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RAPPORTEUR
31st Session: Commissioner Badawi
32nd Session: Commissioner Badawi
33rd Session: Commissioner Badawi
34th Session: Commissioner El-Hassan
35th Session: Commissioner El-Hassan
36th Session: Commissioner El-Hassan
SUMMARY OF FACTS
1. It is alleged by the Complainant that on 9th September 2000, Guinean
President Lansana Conté proclaimed over the national Radio that Sierra
Leonean refugees in Guinea should be arrested, searched and confined to
refugee camps. His speech incited soldiers and civilians alike to engage in
mass discrimination against Sierra Leonean refugees in violation of Article
2 of the African Charter.
2. The Complainant alleged that the discrimination occasioned by President
Conté speech manifested itself primarily in at least five ways:
3. First, widespread looting and extortion occurred in the wake of President
Conté's speech. Guinean soldiers evicted Sierra Leoneans from their homes
and refugee camps. The soldiers further looted the homes, confiscated food,
personal property and money from refugees at checkpoints. They also extorted
large sums of money from detained refugees. These items were never returned
to the refugees.
4. Second, the speech motivated soldiers and civilians to rise up against
Sierra Leonean refugees inside and outside of the refugee camps. The
resulting physical violence ranged from beatings, rapes, to shootings.
Countless refugees died in these attacks, and many have scars as permanent
reminders of their time in Guinea.
5. Third, after President Conté's speech, Guinean soldiers targeted Sierra
Leonean refugees for arrest and detention without any just cause. Soldiers
at checkpoints would inspect refugees for supposed rebel scars, calloused
hands from carrying a gun, speaking Krio (the local language in Sierra
Leone), or carrying a refugee card. However, the refugees had scars from
tribal markings rather than the rebels and calloused hands from farming not
carrying a gun. These false identifications were used to then detain
refugees for hours and days for no other reason than being "a rebel" based
upon being Sierra Leonean.
6. Fourth, the speech instigated widespread rape of Sierra Leonean women in
Guinea. Furthermore, Guinean soldiers subjected men and women to humiliating
strip searches. These searches were conducted sometimes several times a day
and in front of large groups of people and on-looking soldiers.
7. Finally, Sierra Leonean refugees were forced to decide whether they were
to be harassed, tortured and die in Guinea, or return to Sierra Leone in the
midst of civil war where they would face an equally harsh fate. Thousands
chose to flee back to their native Sierra Leone in response to the Guinean
mistreatment. Furthermore, Guinean soldiers collected refugees, bussed them
to Conakry seaport, and physically put them on the ferry forcing their
return to Sierra Leone. The Guinean government was therefore not providing
refuge and protection required by law, reported the Complainant.
COMPLAINT
8. The Complainant alleges that Articles 2, 4, 5, 12(5) and 14 of the
African Charter on Human and Peoples' Rights have been violated.
PROCEDURE
9. The communication dated 17th April 2002, was submitted by the Institute
for Human Rights and Development in Africa on behalf of the Sierra Leonean
refugees.
10. On 18th April 2002, a letter was sent to acknowledge receipt and inform
the Complainant that the communication would be scheduled for consideration
at its 31st session.
11. At the 31st Ordinary Session held from 2 - 16 May 2002 in Pretoria,
South Africa, the Commission decided to be seized of the case and requested
the parties to submit their observations on the admissibility of the case.
12. On 29th May 2002, the Secretariat of the African Commission informed the
parties of the decision of the African Commission.
13. On 24th June 2002, the Complainant forwarded to the Secretariat of the
African Commission its written submission on the admissibility of the case,
a copy was sent to the Respondent State by post on 16 August 2002.
14. By letters dated 28 November 2002, 17 January 2003 and 20 March 2003,
the Secretariat wrote to the government requesting it to react to this
complaint. Up to the holding of the 33rd Ordinary session in Niamey, Niger,
from 15 - 29 May 2003, the Secretariat had not received any feedback from
the Respondent State.
15. At the 33rd Ordinary Session the African Commission declared this
communication admissible, and the parties were requested to forward their
written submission on the merits.
16. On 18th June 2003, the Secretariat informed the parties of the above
decision and requested them to transmit their brief on the merits to the
Secretariat within a period of 3 months, the Note Verbal to the Respondent
State was hand delivered.
