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Human Rights Committee Raises Concerns about Torture, Transitional Justice and Sexual Minorities in Dialogue with Togo

1 July 2021

The Human Rights Committee today concluded its consideration of the fifth report of Togo on measures taken to implement the International Covenant on Civil and Political Rights.

During a dialogue held entirely online, Committee Experts praised the quality and clarity of answers provided by the State Party in the report. 

Experts pointed out that the State Party’s definition of torture failed to mention the involvement of public officials or of a person acting in an official capacity, in line with the Convention against Torture.  This could allow the State to shirk its responsibilities for acts of torture committed by its agents.  Information from civil society organizations showed acts of torture were perpetrated by members of the police and security forces, in particular against political opponents of the ruling party or other people held in custody or pre-trial detention, or as part of the fight against COVID-19.  The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, during its visit to Togo in December 2014, had already noted that torture and ill-treatment remained widespread. 

Experts also raised the topic of transitional justice in connection with the serious human rights violations that occurred during and after the April 2005 presidential elections.  How did the State intend to enable victims and their families to obtain the truth about past crimes?  On sexual relations between consenting adults of the same sex, Experts asked to what extent the State ensured the protection of human rights defenders who worked with lesbian, gay, bisexual, trans and intersex people.  Had the State adopted measures to sensitize law enforcement officials and other State agents on issues related to sexual orientation and gender identity in order to protect sexual minorities? 

Christian Eninam Trimua, Minister of Human Rights, Training, Citizenship and Relations with the Institutions of the Republic, and Government Spokesperson, said that, legislation had been improved by the adoption of certain laws that bolstered freedom of expression, the judiciary, the penal and family codes, as well as laws relating to land, military justice, and the excessive use of force.  Institutions had been strengthened thanks to the 2019 Constitutional reform.  In 2019, the new penal code set forth a definition of torture identical to that of article 7 of the Covenant.  The new penal code also enshrined, in its article 198, that torture was not subject to the statute of limitation.  Some allegations of torture that were cited by Experts were not true.  Stressing that victims of torture had received reparations, Mr. Trimua pointed out that the Covenant left it to national authorities to determine sentences for this crime. 

Regarding sexual relations between consenting adults of the same sex, Togo did not plan to repeal the provisions that criminalized them because this was not in line with Togolese social values.  Togo had never imprisoned anyone based on their sexual orientation or gender identity, so while the offence existed in law, it was never enforced in reality.  There was nothing criminalizing social workers or organizations working with the lesbian, gay, bisexual, trans and intersex people.  Draft legislation was being prepared on the protection of  human rights defenders. 

The delegation assured that, since 2015, the crime of torture had not been subject to the statute of limitations and was punishable by 20 to 30 years of imprisonment in Togo.  Acts committed before 2015 had led to criminal proceedings, even though some had not been classified as torture.  The alleged acts of torture in the Kaplimé prison were being investigated and the alleged perpetrators had been arrested.  The authorities had also taken up other allegations of torture against peaceful activists.

In conclusion, Mr. Trimua, thanked the Committee for the enriching exchange.  Togo was ready to uphold its international obligations under the Covenant and all international instruments to which it was a party.

Photini Pazartzis, Committee Chairperson, thanked the delegation for its participation.  It was rare for the Committee to receive such a high-level delegation.  This testified to Togo’s dedication to the Covenant. 

The delegation of Togo consisted of Christian Eninam Trimua, Minister of Human Rights, Training, Citizenship and Relations with the Institutions of the Republic and Government Spokesperson; Akodah Ayewouadan, Minister of Communication and Media; Pius Kokouvi Agbetomey, Minister of Justice and Relations with the Republic's Institutions; Adjovi Lolonyo Apedoh, Minister of Social Action, Promotion of Women and Literacy.  The delegation of Togo also included representatives of the Ministry of Territorial Administration, Decentralization and Territorial Development; the Ministry of Justice and Relations with the Republic's Institutions; the Ministry of Social Affairs, Promotion of Women and Literacy; the Ministry of Security and Civil Protection; the Lomé Court of Appeal; the prison administration of Togo; and the Permanent Mission of Togo to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Togo at the end of its one hundred and thirty-second session, on 23 July.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage

All public meetings of the Human Rights Committee are webcast live at  http://webtv.un.org/ while the meeting summaries in English and French can be accessed at the United Nations Office at Geneva’s News and Mediapage.

