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SUMMARY OF FACTS
1. The complaint is filed by the Institute for Human Rights and Development
in Africa (IHRDA) on behalf of Mr. Esmaila Connateh and 13 other Gambians
deported from Angola in March, April and May of 2004.
2. The complaint alleges the capricious arrest and deportation, in violation
of their human and peoples' rights, of the said Gambians who were alleged to
have been legally residing and working in Angola.
3. It is alleged that the government of Angola put into effect the Operaçao
Brilhante, a campaign with the objective of expelling foreigners from Angola.
Many foreigners were deported from many areas especially those in the
diamond mining areas. The complainants, who are of Gambian nationality,
alleged that they were arbitrarily arrested, detained and later deported
from Angola without any legal protection. It is estimated that 126,247
foreigners were deported from Angola.
4. The complaint further alleges that those expelled were maltreated due to
their nationalities and origin, and in the process the Angolan authorities
confiscated their official documents, including passports, visas, residence
permits, work authorization. In some cases, money was demanded from them,
and those who could not afford the money were seriously beaten.
5. The Complainant alleges further that those expelled were detained in
detention centres in different areas of Angola including Cafunfu, Kisangili,
Saurimo, and Launda, under conditions which were not suitable for human
habitation. It is alleged that the detention camps were initially used to
house animals and contained a plethora of animal waste. The detainees were
faced with harsh conditions such as: no medical attention; lack of food;
poor sanitation. For instance, there where there were only 2 buckets of
water provided for 500 detainees to use in the bathroom; the bathroom was
not separated from the sleeping and eating areas.
6. The complaint further alleges that the Angolan Armed Forces raided
villages where the victims resided. They were arrested in their homes as
well as on the streets at checkpoints. There was no arrest warrants issued
or any reason given for the arrests. Moreover, the victims were not provided
access to courts of law in order to challenge the reasons for their arrests.
7. It is further alleged that the victims' property was seized and they were
denied to take their property during the alleged deportation. Some of the
items that were confiscated from them they left behind, and that were
confiscated from them include: television sets, shoes, wristwatches,
clothing, generators, television, furniture and cash.
8. According to the complainant, although the victims had work permits and
relevant documents to engage in mining activities in Angola, they were
arrested on the mere premise that foreigners were not allowed to engage in
mining activities in the country.
COMPLAINT
9. The Complainant alleges violation of Articles 1, 2, 3, 5, 6, 7(1) (a),
12(4) (5), 14 and 15 of the African Charter on Human and People's Rights.
PROCEDURE
10. The Complaint was dated 4 October 2004 and received at the Secretariat
of the African Commission on 6 October 2004.
11. At its 36th Ordinary Session held in Dakar, Senegal from 2d November to
7 December 2004, the African Commission examined the complaint and decided
to be seized thereof.
12. On 23 December 2004, the Secretariat wrote to the Complainant and
Respondent State informing them of this decision and requesting them to
forward their written submissions on admissibility before the 37th Ordinary
Session of the Commission.
13. Similar reminders were sent out to the parties on 2 February and 4 April
2005.
14. On 14 April 2005, the Secretariat received the complainant's written
submission on admissibility, which was forwarded to the Respondent State on
23 April 2005.
15. At its 37th Ordinary Session held in Banjul, The Gambia from 27 April to
11 May 2005, the African Commission considered this Communication and
deferred its decision on admissibility to the 38th Ordinary Session.
16. On 12 May 2005, the Secretariat wrote to both parties to inform them of
this decision and requested the Respondent State to forward its written
submissions on admissibility before the 38th Ordinary Session.
17. On 12 September 2005, the Secretariat sent a reminder to the Respondent
State.
18. At the 38th Ordinary Session held from the 21 November to 5 December
2005 in Banjul, The Gambia, the African Commission considered the
communication and deferred its decision on admissibility to the 39th
Ordinary Session to allow the respondent state more time to forward its
submissions.
19. On 30 January 2006, the Secretariat wrote to the Complainant informing
it of this decision.
20. On 5 February 2006, a similar notification was emailed and also sent by
DHL to the Respondent state also requesting it to forward its written
submissions on admissibility.
21. At its 39th Ordinary Session, the African Commission considered this
communication and declared it admissible.
22. The Secretariat of the African Commission informed the parties of this
decision and requested them to forward their submissions on the merits
before the 40th Ordinary Session. The Respondent State's delegates were also
provided with copies of this decision during the 39th Ordinary Session.
23. On August 21 August 2006, the Secretariat of the African Commission
received the submissions of the Complainant on the merits, which was
forwarded to the Respondent State.
24. At its 40th Ordinary Session, the African Commission deferred the
consideration of the communication on the merits pending the written
submission on the same by the Respondent State.
25. A copy of the Complainant's submission on merits was availed to the
delegates of the Respondent State at the session.
26. At the request of the Angolan delegates present at the second
brainstorming meeting on the African Commission in Maseru, Lesotho in April
this year, the Secretariat of the African Commission emailed a copy of the
Complainant's written submission on to the Respondent State's embassy in
Addis Ababa, Ethiopia in May 2007.