17. On 29th August 2003, the Complainant forwarded its written submission on
the merits of the case. On 22 September 2003, the Secretariat of the African
Commission forwarded the written submission from the Complainant to the
Respondent State
18. On 9th October 2003, the Secretariat of the African Commission received
a Note Verbale from the Respondent State stating that they had not received
the written submission from the Complainant.
19. By note Verbale dated 14th October 2003, the Secretariat of the African
Commission forwarded once again the written submission from the Complainant
to the Respondent State by DHL.
20. During its 34th Ordinary Session held in Banjul, The Gambia from the 6th
to 20th November 2003, the African Commission heard the oral presentations
on admissibility of the parties concerned and decided to postpone
consideration on the merits of the case to its 35th Ordinary Session. By
note verbale dated 4 December 2003, and by letter bearing the same date both
parties were accordingly informed of the commission's decision.
21. The Commission instructed the Secretariat to have the comments of the
Complainant translated into French and have the translation sent to the
Respondent State to enable it submit its written comments on the merits of
the communication.
22. These submissions on the merits of the case submitted by the Complainant
were translated into French and sent to the Respondent State by Note Verbale
on the 11th December 2003. The Respondent State was also informed that the
communication would be considered on the merits at the Commission's 35th
ordinary session.
23. By Note verbale dated 26 December 2003, the Secretariat received an
acknowledgement from the Respondent State to its note verbale of 11 December
2003 noting that the Respondent State will forward its submission on
admissibility within three months.
24. By note verbale dated 9 March 2004 the Secretariat reminded the
Respondent State to forward its submission on admissibility noting further
that the communication will be considered at the 35th ordinary session to be
held in Dakar, Senegal from 3 - 17 May, 2004.
25. The Respondent State sent its reaction as to the merits of the
communication to the Secretariat of the Commission on the 5th April 2004.
26. At the 35th Ordinary session, the Respondent State was not represented
due to the change of the venue. At the 35th Ordinary Session, the Commission
heard oral submissions from complainants and testimonies from witnesses on
the merits of the communication.
27. By note verbale dated 18 June 2004 the Secretariat of the African
Commission informed the State of its decision taken at the 35th ordinary
session and by letter of the same date informed the complainant accordingly.
28. At its 36th Ordinary Session held from 23 November to 7 December 2004 in
Dakar, Senegal, the African Commission considered this communication and
decided to deliver its decision on the merits.
LAW
ADMISSIBILITY
29. The admissibility of communications brought pursuant to Article 55 of
the African Charter is governed by the condition stipulated in Article 56 of
the Charter. This Article lays down seven (7) conditions for admissibility.
30. The African Commission requires that all these conditions be fulfilled
for a communication to be declared admissible. Regarding the present
communication, the two parties do not dispute that Article 56 (1, 2, 3, 4, 6
and 7) have been fulfilled, and the only article that is in dispute is
Article 56(5) of the African Charter.
31. Article 56(5) requires the exhaustion of local remedies as a condition
of the presentation of a complaint before the Commission is premised on the
principle that the Respondent State must first have an opportunity to
redress by its own means within the framework of its own domestic legal
system, the wrong alleged to have been done to the individual.
32. Concerning the matter of exhausting local remedies, a principle endorsed
by the African Charter as well as customary international law, the
Complainant argues that any attempt by Sierra Leonean refugees to seek local
remedies would be futile for (3) three reasons:
33. First, the persistent threat of further persecution from state officials
has fostered an ongoing situation in which refugees are in constant danger
of reprisals and punishment. When the authorities tasked with providing
protection are the same individuals persecuting victims an atmosphere in
which domestic remedies are available is compromised. Furthermore, according
to the precedent set by the African Commission in Communication 147/95 and
149/96 Sir Dawda K. Jawara / the Gambia, the need to exhaust domestic
remedies is not necessarily required if the Complainant is in a
life-threatening situation that makes domestic remedies unavailable.
34. Second, the impractical number of potential plaintiffs makes it
difficult for domestic courts to provide an effective avenue of recourse. In
September of 2000, Guinea hosted nearly 300,000 refugees from Sierra Leone.
Given the mass scale of crimes committed against Sierra Leonean refugees -
5,000 detentions, mob violence by Guinean security forces, widespread
looting - the domestic courts would be severely overburdened if even a
slight majority of victims chose to pursue legal redress in Guinea.
