and the problems arising from its application as well as the obstacles facing the implementation; secondly, rights, freedoms and guarantees during the state of emergency; thirdly, rights related to peoples' rights, right of development...etc.

JANNEH:

Well, I take your point, Counsellor Khalil. But I think it would be unfair to pose these other questions in the light of your explanation that you got the questionnaire only a week ago. I believe that it is too short a time. We are thankful that you are prepared to answer questions based on these three items you have just enumerated. So I do believe that Commissioner Kisanga, in leading the questioning will bear this in mind.

KHALIL [Statement No. 3, Translation from Arabic, Egypt]:

Mr. President, if you allow me, I will start commenting briefly on the above points. Thank you, this report is Egypt's first and it includes the basic points and not all the required details. However I will try to clarify briefly the above mentioned queries

According to article 151 of the Egyptian Constitution, ratifying the African Charter makes it part of the Egyptian law. Egypt signed the Charter in 16.11.1981. The presidential decree No. 77 was issued in 1984 giving the consent to join the Charter which was ratified in 20.3.84. It came into effect in 21.10.86 when the number of participating states mentioned in the charter was fulfilled. Thus, legally speaking, the Charter became, since then, one of the Egyptian laws.

As for the existence of some contradictions with other Egyptian laws, we can, from the legal point of view, differentiate between three 3 stages:

Firstly: Considering the Charter one of the Egyptian laws, it should be in consistent with the Constitution's rulings. This is in fact what the country initially examines before joining any international treaty. In other words, Egypt's participation in the Charter means that it does not contradict with the Constitution.

Secondly: Becoming an Egyptian law, the Charter should not be contradicted by other means of lower legislative rank such as regulations and decisions. Being a law, the Charter cancels such contradictory means. Thus, application problems might only arise if the Charter contradicts with other laws of equal rank and in such a case the Charter will be subjected to the principles' legislation concerned with interpreting laws in case of discrepancies.

As a matter of fact, in Egypt many rights are interpreted according to the Charter. Moreover, the State Council i.e. the Supreme Administrative Court, based several of its judgements on the rulings of the Charter. Some of these judgements repealed previous administrative rulings and called for compensation for the injured.

As for the obstacles facing the Charter, they are confined to its aspiring principle of the right to develop. These obstacles are mainly the economic and social problems found in Egypt and the whole of Africa. However, Egypt is following an ambitious plan to overcome its economic problems.

Concerning the Egyptian judiciary system, it is headed by the Supreme Constitutional Court concerned with supervising the constitutionality of law as well as interpreting it. Its judgements are binding and are printed in the official paper.

Another branch of the Egyptian judiciary system is the Administrative Judiciary headed by the State Security Court which is concerned with settling appeals against administrative rulings as well as disciplinary procedures imposed on employees. Administrative Judiciary has got courts of different levels namely; First Degree Administrative Court, Administrative Judiciary Court, which is an exceptional degree, and Supreme Administrative Court which is the highest degree court.

The third branch of the judiciary is that dealing with regular legal cases. This branch is headed by the Court of Cassation and deals with civil, criminal and personal status cases.

This branch falls into two levels, namely, Courts of First Instance and Courts of Appeal. Both courts are headed by the Court of Cassation which supervises the implementation and interpretation of law.

As for dealing with human rights violations these fall into two categories. Violations forming crimes and these range between torture, cruelty, trespassing on personal privacy without legal right, and human exploitation. Such violations are dealt with by the public prosecution and in such cases the injured has the right to protest against any rulings in front of a court of law.

The other category of violations includes these that are not considered as crimes. They occur as a result of being exposed to the administrative rulings issued by the different state authorities. However, the injured has the right to appeal in front of the Administrative Court and request either compensation or cancellation of the ruling.

These - Mr. President - are some brief points in answer to the queries I have been asked. However, more detailed information can be prepared if the Commission requires. On this occasion, I have brought with me copies of the Egyptian Constitution, the procedural law, the penal law, the judiciary law, the law of the Supreme constitutional court and a paper on the judiciary system in Egypt.

Mr. President, I have the honour to present these copies to the Commission as an access to a continuous dialogue and discussion with the Commission on matters of mutual concern. Thank you.

JANNEH:

I thank again Counsellor Khalil for the attempt he has made to answer some of the questions in view of the short amount of notice you have had. However, I believe you will bear with us if some of the Commissioners would like to ask a few questions.

UMOZURIKE:

Thank you, Counsellor. Let me first of all thank your country for being one of the few states that has even submitted a Periodic Report. I think this is probably the sixth or so that we are considering. But I would urge you not to foreclose the questions that we may ask, and that you make a presentation that allows an exchange of views between you and us because, if you go on for a long time that constrains time we have to ask some questions.

We are really interested in, we are particularly interested in the African Charter, and I noticed that in the report, it hardly mentions the African Charter, it is as if you are just writing on human rights generally. But we are intensely interested in the African Charter.

One would like to know, you have mentioned it in passing, what problems have been encountered in applying the African Charter. You just tell us that on ratification it becomes automatically part of the law of the land, but then I thought you said, at least the interpretation says so, that it must not conflict with the Constitution. Now those areas that conflict with the Constitution, what do you do? Because from the Charter point of view, the Charter has priority, now how do you reconcile them?

And there is a simple question on Article 25, which requires member states to propagate knowledge of the Charter, what is Egypt's dream to spread knowledge, to promote education of the Charter?

I hope you do not mind me asking those questions even though they're exactly outside of the two or three enumerated.

KHALIL [Statement No. 4, Translation from Arabic, Egypt]:

Mr. President, as I mentioned before, the African Charter does not contradict with the Constitution, as this matter is thoroughly reviewed by specialised experts before ratifying the Charter. However some discrepancy might occur between the Charter and other laws as it is not possible to review all the laws at the time of ratifying the Charter.

Once it is ratified, the Charter becomes one of the Egyptian laws and if any contradiction occurs between it and any other law, the most precise and most recent one will be applied. It is known that a recent law cancels the preceding one if both are dealing with the same subject whether an elementary or a principle one.

I would like to mention here that all Egyptian laws are printed in the official paper which is available to everyone.

As for the other rights included in the Charter such as the rights of people to develop and use the different resources, the Egyptian stand from them is clear as they all conform with the country's constitution and are not contradictory to it in any way. Thank you.

Mr. President, concerning the emergency law, it has been drafted by the Egyptian legislature to be adopted by authorities in a state of emergency. It is worthwhile mentioning that the emergency law does not disrupt the parliamentary or constitutional rulings or interfere with the work of the regular courts.

The Law has defined the conditions for declaring a state of emergency. The declaration of emergency should state the reason, duration and expire date of for such a procedure. The emergency law clarifies, as well, the powers which can be practised during a state of emergency. The decision to declare the state of emergency should be ratified by the parliament, and if it does not agree, the decision will be nullified. The same principle applies to the decision to extend the emergency law.

JANNEH:

I thank you again, Counsellor Khalil, and I give the floor to Commissioner Beye.

BEYE:

Je vous remercie beaucoup Monsieur le Président. Je voudrais m'associer aux remerciements qui ont été déjà adressés au gouvernement de l'Egypte pour avoir été un des premiers gouvernements à adresser à la Commission en exécution des engagements pris dans l' article 62: le rapport périodique. Je voudrais aussi m'associer aux remerciements qui ont été adressés à M. le Conseiller pour la clarté de son exposé et pour l'effort qu'il a fait pour répondre aux questions que la Commission lui avait envoyées, mais qu'il n'a reçues il n'y a qu'une semaine.

Allant au-delà de ce rapport qui est un rapport initial qui donc s'est attaché à nous exposer l'ensemble du système juridique égyptien national et international concernant la protection des droits de l'homme, je voudrais m'arrêter à des préoccupations beaucoup plus concrètes pour seulement demander à Monsieur le Conseiller s'il peut me donner des informations concernant des préoccupations plus pressantes. J'en ai deux:

La première, c'est: comme on le sait, l'Egypte a décrété en octobre 1981 l'état d'urgence à la suite de l'assassinat du Président Sadat. Est-ce que M. le Conseiller peut nous dire aujourd'hui quel est le statut juridique de cet état d'urgence décrété depuis 1981 c'est- à- dire pratiquement 10 ans après?

Ma seconde question a trait au problème de la torture. En tant que membre de la Commission, j'ai reçu personnellement, de plusieurs sources, de différentes O.N.G., des informations concernant des cas de torture dans votre pays, or, je sais, je connais l'Egypte et je sais aussi que l'Egypte a signé et ratifié pas mal de conventions internationales, notamment la convention de 1986. Par cette convention, l'Egypte a adhéré à la Convention des Nations Unies, contre la Torture et Autres Peines ou Traitements Cruels, Inhumains ou Dégradants. De même, d'ailleurs, par votre exposé tout à l'heure vous avez tenu à mettre l'accent sur le fait que l'Egypte met par-dessous tout, l'accent sur la valeur de l'individu et sur sa dignité et dans votre exposé introductif, vous avez tenu d'ailleurs, indiquant les quatre piliers de la position égyptienne, vous avez indiqué que l'un de ces piliers, c'est incontestablement l'opposition totale à toute forme de torture et des dégradations de l'être humain.

