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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.9 n.1 Pretoria  2009

 

RECENT DEVELOPMENTS

 

Mass expulsion of foreign nationals: A 'special violation of human rights' - Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola

 

 

Gina Bekker

Lecturer, School of Law, University of Ulster, Northern Ireland

 

 


SUMMARY

This discussion deals with the decision by the African Commission on Human and Peoples' Rights in Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola. Whilst not the first decision by the African Commission touching on the issue of the mass expulsion of non-nationals by state parties to the African Charter on Human and Peoples' Rights, it is one of the most comprehensive and progressive decisions in this regard, particularly in terms of its recommendations. However, in the absence of a demonstrable willingness on the part of the African Commission to follow up on its recommendations and a means by which to measure actual compliance, it is argued that the jurisprudential gains of this decision are likely to be short-lived.


 

 

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* BLC, LLB, LLM (Pretoria), LLM (Notre Dame); g.bekker@ulster.ac.uk
1 See Resolution on the Special Rapporteur on Refugees, Asylum Seekers and IDPs, ACHPR/Res 72 (XXXVI). On the extension of the mandate of the Special Rapporteur, see ACHPR/Res 95(XXXIX)06. With regard to the situation in South Africa, see Resolution on the Situation of Migrants in South Africa, ACHPR/Res (XXXXIII) 08.
2 (2000) AHRLR 282 (ACHPR 1996).
3 Of the four communications, which were grouped together by the African Commission, it was Communication 27/89, submitted on behalf of Organisation Mondiale contre la Torture and Association Internationale des juristes Démocrates, which dealt specifically with the treatment of non-nationals. In this case, four individuals, Bonaventure Mbonuabucya, Baudouin Ntatundi, Vincent Sinarairaye and Shadrack Nkunzwenimana, all Burundian nationals who had been granted refugee status in Rwanda, were expelled from the latter country, ostensibly on security grounds. The Commission, in finding a violation of article 12(5), the prohibition against mass expulsions, held that '[t]here is ample evidence in this communication that groups of Burundian refugees have been expelled on the basis of their nationality and, as such, the prohibition had been violated.
4 (2000) AHRLR 321 (ACHPR 1996).
5 (2000) AHRLR 18 (ACHPR 1997).
6 (2004) AHRLR 57 (ACHPR 2004).
7 Violations of arts 2, 4, 5, 12(5) & 14 of the African Charter were found, as well as art 4 of the OAU Convention Governing the Specific Aspects of Refugees in Africa.
8 Art 12(5) of the African Charter, art 4 of Protocol 4 to the European Convention on Human Rights and art 22(9) of the American Convention all contain an express prohibition against the collective expulsion of non-nationals.
9 n 4 above.
10 See para 20 of the decision. This portion of the decision was also quoted with approval in the case of African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea (n 6 above) para 69.
11 n 5 above.
12 See para 16.
13 See para 17. The African Commission then went on to detail examples of rights that are affected by expulsions, noting in this regard that the rights to property, work, education and family were all affected by such measures. Though not a case of mass expulsion, the case of Amnesty International v Zambia (2000) AHRLR 325 (ACHPR 1999) para 52, also illustrates the special nature of forcible expulsion, with the African Commission noting in this regard that '[b]y forcibly expelling the two victims from Zambia, the state has violated their right to enjoyment of all the rights enshrined in the African Charter'.
14 Communication 292/2004 23rd and 24th Activity Report of the African Commission on Human and Peoples' Rights, Annex II.
15 See para 2.
16 Para 3.
17 See para 34 of the decision. Also see Rule 119(4) of the African Commission's Rules of Procedure which provides as follows: 'State parties from whom explanations or statements are sought within specified times shall be informed that if they fail to comply within those times the Commission will act on the evidence before it'. With regard to the African Commission's jurisprudence, see Free Legal Assistance Group & Others v Zaire (2000) AHRLR 74 (ACHPR 1995) para 40; Commission Nationale des Droits de l'Homme et des Libertés v Chad (2000) AHRLR 66 (ACHPR 1995) para 25; Media Rights Agenda & Others v Nigeria (2000) AHRLR 200 (aCHPR 1998) para 86; Constitutional Rights Project v Nigeria (1) (2000) AHRLR 241 (ACHPR 1999) para 14; Aminu v Nigeria (2000) AHRLR 258 (ACHPR 2000) para 25; and Centre for Free Speech v Nigeria (2000) AHRLR 250 (ACHPR 1999) para 18, where the principle was laid out that 'where allegations of human rights abuses go uncontested by the government concerned, especially after repeated notification, the Commission must decide on the facts provided by the complainant and treat those facts as given'. Also see Union Interafricaine des Droits de l'Homme & Others v Angola (n 5 above), where the African Commission notes at para 10 that in view of the defendant state's refusal to co-operate with the Commission, the latter can only give more weight to the accusations made by the complainants and this on the basis of the evidence furnished by them'. The Commission has also held that the failure to respond to specific allegations may lead to a negative inferences being drawn - see eg para 101 of International Pen & Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998), that 'where no substantive information is forthcoming from the government concerned, the Commission will decide on the facts alleged by the complainant' (see Abubakar v Ghana (2000) AHRLR 124 (ACHPR 1996) para 10).
18 Para 50.