Consequently, the requirement to exhaust domestic remedies is impractical.
35. Finally, exhausting local remedies would require Sierra Leonean victims
to return to Guinea, the country in which they suffered persecution, a
situation that is both impractical and unadvisable. According to precedent
set by the Commission in Communication 71/92 Rencontre Africaine pour la
Défense des Droits de l'Homme / Zambie, victims of persecution are not
necessarily required to return to the place where they suffered persecution
to exhaust local remedies.
36. In this present case, Sierra Leonean refugees forced to flee Guinea
after suffering harassment, eviction, looting, extortion, arbitrary arrests,
unjustified detentions, beatings and rapes. Would it be required to return
to the same country in which they suffered persecution? Consequently, the
requirement to exhaust local remedies is inapplicable.
For these reasons, the communication is declared admissible.
MERITS
37. In interpreting and applying the African Charter, the African Commission
relies on its jurisprudence and, as provided by Articles 60 and 61 of the
African Charter, on appropriate and relevant international and regional
human rights instruments, principles and standards.
38. The African Commission is therefore amenable to legal arguments that are
supported by appropriate and relevant international and regional human
rights principles, norms and standards.
39. The Petitioners have enclosed several affidavits from Sierra Leonean
refugees who suffered widespread human rights abuses including harassment,
evictions, looting, extortion, arbitrary arrests, beatings, rapes and
killings while seeking refuge in the Republic of Guinea.
40. These accounts are based on interviews obtained from collaboration
between the Institute for Human Rights and Development in African and
Campaign for Good Governance, a Sierra Leonean NGO. Lawyers from both
organisations interviewed and recorded statements from refugees who had
returned to Sierra Leone from Guinea. For the most part, the depiction of
events is substantiated by reports from Human Rights Watch and Amnesty
International who have documented the situation of Sierra Leonean refugees
in Guinea during the period in question.
41. The Republic of Guinea has ratified several regional and international
human rights instruments which include the African Charter, the OAU
Convention on the Specific Aspects of Refugee Problems in Africa, the
International Covenant on Civil and Political Rights, the UN Convention
Against Torture, and the 1951 UN Convention on the Status of Refugees,
together with its 1967 Optional Protocol.
42. While the efforts of the Guinean authorities to host refugees are
commendable, the allegations that the government instigated and directly
discriminated against Sierra Leonean refugees present a picture of serious
human rights abuses which contravene the African Charter and the other
international human rights instruments to which Guinea is a party.
43. The statements made under oath by several refugees indicate that their
refugee camps were direct targets and taken together with accounts of
numerous other abuses, constitute tangible evidence that the Sierra-Leonean
refugees in this situation had been targeted on the basis of their
nationality and had been forced to return to Sierra Leone where their lives
and liberty were under threat from the on-going war.
44. In view of the circumstances, the Complainant alleges that the situation
which prevailed in Guinea in September 2000 manifestly violates Article 12
(5) of the African Charter which sets forth that:
"The mass expulsion of strangers is prohibited. Mass expulsion is that which
targets national, racial, ethnic or religious groups as a whole".
45. Among the Articles and other legal instruments to which the Respondent
State is a party and by which it is bound to protect all persons against
discrimination can be noted: Article 4 of the OAU Convention on the Specific
Aspects of Refugees, Article 26 of the International Covenant on Civil and
Political Rights and Article 3 of the 1951 United Nations Convention on the
Status of Refugees.
46. The Complainants allege that in his speech of the 9th September 2000,
delivered on radio in Susu language, President Conte incited soldiers and
civilians to engage in large scale discriminatory acts against
Sierra-Leonean refugees, the consequences of which had been that these
persons were the direct victims of harassment, deportations, looting,
stealing, beatings, rapes, arbitrary arrests and assassinations. It is
further alleged that the President made no effort to distinguish between
refugees and rebels and that the Government is therefore directly
responsible for the violation of this fundamental precept of international
law: Non-discrimination.
47. The Complainants also allege that the Respondent State violated the
principle of non-refoulement under which no person should be returned by
force to his home country where his liberty and life would be under threat.
48. The Complainants contend that President Conte's speech not only made
thousands of Sierra-Leonean refugees flee Guinea and return to the dangers
posed by the civil war, but it also clearly authorized the return by force
of Sierra-Leonean refugees. Thus, the voluntary return of refugees to Sierra
Leone under these circumstances cannot be considered as voluntary but rather
as a dangerous option available for the refugees.