Je voudrais donc savoir ce que le gouvernement égyptien a à dire de ces nombreuses plaintes qui proviennent de partout concernant les traitements inhumains ou dégradants qui seraient infligés à des détenus politiques dans le système carcéral égyptien. Est-ce que vous avez quelque chose à nous dire concernant ces plaintes? Est-ce que vous pouvez nous assurer si le gouvernement égyptien est disposé à accepter l'ouverture d'enquête sur la crainte de torture comme cela est prévu, du reste dans la convention que le gouvernement égyptien a signé et comme d'ailleurs vous l'avez indiqué tout à l'heure dans votre exposé en disant qu'il y a un système qui permet de recevoir les plaintes, de les traiter mais en dehors de ce mécanisme, est-ce que vous êtes prêts, est-ce que le gouvernement égyptien est prêt à ce que des enquêtes puissent être ouvertes pour éclairer cette question pour laquelle nous sommes très souvent saisis.

Je vous remercie, M. le Président!

KHALIL [Statement No. 5, Translation from Arabic, Egypt]:

The emergency law stated the stipulations for declaring a state of emergency. Some of these are; if the security and order are endangered because of war, internal troubles, general disasters or the outbreak of epidemics...etc. The law stated, as well, the procedures a president might take to confront the danger to which his country is subjected. I would like hereby to mention that applying the emergency law is not an unlikely measure. It is stated in article four of the International Covenant on Civil and Political Rights that it is possible to refer to the emergency procedures if the country is subjected to a general danger. The article, however, states that some rights are not to be violated and this is what the Egyptian legislature pursued while drafting the law.

As for the special procedures which a president might adopt in an emergency, these include imposing restrictions on people's freedom, meetings and movements, house arrest, detaining the suspects and those who endanger the security of society, imposing censorship on newspapers and putting public places under observation...etc.

The emergency law stated, as well, the guarantees and rights for those who are injured by the above procedures among which is the right of the detainee to be informed immediately of the reason for his detention and his right to communicate with whomever he wants and to appoint a lawyer. Moreover, the detainee is to be treated as if on provisional detention, having the right to appeal in front of the State Security High Court, which consists of three top level Judges. This is available free of charge to the detainee. The detainee also has the right to re-appeal after 30 days from the date of refusing his previous appeal.

The State Security Court is an independent and immune authority concerned with settling cases related to violating the rulings of the president in a state of emergency. The Court might in some situations settle cases related to the general law. Thus, this Court is mainly confined to resolving appeals against detentions and cases related to violating emergency laws and this disrupts, in no way, the Constitution or the work of other regular courts.

This matter was reviewed twice by the Supreme Constitutional Court. This latter Court judged that the State Security Court (emergency), which has been constituted according to the rulings of the emergency law, is the right authority to settle appeals against detentions. The Constitutional Court also judged that in emergency cases, ratifying the State Security Court's sentences by the president is an obligatory measure before implementing it. In this case, the president is not allowed to the right to aggravate the sentence. He might only reduce it or request a re-trial and in such a situation the second sentence will be binding without the president's ratification.

These are the basic principles guiding the state of emergency in Egypt. A state which is declared and extended by a decision that should be ratified by the Parliament.

Concerning torture and mistreatment of the detainee, these are considered crimes according to the Egyptian Law. This has been stated by the Egyptian penal law since it was issued in 1937. It is not a new crime and its perpetrators have been punished since long ago.

Another guarantee of preserving human rights is disregarding the principle of prescription in cases related to torture or mistreatment. This guarantees the rights of the injured as well as the fact that a perpetrator of such a crime will be put to trial whenever his authority is gone.

A third guarantee is that the court will disregard any statement or proof if proved to be attained through torture or under threat.

The fourth guarantee is represented in the compensations given to the injured in such crimes and which the state guarantees.

Apart from the fore-mentioned points, other guarantees are also secured to the accused during criminal investigation, thus safeguarding his rights.

It is worth noting that according to the Egyptian law, the accused does not make an oath, and he is not punished for lying. Thus it is quite common for the accused to claim that they have been tortured to escape from the accusations pointed to them. However, there is a special office within the Public Prosecution, concerned with investigating all these complaints and referring them to the relevant courts. In fact, many innocence sentences were passed by the court after proving that the accused were subjected to torture, and a number of police officers were punished for being involved in acts of torture.

I would like at this point to clarify the stages of investigation in Egypt, which can be classified into three:

The first stage is concerned with reaching conclusions which is the work of police officers. All the procedures taken in such a stage are not counted upon.

The second stage is that of preliminary investigation. This stage is dealt with by the Public Prosecution which as mentioned before enjoys legal immunity. This stage is obligatory while investigating serious crimes. In this stage, it is obligatory to allow the accused's lawyer to attend during the investigation, and to be acquainted with the case before beginning the investigation. Moreover, it is not allowed to separate the accused from his lawyer during the investigation.

The third stage is that of the final investigation. This stage is dealt with by the court through public sessions unless the court deems it necessary for the sake of public order to hold a closed session. In this stage, the court re-examines all the procedures as well as hears the witnesses and the experts and re-investigates the accused as well as appoints a lawyer if the case is related to a capital offence. The court also appoints an interpreter if the accused is a foreigner.

These are briefly the human rights guarantees stated in the Egyptian law and the stages of criminal investigation as far as torture crimes are concerned. Thank you, Mr. Chairman.

As for the various human rights resolutions passed by the Organization of African Unity, this is beyond my knowledge at the moment though an inclusive report can be prepared in the near future.

Concerning including the subject of human rights in the curriculum, I would like to mention that it is already being taught in the Police Academy, Faculty of Law and in the National Centre For Legal Studies. As for the general education curriculum, it is currently being modernized and I think that part of this modernization will be to include human rights rulings and principles.

Concerning the independence and immunity of the judiciary, these are guaranteed by means of the Constitution and law and all the judiciary affairs are dealt with by the Supreme Judiciary Council.

JANNEH:

I thank you very much, Counsellor Khalil, I think it is time for a break. We shall continue at quarter past five.

[Coffee break]

JANNEH:

We shall continue with questions posed to Counsellor Khalil. I now give the floor to Commissioner Nguema.

NGUEMA:

Je vous remercie, M. le Président. M. le Président, je pense que je ne vais pas recommencer les remerciements qui ont été donnés une fois pour toutes par vous-même et par les autres. Je voudrais simplement faire état de regrets en ce sens que comme vous le savez, je ne lis pas l'anglais et le document est en anglais et c'est donc un premier handicap. Cela n'a rien à voir évidemment avec M. le Conseiller, mais le deuxième handicap c'est quon avait envoyé des directives dans un premier temps et je pense qu'à l'occasion de ces directives, à l'occasion de cet envoi il était précisé que le rapport devait avoir des annexes c'est-à-dire les textes, les textes constitutions etc. etc., de telle sorte que les commissaires soient en mesure de vérifier la conformité qu'il y a entre les déclarations ou les indications portées dans le rapport, qu'on puisse les vérifier par rapport au texte en question. Je ne veux pas dire qu'on peut nous mener en bateau, ce n'est pas cela que je veux dire, au contraire je pense que notre Conseiller est tout à fait de bonne foi nous disant exactement ce qui se passe là-bas, mais je crois que si on veut avoir sur le plan juridique un travail assez consistant, les textes sont absolument nécessaires, mais je pense comme nous sommes encore au début, les habitudes ne sont pas encore prises, les traditions ne sont pas encore prises, mais que par la suite nous aurons à avoir les textes chaque fois que nous aurons les rapports.

Cela dit, M. le Président, je n'ai pratiquement rien à ajouter sauf que, sauf deux petits points: Le premier concerne le sort qui a été réservé aux différentes résolutions qui ont été adopteés par les chefs d'Etat et de gouvernement de l'OUA, des résolutions qui ont été soumises à leur appréciation par notre Commission, d'abord en ce qui concerne la célébration de la journée africaine des droits de l'homme, qui comme vous le savez, se situe le 21 octobre. C'est une résolution qui a été adoptée je crois voici trois ans maintenant et on aurait souhaité que dans les différents pays africains, cette journée-là soit célébrée, alors je souhaiterais peut-être savoir de la part de notre conseiller si cette journée est célébrée?

Il y a eu d'autres résolutions, notamment la résolution à demander aux Etats d'introduire dans l'enseignement, dans le secondaire, le primaire, le supérieur, les enseignements techniques et professionnels, des programmes concernant les droits de l'homme. C'est également un point sur lequel nous souhaiterions avoir des précisions.

Enfin, toujours dans les résolutions, on avait souhaité que les Etats instituent des émissions périodiques, radiodiffusées et télévisées. Est-ce que cela a été mis en application au niveau de l'Egypte? Voila donc si vous voulez en ce qui concerne les points concernant les résolutions.

