Lomé, Paris, 20 November 2015 – The International Federation of Action by Christians for the Abolition of Torture (FIACAT), a non-governmental organisation with Consultative Status before the United Nations and Observer Status before the African Commission for Humans and Peoples’ Rights, and its member association in Togo, ACAT Togo, are concerned by the incomplete definition of torture in the recent Criminal Code that was adopted by the National Assembly on 2 November last and ask the Head of State not to enact this law in its current form.
The definition of the crime of torture does not meet the provisions of the United Nations Convention against Torture that Togo ratified on 18 November 1987. Article 198 of the new Criminal Code in fact sets out: "The expression ’torture’ includes any action that intentionally inflicts pain or acute physical or mental suffering on a person with the purpose of obtaining from that person or from a third person information or confessions or has the aim of punishing that person or a third person for an action committed or that they are suspected of having committed, or aims to intimidate or put pressure on the person or intimidate or put pressure on a third person or that for any other reason is based on a form of discrimination of any sort whatsoever".
The Convention states that the torture must be inflicted "by state agents or at their instigation" and this provision is absent in the new Criminal Code in Togo. This missing information amounts to removing any responsibility of the State for acts of torture that are committed by its agents; it also enables the accusation of torture in Togo to be extended to any individual which alters the specific nature of this crime.
In addition, since torture is classified as a serious crime, such acts are time-barred after 10 years, in line with the provisions of the Code of Criminal Procedure that is in force. The Committee against Torture at the United Nations did however ask the country back in 2012 to "include a clause within the Criminal Code stating that the crime of torture is not time-barred and to exclude the provision by which all acts of torture are time-barred after 10 years". Moreover, the Truth, Justice and Reconciliation Commission in Togo itself recommended that "a no time-bar clause in respect of crimes of torture be inserted in all criminal legal texts".
For FIACAT and ACAT Togo, torture can never be time-barred in any case. In line with its international commitments, Togo must revise its criminal legislation and ensure this crime is enshrined as one that cannot be time-barred.
Lastly, FIACAT and ACAT Togo are particularly worried by the exceedingly repressive tone of the new Criminal Code which has recently been voted in. Implementation of this new Criminal Code could make it easier for individuals to be detained for long periods of time which will in turn add to prison overcrowding which is already extremely high in Togo. FIACAT and ACAT Togo regret the fact that the new Criminal Code has not given greater emphasis to the need for community services as alternatives to prison.