49. The Respondent State alleges that on the 1st September 2000, the
Republic of Guinea was victim of armed aggression perpetrated by elements
from Liberia and Sierra Leone. These surprise attacks which were carried out
simultaneously at its South and South-Eastern borders resulted in the
fleeing en masse, of the populations from these zones.
50. Matching reports which came from all fronts to the Respondent State
denounced persons who had lived for a long time in Guinea as refugees, and
who had turned out to be, where they did not figure among those who had
attacked Guinea, at least as accomplices of the attackers.
51. The President of the Republic, by virtue of the powers granted him under
the Constitution, jumped to it by taking the measures necessary for
safeguarding the nation's territorial integrity. In the process he
recommended that all refugees be quartered and that Guineans scatter in all
districts in order to unmask the attackers who had infiltrated the
populations.
52. The Respondent State emphasises that such measures are in conformity
with the provisions of Article 9 of the 1951 UN Convention on the Status of
Refugees on refugees and Article 41 of the Laws of Guinea which provides
that: "the President of the Republic is the guarantor/custodian of the
independence of the nation and of territorial integrity. He is responsible
for national defence………."
53. The Respondent State intimates that for the majority of the refugees the
statement by the Head of State had been beneficial since the refugees had
been registered, given supplies and placed in secured areas.
54. The State underscored the fact that at the time of the events there were
not only Sierra Leonean refugees in Guinea but also Liberians and Guinea
Bissau nationals. Guinea therefore had no interest in targeting Sierra
Leonean refugees since it was public knowledge that all the attacks against
the country had been directed from Liberia.
55. The Respondent State points out that there is no violation of the right
to non-discrimination, since the speech referred to never mentioned
specifically Sierra Leonean refugees. The Respondent State recalled that
during the 34th Ordinary Session the Complainant had been requested to
produce a transcript of the entire statement, which had not been done,
whereas it is the responsibility of the Complainant to provide evidence.
56. The Complainants allege that almost immediately after the broadcast of
President Conte's speech, the Guinean Authorities and civilians started to
harass the Sierra Leonean refugees and to carry out large scale looting,
expulsions and robbery of assets.
57. The Complainants contend that the rapes and physical searches carried
out by the Guinean Authorities to establish a kind of discrimination against
Sierra Leonean refugees constitute some form of inhuman treatment, thereby
violating the dignity of the refugees.
58. The Complainants allege that the President's speech had given rise to
widespread sexual violence largely against the Sierra Leonean women in
Guinea with the Guinean soldiers using rape as a weapon to discriminate
against the refugees and to punish them for being so-called rebels. The
communication contains detailed reports of the raping of women of various
ages in the prisons, in houses, control posts and refugee camps.
59. The Complainants contend that the violence described in the statements
made under oath was undeniably coercive, especially since the soldiers and
the civilians used arms to intimidate and threaten the women before and
during the forced sexual relations.
60. The Complainant reports large scale acts of violence carried out by the
soldiers, police and Guinean civilian protection groups against the
thousands of Sierra Leonean refugees in the camps and in the Capital,
Conakry. Different cases are mentioned, namely S.B. who is said to have been
seriously injured, his hip dislocated and his knees broken with a gun in the
Gueckedou Camp. S.Y. talks about soldiers who had shot her in the leg; she
reports having been witness to a scene where soldiers were cutting off the
ears of Sierra Leoneans with bayonets. L.C. recounts that Guinean soldiers
had been shooting at random at the Sierra Leone Embassy on a group of Sierra
Leoneans who had been waiting to be repatriated and that a large number of
these refugees had been killed; he mentioned having also been witness at a
scene where soldiers in trucks were shooting at Sierra Leoneans who were
boarding the ferry to be repatriated: several of them fell into the water
and were drowned.
61. The Respondent State, in a critical appraisal of these testimonies as
reported, not only made comments but also raised some questions. With regard
to isolated cases like those of S.B., M.F., and S.Y., the issues alluded to
remain to be proved, declared the Respondent State, since they constitute a
simple gathering of evidence. Concerning S.Y.'s testimony, who contends that
she saw Guinean soldiers cutting off the ears of Sierra Leoneans with
bayonets, it has to be pointed out that if such practices have been noted in
certain countries, they do not figure among the habits of the Guinean Army.