The Committee will next meet in public on 16 July to consider the progress report of the Rapporteur on follow-up to concluding observations on State party reports.

Report

The Committee had before it the fifth report of Togo (CCPR/C/TGO/5).

Opening remarks

PHOTINI PAZARTZIS, Committee Chairperson, welcomed those present and thanked the delegation of Togo for its diverse and high-level composition.

Presentation of the report

CHRISTIAN ENINAM TRIMUA, Minister of Human Rights, Training, Citizenship and Relations with the Institutions of the Republic, and Government Spokesperson, said the report covered the 2011-2018 period, as well previous developments, as requested by the Committee.  Legislation had been improved by the adoption of certain laws that bolstered freedom of expression, the judiciary, the penal and family codes, as well as laws relating to land, military justice, and the excessive use of force.  Institutions had been strengthened thanks to the 2019 Constitutional reform.  Turning to the implementation of articles 1 to 27 of the Covenant, Mr. Trimua said the new penal code of 2015, in its article 553, punished anyone who was found guilty of discrimination.  Regarding sexual relations between consenting adults of the same sex, Togo did not plan to repeal the provisions that criminalized them because this was not in line with Togolese social values.  The new penal code had a section on discrimination in general, and articles 311 to 313 pertained to discrimination against women. 

Monogamy was now the rule and polygamy the exception in Togo, Mr. Trimua assured.  Reforms carried out in 2018 guaranteed access to land ownership for women on an equal footing with men.  In recent years, the empowerment of women had been actively promoted, as attested the fact that 33 per cent of the members of the current government were women.  Fifteen centres had been set up to provide care to victims of gender-based violence.  In schools, the Education Sector Plan prohibited all forms of violence, and the National Strategy to Combat Violence in Schools for 2018-2022 had been  adopted.  Genital mutilation was punished under articles 217 to 222 of the new penal code.  Death penalty had been abolished since 2009, and, in 2019, the new penal code set forth a definition of torture identical to that of article 7 of the Covenant.  The new penal code also enshrined, in its article 198, that torture was not subject to the statute of limitation.  A code on judicial organizations, adopted in 2019, established a new, more modern and more accessible judicial system which strengthened the independence of the judiciary, and equitable access to justice at the local level. 

To combat the excessive use of force by law enforcement and security forces, initial or continuing training was provided at all levels in defense and security forces training schools.  A new code of military justice, adopted in April 2016, provided that no military person who had perpetrated torture or cruel, inhuman or degrading acts could avoid criminal prosecution.  M.  Trimua acknowledged that despite the progress achieved, additional efforts were required, in particular to implement the recommendations of human rights mechanisms, as well as to promote a culture of human rights.  To this end, the Togolese Government would pay heed to the opinions and comments of its partners, civil society organizations and citizens, he assured.

Questions by Committee Experts

Committee Experts, noting that statistics had been provided, praised the quality and clarity of answers provided by the State Party in the report.  On the implementation of the Covenant and the recommendations, while noting that the human rights situation had improved in the country, an Expert asked if Togo had deposited the instruments for ratification of the Second Optional Protocol to Covenant.  No answer had been provided in the report on the practical application by domestic courts of the Covenant.  Problems remained with regard to the revision of the code of criminal procedure, which could be better aligned with international standards concerning fair trial.  To what extent was the new legislation on national security, freedom of assembly and cyber security in line with the Covenant?

On the National Human Rights Commission, an Expert asked why its reports were confidential.  Could the Commission legally refer complaints or specific facts that were brought to its attention to the courts?  He then turned to the case of Kpatcha Gnassingbé, who was arrested in 2009 and sentenced in 2011 to 20 years in prison for attempted coup d'état.  Mr. Gnassingbé had filed complaints of torture and ill-treatment with the National Human Rights Commission.  According to information available, in 2012, the government had released the Commission's report in a version that was not complete.  What was the position of the delegation on the report and the threats allegedly levelled against the Commission?

