Beyond the State: Reforming Africa’s Anti-Torture Framework to Address Non-State Violence
African countries have made significant strides in ratifying international anti-torture instruments like the UN Convention Against Torture (UNCAT). UNCAT Article 1 defines torture as severe pain or suffering intentionally inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
A critical gap remains between these commitments and national laws. The narrow definition of “torture” in many legal frameworks, which often requires a State agent to be the perpetrator and consequently leaves out atrocities committed by non-State actors. The result is that serious abuses perpetrated by non-State armed groups in armed conflicts can fall outside the offence of “torture” in domestic law. This is especially troubling given Africa’s reality of conflict-related mass rape and other sexual violence perpetrated by armed groups and militias.
Under the African human rights system, such acts of mass rape are unequivocally recognized as torture or cruel, inhuman, and degrading treatment; further, such acts are expressly prohibited by international humanitarian law (IHL). However, if national legislation continues to adhere to an outdated, State-centric definition of torture, impunity for these crimes persists. This gap is increasingly untenable given Africa’s contemporary conflict landscape. Crucially, States still owe due-diligence obligations under UNCAT and regional human rights law: when authorities know or ought to know of a real risk of serious abuse by non-State actors and fail to take reasonable steps to prevent, investigate, or punish it, their acquiescence can engage responsibility under the Convention. This State-actor limitation consequently does not erase State obligations; it makes domestic criminalization choices decisive for accountability.
This post examines how African jurisprudence has classified mass rape as torture, highlights progressive national laws that broaden the torture definition, and proposes reforms to align national legislation with African and international standards. National legislation may be effective with an inclusive definition of torture in accordance with international legal standards. Such reform at the African Commission would be foundational to transforming anti-torture practices in African countries.
Mass Rape as Torture in African Human Rights Law
Article 5 of the African Charter on Human and Peoples’ Rights prohibits “all forms of exploitation and degradation of man,” including torture and cruel, inhuman, or degrading treatment. The African Commission on Human and Peoples’ Rights (ACHPR) has consistently interpreted Article 5 to cover acts of sexual violence. In its General Comment No. 4 (2017) on Article 5, the Commission explicitly affirmed that sexual and gender-based violence—or more precisely, a State’s failure to prevent such violence—“may amount to torture and other ill-treatment.” The Comment lists rape, including “corrective rape,” among examples of acts that inflict severe trauma and thus breach the Charter’s prohibition. Corrective rape refers to targeted rape purportedly to “cure” a person’s sexual orientation or gender identity, recognized as a discrete form of gender-based violence that can amount to torture under Article 5. This reflects a growing consensus in international law that rape can constitute torture, particularly when it is widespread or used as a tool of intimidation or punishment.
ACHPR caselaw underscores that mass rape, especially by State actors or with their complicity, is among the gravest human rights violations. For example, in Safia Ishaq Mohammed Issa v. Sudan (ACHPR Communication 443/13, 2022), Sudanese security agents abducted, beat, and gang-raped a student activist. The Commission held that the rape constituted torture, finding that the victim “was subjected to torture in the form of sexual abuse (rape),” and that Sudan violated Article 5 by failing to prevent, investigate, or punish the perpetrators.
Earlier, in the landmark Democratic Republic of Congo v. Burundi, Rwanda & Uganda (Communication 227/99, 2003), the Democratic Republic of Congo (DRC) detailed how invading forces used mass rape as a weapon of war, even alleging that 2,000 HIV-positive soldiers were sent to rape women and girls with the aim of spreading HIV/AIDS. The Commission found the respondent States responsible for “grave and massive” human rights violations, condemning the rapes as an affront to the victims’ dignity and a violation of the Charter. It referenced international law (i.e., the Geneva Conventions and the Convention on the Elimination of All Forms of Discrimination against Women) to emphasize that rape in armed conflict violates fundamental humanitarian norms and, by extension, Article 5 of the Charter.
Likewise, in Sudan Human Rights Organisation & COHRE v. Sudan (Communications 279/03 and 296/05, 2009), concerning atrocities in Darfur, the Commission held Sudan accountable for torture and cruel, inhuman treatment due to widespread rapes of women and girls by government forces and Janjaweed militia. The Commission noted these acts amounted to both physical and psychological torture of the affected communities. It stressed that even if non-State militia committed some abuses, the State’s failure to prevent and stop them breached Article 5.
National Legislation: Expanding Definitions and Good Practices
Despite the African Commission’s guidance, many African countries’ national laws still mirror the UNCAT definition of torture, which ties the crime to acts by a public official or someone acting in an official capacity. This State-actor requirement in law can become a loophole; perpetrators like rebel warlords, insurgents, or even private individuals who commit torture (including sexual torture) may evade accountability if national law doesn’t cover them. Such a narrow definition undermines the fight against torture, given modern conflicts and even peacetime realities where non-State actors (militias, gangs, traffickers, etc.) inflict horrific pain and suffering. It also provides a convenient excuse for governments to downplay abuses (“it’s not torture because it wasn’t done by officials”); an attitude that slows down the adoption of robust anti-torture measures. Fortunately, several African countries have recognized this gap and enacted progressive legislation to close it, offering models for the continent.
