Expelling citizens from their Own Country infringes Article 12(2) of the African Charter on Human and Peoples’ Rights
May 31, 2018
Anudo Ochieng Anudo v. The United Republic of Tanzania
African Court on Human and Peoples’ Rights
Application No. 012/2015
March 22, 2018
Reported by Linda Awuor and Wanjiru Njihia
S. Ore. J, B. Kioko.J, G. Niyungeko.J, E.H. Guisse.J, R. B Achour.J, N.S.O. Mengue.J, M-T. Mukamulisa.J, T.R. Chizuma.J, C. Bensaoula.J
Jurisdiction—material jurisdiction-preliminary examination of the competence of the Court and of admissibility of applications- whether the Court had jurisdiction to hear and determine the matter before it-African Court on Human and People’s Rights Rules of Court, Rule 39(1).
International law-rules of procedure-applications-admissibility of applications-conditions for admissibility of applications- whether the Application was admissible on basis of article 6 of the Protocol and rule 40(5) of the Rules of the Court- African Court on Human and People’s Rights Rules of Court, rule 40(5).
International law-law of treaties-nationality-deprivation of nationality- whether the deprivation of the Applicant’s nationality was arbitrary, contrary to article 15(2) of the Universal Declaration of Human Rights- Universal Declaration of Human Rights, article 15(2.)
International law-applications-conditions for admissibility of applications-timeframe for filing of applications- whether the Application was filed within a reasonable time in conformity with rule 40 (6) of the Rules of the Court- African Court on Human and People’s Rights Rules of Court, rule 40 (6)
The Application related to the withdrawal of nationality and expulsion from the United Republic of Tanzania of the Applicant by the Respondent state. The Applicant was a citizen of the Respondent state and the director general of an NGO named -Tanzania Human for People Rights. He was expelled from the territory by the Tanzanian Immigration services because of corruption.
He alleged that the reason for his expulsion was that he refused to pay the immigration services an amount of money they asked for. After being deported to Kenya, he was declared as being in illegal situation by a High Court of Kenya. He was hiding in a place between the two countries -Tanzania and Kenya. He described himself as living in very difficult conditions. He therefore sued the Tanzania Government.
The Applicant averred that he was expelled illegally, in inhuman, undignified and degrading conditions. He further submitted that he and all his biological parents were Tanzanians by birth. His rights to citizenship as guaranteed by the Tanzanian Constitution and International Law had been violated.
The Applicant prayed the Court to annul the immigration decision to expel him from his own country.
i. Whether the Court had jurisdiction to hear and determine matters on cases and disputes submitted to it concerning interpretation and application of the Charter, the Protocol and any other relevant instrument on human rights ratified by the States concerned.
ii. Whether the Application was admissible on basis of article 6 of the Protocol and rule 40(5) of the Rules of the Court.
iii. Whether the Applicant exhausted the remedies provided by the Tanzanian Immigration Act before going to Court.
iv. Whether the Application was filed within reasonable a time in conformity with rule 40 (6) of the Rules of the Court.
v. Whether the deprivation of the Applicant’s nationality was arbitrary, contrary to article 15(2) of the Universal Declaration of Human Rights.
vi. whether a citizen could be expelled from his own country or prevented from returning to his country contrary to article 12(2) of the African Charter on Human and Peoples’ Rights.
vii. Whether the Applicant’s right as guaranteed under the African charter on Human and peoples’ Rights, the Universal Declaration of Human Rights, the lnternational Covenant on Civil and Political Rights and the lnternational Covenant on Economic, Social and Cultural Rights were violated.
Relevant Provisions of law
African Court on Human and People’s Rights Rules of Court,1998
Rule 39 (1)-Preliminary Examination of the Competence of the Court and of Admissibility of Applications.
1.The Court shall conduct preliminary examination of its jurisdiction and the admissibility of the application in accordance with articles 50 and 56 of the Charter, and Rule 40 of these Rules.
Rule 40(6)-Conditions for admissibility of Applications
Pursuant to the provisions of article 56 of the Charter to which article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions
6. be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter.
Universal Declaration of Human Rights,1948
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
United Nations Human Rights Committee, General Comment No. 27: Article 12- Freedom of Movement
21. In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.
International Covenant on Civil and Political Rights (ICCPR),1966
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
Article 14 (1)
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
United Nations convention relating to the status of stateless persons,1951
For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.
The African Charter on Human and Peoples’ Rights (The Charter),1986
Every individual shall have the right to have his cause heard. This comprises:
1.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;
2.The right to be presumed innocent until proved guilty by a competent court or tribunal;
3.The right to defence, including the right to be defended by counsel of his choice;
4.The right to be tried within a reasonable time by an impartial court or tribunal.
Article 12 (1) & (2)
1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
Tanzanian immigration Law of 1995
Article 10(f)- prohibited immigrants A person whose entry into or continued presence in Tanzania is, in the opinion of the Minister of the Director, undesirable and is declared by the Minister or the Director to be a prohibited immigrant; except that every declaration of the Director under this paragraph shall be subject to confirmation by the Minister, whose decision shall be final.
The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation
1. The Court ruled that it had material jurisdiction to hear the case. It found that the Applicant exercised the remedies provided by the Tanzanian Immigration Act by first seizing the Minister of Home Affairs and lmmigration of the matter. He also sent a letter to the Prime Minister. Beyond these remedies exercised by the Applicant, the Tanzanian Immigration Act was silent on whether or how the Minister’s decision could be challenged in a court of law.