The State Party’s definition of torture failed to mention the involvement of public officials or of a person acting in an official capacity, in line with the Convention against Torture.  This could allow the State to shirk its responsibilities for acts of torture committed by its agents, thus removing the specificity of this crime.  Moreover, article 7 of the Code of Criminal Procedure stated that there was a statute of limitations of 10 years for that crime.  Non-retroactivity was also an issue: it was used to clear and exonerate acts of torture that had taken place before the adoption of the 2016 law.

Did the Commission for Reconciliation and the Strengthening of National Unity in its report disclose the names of those allegedly responsible for acts of incitement to ethnic hatred that had led to serious human rights violations?  The Expert required additional information on the content of the Plan of Reparation for the victims elaborated by the Commission.

On sexual relations between consenting adults of the same sex, an Expert asked to what extent the State ensured the protection of human rights defenders who worked with lesbian, gay, bisexual, trans and intersex people.  Had the State adopted measures to sensitize law enforcement officials and other State agents on issues related to sexual orientation and gender identity in order to protect sexual minorities? 

Polygamy remained an option under Personal and Family Code and had therefore not disappeared from domestic law.  Could the delegation comment on reasons behind the continuation of this practice, which was deeply discriminatory against women?  An Expert noted that there was no specific information provided concerning the criminalization of spousal rape.  What measures had been taken to assist victims?

On female genital mutilation, an Expert enquired about the concrete results of initiatives launched.  What measures had been taken to prevent families, particularly from the far north of Togo, from going to neighbouring countries to carry out female genital mutilations? The Expert also asked about the State Party’s efforts to combat clandestine abortions and guarantee the right of access to a safe and healthy abortion in accordance with its obligations related to the right to life.  What specific measures had been taken in the COVID-19 context,  which had seen the global numbers of illegal abortions explode?

Replies by the delegation

The delegation assured that, since 2015, the crime of torture had not been subject to the statute of limitations and was punishable by 20 to 30 years of imprisonment in Togo.  Acts committed before 2015 had led to criminal proceedings, even though some had not been classified as torture.  The alleged acts of torture in the Kaplimé prison were being investigated and the alleged perpetrators had been arrested.  The authorities had also taken up other allegations of torture against peaceful activists.

There was currently a 3 per cent prevalence rate of female genital mutilation among girls under the age of 14.  This showed this practice was gradually being abandoned.  The delegation acknowledged that some people crossed borders to perform mutilations.  In response, awareness-raising campaigns were organized in border areas, as well community events with local leaders.  

Marital rape had been criminalized since 2015, and was punished in the same way as rape.  But it was difficult to prove marital rape in court.  Addressing questions on clandestine abortions, delegates said a hotline had been created for young people so adolescents could obtain information about sexual health and prevent unwanted pregnancies.  Modules on “life skills” were taught in schools, to protect adolescents against sexual violence.

On remarriages, Togo was revising the family code and re-examining the widowhood period.  On polygamy, as the head of delegation had explained, this practice was now the exception.

Addressing questions related to freedom of assembly, the delegation said it was protected under the Constitution, and there were no problems in that regard.  However, in 2017, violent demonstrations that were politically motivated had taken the country hostage, and led to 14 deaths.  There had been actions carried out that resembled those characterizing urban warfare; they seemed linked to extremism, which was prevalent in the region.  Following these events, the Government had had to revise the law to protect its people and prevent further acts of terrorism.  An amendment to the 2009 law was adopted in 2019, and it imposed a number of restrictions that were not fully in line with the Covenant, the delegation acknowledged.  While this had been done for the reasons explained before, the Committee’s comments were fully taken on board, and the Government was reflecting on the matter.