Naturellement, je pense s'agissant du premier rapport, ce qui avait surtout retenu notre attention, c'était le cadre juridique du pays, c'est-à-dire l'organisation des pouvoirs publics, l'organisation judiciaire, l'indépendance des avocats, des magistrats etc. etc. Et s'agissant de l'indépendance de la magistrature, je sais que cela peut être consigné effectivement dans les textes, et souvent ça l'est, et que cette indépendance est effectivement appliquée dans la réalité, mais je me rappelle aussi s'agissant d'un pays que nous connaissons très bien: l'Afrique du Sud, je crois qu'en Afrique, c'est le pays qui a les magistrats les plus indépendants en ce sens que c'est vraiment rare que le gouvernement donne des instructions aux magistrats sud-africains. Vous le savez aussi pendant longtemps les condamnations à mort qui ont été prononcées là-bas ne visaient que les noirs. Bon cela signifie que l'indépendance ça signifie ce que ça signifie. J'aurais bien voulu savoir en ce qui concerne l'Egypte si la magistrature, je ne parle pas des avocats, la justice donc la magistrature comporte des magistrates, des femmes, qui soient des juges, et si c'est le cas- nous avons, au cours de notre atelier qui s'est tenu avant cette session, souhaité que les femmes puissent être admises au sein de notre Commission, est-ce que l'Egypte est disposée d'abord à appuyer cette proposition et ensuite à présenter éventuellement des candidatures, mais cela suppose au départ que des femmes excercent effectivement au niveau de la magistrature de l'Egypte. Je pense que de cette manière en ce qui me concerne, M. le Président, les problèmes que j'avais, pourront être réglés bien que je n'aie pas pu lire l'ensemble du texte, je vous remercie Monsieur le Président.

JANNEH:

Yes, Counsellor Khalil, we will hear you, on those questions.

KHALIL [Statement No. 6, Translation from Arabic, Egypt]:

According to the Egyptian penal law it is a crime to mediate with the judiciary or interfere with legal procedures and any authority caught doing that will be punished.

As for the judiciary establishment in Egypt, it consists of five organizations namely, Administrative Judiciary, State Council, Administrative Prosecution, Public Prosecution and the Public Cases Organization.

Concerning the status of women in Egypt, they do hold different positions in the Administrative Prosecution, the Public Cases Organization and the Public Attorney Office. As for the higher rank of judiciary, they work as assistants to the Public Prosecution dealing with family related matters. They also work as assistants in cases related to personal status. Moreover, the juvenile law states that the jury in juvenile courts should include a social worker and a psychiatrist to assist the judge and at least one of them should be a woman.

Concerning submitting copies of the provisions of Egyptian laws to the Commission, I have already done so. I have submitted copies of the Constitution, Criminal Law, Law of Prison Regulations, Juvenile Law, Judiciary Law, Penal Law, Law of the Supreme Constitutional Court and a paper on the Egyptian judiciary system.

Taking into consideration that this is Egypt's first report, we are ready to cooperate fully with the committee by submitting whatever clarifications, queries or provisions it might require.

Thank you Mr. President.

JANNEH:

Thank you very much Counsellor Khalil. I now call upon Commissioner Ndiaye to take the floor.

NDIAYE:

M. le Président, je voudrais avant de rentrer dans le vif du sujet dire que le représentant du gouvernement égyptien doit être félicité et encouragé. De même d'ailleurs que son pays. L'Egypte fait partie des premiers pays africains à avoir présenté un rapport à la Commission, rapport établi conformément à la charte qui nous régit et dont la mise en oeuvre nous est confiée.

Pourquoi? Parce que depuis que nous avons envoyé la recommandation aux Etats-parties pour demander que les rapports soient établis, l'Egypte est peut-être le sixième ou le septième pays à avoir présenté un rapport et pour cela elle mérite d'être remerciée et félicitée et encouragée. Le Conseiller, qui a présenté le rapport de l'Egypte, a également beaucoup de mérite qu'il faut souligner parce que le questionnaire qui était censé l'orienter dans les réponses qu'il devait faire devant notre Commission, ce questionnaire ne lui est parvenu que très tardivement, mais il faut inscrire tout cela dans les balbutiements de la Commission. Nous-mêmes, nous sommes 3 ou 4 francophones ici et nous n'avons pas reçu le texte de l'Egypte en français, de même que les questionnaires, nous essayons de définir ce que cela signifie en anglais. J'espère que nous ne ferons pas beaucoup de contresens.

Cela dit, je reprendrai l'intervention de Monsieur Nguema qui a très bien situé le problème. En réalité, il s'agit aujourd'hui pour l'Egypte et pour les pays qui ont déjà présenté leur rapport, il s'agit de la présentation d'un rapport initial. Ce n'est pas un premier rapport comme c'est inscrit sur le document de l'Egypte, ce n'est pas un premier rapport comme l'ont dit certains, commettant un lapsus, mais il s'agit d'un rapport initial et nous avons décidé depuis Le Caire en 1988 si mes souvenirs sont exacts que, au lieu de faire comme au Comité des Droits de l'Homme ou dans les autres comités institués en vertu des conventions internationales, nous allons essayer de changer puisque on ne peut pas mettre à la charge des Etats africains qui ont déjà beaucoup d'obligations internationales dans ce domaine, on ne peut pas mettre une charge aussi lourde par exemple que celle que le Comité des Droits de l'Homme met à la charge des Etats- parties au pacte international. Donc c'est de volonté délibérée que nous avons institué un rapport initial très simplifié. Et la recommandation qui accompagnait justement la lettre du président de la Commission qui accompagnait la recommandation qui avait été faite disait expressément que les Etats- parties devraient simplement pour ce rapport initial produire le texte de la Constitution avec un commentaire de deux pages, produire l'organisation judiciaire, décrire l'organisation judiciaire de manière très sommaire- ensuite nous donner les statuts de la magistrature qui organisent l'indépendance des juges, nous donner, nous produire les codes de procédures pénales avec un commentaire très bref et enfin des statuts du barreau. Voilà ce que devait contenir le rapport initial de tous les pays. Certains pays ont cru devoir bien faire en nous donnant beaucoup de législation, en rentrant dans les détails de l'organisation etc. etc., mais cela n'était pas utile. Ce que nous voulions savoir, c'est comment chaque Etat- partie avait organisé son cadre institutionnel, son cadre juridique, son cadre constitutionnel.

Nous voulions savoir donc comment l'Egypte, par exemple, puisque vous êtes là et que vous présentez le rapport de l'Egypte, nous voulions savoir si l'Egypte, par exemple, dispose d'une constitution, comment les institutions sont organisées à l'intérieur de la Constitution? Est-ce que il y a une séparation des pouvoirs comme cela l'était partout dans le monde, un pouvoir exécutif, un pouvoir législatif, un pouvoir judiciaire, indépendants les uns des autres? Est-ce que cette Constitution garantit les libertés publiques? Voilà en gros ce que nous voulions savoir en ce qui concerne leur Constitution.

Nous voulions savoir également si les citoyens, si cette Constitution avait ou non une valeur supérieure à la charte c'est pour cela qu'on parle de réception de la charte, comment la charte est reçue. La charte est reçue d'abord parce que on dit expressément dans les pays concernés que cette charte a, une fois ratifiée, une valeur supérieure à toutes les autres lois du pays y compris la Constitution. C'est le cas très certainement en Egypte. Cela ne ressort pas très explicitement de vos explications mais je pense que c'est cela que vous avez voulu dire, c'est que la charte avant d'être ratifiée a dû être discutée peut-être au sein de l'Assemblée Nationale etc. et dès lors que cette charte est discutée, s'il y a des distorsions avec les lois intérieures y compris la Constitution, c'est à ce moment- là les lois intérieures du pays qui sont corrigées par rapport à la charte qui a une valeur supérieure. Et une fois que c'est promulgué, cette charte doit prévaloir sur toutes les autres lois y compris la Constitution. C'est ça la véritable réception. Dans certains pays anglophones nous avons ouvert une longue discussion au sein de la Commission. Dans certains pays anglophones il fallait expressément que les dispositions de la Charte soient incluses dans la Constitution avec une procédure très spéciale, et cela nous a conduit d'ailleurs à l'époque à prendre une recommandation spéciale pour que les pays anglophones puissent recevoir la charte de manière convenable. Nous avons ensuite les autres lois, je vais écourter mon intervention, les autres lois c'était simplement le barreau l'organisation judiciaire, c'était un peu pour voir comment était garantie et protégée d'abord l'indépendance de ceux qui sont chargés d'appliquer la loi et comment également les citoyens étaient protégés. C'était dans cet esprit-là que nous voulions avoir les textes fondamentaux de chaque pays. Et nous étions également persuadés qu'à l'époque, certains pays africains- parties à la charte africaine n'avaient peut-être pas tout l'arsenal juridique fondamental dans leur propre pays. C'est pour cela qu'on a voulu également pousser ces pays à avoir tout de suite par exemple un code de procédure pénale s'il n'y a pas de code de procédure pénale, une loi organisant le barreau de ce pays.