27. At its 41st Ordinary Session, the African Commission deferred the
consideration of the matter to the 42nd Ordinary Session.
28. On 8 July 2007, the Secretariat of the African Commission notified both
parties of this decision.
29. On 11 September 2007, the Secretariat of African Commission wrote to the
Respondent State requesting it to forward to the African Commission its
written submissions and/or observations on the merits at its earliest
convenience.
30. The Respondent State is yet to forward its written submission on the
merits.
31. At its 42nd ordinary session, the Commission considered the
communication and decided to defer it to its 43 session due to lack of time.
32. By note verbale of 19 December 2007 and letter of the same date, both
parties were notified of the Commission's decision.
THE LAW ADMISSIBILITY
33. The Complainant submitted its written submissions on the merits. The
respondent state, however, failed to respond to the various notifications
addressed to it in the context of this Communication.
34. In the face of the state's failure to address itself to the complaint
filed against it, the African Commission has no option but to proceed with
its consideration of the Communication in accordance with its Rules of
Procedure. In Communications 155/1996 -Social and Economic Rights Action
Center, Center for Economic and Social Rights / Federal Republic of Nigeria,
and 159/1996 Union Inter Africaine des Droits de l'Homme, Federation
Internationale des Ligues des Droits de l'Homme, Rencontre Africaine des
Droits de l'Homme, Organisation Nationale des Droits de l'Homme au Sénégal
and Association Malienne des Droits de l'Homme/Republic of Angola, The
African Commission decided that it would proceeded to consider
Communications on the basis of the submission of complainants and
information at its disposal, even if the State fails to submit.
35. In its submission on admissibility, the Complainant alleges that the
Angolan government embarked on a campaign termed Operagao Brilhante, which
was characterised by the systematic process of identifying and rounding up
of foreigners working and residing in the diamond-mining regions of Angola,
resulting in the detention and deportation of the victims. It avers that
tens of thousands of non-nationals were deported from Angola, including Mr.
Esmaila Connateh and 13 other Gambians on whose behalf the present complaint
is filed. Their immediate arrest, and the absence of prior notice being
given to them, resulted in the automatic loss of their property. And during
the course of the arrests, Angolan authorities confiscated and destroyed the
identity documents belonging to the complainants, including their Gambian
passports and visas, residence permits and work permits which explicitly
authorized the Gambians to live and work in Angola. Physical property was
inevitably abandoned with no possibility for the transfer of such to the
Gambia and large amounts of money were extorted from the foreigners by the
Angolan authorities. The complainant alleges that the victims were detained
for several weeks, and some for months in a series of detention centres
within Angola, under conditions below acceptable minimum human rights
standards. Principles of due process of law and respect for international
human rights norms were not respected during the process from arrest to
their deportation.
36. The Complainant further avers that the deportees were not given any
opportunity to contest or challenge the irregularity and illegality of the
detention and expulsion by the Angolan government in a court of law. That
they did not have access to legal counsel was provided at any stage before
their deportations that no national local remedy was made available to the
Gambian nationals at any stage prior to the deportations. It further claims
that as a matter of physical impossibility, therefore notes national
remedies are no longer available to the Gambians as they are now no longer
in the territory of Angola.
37. The African Commission notes that there are no indications in the
submissions of the Complainant that warrant a declaration of inadmissibility
of the present communication. In terms of Article 56 (5) of the African
Charter, however, the African Commission has further examined the assertions
of the complainant on the matter as outlined in the preceding paragraphs.
Article 56 (5) stipulates that Communications shall be considered only if
they "are sent after exhausting local remedies, if any, unless it is obvious
that this procedure is unduly prolonged."
38. It is a well-established rule of customary international law that before
international proceedings are instituted against a State, the various
domestic remedies provided by the State should have been approached. This is
also known as the exhaustion of local remedies rule, which is a principle
under international law permitting States to solve their internal problems
in accordance with their own constitutional procedures before accepted
international mechanisms can be invoked.
39. This, however, is not a strict requirement that must always be met. In
the present communication, the African Commission notes that there were no
domestic remedies available to the deportees as they were rounded up,
detained and deported in such a manner that they could not gather their
personal belongings or entrust same with friends and relatives for safe
keeping, let alone be able to seize the appropriate authorities to challenge
the manner of their detention, and subsequent expulsion.
40. Time and again, In Communication 71/1992 - Recontre Africaine pour la
Defense des Droits de l'Homme/Republic of Zambia, the African Commission
held that the mass expulsions, particularly following arrest and subsequent
detentions, deny victims the opportunity to establish the legality of these
actions in the courts. In the present case, there is no indication as to
whether the deportees were accorded the opportunity to contact their
families, much less attorneys, thereby making the requirement of exhausting
local remedies impracticable.