With regard to the events of 2005, the Government's decision had been to give priority to reparations, leaving it to the victims to seek justice.  In 2017, the Commission for Reconciliation and the Strengthening of National Unity had begun disbursing financial compensation.  Medical, surgical and psychological care had been provided to vulnerable victims.  The Commission was  also able to propose legislative, regulatory or institutional measures concerning impunity, guarantees of non-repetition and reparation.  Togo had deposited the ratification instrument for the Second Optional Protocol to Covenant on 14 September 2016, delegates added. 

On the issue of confidentiality and the National Human Rights Commission, the delegation explained that this institution was being completely overhauled to bring it in line with international standards.  A draft bill had been adopted by the Council of Ministers and forwarded to the National Assembly.  Once adopted, the new law would  address all of the Committee's concerns.

AKODAH AYEWOUADAN, Minister of Communication and Media, stressed once again that polygamy was an exception.  Work was ongoing to put an end to polygamy in Togolese society.  Work was also underway to remove the 300-day timeline for remarrying.   The changes concerning criminalization of spousal rape required an incremental approach.  Awareness raising was important in that context, notably for male spouses, but also for women, to ensure they would be able to report cases of rape.

CHRISTIAN ENINAM TRIMUA, Minister of Human Rights, Training, Citizenship and Relations with the Institutions of the Republic, and Government Spokesperson, said that the penal code was in line with the Covenant.  The issue of confidentiality and the National Human Rights Commission was left to the Commission itself because there might be individuals who did not want proceedings to be public.  The new organic law on the Commission required the systematic publishing of reports.  The Commission could bring cases to courts, including the Constitutional Court, following recent reforms. 

Some allegations of torture that were cited by Experts were not true.  Stressing that victims of torture had received reparations, Mr. Trimua pointed out that the Covenant left it to national authorities to determine sentences for this crime.  As for the non-retroactive nature of the legal provisions on torture, all those who believed they had been victims of torture were encouraged to bring forward their allegations, he said.

Togo had never imprisoned anyone based on their sexual orientation or gender identity, so while the offence existed in law, it was never enforced in reality.  There was nothing criminalizing social workers or organizations working with the lesbian, gay, bisexual, trans and intersex people.  Draft legislation was being prepared on the protection of  human rights defenders.  As for abortion, the COVID-19 period had been very difficult for health personnel and the delegation would be looking at statistics from this period to examine the issue of clandestine abortions.

Questions by Committee Experts

An Expert raised the topic of transitional justice in connection with the serious human rights violations that occurred during and after the April 2005 presidential elections.  How did the State intend to enable victims and their families to obtain the truth about past crimes? 

Information from civil society organizations showed acts of torture were perpetrated by members of the police and security forces, in particular against political opponents of the ruling party or other people held in custody or pre-trial detention, or as part of the fight against COVID-19.  The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, during its visit to Togo in December 2014, had already noted that torture and ill-treatment remained widespread.  Did the disciplinary procedure against members of the security forces not allow the opening of criminal investigations? Was complicity in acts of torture or attempts to commit torture punishable?  The delegation was asked to provide statistics on the number of investigations related to torture that had been brought before Togolese courts in the last three years.

On the National Human Rights Commission, an Expert reiterated that its former president Koffi Kounte had complained of threats that had forced him into exile, and he had still not returned to Togo.  Was an investigation opened on this?  On the case of Kpatcha Gnassingbé, the Expert asked what measures had been taken to open a criminal investigation, regardless of the disciplinary proceedings, into the torture suffered by the seven victims concerned, as well as by other victims.  Given the approval of the new military justice code in April 2016, before which courts would military personnel be prosecuted for engaging in torture? 

Experts asked what measures were in place to allow a person to challenge the merits of their arrest, and to denounce the practice of ill-treatment.  How frequent were visits to detention centres by inspection services, the police and the gendarmerie, and by prosecutorial authorities?

Expressing concerns about prison overcrowding, an Expert asked if detention of minors was a measure of last resort, and if the age of the child was verified in all cases.  Were special circumstances of women who were pregnant or with infants taken into account?