Voilà donc les raisons qui nous ont conduits à la situation actuelle. Je répète encore une fois: ce n'est pas un premier rapport que vous présentez, c'est simplement un rapport initial. Je pense que vous avez tous les élements puisque vous les avez sortis tout à l'heure, vous avez tous les éléments que la Commission voudrait avoir pour pouvoir étudier maintenant, plus à fond votre législation et la prochaine fois, très certainement, vous recevrez en plus de ce questionnaire, un questionnaire encore qui rentre peut-être beaucoup plus dans les détails en vous demandant par exemple comment est organisé l'état de siège, comment est organisé l'état d'urgence, est-ce qu'il existe une police judiciaire, comment est organisée la garde à vue etc. etc. Donc ceci c'est un premier pas et à mon avis ce premier pas, vous l'avez accompli.

Mon propre pays, paraît-il, a fait un rapport, il a fait un rapport, j'ai vu la copie, mais il a disparu entre Dakar, Banjul et Addis Abéba. On ne sait plus où se trouve ce rapport de Sénégal. Par conséquent ce que fait l'Egypte, je ne peux que le saluer avec beaucoup de déférence en disant que vous méritez tous les encouragements et pour votre prochain rapport, je pense que le dialogue se poursuivra de manière encore beaucoup plus enrichissante.

Je vous remercie M. le Président.

JANNEH:

Thank you very much, Commissioner Ndiaye. I do not know whether Counsellor Khalil wants to make any comments on that?

KHALIL [Statement No. 7, Translation from Arabic, Egypt]:

I would first like to thank the honourable member for his speech. However, I would also like to reiterate that this is a preliminary report - according to the term used by the honourable member - for the commencement of a dialogue. Egypt welcomes all the queries and comments and is always ready to provide any clarification thereto or any information on its laws or legislation that the Commission requests in this regard. Egypt hopes that the constructive dialogue will continue to the benefit of all parties involved and for the sake of achieving the common message (of the African people). I hereby repeat what I previously said at the beginning of my speech, that I wish the Commission all the best in achieving its difficult tasks, and in effecting lasting breakthroughs.

JANNEH:

Thank you very much! Any questions?

Well, Counsellor Khalil, I would like to ask one question. I understand that in Egypt human rights non-governmental organisations are not banned. They are allowed to exist but there is really no juridical basis for their existence. I do not know how true this is, but I would like to ask whether there is any law in Egypt that makes provision for the formal recognition of human rights non-governmental organisations?

KHALIL [Statement No. 8, Translation from Arabic, Egypt]:

Mr. President, Egypt has a law governing the rules, regulations and establishment procedures of the private societies and organisations, which is law no. 32 for the year 1964. This law has laid down procedures for applying to the competent authorities and issuing the necessary licenses or following the required procedures for establishment. Based on the constitutional principle and on the State Council law, the appellant, whose appeal has been turned down whether positively or negatively i.e. by not receiving a reply at all, has the right to request the State Council, being the administrative judiciary, to cancel this decision and to adopt the procedures he sees fit. Therefore, all these activities are subject to the rules and regulations of this law. Thank you.

JANNEH:

Thank you, Counsellor Khalil. It would appear there are no more questions for the moment. As we have already said, these were just preliminary questions. I am sure you will now have more time to go over the questionnaire and next time we meet, we are sure to have greater details and more specific answers to the questions posed. I thank you very much again.

Ladies and Gentlemen, I think it is time to deal with the question of the applications for observer status. On this, I will ask Commissioner Nguema to lead. Sorry, yes Commissioner Umozurike?

UMOZURIKE:

It was agreed that the Counsellor would retire, we deliberate for a short time and agree on a step to take, call him back and let him know what the final thing is, unless of course we adopt what you've said as the final thing, which is not different from what we would ultimately do.

JANNEH:

I have taken note of that, but due to the fact that really, the questionnaire has not been answered specifically, I thought probably we should wait until next time. Although as -

UMOZURIKE:

That is, the next Periodic Report?

JANNEH:

Indeed.

UMOZURIKE:

Okay. That's all right then.

JANNEH:

Yes, Commissioner Nguema.

NGUEMA:

Je vous remercie M. le Président...

NDIAYE:

Mention - mention - M. le Président. Si j'ai bien compris, il s'agit d'admettre des observateurs à la Commission. C'est le sujet qu'on va aborder? - Je pose une question, est-ce qu'il s'agit...

JANNEH:

No, no question was asked. We are going to the next item on the agenda, and under that item we will consider applications made to this Commission for observer status.

SUMMARY OF THE EXAMINATION OF THE STATE REPORT OF TANZANIA

The beginning of the examination of the state report of Tananzia could not be transcribed because two of the tapes made during the examination were defective. Therefore, both the transcript and the following summary begin in the middle of the examination.

Commissioner Janneh, Chairman, explained that by way of dialogue, the Commissioners would now ask the representative Tanzaniaquestions. He noted that the representative had not received the list of questions which had been prepared in advance, and thus could be excused if he was unable to answer some questions.

He commended Tanzania for incorporating the Bill of Rights into the body of the Constitution. He asked for elaboration on the Preventive Detention Act, which, although it specified that the names of those detained should be published, did not specify within what time, which could in effect render the Act useless. He also asked if there were any mechanism for review of who was detained.

The representative of Tanzania stated that the absence of a time limit in the Preventive Detention Act was probably more an omission than a deliberate policy, but said that he would check with the relevant authorities. The cases of detention under this action are only reviewed, so far as he was aware, if the President decided to release someone, but he promised to check that fact as well.

Commissioner Mokama questioned the justification for having a Preventive Detention Act at all, enabling the government to pick up an individual for any reason and hold him indefinitely. He also asked for clarification of the President's discretion, expressing doubt that the President could be personally aware of the circumstances of each case.

The representative of Tanzania responded that amendments to the Act make it less draconian than in the past, but that when it was passed in the early days of Independence the Government felt that there were special threats to the security of the country. The representative acknowledged that while the President did not have knowledge of each case, it was an improvement compared to the previous system which had entrusted the power of detention to more people and thus was subject to more cases of abuse. The detainee is given the right to make a written appeal directly to the President so that the President might become aware of the circumstances of the case.

Commissioner Mokama expressed concern that immediately after Independence the Government had enjoyed overwhelming support and that Tanzania had been a one-party state, and that now with the upcoming advent of multipartyism the government would be more likely to feel under threat and to use the Preventive Detention Act.

The representative responded that the advent of multipartyism would create a system of checks and balances in which the President would be more cautious about abusing his powers.

Commissioner Umozurike said Tanzania's report was particularly impressive because it addressed the real difficulties in implementing human rights. He asked what Tanzania was doing to fulfill its obligation under Article 25 of the Charter to promote knowledge of human rights.

The representative responded that human rights were taught in various institutions of formal education, such as the University of Dar es Salaam and in secondary schools and a few primary schools, but the percentage of the population which had access to these institutions was quite small. He described how spreading information at the village level was very difficult. The government may try to promote human rights through its newspapers, but these have a very small circulation. Privately owned papers rarely publish anything about human rights. He pointed out, however, that many human rights principles are incorporated into the Constitution of the ruling political party, and if the 2 million members read the party Constitution they may be said to know about human rights.

Commissioner Umozurike asked if the Charter had attained such a level of recognition that it was being cited by lawyers in their arguments before the domestic courts. The representative said he could not really answer this question, since the number of court cases involving human rights that came to public knowledge was very small. He was aware of an instance in which a lawyer tried to enforce the UN Convention on the Rights of the Child, and believed that certain members of the bench were aware of the African Charter and referred to it when it was found applicable.

Commissioner Nguema explained that since the report was not translated into French, he could not read it very well. He then asked about the length of time that someone may be detained under the Preventive Detention Act before being brought before a tribunal. He inquired as to what action the Ministry of Foreign Affairs of Tanzania had taken to implement resolutions of the OAU. Finally, he asked about the situation of the former president of Zanzibar, whom he believed was being held in prison.

The Ambassador responded that the Criminal Code provided that individuals arrested had to be brought before a court within 24 hours of their arrest. The Preventive Detention Act lengthened that time to 15 days.

The Ministry of Foreign Affairs was not the relevant authority to implement OAU resolutions domestically, so when these were received by the Ministry they were passed on to the relevant government body. Concerning the case of the former chief minister of Zanzibar, he was detained under presidential order for some time, but he had now been charged with a crime and was free on bail awaiting trial.

Commissioner Nguema asked if Tanzania had made any arrangements for the celebration of the African Day of Human and Peoples' Rights, which the Commission has decided shall be commemorated on 21 October. The Counsellor responded that so far the government had not had the funds to stage a celebration, but that in the future, it intended to do something to this effect.

Commissioner Beye said he understood that, after Tanzania had ratified the Charter, amendments had to be made to the Constitution to bring it into full conformity and that this proved Tanzania's will to apply the Charter. He complimented the Counsellor on the candour of his presentation.

He asked why the report had been submitted without any annexed legislation as specified in the general directives on state reports, legislation which describes the structure of the governments and the courts. He asked for clarification of which of the provisions of the Constitution had been modified after Tanzania's ratification of the Charter.