41. It is not a contested fact that the Complainants are no longer in Angola
the territory where the action arose, and that they are unable to return
thereto to seek redress. For purposes of redress. This, in accordance with
the Commission's decisions in Communications 87/1993 – Civil Liberties
Organisation / Federal Republic of Nigeria and 101/1993 – Civil Liberties
Organisation (in respect of the Nigerian Bar Association) / Federal Republic
of Nigeria and 215/1998 – Rights International / Federal Republic of Nigeria,
constitute constructive exhaustion of domestic remedies per the
jurisprudence of the African Commission, and the latter could only but
exempt the complainant from this particular requirement. In Communication
159/96 Union Inter Africaine des Droits de l'Homme, Federation
Internationale des Ligues des Droits de l'Homme, Rencontre Africaine des
Droits de l'Homme, Organisation Nationale des Droits de l'Homme au Sénégal
and Association Malienne des Droits de l'Homme/Republic of Angola, the
Commission arrived at a similar decision, holding that, it would be
impractical to require the complainants to return to Angola for purposes of
seeking redress in the national courts.
42. For the above reasons, the African Commission declares this
communication admissible.
DECISION ON THE MERITS
43. The Complainant prays the African Commission to find the Respondent
State in violation of Articles 1, 2, 3, 5, 6, 7(1)(a), 12(4), 12(5), 14 and
15 of the African Charter as a result of the alleged systematic arrest,
detention and subsequent deportation of thousands of foreigners from Angolan
territory, including at least 205 Gambian nationals.
44. The African Commission will examine the allegations of the Complainant
under each of the provisions of the African Charter alleged to have been
violated by the Respondent State.
ALLEGED VIOLATIONS OF ARTICLE 3(2)
45. The Complainant alleges that the mass arrest, detention and expulsion of
the Gambians from Angola violated their right to equal protection of the law.
Equal protection of the law under Article 3 (2) relates to the right of all
persons to have the same access to the law and courts and to be treated
equally by the law and courts both in procedures and in the substance of the
law. It is akin to the right to due process of the law, but in particular,
applies to equal treatment as an element of fundamental fairness.
46. In terms of Article 60 of the Charter, this Commission can also be
inspired in this regard by the famous case of Brown v. Board of Education of
Topeka,[FN1] in which the Chief Justice of the United State of America, Earl
Warren argued that ‘equal protection of the law refers to ‘the right of all
persons to have the same access to the law and courts and to be treated
equally by the law and courts, both in procedures and in the substance of
the law. It is akin to the right to due process of law, but in particular
applies to equal treatment as an element of fundamental fairness'.[FN2]
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[FN1] 347 U.S 483 (1954).
[FN2] www.legal-explanations.com
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47. In order for a Complainant to establish a successful claim under Article
3 (2) of the Charter therefore, it must show that, the Respondent State had
not given the victims the same treatment it accorded to the others. Or that,
the Respondent State had accorded favourable treatment to others in the same
position as the victims.
48. In the present Communication, the Commission has examined the evidence
submitted by the complainant and is of the view that it (the complainant)
has not demonstrated the extent to which the victims in the present
communication were treated differently from the other nationals arrested and
detained under the same conditions. The Commission thus does not find the
Respondent State to have violated Article 3 (2) of the African Charter.
ALLEGED VIOLATION OF ARTICLE 5
49. Article 5 of the African Charter provides that "every individual shall
have the right to the respect of the dignity inherent in a human being and
to the recognition of his legal status. All forms of exploitation and
degradation of man, particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited".
50. The Complainant alleges that the condition of their detention in the
detention centres were inhumane as the facilities were overcrowded and
unsanitary. According to the complainant, the detention centre at Kisangili
had been used to house animals just prior to its conversion into a detention
centre to hold approximately 300 people and few measures had been taken to
accommodate the detainees, including cleaning out the animal waste. The
complaint further alleges that since the Gambians, at any time from arrest,
detention, leading to their expulsion, were not informed of the reasons of
their detention and its duration thereof, which in itself, the African
Commission had held, constituted a "mental trauma."[FN3]
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[FN3] See the Commission's decision in Communication 225/1998, Huri-Laws v.
Nigeria, para 27.
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51. In further corroborating the failure of the Respondent State, the
complaint alleges that guards frequently beat the Gambians and extorted
money from them. Food was not regularly provided and medical attention was
not readily available, despite repeated requests. Complainants were
transported between detention centres in overcrowded cargo planes and
lorries. The detention centre in Saurimo had no roof or walls and
complainants were exposed to the elements of weather for five consecutive
days. At the Cafunfu detention centre, bathroom facilities consisted solely
of two buckets for over 500 detainees, and these were located in the same
one room where all detainees were compelled to eat and sleep. This, for the
African Commission, is clearly a violation of Article 5 of the African
Charter since such a treatment cannot be called anything but degrading and
inhuman.