Experts requested information on the implementation of the law on legal aid and on access to lawyers, including at the outset of investigations.  They said mob justice had become a social trend, despite the increased presence of law enforcement and security forces on the ground.  Could the delegation provide updated data on this matter as well as information on measures taken to address it?

They also requested information on the number of detainees who had died in prison in the last five years and measures taken to prevent the spread of COVID-19 in places of detention.

The Special Rapporteur on contemporary forms of slavery had expressed concerns about inspectors’ lack of capacity and resources to conduct monitoring in all settings where child labour may be prevalent, Experts noted.  How was the Government addressing this issue and other child labour matters?

Replies by the delegation

PIUS KOKOUVI AGBETOMEY, Minister of Justice and Relations with the Republic's Institutions, said ensuring detainees’ right to call their families and access a lawyer were considered administrative formalities.  Foreigners could also contact their embassy.  Deaths in prisons were mostly caused by malaria, respiratory and metabolic diseases, and other illnesses. 

Measures were taken to manage the situation of overcrowding in prisons, including amnesties granted by the President and instructions given to magistrates to ensure judicial proceedings were conducted diligently.  On COVID-19, when the first cases appeared in prison, the authorities had reacted by raising awareness, testing inmates, and providing them with vaccines.

When acts of torture were reported, the practice was to set up an administrative investigation.  This did not prevent the launch of criminal proceedings.  The administrative inquiry allowed authorities to take necessary measures to improve the situation.  While the delegation was not in a position to provide statistics on cases of ill-treatment in custody, it assured that disciplinary sanctions were handed down.  There had been 20 cases of mob justice in 2020.  Units were in place across the country to respond to this concern.

ADJOVI LOLONYO APEDOH, Minister of Social Action, Promotion of Women and Literacy, said that awareness-raising campaigns on trafficking in persons had been rolled out.  Bilateral agreements had been signed with Gabon in 2018 to combat this crime, and a tripartite agreement was signed between Burkina Faso, Togo and Benin to harmonize law enforcement efforts on transnational trafficking cases.  Labour inspectors were trained on child labour, and an action plan had been designed to combat the worst forms of phenomenon.

CHRISTIAN ENINAM TRIMUA, Minister of Human Rights, Training, Citizenship and Relations with the Institutions of the Republic, and Government Spokesperson, addressing questions on the Commission for Reconciliation and the Strengthening of National Unity, said it had provided reparations to over 8,700 persons.   While the priority was reparations, the Government was not turning its back on justice, he assured. 

PIUS KOKOUVI AGBETOMEY, Minister of Justice and Relations with the Republic's Institutions, said there had been improvements with regards to health and safety in prisons.  Health and safety committees had been set up, and prison staff was eating the same food as inmates.  Access to prisons was restricted because of the pandemic and the related safety measures.  Children, of course, had access to lawyers.

ADJOVI LOLONYO APEDOH, Minister of Social Action, Promotion of Women and Literacy, explained that if the victims of trafficking were children they stayed in shelters, and social services were in charge of thei repatriation.  Authorities helped trafficked people obtain residency, provided that they were adults and wanted to stay in Togo.

Questions by Committee Experts

Regarding the independence of the judiciary, an Expert asked whether Togo, as part of justice system reforms, had accomplished a strict separation between the functions of judges and prosecutors.  Which measures had Togo taken to fight corruption in general and corrupt practices in the judiciary in particular?
Regarding freedom of the press, what measures had Togo taken to protect comments or criticism that were of public interest?

An Expert asked whether the National Refugee Committee and its Appellate Body were functioning.  Noting that Togo in 2012 had acceded to the Convention relating to the Status of Stateless Persons (1954), the Expert asked why it had not deposited its instruments of accession.

Four United Nations Special Rapporteurs in 2019 had sent a communication to the Government of Togo stating that its amended law contained disproportionate and abstract restrictions on the freedom of peaceful assembly and demonstration, requesting that they be lifted.  Was that law compatible with the Togolese Constitution? 