He asked if those held under the Preventive Detention Act had access to lawyers. He asked for an elaboration on the traditional values of the population which adversely affect women's rights, and, in the light of the fact that Zanzibar is an Islamic state in the federation, whether women in Zanzibar enjoy all rights guaranteed under the African Charter. Lastly, he asked about the transition to multipartyism and how it was being prepared for with a view to respecting human rights.

Counsellor Malambugi said that the legislation that should have been annexed to the report had indeed been sent, but that if the Secretariat had not received them arrangements could be made to send another set. He could not answer precisely which provisions of the Constitution had been changed in response to the requirements of the Charter. He said he needed some time to make a study of the question.

The role of women is still restricted by cultural values, which, among other things, prevent women from inheriting clan land. Although this discrimination has been found unconstitutional by the High Court, the government of Tanzania realizes that it will take time and education for women to become aware all their rights.

He said that the necessary changes to the Constitution had already been made to allow for multipartyism, and every effort was being made to assure that the transition would be peaceful and the legality of the government will not be challenged. He said that elections were planned to take place in three years, to give the opposition parties time to organize themselves.

In response to another question from Commissioner Beye, the Counsellor explained that he thought the question of modifications to the Constitution would require quite an elaborated answer which he needed time to prepare. He compared the federal structure of Tanzania to that of India, in that the regional governments had quite a bit of autonomy. Zanzibar had its own Constitution which was similar to that of Tanzania. Certain matters such as foreign affairs, defence, and police were identified as matters to be dealt with by the union of Tanzania and Zanzibar.

Commissioner Janneh asked if the government intended to set up a press council, and what measures would be taken to avoid unnecessary censorship.

The Counsellor responded that he would have to make further research into the matter and that accusations of censorship had been made in the past year by some journalists but they had been denied by the Minister of Information, and he did not know if any body relating to press matters, would be set up.

Commissioner Janneh asked the Counsellor to explain the nature and role of the Tanzanian Legal Corporation, and the Counsellor explained that it was a public institution created to cater for the legal needs of the various parastatals in Tanzania. The bulk of its activity is representing other public corporations in the courts. The personnel of this corporation have the same qualifications as other members of the bar.

Commission Janneh thanked the Counsellor for being very helpful in spite of the limited notice he had been given.

EXAMINATION OF THE STATE REPORT OF TANZANIA

Chairing: Vice-chairman JANNEH

Tapes no. 18 and 19, which were made on 6 March, 1992, at the 11th session in Tunis, were empty. Thus transcription of the examination of the state report of Tanzania begins in the middle.

JANNEH:

... throughout the past few years, there have been improvements in both the Constitution and the law, to be more in conformity with human rights provisions.

However, if you permit, we would like to ask a few questions based on what you have told us and based on the documents before us. We will always bear in mind of course that you have not been given sufficient time to prepare yourself. We know the fact that you have not received our questionnaire. The nature of the questions is not by way of cross-examination in court, so naturally we do not expect a yes or no answer. The questions are posed only by way of dialogue and we believe true interchange of ideas. Most of us would influence one another and thereby bring about necessary changes in your legal system and Constitution for the better.

I am now chairing this meeting as Vice-chairman of the Commission, I am also the Rapporteur in fact in so far as Tanzania is concerned, and I am supposed to lead the questions, but that doesn't mean that I will be the only person to ask questions, because each and every member of the Commission will have the right to pose questions to you. And you are absolutely free to excuse yourself from answering a question and this is quite in time, because as I already said, nobody can blame you for refusing to answer a question in view of the fact that you have not been given sufficient time. So that will be at the back of our minds - always as we proceed.

Now the first question I would like to pose really relates to the bill of rights which you have said that you have now incorporated. It used to be in the preamble of the Constitution and now you have actually incorporated it in Chapter 1, part 3 of your Constitution which is highly commendable, indeed. That is just by way of general comment.

You have told us that you have improved the situation of detainees, under the Preventive Detention Act, by requiring that the names of all detainees must be published in the Gazette. Now that is an extremely important step, because without the publication of names of detainees, detainees could be held incommunicado, and that is the worst thing that could happen to any prisoner in detention. However, I think there is a defect in so far as a time limit is not set within which to publish the names. So my question is - is there any obstacle to setting a time limit within which to publish the names of detainees in the Gazette? As is indeed is the practice in some African democratic countries. That is the question I pose for the time being, Counsellor. I give you the floor.

MALAMBUGI:

Thank you, Mr. Chairman. That is a question I would rather prefer to go and request for clarification. Because I think it was more of an omission rather than deliberate policy of Government that it did not set a limit. After all, it set a limit of 15 days for people to be informed of the reason for detention. I do not see - as a person I do not see any problem that the Government is firmly wedded to not having any limit on the time framework in which the names of the detainees are to be published. But, as I said, it is something which I have to check further with the relevant authorities then I will be reverting back to it.

JANNEH:

The point is taken. I will only add that this is very important, because unless a time limit is set, the Government can wait for two years before publishing and then the provision for publication would then have been of no use in some cases. Though probably the person in detention would have been released after six months and that is only by way of comment but I think, we'll have to make consultations.

The second point, in so far as detainees are concerned is the problem of review. Now do you have any mechanism for review? Do you have review tribunals that would automatically look into the case of detainees? By automatically, I mean that would look in to the cases of detaining whether or not the petition is sent for the tribunal or authority given the power of review.

MALAMBUGI:

I am not aware of an official review tribunal. If you mean something which has been set out in the law, I can say with positive certainty that there is nothing like that, but operationally, the way how these cases are reviewed until the President decides to release somebody, I am not exactly sure how that operates and it is also something which I have to check again with the Attorney General's chambers and I will also be bringing the response in due cause.

Well, gentlemen, I believe the floor is open.

MOKAMA:

Mr. Chairman, perhaps I may be asking a fundamental question, but I hope I will be forgiven. Can the Counsellor explain to us the reason for ever introducing a Preventative Detention Act? Because if I understand it, that Act really means you arrest anybody at any time without giving any reason and you can hold him on and on. Could you just brief us the circumstances under which it became absolutely necessary in the interest of Tanzania to put into the Statute book such a massive legislation? Thank you.

MALAMBUGI:

Thank you. First I would like to make a bit of correction. As I indicated in my report, there has been certain amendments to The Preventive Detention Act in the sense that - I agree in the past it was very draconian when immediately after Independence when it was past, the Act was rather draconian. Somebody would be picked in the streets, his family wouldn't know where he was, but that has been taken care of and the detainee himself would not be even informed of the reason of his detention. Nowadays that has also been taken care of. The law requires that, the detainee should be informed of the reasons of his detention, and he is able to petition to the President and I think it is much more, it is softer - if I may use the term - than it was in the past. But to answer your question, I think when the Preventive Detention Act was passed, it was during the early days of Independence when the country, when the Government was interested in safeguarding the safety and continuity of the State and it was felt that there were special circumstances in which case the President had to use extraordinary powers. And these powers, namely, are restricted to cases of threats to the security and integrity of the country. It is not for each and every offence that somebody can get detained but there are specific cases, which I mentioned in my submission, and these instances are instances where the President, the President - it is not each and every person - considers an individual to be dangerous to the public order and national security. So it is not as wide as the Commissioner would put it, but it is a bit restricted.

MOKAMA:

Mr. Chairman, when you say the President himself considers that a person is a danger to the security of the State, surely you cannot mean that the President in his own personal knowledge and in his personal interest. It is hinted to the fact that it is the information communicated to him by various agencies of the State, i.e. the police officers, the intelligence officers and they could make a mistake or pick up somebody who is a danger to themselves rather than to the President and say to the President this is the member who is dangerous to you. I assume the experience shows that the President would hardly ever have any personal knowledge of those who are a threat to him and that information comes through intelligence reports which could of course degenerate into personal grievances and so forth.

MALAMBUGI:

It is true that the President doesn't have knowledge of each and every person who is - whose name is brought before him for detention, and he operates on the basis on information given by the various state organs, and there is a slight possibility, there is a possibility that people might take personal grievances into consideration in proposing to the President that a certain person should be detained.

But, as I said, the Preventive Detention Act has been a, has been modified, and it has been improved because initially, in the past, it was not only the President who could detain, who could order the detention of a person, districts commissioner and province commissioners also had the power to detain people for a certain period - about 48 hours. It was found out, the Government found out that these powers were being misused and they were taken from these authorities and vested in the President.

So it is not as if the Government is blind to the possible abuses, it is very aware, very much aware of that fact. And it is for that reason that the power has only been given exclusively to the President and as a further safeguard, the detainee has to be afforded an opportunity of making a written representation to the President, again. So that if there is manifest denial of justice, and injustice, the President can get to be aware that indeed the detention of such a person was not based on the requirements of the law, but it was based on personal considerations.