52. In Communication 224/1998 - Media Rights Agenda v. Federal Republic of
Nigeria, the African Commission held the terms "cruel, inhuman or degrading
punishment or treatment" to be "interpreted so as to extend to the widest
possible protection against abuses, whether physical or mental,"[FN4]
referring to any act ranging from denial of contact with one's family and
refusing to inform the family of where the individual is being held,[FN5] to
conditions of overcrowded prisons and beatings [FN6] and other forms of
physical torture, such as deprivation of light, insufficient food and lack
of access to medicine or medical care.[FN7] The African Commission also
reiterates its position taken in Huri-Laws v. Nigeria, in which it ruled
that such "treatment meted out to the victim" constituted a breach of
Article 5 of the African Charter, as well as the Minimum Standards of
Treatment for Prisoners as laid out by the United Nations.[FN8]
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[FN4] Communication 224/1998 - Media Rights Agenda v. Nigeria, para 71.
[FN5] See the Commission's decision in Communications 48/1990, 50/1991,
52/1991 and 89/1993 - Amnesty International, Comité Loosli Bachelard,
Lawyers Committee for Human Rights, Association of Members of the Episcopal
Conference of East Africa v. Sudan, para 54.
[FN6] See the Commission's decision in Communication 78/1992 - Krishna
Achuthan v. Malawi, 64/92, Amnesty International v. Malawi, para 7.
[FN7] See the Commission's decision in Communication 151/1996 - Civil
Liberties Organisation v. Nigeria, para 27. See also, at the international
level, the UN Human Rights Committee's views in Communication 253/1987 -
Kelly v. Jamaica where it held that respect of the inherent dignity of the
human being required provisions of adequate medical care and food and basic
sanitation facilities during detention. In Kalenga v. Zambia, the UN Human
Rights Committee went further to state that where the complainant was denied
access to food and medical assistance during his detention, the detention
did not respect the inherent dignity of the human being.
[FN8] See Communication 232/1999 - John D. Ouko v. Kenya, para 24 in which
the Commission held that a violation of the Minimum Standards of Treatment
in the United Nations Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment effectively constitutes a
violation of Article 5 of the Charter.
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53. There is nothing from the Respondent State to counter these allegations
and the African Commission, thus, is of the view that Angola is in violation
of Article 5 of the African Charter.
ALLEGED VIOLATION OF ARTICLE 6
54. Article 6 of the African Charter provides for the prohibition of
arbitrary arrest. In its Resolution on the Right to Recourse Procedure and
Fair Trial, the African Commission further states that "persons who are
arrested shall be informed at the time of arrest, in a language which they
understand of the reason for their arrest and shall be informed promptly of
any charges against them."[FN9] Furthermore, the prohibition of arbitrary
arrest includes prohibition of indefinite detention [FN10] and arrests and
detentions "based on grounds of ethnic origin alone."[FN11]
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[FN9] See Media Rights Agenda v. /Nigeria, para 43.
[FN10] See Free Legal Assistance Group, Lawyers' Committee for Human Rights,
Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah v. Zaire,
25/89, 47/90, 56/91, 100/93, para 42.
[FN11] See Organisation Mondiale Contre La Torture and Association
Internationale des Juristes Democrates, Commission Internationale des
Juristes (C.I.J.), Union Interafricaine des Droits de l'Homme v. Rwanda,
27/89, 46/91, 49/91, 99/93, para 29.
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55. In the present case, there is nothing from the Respondent State to
indicate that the manner of victims' arrests and subsequent expulsion was
not arbitrary as alleged by the complainant. As the complainant puts it, at
no point were any of the victims shown a warrant or any other document
relating to the charges under which the arrests were being carried out. The
African Commission thus finds the Respondent State to have violated Article
6 of the African Charter.
ALLEGED VIOLATION OF ARTICLE 7(1) (A)
56. Article 7(a) of the African Charter provides that "every individual
shall have the right to have his cause heard. This comprises: "the right to
an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws,
regulations and customs in force".
57. The complaint alleges that prior to expulsion, the complainants were
held in several Angolan detention centres, including Canfunfu, Saurimo and
Kisangili. They were held there arbitrarily as they knew of no laws
forbidding their residence and work in Angola prior to their arrest, and
that during their detention they were afforded no explanations as to their
arrest and detention and no the opportunity to speak to a lawyer or go
before a judge.
58. The complaint alleges that circumstances of this case made it impossible
for complainants to access the Angolan courts or other national organs to
question their arrest, detention and deportation. The abrupt manner in which
they were arrested, detained and deported denied them of the opportunity to
engage a lawyer to take their case to court to challenge the regularity and
legality of their arrest, detention and deportation. The African Commission
has ruled that every individual has the right to appeal to competent
national organs for violations of his/her fundamental rights, and as such,
if one is detained without charge or trial [FN12] and there exists no legal
remedy to challenge the detention,[FN13] it is a clear violation of Article
7(1)(a).
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[FN12] See Communications 143/1995 and 150/1996 - Constitutional Rights
Project and Civil Liberties Organisation v. Nigeria, para. 28.
[FN13] See Huri-Laws v. Nigeria, above para. 45.