19 As above.
20 Para 51.
21 As above.
22 As above.
23 Para 50.
24 See para 52. In the same paragraph, the African Commission, referencing the case of Amnesty International & Others v Sudan (2000) AHRLR 297 (ACHPR 1999), went on to list the following as examples of abuse amounting to cruel, inhuman and degrading treatment: 'denial of contact with family and refusing to inform the family of where the individual is being held; conditions of overcrowded prisons and beatings; and other forms of physical torture, such as deprivation of light, insufficient food and lack of access to medicine or medical care'.
25 Para 55.
26 See paras 58-60.
27 Para 62.
28 As above.
29 Para 63.
30 Para 65.
31 Para 72.
32 Para 73. Art 14 of the African Charter provides as follows: 'The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.'
33 Para 74.
34 See para 76.
35 Para 45.
36 See para 47.
37 Para 48.
38 See para 82. With regard to prior case law on this issue, see notes 2, 4, 5 & 6 above.
39 It is clear from this that mass expulsions are defined not in terms of the number of individuals affected, but rather by who is targeted. Notably absent from the definition are categories specifically enumerated in relation to art 2 of the African Charter, such as sex, political opinion, social or other status. Thus, it would appear that a decision to expel, eg, non-national women or homosexuals from the territory of a party to the African Charter, whilst likely to constitute a violation of the non-discrimination provision of the Charter, would not qualify prima facie as a mass expulsion for the purposes of art 12(5) of the Charter.
40 See Henning Becker v Denmark (Application 7011/75) http://www.unhcr.org/ref-world/docid/3ae6b7058.html (accessed 1 February 2009).
41 See Andric v Sweden (Application 45917/99) para 1 http://www.unhcr.org/refworld/docid/3ae6b7048.html (accessed 1 February 2009). Also see the subsequent case of Conka v Belgium (Application 51564/99) http://www.unhcr.org/refworld/docid/3e71fdfb4.html (accessed 1 February 2009), in which the Court reaffirmed this decision and went further in stating that, even in instances where the measure of expulsion is taken on the basis of reasonable and objective examination of the particular case of each individual alien of the group, this does not mean that the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with article 4 of Protocol No 4' (ie the prohibition against collective expulsion) (para 59).
42 See ch V of the Annual Report of the Inter-American Commission on Human Rights 1991, OEA/Ser L/V/II 81, Doc 6 Rev 1, 14 February 1992 http://www.cidh.oas.org/annualrep/91eng/TOC.htm. (accessed 1 February 2009). The Inter-American Commission ruled the case of Benito Tide Méndez Antonio Sensión, Andrea Alezi, Janty Fils-Aime, William Medina Ferreras, Rafaelito Pérez Charles, Berson Gelim et al v Dominican Republic, Report 68/05, Petition 12.271 http://www.cidh.oas.org/annualrep/2005eng/DominicanRep.12271eng.htm (accessed 1 February 2009) admissible and found that it was competent to examine the complaint in relation to alleged violations inter alia of art 22 of the American Convention.
43 Para 69. It was similarly held in Rencontre Africaine pour la Défense des Droits de l'Homme v Zambia (n 4 above) that there had been a violation of art 12(5), in spite of the Zambian authorities arguing that the expulsions were not discriminatory because 'nationals of several West African countries and other foreign countries were all subject to the same treatment' (see para 24 of this decision).
44 n 39 above. This is also borne out by the African Commission's decision in Rencontre Africaine pour la Défense des Droits de l'Homme v Zambia (n 4 above) para 22, where the Commission emphasises that art 2 imposes an obligation 'to secure the rights protected in the Charter to all persons within their jurisdiction, nationals or non-nationals'.
45 Para 69.
46 Para 79.
47 See paras 79 & 84.
48 (2000) AHRLR 149 (ACHPR 2000).
49 Prior to this decision, the African Commission's recommendations were more often than not limited to a formulaic finding that the respondent state was in violation of specific provisions of the African Charter.
50 These detailed recommendations are to be found in para 87 of this decision. The African Commission made simple declaratory findings in the cases of Organisation Mondiale Contre la Torture & Others v Rwanda (n 2 above) and Rencontre Africaine pour la Défense des Droits de l'Homme v Zambia (n 4 above) and made only limited recommendations in the two other cases in which violations of the prohibition against mass expulsions had been found. Thus, in one case, it merely urged both the respondent government and complainants to 'draw all the legal consequences arising from the present decision' and in the other recommended the establishment of a joint Commission 'to assess the losses by various victims with a view to compensation' (see Inter Union Interafricaine des Droits de l'Homme & Others v Angola (n 5 above) and African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea (n 6 above), respectively).
51 See Non-Compliance of States Parties to Adopted Recommendations of the African Commission: A Legal Approach, 24th ordinary session, Banjul, 22-31 October 1998, DOC/OS/50b(XXIV) para 5 and F Viljoen & L Louw 'State compliance with the recommendations of the African Commission on Human and Peoples' Rights 19942004' (2007) 1 American Journal of International Law 1, in particular 8-11.
52 Legal Resources Foundation v Zambia (2001) AHRLR 84 (ACHPR 2001); 241/2001 Purohit & Another v The Gambia (2003) AHRLR 96 (ACHPR 2003); and Interights & Others (on behalf of Bosch) v Botswana (2003) AHRLR 55 (ACHPR 2003).
53 Lawyers for Human Rights v Swaziland (2005) AHRLR 66 (ACHPR 2005).
54 See ACHPR/Res 97(XXXX)06.

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