MOKAMA:

Mr. Chairman, one last comment. I do not know whether I am mistaken, but my understanding, my knowledge as far as it goes on Tanzania was that there was an overwhelming support for the Government at the Independence and that almost 80 to 90 percent of the people were in support of the Government and soon after that you then had the one-party state and at the moment you are in the process of going into a multiparty state. Now, I have been encouraged by the fact that you have been cutting out the draconian aspects of the preventative detention. And now I am wondering that if at the state when you were a one-party state government, you still felt the need for a preventative detention, what is going to happen when all the parties are now competing for government. Do you see yourselves removing altogether, which is really what one would have thought was the direction, removing altogether the preventative detention because it is a - let's admit it is a terrible act to have in any statute book of any country. You obviously are admitting that you are incapable of trying anybody in a due process, you are incapable of getting evidence to prove his guilt, you are admitting that you are incapable of dealing with this situation. The only way you want to deal with the situation is to arrest anybody at will without giving any reasons.

Is it possible that, Counsellor, that the present move towards a multi-party system is going to encourage a more preventative detention because the Government that is going to be in power is not going to be like the previous government which had the absolute monopoly of power, but it will have a lot of competitors, a lot of enemies wanting to attain that power. Can you assure us that you are not going to get back now to the more draconian position. Thank you.

MALAMBUGI:

Thank you, Counsellor. I think the mere fact that you have the operation of multiparty politics is a very good system of checks and balances, if a President in a system where there is accountability to other parties misuses his powers, I think he will be in trouble. I cannot say with a 100 percent certainty whether the Government that will come into power after the multiparty elections will remove, will abolish the Preventive Detention Act, but I certainly can say with a 100 percent certainty that whatever abuses there are it will definitely disappear with the introduction of multiparty politics. Thank you.

JANNEH:

Yes, Commissioner Umozurike.

UMOZURIKE:

Counsellor, I must say I was impressed by your presentation, particularly because you did not just seem to present a rosy picture, but you also pointed out the difficulties and problems you have implementing with human rights.

I have two short questions; the first one is that, you know, states have a responsibility coextensive with that of the Commission of promoting knowledge of human rights, especially on Article 25 which reminds states of the duty to promote and ensure through teaching, education and publication the respect of the rights and freedoms enshrined. Could you tell us whether your state has in fact enacted of this projects.

MALAMBUGI:

Thank you, Commissioner Umozurike. The Tanzania has embarked on the promotion of knowledge of human rights, but the problem is that this promotion activities are confined to very few sectors of the Government machinery. Human rights are taught in various institutions, they are taught in the faculty of law of the University of Dar es Salaam which is the only institution training lawyers in Tanzania. They are also taught at secondary school levels and elements are taught at grammar school levels, but the population that gets exposed in this way to human rights is a very small percentage compared to the total population. The police force, the prisons, they are also taught principles of human rights in their training, in their courses, but I cannot give definite answers that say that we have maybe, 40 percent of the population who knows that it is not possible.

And the other problem we have is - we have problems of means of communication, of reaching to the grass-roots, getting the knowledge disseminated to the villages, to the village level - it's still a problem and maybe the Commission could assist us by advising on what are the best means of disseminating knowledge on human rights to the level of the village community.

As far as the Government is concerned, the most it can do is maybe propound ideas of human rights in the papers, but that is - in the Government papers - the Government papers have a circulation of at most of about 200,000 copies throughout the country and the country has a population of over 23 million using the 1988 census. So through these official means, the Government can reach only a very small percentage.

The privately owned papers, normally, publish information which is seldom, and I am not very sure if they would be very prepared to promote, to disseminate the African Charter and other instruments on human rights. So it is a problem, and we haven't been very, very successful in disseminating all these instruments to the public.

However, on the other hand, the principles as such are mostly universal, so you find most of these principles contained for instance, say, in the Constitution of the party. The Constitution of the party enumerates the basic human rights principles and if the ruling party has about 2 million members and if all the members really read through the Constitution of the party, then you may find that a quite good percentage of the population has some idea about human rights.

But as I said, it is something I cannot answer with a 100 percent certainty that the Government has succeeded.

UMOZURIKE:

My second question is connected with the first. Could you say if the African Charter has got to a stage of being cited in courts by counsel, or have the courts had any opportunity of being referred to the Charter, or making a pronouncement on the African Charter. Could you give any information on that?

MALAMBUGI:

Thank you. I am sorry, again, I cannot answer that question really well, because cases involving human rights which come to the public knowledge are really few and far between, but should the need arise, I am certain that people, counsel would cite the African Charter. I am aware of a situation where a person in the legal profession sought the ministry's assistance in, with respect of the UN Convention of the Rights of the Child. So I am certain the members of the bench in Tanzania are aware of the African Charter and where there is need they will definitely refer to it, but again, as I said, I think we are dealing in a rather grey area and I cannot give a definite answer on that.

JANNEH:

Yes, Commissioner Nguema. The floor is yours.

NGUEMA:

Je vous remercie, Monsieur le Président. Monsieur le Président, permettez-moi tout d'abord de solliciter votre indulgence et l'indulgence de Monsieur le Conseiller, étant donné que comme cela a été dit tout à l'heure que les membres francophones de la Commission n'ont pas pu prendre connaissance du rapport. Il est en anglais, il n'a pas pu être traduit par le secrétariat. Évidemment, cela n'a rien à voir avec une quelconque responsabilité à mettre sur le compte des représentants du gouvernement de Tanzanie.

Tout ce que j'ai essayé de retenir, c'est, évidemment, le fait de son exposé et également ce qui a été posé comme question au préalable, mais je dois dire que comme les autres commissaires qui ont pris la parole avant moi, je suis un peu embarrassé par cette loi en matière de détention. Alors il y a un point sur lequel je voudrais quand même avoir un petit éclaircissement. Il y a d'abord le fait qu'aujourd'hui quelqu'un peut être détenu, et le gouvernement dispose de 15 jours pour, je crois, lui faire savoir les raisons de sa détention, si non il doit être libéré. Mais j'ai pu comprendre aussi que le détenu doit comparaître dans les 24 heures. Donc, si je comprends bien, quelqu'un est détenu, eh bien, il faut qu'il soit présenté devant les autorités judiciaires dans les 24 heures, et puis, ensuite, on va le détenir dans la maison d'arrêt. Ça peut aller jusqu'à 15 jours et on ne lui fait pas du tout savoir pourquoi il est détenu. Alors quand il arrive devant l'autorité judiciaire, est-ce que l'autorité judiciaire qui reçoit ce détenu dans les 24 heures ne lui dit pas pourquoi il est conduit devant lui, pourquoi on va l'arrêter, pourquoi on va le détenir? Il y a quelque chose que je ne saisis pas très bien: Est-ce que le délai de 24 heures c'est effectivement un délai important ou alors c'est une indication? Est-ce que on peut aller au-delà de 24 heures, ou un an ou deux ans? C'est un point sur lequel je souhaiterais que le conseiller puisse nous donner des élements d'information.

J'ai cru comprendre aussi que le représentant du gouvernement de Tanzanie, n'est pas encore ambassadeur, mais qu'il risque de l'être, pour l'instant il est simplement conseiller des affaires étrangères, je crois. Alors, au niveau des affaires étrangères, je voudrais lui demander si, de temps en temps, il a connaissance des résolutions qui sont prises par les chefs d'Etat de l'OUA en matière des droits de l'homme? Comment cela se passe dans son pays, est-ce que ce sont des dossiers qui sont rangés tranquillement dans les armoires ou alors est-ce qu'on transmet ça aux autorités compétentes pour que diligence puisse être faite en ce qui concerne l'application pratique de ces résolutions?

Enfin, un dernier point sur lequel je vais terminer mon intervention. Cela concerne un homme politique, je crois, qui a été président de Zanzibar, et qui se trouvait détenu sans jugement jusqu'à l'heure actuelle en Tanzanie; je ne sais pas si ça ne fait pas déjà 5 ans ou plus de 5 ans pas de jugement. Est-ce qu' il a des informations à cet égard, sur ce cas précis? Est-ce qu'il peut nous dire quel va être peut-être le sort de cet homme politique? Est-ce que, quand on reste longtemps détenu, pendant des années et des années en Afrique, on peut se poser des questions, parce que, généralement, les gens ne sortent pas de leur prison, mais je pense que ce n'est pas le cas en Tanzanie. Mais c'est simplement une information que je voulais avoir à ce sujet-là. Je vous remercie, Monsieur le Président.

JANNEH:

Yes, Counsellor.

MALAMBUGI:

Thank you Mr. Chairman. I would like to clarify the first point made by Commissioner Nguema. There are two issues, one involves the operation of the Criminal Procedure Act and the other the operation of the Preventive Detention Act.

The Criminal Procedure act which gives the guidelines for the arrest of people is the one which requires that anybody who is caught by the police, any suspect arrested by the police, has to be brought before a court of law within a period of 24 hours or as soon as practicable. This provision does not operate in the case of a person who is detained under presidential order and under the Preventive Detention Act. When somebody is detained under the Preventive Detention Act, at that time, at the time of arrest, the courts do not entertain any such cases until, I think, after 15 days when the detainee has to be informed of the reason and what not. But I hope that difference is now clear to Commissioner Nguema.