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59. In Communication 71/1992 - RADDHO v. Zambia, where the deportees
similarly were denied "the opportunity to seize the Zambian courts to
challenge their detention or deportation," the African Commission found this
to constitute violation of the deportees' rights under Article 7.[FN14]
Similarly, in Communication 159/1996 - UIDH, FIDH, RADDHO, ONDH v. Angola,
the African Commission held that the State failed to afford the victims with
the "opportunity to challenge the matter before the competent jurisdictions
which should have ruled on their detention, as well as on the regularity and
legality of the decision to expel them was a violation of Article 7(1) a of
the African Charter.
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[FN14] See Communication 71/1992 - Rencontre Africaine pour la Defense des
Droits de l'Homme v. Zambia, para. 30.
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60. The African Commission is thus of the view that, given the facts before
it, the Respondent State is thus in violation of Article 7(1) (a) of the
African Charter.
VIOLATION OF ARTICLE 12(4) OF THE AFRICAN CHARTER ON DUE PROCESS BEFORE
EXPULSION
61. Article 12 (4) of the African Charter provides that "a non-national
legally admitted in a territory of a State Party to the present Charter, may
only be expelled from it by virtue of a decision taken in accordance with
the law.
62. The complaint alleges that the victims in the present Communication were
subjected to arbitrary arrest, detention and subsequent expulsion and were
denied due process of law before their expulsion from Angola. Prior to their
deportation, complainants were not taken before a court of law to answer any
charge concerning their activities and stay in Angola or without a decision
or order made in accordance with the applicable laws. It is alleged by the
complainants that the victims were legally in the territory of the
Respondent State, and when they presented their legal documents to the
authorities, they were either confiscated or destroyed. The African
Commission finds no contrary submission from the Respondent State to
challenge these allegations.
63. In Communication 159/1996 - UIDH, FIDH, RADDHO, ONDH v. Angola, the
African Commission stated that although African States may expel
non-nationals from their territories, the measure that they take in such
circumstances should not be taken at the detriment of the enjoyment of human
rights, and that while the Charter does not bar a State's right to deport
non-nationals per se, it does require deportations to take place in a manner
consistent with the due process of law.[FN15]
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[FN15] Id. Para 23.
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64. The African Charter's requirement of due process as outlined above is
also shared by similar systems elsewhere. The Human Rights Committee under
the International Covenant on Civil and Political Rights, for instance, had
expressed a similar concern over the treatment of aliens being deported from
Switzerland when it held the latter liable for degrading treatment and use
of excessive force resulting on some occasions in the death of the deportee
during deportation of aliens.[FN16] The Committee recommended that
Switzerland should "ensure that all cases of forcible deportation are
carried out in a manner which is compatible with articles 6 and 7 of the
Covenant" and that "restraint methods do not affect the life and physical
integrity of the persons concerned".[FN17]
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[FN16] The UN Human Rights Committee, ICCPR, A/57/40 vol. I (2002) at para.
76 (13).
[FN17] Ibid.
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65. The African Commission notes that the import of this provision under the
African Charter is to ensure that due process is followed before legally
admitted non-nationals are expelled from a Member State. Very clearly, the
situation as presented by the complainant did not afford those expelled due
process of law for protection of the rights that have been alleged to be
violated by the Respondent State and that they were not allowed access to
the remedies under domestic law to at least challenge, if not reverse, their
expulsion. [FN18] The African Commission thus holds the Respondent State in
violation of the provisions of Article 12(4) of the African Charter.
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[FN18] Communication 232/99 – John Ouko/Kenya.
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ALLEGED VIOLATION OF ARTICLE 12(5)
66. Article 12(5) of the African Charter reads "the mass expulsion of
non-nationals shall be prohibited. Mass expulsion shall be that which is
aimed at national, racial, ethnic or religious groups".
67. In the present communication, the Complainant alleges that the group of
Gambians was expelled from Angola en masse on May23, 2004.[FN19] In addition
to the 217 Gambians, tens of thousands of other non-nationals have been
expelled from Angola in the same year. The complaint further alleges that
the Angolan government itself reported that 126,247 foreigners had been
repatriated as of 14 May 2004. It quotes a United Nations estimate that
3,500 of this number originate from West Africa, with much of the remainder
coming from the Democratic Republic of Congo.[FN20] It adds that nationals
from many different countries have been affected, including individuals from
the Democratic Republic of Congo, Guinea Conakry, Mali, Mauritania, Côte
d'Ivoire, Senegal and Sierra Leone. These expulsions were hastily carried
out, permitting little in the way of advance planning and coordination of
resettlement assistance for those expelled.[FN21] It claims that the number,
coupled with the subsequent expulsions under such conditions constitute mass
expulsions under Article 12(5) of the African Charter.
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[FN19] See, for instance, Ebrima JT Kubaji, 217 Gambians Deported from
Angola, The Daily Observer, 24 May 2004 at 24; Lugard WE Osayande, Consular
meets deportees, The Daily Observer, 27 May 2003 at 24 (both available at
http://www.observer.gm).