Uganda’s 2012 Prevention and Prohibition of Torture Act (PPTA) is a leading example. The PPTA explicitly expanded the definition of torture to “include persons acting in a private capacity” as potential perpetrators. In other words, under Ugandan law, it is a criminal offence for anyone—not just officials—to commit acts of torture, provided the other elements (intent to inflict severe pain for purposes like punishment, intimidation, discrimination, etc.) are met. Ugandan lawmakers realized that UNCAT’s definition was “too restrictive and limited to state actors,” and they chose a wider protection for their people.
The PPTA thus covers, for example, torture by a member of a rebel group engaged in armed conflict or by a private prison guard, and it imposes penalties accordingly. It also obliges Ugandan authorities to prevent and investigate torture by non-State actors, reflecting the due diligence principle in domestic law. Uganda’s approach has been lauded as a best practice in Africa, demonstrating that there is nothing preventing States from going beyond the UNCAT baseline (indeed, UNCAT’s Article 1(2) permits broader definitions). By removing the public official limitation, Uganda’s law ensures no torturer can find refuge in a legal technicality.
Nigeria’s 2017 Anti-Torture Act similarly does not restrict the perpetrator to State agents. The Act’s definition of torture closely follows UNCAT but pointedly omits any exhaustive requisite of the offender’s official capacity, effectively criminalizing torture by any person. Nigerian legal scholars have noted that the Act “gave a broader meaning to torture,” chiefly by elaborating non-exhaustive forms of torture, opening the potential to extend the core offence to acts by non-State actors. This means that if, say, a member of Boko Haram or an armed band inflicts severe pain for purposes such as intimidation or coercion, they can be prosecuted for torture under Nigerian law.
Such provisions are crucial in countries facing insurgencies or communal violence. Nigeria’s legislation also underscores that effective anti-torture laws require no “security exception.” In fact, Nigeria explicitly refused to pardon or grant amnesty to perpetrators of torture, even in its transitional justice measures (e.g., Zimbabwe’s Clemency Order excluded rapes from amnesty but included grievous bodily harm (such as torture) and Nigeria’s Act came amid counter-terrorism efforts). By criminalizing all acts of torture, Nigeria sent a message that national security or emergency conditions cannot be used as a pretext to tolerate torture.
Other countries, like South Africa and Kenya, have likewise grappled with this issue. South Africa’s 2013 anti-torture law sticks to the UNCAT definition (limited to public officials), but South African courts and commissions (such as the post-apartheid Truth and Reconciliation Commission) acknowledged torture by non-State actors, recommending reparations for all victims regardless of the perpetrator. This shows a de facto understanding that harm is harm, whoever causes it, and the State must address it.
Kenya provides a compelling example through jurisprudence. In a landmark High Court judgment in December 2020 (Coalition on Violence Against Women (COVAW) & Others v. Attorney General), Kenyan authorities were held liable for failure to prevent and investigate widespread post-election gang-rapes and sexual violence in 2007–2008. Mobs and militia (i.e., non-State actors) perpetrated the violence, yet the court found that Kenya’s failure to exercise due diligence to protect its citizens violated the constitutional rights to dignity, security, and freedom from torture and ill-treatment. The Court held that the State has an obligation to protect individuals from torture and violence by private actors, and when it fails to do so, it bears responsibility for those acts. It awarded compensation to some survivors of rape by private perpetrators, reflecting the principle that the State’s omission made it complicit in torture.
This judgment—the first of its kind in Kenya—operationalized at the national level what the ACHPR has long been saying: States must not hide behind the “lack of direct involvement” if they allowed torture to happen on their watch. Such court decisions can spur legislative change. Indeed, Kenyan civil society has advocated for amending laws to explicitly recognize torture by non-State actors, to better implement this ruling, and ensure accountability for future abuses.
Best Practices to Address Non-State Violence
The preceding instructive examples of anti-torture reform can guide regional and international best-practices to reflect African human rights and international standards:
– Broad definitions: clearly define torture to include acts by any individual, not only officials. This closes impunity gaps and aligns national law with ACHPR interpretations and the reality of conflicts where rebel groups commit torture. At minimum, create a parallel offence that captures torture-like conduct by non-State actors with penalties commensurate to torture. This aligns domestic law with African Charter interpretations and the armed conflict reality that armed groups perpetrates torture.
– Embed armed conflict cross references: state that torture committed in the context of armed conflict may simultaneously constitute war crimes under domestic IHL-implementing statutes (e.g., by cross referencing Rome Statute war crimes provisions).