As to the resolutions on human rights, if I understood you well, Commissioner Nguema wants to know what happens once these resolutions are received by the Ministry of Foreign Affairs. Well, we are not, the Ministry of Foreign Affairs is not the relevant authority in implementing these, the resolutions and decisions taken by the Commission. What we do is normally to transmit these resolutions and decisions to the relevant government organ which is supposed to implement those resolutions. And now our role as a Ministry of Foreign Affairs is only to impress upon these bodies that these decisions, these resolutions are for action. They are recommendations which have to be respected by the relevant bodies. But we do not have the power to enforce implementation of those resolutions.

The third question I think Commissioner Nguema, you are referring to the case of Saif Sherif Amad, if I am not mistaken, who was at one time the Chief Minister of the Government in Zanzibar. It is true that Saif Sherif Amad was detained and under presidential order for quite some time, but as at the moment, Mr. Saif Sherif Amad is out on bail, but he has a case pending in the courts of law. I cannot say with any certainty as to when the case will be resolved, but it is in the courts right now, and the problem is now no longer of detention but it is a question of delay in the expeditious conclusion of the court case.

I hope I got the gist of Commissioner Nguema's questions correctly.

JANNEH:

Thank you very much Counsellor. Yes, we will continue with the questioning from Commissioner Nguema.

NGUEMA:

Je vous remercie, Monsieur le Président. Je crois que j'ai très bien saisi les informations qui viennent de nous être données. Je voudrais simplement, en ce qui concerne le problème des résolutions, savoir ce qu'il en est de la journée africaine des droits de l'homme qui a été instituée le 21 octobre et à propos de laquelle les chefs d'Etat souhaiteraient qu'il y ait des manifestations parce que jusqu'à présent rien n'a été fait en Tanzanie. Est-ce qu'on peut penser, si c'est le cas, qu'à l'avenir les choses vont peut-être évoluer? Je vous remercie, Monsieur le Président.

JANNEH:

Yes, Counsellor.

MALAMBUGI:

Thank you, Commissioner Nguema. So far we have not had any money for stations or celebrations of any of these anniversaries. The only time anything was done was during the celebrations of the 40th anniversary of the Universal Declaration of Human Rights, whereby, I think, the President prepared a certain statement commemorating that occasion. But that does not preclude that in the future we are going to do something, to implement those, the recommendations by the Commission, the African Commission on Human Rights. Thank you.

JANNEH:

I now give the floor to Commissioner Beye.

BEYE:

Je vous remercie beaucoup Monsieur le Président. J'ai cinq petites questions que je vais poser en une seule fois parce que c'est vraiment des petites questions. Mais, auparavant, je voudrais m'associer aux collègues qui m'ont précédé pour féliciter le gouvernement de Tanzanie et particulièrement Monsieur le Conseiller et cela au moins pour trois raisons. La première c'est d'avoir répondu à l'attente de la Commission, la charte quand elle a été signée et ratifiée pour une des dispositions, c'est l'article 62 qui indique que le gouvernement doit produire le rapport périodique. La Tanzanie est, assurément, un des premiers à l'avoir fait, et nous devons lui être reconnaissants pour cela. Deuxièmement, j'ai été impressionné de noter qu'à la suite de la ratification de la charte par la Tanzanie, il y a eu mêmes des amendements à la Constitution pour tenir compte des exigences de la charte. C'est là une preuve de l'engagement de la Tanzanie, de sa volonté d'appliquer correctement les dispositions de la charte. Et j'ai été également impressionné par la très grande franchise de Monsieur le Conseiller lorsqu'il a fait sa présentation, qui est d'ailleurs la seule source à laquelle je peux me référer puisque, comme je le disais tantôt, nous ne disposons pas du texte en français.

Les cinq petites questions sont les suivantes: La première c'est que, j'ai eu entre les mains, bien sûr, le texte anglais, mais je ne suis pas sûr que Monsieur le Conseiller ait déposé les annexes qui sont extrêmement importantes pour le premier rapport, le rapport initial, comme l'appelait mon collègue, Monsieur Ndiaye. C'est le premier rapport que vous fournissez et un rapport initial et il est soumis à des règles assez spécifiques qui ont fait l'objet d'une directive que nous avons fait parvenir à tous les gouvernements signataires de la charte. Et cette directive indique que pour ce rapport initial, on doit nous produire le texte de la Constitution ou le texte de loi qui en tient lieu et on doit nous communiquer les textes fondamentaux régissant l'organisation judiciaire de chacun des Etats, l'organisation et le fonctionnement des tribunaux, le statut de la magistrature, la Cour Suprême, le Barreau, bref, le système judiciaire pour que nous puissions détenir des informations de qualité qui vont être pour nous des éléments de référence quand nous allons avoir à traiter des cas concernant ces pays. Alors je ne suis pas sûr que ces annexes ont été produites ou alors peut-être qu'elles ont été seulement produites au niveau du secrétaire, mais je voudrais en avoir l'assurance, si non que Monsieur le conseiller puisse noter que ces annexes doivent nous être expédiées par la suite.

Ma seconde question, c'est pour savoir quelle est la partie ou quelles sont les dispositions de la Constitution que vous avez été amenées à amender pour vous mettre en accord avec les dispositions pertinentes de la charte africaine des droits de l'homme et des peuples.

Ma troisième question est relative à cette fameuse loi- j'allais dire loi d'exception- cette loi dont mon collégue Mokama a déjà parlé, et vous savez que un des critères pour se rendre compte si on a à faire avec un Etat de droit ou un Etat policier c'est toujours ce problème de la façon dont quelqu'un est appréhendé et détenu au niveau de la détention préventive ou au niveau de la garde à vue et, au niveau de la garde à vue, ce qui se passe là-bas est extrêmement important et révélateur du degré de respect des droits de l'homme. Alors, puis-je savoir, et je sais que ce n'est évidemment pas encore le cas général, ce n'est pas encore ce qui se passe dans le droit commun, mais est-ce que votre, la loi là dont vous avez parlé et qui a été prise spécialement pour en quelque sorte la conformer le plus possible à la charte africaine, est-ce que, aux termes de votre disposition pénale, quelqu'un qui a appréhendé au niveau de la garde à vue, est-ce qu'il a accès à l'avocat dès ce stade- là, au niveau de la garde à vue? Est-ce qu'il a accès à un avocat?

Ma quatrième question: Vous y avez déjà un peu répondu, mais je ne suis pas satisfait. Vous avez parlé que les valeurs auxquelles la population continue à être attachée font que le problème ou le statut des femmes est plus ou moins observé en Tanzanie. Alors est-ce que, si j'en parle, je pense surtout à l'Etat de Zanzibar qui est un état musulman une partie musulmane de votre fédération, mais est-ce que la femme y jouit vraiment des droits qui sont prévus par la charte africaine des droits de l'homme et des peuples? Est-ce que des dispositions ont été prises au moins sur le plan des textes, même si la pratique doit durer un peu parce qu'on sait très bien qu'on ne modifie pas brusquement la mentalité mais est-ce que des textes ont été retouchés pour penser à cet aspect de la question du droit de la femme? Je suis intéressé par le sort fait aux femmes en Tanzanie et singulièrement à Zanzibar.

Ma dernière question a trait au droit d'association. Vous y avez fait allusion en indiquant que c'était en cours le problème du multipartisme musulman est seulement en cours, que, finalement, après avoir consulté le peuple qui l'a rejeté qui a préféré le multipartisme....

[End of tape]

... Je me demande même, est-ce qu'il est indispensable de consulter le peuple pour savoir s'il a le droit à l'association ou non. Mais enfin, la sagesse a conduit à introduire le multipartisme, mais vous dites à partir du mois d'avril prochain. Alors qu'en est-il dans cette partie transitoire? Comment cela se prépare-t-il, cette transition vers le multipartisme du point de vue du respect de tous les droits liés à la personne humaine?

Voilà, Monsieur le Président, les questions que j'avais à poser à partir seulement, je le répète, de l'exposé oral de Monsieur le Conseiller que je remercie encore pour sa clarté et sa concision. Je vous remercie.

JANNEH:

Thank you, Commissioner Beye. I give the floor to Counsellor Malambugi.

MALAMBUGI:

Thank you, Mr. Chairman. The first question on the annexes, I think, I responded affirmative that we have sent the annexes required. Maybe the Secretary could inform us, if he has received them and if he has not, we can make arrangement to send a set. Okay.

I am sorry I cannot with this short notice say exactly which provisions of the Constitution has been amended to take care of the requirements of the African Charter. It is an issue, it is something which I need some time to go and study and to enumerate exactly what additions have been made to the Constitution. I will leave the third question and move to the role of women.

The role of women is that I said it was a problem in my submission, that this was one of the problems that the Government is facing in the sense that we have, what I termed as outmoded cultural values whereby the rights of women are not fully respected. It is not only in the case of Zanzibar, it is also the same case on the main land and for example, women in the traditional society are not supposed to inherit what is called 'clan land'. That is a problem which Tanzania faces.

Fortunately, the courts in Tanzania have been very progressive. They have decided, there is a decision in the High Court, that the requirement that women cannot inherit clan land is against the basic rights contained in the Constitution. But it is a decision of the High Court, maybe somebody would challenge it in the Court of Appeal. I am not sure, so far as it stands. But whether we have this decision or not, cultural values die hard, and they are ingrained in the minds of people and some people still do not accept it. So it is a problem and it might take time and it will involve education and of course it will involve the women themselves to fight for their rights and it will take time.