62. The Complainants allege that the Guinean soldiers also subjected the
Sierra Leonean men and women to humiliating physical searches. These
searches were frequently carried out, sometimes in the presence of a group
of soldiers and curious onlookers, which constituted a serious insult to
their dignity.
63. The Respondent State disputes the testimony of L.C. who recounts that in
front of the Sierra Leone Embassy building Guinean soldiers were shooting at
random at a group of Sierra Leoneans who were waiting to be repatriated.
64. The Respondent State recalls that the Republic of Guinea and the
Republic of Sierra Leone have always enjoyed relations of fraternity and
good neighbourliness. This is evidenced by the fact that the Government of
Sierra Leone has never complained to the Government of Guinean about any
such situation. To say that Sierra Leonean refugees have been shot at by
Guinean soldiers is more fiction than reality.
65. Considering all the accusations thus described by the Complainant, the
Respondent State wonders if it is only Sierra Leonean refugees who live on
Guinean soil. The Respondent State alleges that some hundreds of thousands
of Liberian refugees also live in Guinea and enjoy the same privileges and
protection as do the Sierra Leoneans. It requested the Complainant to
provide evidence with regard to the number of persons killed or injured and
to indicate where or to which hospital they had been taken during the so
called shooting incident by the Guinean soldiers of Sierra Leonean refugees.
66. The Respondent State recognises that if these testimonies as reported by
the Complainant are proved they can only give rise to emotion and
reprobation. But it insists that evidence must be produced and it is the
responsibility of the Complainant to produce all the required evidence on
the cases reported. The Respondent State points out that if these accounts
have a basis the necessary investigations will be carried out and those
responsible will be punished for their crimes.
67. The African Commission is aware that African countries generally and the
Republic of Guinea in particular, face a lot of challenges when it comes to
hosting refugees from neighbouring war torn countries. In such circumstances
some of these countries often resort to extreme measures to protect their
citizens. However, such measures should not be taken to the detriment of the
enjoyment of human rights.
68. When countries ratify or sign international instruments, they do so
willingly and in total cognisance of their obligation to apply the
provisions of these instruments. Consequently, the Republic of Guinea has
assumed the obligation of protecting human rights, notably the rights of all
those refugees who seek protection in Guinea.
69. In Communication 71/92 Rencontre africaine pour la Défense des Droits de
l'Homme/Zambia, the African Commission pointed out that "those who drafted
the Charter considered large scale expulsion as a special threat to human
rights". In consequence, the action of a State targeting specific national,
racial, ethnic or religious groups is generally qualified as discriminatory
in this sense as it has no legal basis.
70. The African Commission notes that Guinea is host to the second largest
refugee population in Africa with just under half a million refugees from
neighbouring Sierra Leone and Liberia. It is in recognition of this role
that Guinea was selected to host the 30th Anniversary celebrations of the
1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa,
which was held in Conakry, Guinea in March 2000.
71. The African Commission appreciates the legitimate concern of the Guinean
Government in view of the threats to its national security posed by the
attacks from Sierra Leone and Liberia with a flow of rebels and arms across
the borders.
72. As such, the Government of Guinea is entitled to prosecute persons that
they believe pose a security threat to the State. However, the massive
violations of the human rights of refugees as are outlined in this
communication constitute a flagrant violation of the provisions of the
African Charter.
73. Although the African Commission was not provided with a transcript of
the speech of the President, submissions before the Commission led it to
believe that the evidence and testimonies of eye witnesses reveal that these
events took place immediately after the speech of the President of the
Republic of Guinea on 9 September 2000.
74. The African Commission finds that the situation prevailing in Guinea
during the period under consideration led to certain human rights
violations.
FOR THE ABOVE REASONS, THE AFRICAN COMMISSION
Finds the Republic of Guinea in violation of Articles 2, 4, 5, 12 (5) and 14
of the African Charter and Article 4 of the OAU Convention Governing the
Specific Aspects of Refugees in Africa of 1969.
Recommends that a Joint Commission of the Sierra Leonean and the Guinea
Governments be established to assess the losses by various victims with a
view to compensate the victims.
Adopted at the 36th Ordinary Session of the African Commission held from 23
November to 7 December 2004 in Dakar, Senegal. |
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