– Codify due‑diligence duties: impose explicit obligations on authorities to prevent, investigate, and punish torture and ill‑treatment by non‑State actors, reflecting ACHPR GC No. 4 and UNCAT GC No. 2.
– No safe havens: ensure no laws or decrees (like amnesties or immunities) excuse torture. National security should never be used as a shield to delay anti-torture laws – instead, security forces should be trained and held to high standards, as Uganda’s and Nigeria’s laws mandate. Notably, Nigeria’s Act came amidst counter-insurgency operations, yet the government recognized that outlawing torture strengthens legitimacy rather than weakening security.
– Positive duties: write into law the State’s positive obligation to prevent, investigate, and punish torture by non-State actors. Uganda’s PPTA, for example, not only criminalizes private torture but also obliges authorities to act on it. This translates the African Charter’s Article 1 (duty to give effect to rights) into concrete national duties.
– Support to victims: complement criminal laws with victim-centric measures – as seen in Kenya’s judgment ordering reparations and in DRC’s 2006 laws on sexual violence (cited by the ACHPR in 2014). National legislation should provide avenues for victims of torture (State or private) to seek redress, including through national human rights institutions or civil claims.
Challenges and the Way Forward
While progressive examples exist, persistent obstacles hinder the adoption and enforcement of comprehensive anti-torture laws. Political reluctance is a key issue, as some governments are hesitant to widen the scope of torture laws, perhaps fearing accountability for both State agents and powerful non-State actors. In some cases, regimes invoke a “security exception,” arguing that strict anti-torture rules could impede security forces or that abuses by non-State groups are beyond their control. Such arguments are false dichotomies. Respecting human rights and ensuring security are complementary, not contradictory. In fact, failing to criminalize torture by all actors undermines security, as it fosters cycles of violence and vigilantism.
Markedly, adjusting domestic definitions does not make States responsible for every act committed by private armed groups. Rather, it puts States in positions to meet their own obligations: to prevent, investigate, and punish, and to avoid acquiescence in torture and other ill-treatment. Under UNCAT GC No. 2, failure to exercise due diligence to prevent and respond to serious abuses by private actors can amount to acquiescence and engage State responsibility; and under ACHPR GC No. 4, a State’s failure to prevent SGBV “may amount to torture or other ill‑treatment.” In armed conflict, those duties coexist with IHL obligations and potential war‑crimes liability for perpetrators.
Another challenge is lack of enforcement. Laws on paper do not automatically change practice. Uganda, for instance, adopted PPTA over a decade ago, but reports indicate that torture (especially by police or in informal detention settings) persists, and prosecutions under the Act have been limited. This points to the need for continuous training, monitoring, and political will to enforce the law; areas where National Human Rights Institutions (NHRIs) and civil society can play a vital role.
Harmonization with regional standards is also an area for improvement. The ACHPR’s forthcoming Model Law on the Criminalization of Torture in Africa (mandated by Resolution 624 of 2025) offers a prime opportunity. The model law can encapsulate the expansive definition of torture (drawing from African precedents and General Comment No. 4) and guide States to update their legislation. It should explicitly recommend including within the definition of torture acts by private actors done with State acquiescence or which the State fails to prevent, in line with ACHPR General Comment No. 4 and the due diligence principle.
The model law can also address related issues, such as prohibiting the use of “national emergency” or “orders from superiors” as defences for torture and ensuring the penalties for torture reflect its gravity. Furthermore, NHRIs and non-governmental organizations (NGOs) have a critical promotional role, as they have been instrumental in litigating cases and pushing for laws. For example, NGOs championed Uganda’s law, which Uganda passed on June 26, the UN Day in Support of Torture Victims. Going forward, collaboration between the ACHPR, NHRIs, and NGOs can help identify gaps in each country’s laws and advocate for reforms.
The answer to the question, “Can effective legislation really transform practices?” is yes, but only if “effective” is understood holistically. Laws with clear, comprehensive definitions are the foundation for accountability. Legislative clarity is essential for any meaningful and lasting transformation; it sets the stage by defining offenses, powers, and duties.
When laws change, they do lead to real impacts: Kenya’s court ruling on post-election rape has compelled the government to begin compensating victims and consider security sector reforms; Nigeria’s anti-torture act has raised awareness within its police force that torture is criminal (not “just bad practice”); Uganda’s law has provided a basis for NGOs to train officials and press for prosecutions. Continued reform includes ongoing training of security forces, independent monitoring (e.g., fully empowering National Preventive Mechanisms such as converting national human rights commissions to bring them into compliance with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment), and public awareness so that victims know their rights and feel safe to come forward. Across Africa, the momentum is building to strengthen national legislation against torture.
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Winona Xu is a Research Fellow at the University of California, Los Angeles (UCLA).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Ninno Jack Jr via Unsplash