As to the right of association, I said that the necessary amendments to the Constitution will be made in April this year, it is not next year, it is this year. So the transition period is actually very short, it is only next month and in the meantime, things continue as they are. The ruling party is in power and what has to be ascertained is that the transition is peaceful and it does degenerate into a situation where we have groups of people challenging the legality of the Government. The legality of the Government has to be preserved so as to ensure a peaceful transition until 1995 when we will be having the first multiparty elections.

We believe that the period of about three years is necessary to enable the opposition also to consolidate itself. You cannot allow multiparty politics today and then tomorrow you call on elections - that would be unfair and you will not be giving the opposition the chance to practice, to put into practice democratic principles. Because whatever opposition that we have right now, it is a self-appointed opposition. They have not had any chance of holding elections or establishing party structures at the national level and going down to the regional district and village levels. So if the opposition is speaking about democratization, the opposition also has to practice what it preaches - they have to establish their structures, they have to hold elections and then go to national elections. And we believe that this interim period between 1992 and 1995 will enable them to come out as a really strong and viable opposition parties. Thank you, Mr. Chairman.

JANNEH:

Thank you very much, Counsellor Malambugi. Yes, Commissioner Beye.

BEYE:

Monsieur le Président, je vous remercie. Je voudrais seulement savoir: la troisième question, qu'il a laissée de côté. Est-ce que c'est parce qu'il n'a pas d'élement de réponse ou bien je voudrais savoir si c'est seulement parce qu'il a besoin de temps pour la question concernant la prévention ou bien c'est parce qu'il préfère de ne pas répondre à cette question. Et deuxièmement, le fédéralisme en Tanzanie, y-a-t-il des incidences sur la réception? Est-ce qu'il y a une Constitution fédérale, est-ce que c'est elle qui a été modifiée? Merci.

JANNEH:

Yes, Counsellor.

MALAMBUGI:

Thank you, Mr. Chairman. It is not as if I do not prefer to answer this question but I think it is much more involved than would appear at first and I would like to study it further and come out with a response in due course. So I hope the Commissioner will bear with me and give me time to do so.

As to the Constitution of Tanzania, I think it is fairly unique but the closest you could think of would be the situation in India, the Constitution of India. Where you have the Constitution of the country and then you have the Constitutions of the regional governments which have a very strong autonomy in respect of certain matters. That is more or less the situation with the Constitution of the United Republic of Tanzania.

We have the Constitution of the United Republic of Tanzania and then we have the Constitution of Zanzibar. The provisions are more or less the same, but there are certain areas which are specifically identified as union matters, and these are specifically foreign affairs, defence, monetary affairs and the police - they are listed as an annex to the Constitution and unfortunately, I do not have a copy of the Constitution or I would have given the whole breakdown of the union matters. I hope that answers the Commissioner's question.

JANNEH:

Any questions? - Well, if there are no further questions to the matters already taken up, I would like to ask a question on freedom of expression.

Is it correct that the Government has set up or intends to set up a press council. If so, what would be the objectives and powers of such a council? And I would particularly want to know whether there would be safeguards against unnecessary censorship aimed at curbing media freedom? I give you the floor Counsellor Malambugi.

MALAMBUGI:

Thank you, Mr. Chairman. That is one of the questions which I would have needed to research further. There was some discussion sometime towards the end of last year on that very topic whereby some journalists were blaming the Government that with that the Government intends to set up, to start censoring some news.

What I remember is that the Minister for Information refuted these claims that there was no such intention on the party of the Government - that the newspapermen and the journalists would continue to enjoy freedom of the press. It is really something which I have to check further to find out if there is a body which is to be set up relating to press matters, what are the functions, what are going to be the functions of that body and what the powers are going to be. It is a question I would wish to research further before coming up with a final answer.

JANNEH:

Very well, Counsellor, that is understandable. It is already said.

I would like to ask a question on the Tanzanian legal corporation. I understand there is what is called the Tanzanian Legal Corporation. As far as I'm concerned it seems to be a rather peculiar institution - I have not heard of any legal corporation anywhere else, so I'm truly interested to know, as a private legal practitioner myself, what is the nature of this legal corporation, is it an independent body or is it a parastatal body. What is it? What really is this legal corporation?

In answering that question, I would like to know whether the qualification of members of that corporation are at par with other members of the bar? The floor is yours.

MALAMBUGI:

Thank you, Mr. Chairman. There is nothing really strange about the Tanzanian Legal Corporation. It is a public institution. The Tanzanian Legal Corporation was specifically established to cater for the legal requirements of the public institutions - of the various parastatals in Tanzania. It is engaged in private litigation but the bulk of its activities relates to representing other public corporations in courts and giving them legal advice. The qualifications of the personnel in the legal cooperation are the same as those of any other legal practitioner in Tanzania. There is no favouritism or whatsoever in getting enrolment and other requirements needed to qualify to practice.

JANNEH:

Just one question. When you say they engage in private legal practice, what do you mean? Do you mean they could be engaged by ordinary members of the public?

MALAMBUGI:

Exactly.

JANNEH:

And be paid? And if they are paid - who gets the money? The Government?

MALAMBUGI:

The Government. The Corporation - yes, the Government. It's not the advocate himself.

JANNEH:

I see.

Gentlemen, well, if there are not any further questions, Counsellor, I would now like to thank you very much. Although, as I said before, you have not been given adequate notice, you have definitely been very very helpful. You have answered questions with candour and those which you have not been able to answer, you have promised to do research on and perhaps another day you may come and give us better details. For what you have done already we are most grateful and we thank you once again. Thank you, Counsellor.

SUBJECT INDEX

African Charter on Human and Peoples' Rights (31)

cited in domestic courts (30), (51)

conflict with domestic laws (30), (31), (55)

implementation of (29), (31)

incorporation of (28), (30), (31), (38), (54), (55)

public education on see also promotion of human rights (29), (51)

Association

freedom of (55), (56)

Censorship (33)

see also freedom of expression

Constitutions (24), (25), (28), (31), (32), (35-37), (47), (51), (54-56)

see also government

Convention Against Torture (32)

Courts (25), (34)

ajudication of rights in (26), (30), (33), (55)

structure of (30), (36)

see also judicial independence

Criminal codes (25), (27), (31), (36), (38), (52), (54)

as applied to juveniles (27)

see also fair trial

Democracy

transition to (50), (55), (56)

see also elections

see also multipartyism

Detention (47-49), (52)

incommunicado (47)

preventive (48-50), (52), (54)

provisional (28), (33)

Development

right to (29), (30), (32)

ECOSOC (10)

Education (26)

for human rights (34), (35), (50)

Elections (56)

see also democracy

Expression

censorship (33)

freedom of (57)

Fair trial (25)

right to defence (25), (27), (33), (34), (54)

Federalism (56)

Government

participation in (26)

separation of powers (37)

structure see also constitutions (56), (57)

see also democracy

Impunity (34)

India (56)

Individual liberty (25)

Inhuman treatment (33)

see also torture

International Covenant on Civil and Political Rights (24), (27), (33)

International instruments (25), (28)

Judicial independence (25), (28), (35), (36), (38)

see also courts

Law (38)

annexed to state reports (35-38), (54)

emergency legislation see also state of emergency (27), (32)

Islamic (55)

see also criminal codes

Legislature (28), (32)

Multipartyism (25), (49), (50), (55), (56)

Non-governmental organizations (NGOs) (23), (24)

providing information additional to state reports (32)

relations with government (39)

OAU

resolutions of (34), (35), (52), (53)

Peoples' rights (29)

Police (49)

human rights abuses perpetrated by see also impunity (34)

surveillance by (26)

Political prisoners (33), (52)

Prisons (27), (36)

Promotion of human rights (31), (50), (51)

African Day on Human and Peoples' Rights (35), (53)

use of the media (35)

Punishment

retroactive (26), (27)

Rapporteurs on state reports (10), (12), (14)

Right to life

capital punishment (27)

Sadat, Anwar (32)

Searches (27)

South Africa (36)

State of emergency (28), (29), (32-34)

State reports

appellation of (37), (38)

as dialogue (24), (47)

distribution of (to Commissioners) (9-14)

general directives for preparation of (35), (54)

honesty in (54)

initial (37), (38), (54)

loss of (38)

overdue (12)

procedure of examination (9), (10), (12), (15), (23), (24), (29), (37), (47)

questions prepared on (9-11), (13), (15), (28), (29), (32), (37), (38), (47)

secretariat's handling of (11), (13-15), (51)

submission of (12), (31), (37)

supplementary information requested (10)

translation of (11-15), (23), (35), (37), (51)

Torture (25), (27), (30), (32), (34)

Traditional practices (55), (56)

UN Human Rights Committee (10), (37)

Universal Declaration of Human Rights (53)

Women

education of (56)

inheritance (55)

rights of (36), (55)

Zanzibar (52), (53), (55), (57)

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