An Expert asked for details on Togo’s law on freedom of association adopted in 2016.  Why had certain places of worship been closed down?  Could the procedure for a formal acknowledgement, which was granted at the discretion of the Minister for Territorial Administration, be considered a necessary restriction in a democratic society under the Covenant?

An Expert asked if the State planned to decriminalize abortion.
 
What concrete steps was the State party taking to actively protect civic space and in particular, let journalists, trade unionists and human rights defenders do their work without intimidation? 

Replies by the delegation

The delegation said that the law creating the status of refugees in Togo was adopted in 2016 and provided for remedies.  Togo had ratified two conventions addressing the question of statelessness, and the instruments of ratification would be deposited shortly. 

PIUS KOKOUVI AGBETOMEY, Minister of Justice and Relations with the Republic's Institutions, addressing questions about the independence of the judiciary and issues of corruption, said that Togo’s Constitution enshrined the independence of the judiciary, as well as that of the executive and legislative branches.  As for the independence of the public prosecutor’s office, Togo had “inherited” the French model, and reforming it was not currently on the agenda. 

All security forces were subordinated to the relevant civil authorities, the delegation said.  Maintaining order and peace was achieved through conventional methods, and lethal weapons were not used.  When Togolese officials used excessive force, the authorities handed down disciplinary measures. 

Turning to the freedom of association, delegates explained that, in Togo, associations could be established and freely go about their activities on the basis of an old French law from 1901 and the Constitution.  Togo had over 15,000 associations that were formally registered; about 7 000 of those had received a formal acknowledgement.  The procedure for formal acknowledgement was compatible with the Covenant.  Certain organized criminal and terrorist outfits used associations to launder money, so Togolese authorities needed to carry out checks.  As inhuman treatment had taken place in religious contexts, a special unit had been carrying out investigations to ensure places of worship remained safe environments. 

AKODAH AYEWOUADAN, Minister of Communication and Media, said journalists were citizens like any others; the penal code applied to them.  However, when they were going about their professional activities, they were protected by the press code.  Journalists were no longer imprisoned in Togo; no journalists were currently in prison for acts undertaken in the context of their professional activities.  No complaints from journalists about aggression or intimidation had been filed with courts or the National Human Rights Commission.  There was room for public debate in Togo, as the large number of media outlets attested. 

Turning to the anti-corruption policy, he said the legal framework was robust when it came to public procurement and access to services.  Customs and revenue authorities also had mechanisms to fight corruption.  Togo had recently launched a strategic plan to fight corruption, and was undertaking reforms to strengthen the prosecution of cases of corruption. 

In response to questions on public demonstrations, Mr. Ayewouadan said it was the peaceful nature of demonstrations which was protected by the Covenant.  If people brought weapons to demonstrations, they were not demonstrators, they were criminals who should be treated as such.  Demonstrations could be prohibited in areas where counterterrorism operations were underway. 

As for lesbian, gay, bisexual and trans issues and rights, reports of abuses had not reached Togolese authorities.   Abortion was provided for if the mother’s life was in danger, or if the abortion was the result of rape or incest, but not in other circumstances.   While stating that there was no appetite in Togolese society to make abortion a widespread and legal practice, he acknowledged the need to address the issue of backstreet abortions. 

Concluding remarks

CHRISTIAN ENINAM TRIMUA, Minister of Human Rights, Training, Citizenship and Relations with the Institutions of the Republic, and Government Spokesperson, thanked the Committee for the enriching exchange.  Togo was ready to uphold its international obligations under the Covenant and all international instruments to which it was a party.  Togo planned to send further information about its draft bills to the Committee for its analysis. 

PHOTINI PAZARTZIS, Committee Chairperson, thanked the delegation for its participation.  It was rare for the Committee to receive such a high-level delegation with five ministers.  This attested to Togo’s dedication to the Covenant.  The Committee’s last dialogue with Togo had been held in 2011; this explained the wide-ranging character of the dialogue and the number of issues covered. 

Link: https://www.ungeneva.org/fr/news-media/meeting-summary/2021/07/human-rights-committee-raises-concerns-about-torture