[FN20] Angola - Guinea: Deported Guineans complain of ill treatment, UN
Office for the Coordination of Humanitarian Affairs, 11 Jun. 2004 at http://www.irinnews.org/print.asp?ReportID=41644.
[FN21] Humanitarian Situation in Angola Monthly Analysis Apr 2004, The
United Nations Office of Coordination of Humanitarian Affairs, 30 Apr. 2004
at http://www.reliefweb.int/w/rwb.nsf/6686f45896f15dbc852567ae00530132/41292ac0a994
c0eb85256e9a00697388?OpenDocument ("Unfortunately, the entire process of
this round of ‘Operação Brilhante' was poorly executed, without respect for
the dignity of those involved and rife with abuses, significant human rights
abuses.").
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68. The African Commission has ruled that "mass expulsion was a special
threat to human rights," adding that a government action specially directed
at specific national, racial, ethnic or religious groups is generally
qualified as discriminatory in the sense that, none of its characteristics
has any legal basis or could constitute a source of particular incapacity.[FN22]
Similarly, the African Commission, held that:
"African States in general and the Republic of Angola in particular are
faced with many challenges, mainly economic. In the face of such
difficulties, States often resort to radical measures aimed at protecting
their nationals and their economies from non-nationals. Whatever the
circumstances may be, however, such measures should not be taken at the
detriment of the enjoyment of human rights. Mass expulsions of any category
of persons, whether on the basis of nationality, religion, ethnic, racial or
other considerations, "constitute special violation of human rights."[FN23]
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[FN22] 159/96 Union Inter Africaine des Droits de l'Homme, Federation
Internationale des Ligues des Droits de l'Homme, Rencontre Africaine des
Droits de l'Homme, Organisation Nationale des Droits de l'Homme au Sénégal
and Association Malienne des Droits de l 'Homme/Angola.
[FN23] Ibid.
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69. The Respondent State has failed to advance any argument to justify its
actions. As shown above, the position of the African Commission regarding
mass expulsions is clear. And as the complainant avers, "simply because the
victims were a part of a larger group of non-nationals, not just Gambians,
but also other West and Central Africans, does not negate discrimination on
the part of the Respondent State," and that the fact that "so many aliens
received the same treatment is tantamount to an admission of a violation of
Article 12(5)." Moreover, the fact that the deportees as a group were
arrested over a period of several months at different places and may have
been served with deportation orders on different dates does not qualify, for
purposes of the African Commission, to be sufficient to negate the en masse
element of the expulsions.[FN24] The African Commission underscores that any
expulsions or deportations must comply with the human rights obligations
found in the African Charter. Accordingly, the African Commission finds the
Respondent State in violation of Article 12 (5) of the African Charter.
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[FN24] Id. at para. 27.
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70. The African Charter is not unique in prohibiting mass expulsions. The
European Convention on Human Rights provides some protection against
expulsion. The Fourth Protocol to the same Convention similarly prohibits
collective expulsion of aliens as well as the expulsion of nationals from
their own state. Its Seventh Protocol prohibits expulsion of an alien
lawfully resident in a state except when a decision to that effect is taken
in accordance with law. Here, the person concerned is entitled to submit
reasons against the expulsion, have the case reviewed and be represented for
these purposes before a competent authority.
ALLEGED VIOLATION OF ARTICLE 14
71. The complaint alleges that, members of the Angolan Armed Forces raided
villages where victims were living and began shooting live ammunition down
the street, deliberately targeting items that would explode, such as
generators. In the resulting confusion, mass numbers of people were arrested,
including some of the complainants. Other complainants were arrested at
checkpoints on the street. Violence frequently accompanied these arrests and
victims' possessions were confiscated. In several cases, Angolan authorities
attempted to extort money from complainants before proceeding to arrest them.
Following their arrest, complainants were immediately taken to various
detention centres where they were kept until their expulsion from the
country.
72. The Complainant alleges that in the course of the arrest, victims'
property was confiscated by Angolan authorities, including television sets,
shoes, wrist watches and clothing. It further claims that the abruptness of
their arrest forced them to leave behind all property in Angola giving them
no opportunity to make arrangements regarding the transport or disposal of
their belongings.
73. The African Commission is of the view that the actions of the Respondent
State as shown in the preceding paragraphs not only denied fair treatment of
the victims with opportunity to challenge their deportation but also failed
to allow them opportunity to deal with their belongings. The Complainant
argues and the African Commission concurs that the type of deportations
involved in the present case (i.e. mass expulsions without due process)
challenge a series of rights and protections afforded by the Charter,
including the right to property, and, as such, the measures taken by the
Respondent State in its arrest, detention and subsequent deportation of the
victims "called into question a whole series of rights recognized and
guaranteed in the Charter," including the right to property. While the right
to property under the African Charter is not absolute, the Respondent State
has not provided evidence to prove that its actions were necessitated either
by public need or community interest. Without such a justification and the
provision of adequate compensation determined by an impartial tribunal of
competent jurisdiction, the African Commission finds the Respondent State's
actions in violation of the right to property under Article 14 of the
African Charter.[FN25]
--------------------------------------------------------------------------------
[FN25] See Huri-Laws / Nigeria, above at para 53.
