African Charter on Human and Peoples' Rights (ACHPR)
The African Charter on Human and Peoples’ Rights requires states which have ratified it to ensure equal protection of the law (article 3), respect for personal integrity (article 4), respect for human dignity (article 5) and protection from torture and cruel, inhuman or degrading punishment and treatment (article 5) for all people.
In a 2003 decision on a complaint that the sentencing of eight students in Sudan to between 25 and 40 lashes, the African Commission on Human and Peoples’ Rights, which interprets the Charter, found that legislation permitting flogging violated article 5 of the Charter. The Commission held that “[t]here is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State sponsored torture under the Charter and contrary to the very nature of this human rights treaty.” It requested that the government of Sudan amend the criminal law in question and abolish the penalty of lashes (Curtis Francis Doebber v. Sudan, 236/2000).
In 2020, Sudan enacted the Miscellaneous Amendments Law 2020 which amends the Criminal Code 1991 to repeal whipping and flogging by way of discipline and as a sentence for crime. The new law replaces whipping with probation and community service (article 47(b)). Corporal punishment is therefore unlawful in penal institutions and as a sentence for crime.
In September 2023, regarding the case of a man sentenced to ‘twelve strokes of the cane’ in Tanzania, the African Court on Human and Peoples’ Rights condemned the existence of legislations allowing the use of corporal punishment in the country and ordered their abrogation. The Court found that the sentence violated the complainant’s right to dignity as provided under Article 5 of the African Charter on Human and Peoples’ Rights. It held that ‘Article 5 has no limitation provisions. This entails that the prohibition of cruel, inhuman and degrading treatment or punishment is absolute. […] the prohibition in Article 5 must be extended to provide the widest possible protection against abuse be it physical or mental’. The Court requested that the government of Tanzania remove corporal punishment from all its laws, in order to make them compliant with the prohibition of torture, cruel, inhuman or degrading treatment or punishment in Article 5 of the Charter (Yassin Rashid Maige v. United Republic of Tanzania- Application NO. 018/2017).
In UR Tanzania, prohibition of corporal punishment is still to be achieved in the home, some alternative care settings, day care, schools, some penal institutions and as a sentence for crime.