--------------------------------------------------------------------------------
ALLEGED VIOLATION OF ARTICLE 15
74. Article 15 of the African Charter provides that: "Every individual shall
have the right to work under equitable and satisfactory conditions, and
shall receive equal pay for equal work".
75. The Complainant alleges that the victims were in possession of official
documents, including passports, visas, work and residence permits, allowing
them to stay and work legally in Angola. The victims were required on a
monthly basis to pay for their work permits that enabled them to continue
working in the mines.
Nevertheless, they were arrested on the grounds that foreigners were not
permitted to engage in mining activities in Angola.
76. As indicated above, the Respondent State has regrettably not forwarded
any arguments to refute any of the allegations made in this communications
including the alleged violation under Article 15 of the African Charter. The
facts indicate and the African Commission agrees that the abrupt expulsion
without any possibility of due process or recourse to national courts to
challenge the Respondent State's actions severely compromised the victims'
right to continue working in Angola under equitable and satisfactory
conditions. Accordingly, the African Commission holds that the Respondent
States actions of arbitrary arrest, detention and subsequent deportation
resulted in persons who were lawfully working in Angola losing their jobs in
a manner that is in violation of Article 15 of the African Charter.
ALLEGED VIOLATION OF ARTICLE 2
77. The complaint alleges that the circumstances under which the victims
were expelled constitute a violation of Article 2 of the African Charter in
that the victims had been living in Angola for varying lengths of time,
after having obtained official documentation, including visas, residence and
work permits, in order to lawfully reside and work in Angola. Several of the
victims were engaged in diamond mining and had paid appropriate sums of
money each month to obtain the required licenses. Nevertheless, despite
possession of proper documentation, the victims were arrested, detained and
expelled, and their property and documentation were confiscated,
specifically because they were foreigners.
78. In interpreting the African Charter, the African Commission relies on
its own 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. In the present case, the African
Commission has dealt with communications alleging similar violations of
freedom from discrimination. Article 2 of the African Charter basically
forms the anti-discrimination principle that is essential to the spirit of
the African Charter and is therefore necessary in eradicating discrimination
in all its guises.[FN26]
--------------------------------------------------------------------------------
[FN26] See Communication 241 /2001 - Purohit and Moore / The Gambia, para
49.
--------------------------------------------------------------------------------
79. The facts as presented by the Complainant are not challenged by the
Respondent State as the latter has not sent any submission whatsoever. It
appears that the victims were targets of a government action which aimed at
rounding up and deporting foreigners or non-nationals. Although governments
have the right to regulate entry, exit and stay of foreign nationals in
their territories, and as the complainant rightly avers that although the
African Charter does not bar deportations per se, the African Commission
reaffirms its position that "a state's right to expel individuals is not
absolute and it is subject to certain restraints," one of those restraints
being a bar against discrimination based on national origin. As mentioned
above, there is no submission from the Respondent State countering this in
that the victims belonged to a larger group which did not consist of only
Gambian nationals, but nationals of several foreign countries. However, even
if such an argument were to be advanced here, the Commission has previously
ruled that "the simultaneous expulsion of nationals of many countries does
not negate the charge of discrimination."
80. From the foregoing, it is clear that the various violations allegedly
committed by the actions of the Respondent State have, as their target,
foreigners or non-nationals. This, in the opinion of the African Commission,
is a clear violation of the provisions of the African Charter under Article
2, which encapsulates crucial human rights holding at bay such practices as
that of the Respondent State. Rights under the African Charter are to be
enjoyed by all, without discrimination, by citizens and non-national
residents alike. Although some rights, like the right to vote and to stand
for election are reserved for citizens of the particular State, human rights
are in principle to be enjoyed by all persons.[FN27]
--------------------------------------------------------------------------------
[FN27] See, for example, General Recommendation 30 of the UN Committee on
the Elimination Racial Discrimination (CERD), HRI/GEN/1/Rev.7/Add.1, at para.
3.
--------------------------------------------------------------------------------
ALLEGED VIOLATION OF ARTICLE 1
81. Article 1 of the African Charter reads:"the Member States of the
Organisation of African Unity, parties to the present Charter shall
recognise the rights, duties and freedoms enshrined in the Charter and shall
undertake to adopt legislative or other measures to give effect to them".
82. The Complainant alleges that "a violation of any provision of the
Charter automatically means a violation of Article 1, so that ‘If a State
party to the Charter fails to recognise the provisions of the same, there is
no doubt that it is in violation of this Article."[FN28] The African
Commission is of the view that State parties to the African Charter (including
the Respondent State) have the obligation of recognising the rights, duties
and freedoms enshrined in the Charter, as well as the responsibility of
providing an environment in which those rights and freedoms can be enjoyed
through the adoption of legislative or other measures that give effect to
them.
--------------------------------------------------------------------------------
[FN28] Communications 147/95 and 149/96, Sir Dawda K Jawara v. The Gambia,
paragraph 46.
--------------------------------------------------------------------------------
83. The African Commission had held that Article 1 of the African Charter
proclaims a fundamental principle that not only do the States Parties
recognise the rights, duties and freedoms enshrined in the Charter, they
also commit themselves to respect them and to take measures to give effect
to them.[FN29] In other words, if a State Party fails to ensure respect of
the rights contained in the African Charter, this constitutes a violation of
the African Charter even if the State or its agents were not the
perpetrators of the violation. The actions of the Respondent State
constitute a violation of certain provisions of the Charter and hence in
violation of the provisions of Article 1 of the African Charter, since
instead of adopting measures to promote and protect human rights, the
Respondent Stare pursued a course of action which failed to take into
account the various safeguards envisioned by the African Charter.
--------------------------------------------------------------------------------
[FN29] Communication 231/99 Avocats Sans Frontières (on behalf of Gaëtan
Bwampamye)/Burundi, at Para. 31
--------------------------------------------------------------------------------
84. The African Commission wishes to emphasis that there is nothing in the
African Charter that requires Member States of the African Union to
guarantee for non-nationals an absolute right to enter and/or reside in
their territories. This, however, does not in anyway mean that the African
Charter gives Member States the free hand to unnecessarily and without due
process deal with non-nationals to such an extent that they are denied the
basic guarantees enshrined under the African Charter for the benefit of
everyone. Member States may deny entry to or withdraw residence permits from
non-nationals for various reasons including national security, public policy
or public health. Even in such extreme circumstances as expulsion, however,
the affected individuals should be allowed to challenge the order/decision
to expel them before competent authorities, or have their cases reviewed,
and have access to legal counsel, among others. Such procedural safeguards
aim at making sure that non-nationals enjoy the equal protection of the law
in their country of residence, ensure that their daily lives are not
arbitrarily interfered with, and that they are not sent back/deported/expelled
to countries or places they are likely to suffer from torture, inhuman or
degrading treatment, or death, among others.
For these reasons, the African Commission finds the Respondent State in
violation of Articles 1, 2, 5, 6, 7(1)(a), 12(4), 12(5), 14 and 15 of the
African Charter, but holds that there wasn't enough evidence to establish a
violation of Article 3 of the Charter.
85. In its submission, the Complainant pleads the African Commission to
order the Respondent State to remedy the violations enumerated above by way
of , including but not limited to, replacing the travel and work documents
of the complainants, which were taken from them at the time of their arrest
prior to their expulsion; reinstating the victims to works they had been
lawfully engaged in and paying compensation to the victims as a result of
unlawful mass expulsion; ensuring the restitution of complainants' property
forcibly taken from them at the time of their arrest prior to their
expulsion, providing for compensation to those complainants physically
harmed as a result of their inhumane arrest and detention and clarify and
make the necessary changes in its deportation procedures, such that the
process from arrest through detention and deportation comply with the
provisions of the African Charter on Human and People's Rights.
86. The African Commission recommends that the Respondent State take the
necessary measures to redress the violations enumerated in the preceding
paragraphs, taking into account its obligations under Article 1 of the
African Charter and the exigencies of the situation.
87. The African Commission notes that the present communication is not the
first in which it found similar violations of the human rights of
non-nationals in the context of mass expulsions/deportations by the Republic
of Angola. It, therefore, recommends that the Republic of Angola should:
Ensure that its immigration policies, measures and legislations do not
have the effect of discriminating against persons on the basis of race,
colour, descent, national, ethnic origin, or any other status, and
particularly take into account the vulnerability of women, children and
asylum seekers;
Take measures to ensure that all persons in detention are provided with
proper medical examination and medical treatment and care;
Ensure regular supervision or monitoring of places of detention by
qualified and/or experienced persons or organisations;
Put in place mechanisms allowing all detained persons access to effective
complaint procedures regarding their treatment with a view to curb, in
particular, cases of physical and/or psychological abuse;
Put in place procedural safeguards or clear procedures/policies that
guarantee for all persons deprived of their liberty (nationals and
non-nationals alike) effective access to competent authorities such as
administrative tribunals and courts responsible for prison/detention
oversight and/or review;
Establish a Commission of inquiry to investigate the circumstances under
which the victims were expelled and ensure the payment of adequate
compensation of all those whose rights were violated in the process.
Institute safeguards to ensure that individuals are not deported/expelled
to countries where they might face torture or their lives could be at risk;
Allow representatives of the African Commission, relevant international
organisations, ICRC, NGOs, concerned consulates and others access to
detainees and places of detention, including to those where non-nationals
are held;
Institute human rights training programmes for law enforcement agencies
and relevant civil servants dealing with matters involving non-nationals on
non-discrimination, due process, and the rights of detainees, among others;
The African Commission further requests that the Republic of Angola report
back to it, at a later stage, measures it has taken to implement the
recommendations made in this communication.
Done at the 43rd Ordinary Session in Ezulwini, Kingdom of Swaziland, from 7
- 22 May, 2008. |
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