2. The Applicant could not have challenged the Minister’s decision in the High Court by way of judicial review, as at the time the Applicant was not in a position to exercise the said remedy. He had already been expelled from Tanzania and was no longer in the territory of the Respondent state. ln the circumstances, it would have been very difficult for him to exercise the review remedy. The Respondent State’s objection to the admissibility of the Application on grounds of failure to exhaust local remedies was dismissed.
3. Rule 40 (6) of theAfrican Court on Human and People’s Rights Rules of Court (the Rules) which in substance reproduced article 56 (6) of the African Charter on Human and Peoples’ Rights (the Charter) spoke simply of a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it could be seized with the matter. The reasonableness of the period for seizure of the Court depended on the particular circumstances of each case and had to be determined on a case by-case basis. The Applicant did file the instant Application on May 24, 2015, whereas the Minister’s letter in response to his appeal was dated December 3, 2014, thus representing a period of five (s) months and twenty-one (21) days between the two dates. That period was reasonable, considering in particular the fact that the Applicant was outside the country. Therefore, the objection to the admissibility of the Application for non-submission of the same within a reasonable time was dismissed.
4. Compliance with sub-rules 1 ,2,3,4 and 7 of rule 40 of the rules of the Court was not in contention and nothing on record indicated that the requirements of the said sub-rules had not been complied with. The admissibility conditions had been met; and thus, that the instant Application was admissible.
5. The instant Application invoked the violation of three fundamental rights:
(i) the Applicant’s right to nationality and the right not to be arbitrarily deprived of his nationality,
(ii) the right not to be arbitrarily expelled and
(iii) the right to have his cause heard by a court.
The rights of which the Application alleged violation concerned not only the rights above cited, but also other incidental rights.
6. Before the nationality was withdrawn by the Respondent State, the Applicant was considered a Tanzanian national, with all the rights and duties associated with his nationality. It was important to state that the conferring of nationality to any person was the sovereign act of States. The question for the Court to determine was whether the withdrawal of the Applicant’s nationality was arbitrary or whether it conformed with international human rights standards.
7. Neither the Charter nor the International Covenant on Civil and Political Rights (the ICCPR) contained an article that dealt specifically with the right to nationality. However, the Universal Declaration of Human Rights which was recognized as forming part of Customary International Laws provided under article 15 that everyone had the right to a nationality and no one was to be arbitrarily deprived of his nationality. In international law, it was recognized that the granting of nationality fell within the ambit of the sovereignty of States and, consequently, each state determined the conditions for attribution of nationality. The power to deprive a person of his or her nationality had to be exercised in accordance with international standards, to avoid the risk of statelessness.
8. International Law did not allow, save under very exceptional situations, the loss of nationality. The said conditions were:
i) They must have been founded on clear legal basis;
ii) Must have served a legitimate purpose that conformed with international Law;
iii) Must have been proportionate to the interest protected;
iv) Must have installed procedural guaranties which must have been respected, allowing the concerned to defend himself before an independent body.
9. The Applicant maintained that he was of Tanzanian nationality, which was being contested by the Respondent state. ln the circumstance, it was necessary to establish on whom lay the burden of proof. Since the Respondent State was contesting the nationality of the Applicant held since his birth on the basis of legal documents established by the Respondent State itself, the burden was on the Respondent state to prove the contrary. The Applicant had always held Tanzanian nationality with all the related rights and duties and up to the time of his arrest, he had a birth certificate and passport like every other Tanzanian citizen.
10. The Applicant’s citizenship was being challenged 33 years after his birth; that he had used the same citizenship for all those years leading an ordinary life, pursuing his studies in the schools of the Respondent State and in other countries; and that he had always lived and worked, like every other citizen, in the Respondent State’s territory where he had been exercising a known profession.
11. The Respondent State did not contest the Applicant’s parents’ Tanzanian nationality just as it did not prosecute the Applicant for forgery and making use of forged documents with the intent to defraud.
12. In view of the contradictions in the witnesses’ statements about the Applicant’s paternity, the proof would have been a DNA test. A scientific DNA test was what was required and was requested by Achok Anudo, who, until then, claimed to be the Applicant’s father. By refusing to carry out the DNA test requested by the alleged Applicant’s father, the Respondent State missed an opportunity to obtain proof of its claims. It followed that the decision to deprive the Applicant of his Tanzanian nationality was unjustified. The evidence provided by the Respondent State concerning the justification for the withdrawal of the Applicant’s nationality was not convincing, and therefore held in conclusion that the deprivation of the Applicant’s nationality was arbitrary, contrary to article 15(2) of the Universal Declaration of Human Rights.
13. The Applicant alleged the violation of article 12 of the Charter. The relevant portion of the provision which related to the instant matter was article 12(2), in particular, the right to return to his country. The Court had to consider the aspect, notwithstanding the fact that the Applicant left the Respondent State’s territory involuntarily. Having found that the deprivation of the Applicant’s nationality was arbitrary, the question that arose at that juncture was whether a citizen could be expelled from his own country or prevented from returning to his country.
14. There were few circumstances in which a ban on entry into one’s own country would have been reasonable. A state Party could not by deporting a person to a third country, prevent that person from returning to his own country.
15. The Applicant’s expulsion resulted from the arbitrary withdrawal of his nationality by the Respondent State. That procedure was contrary to the requirements of international law which stipulated that a State could not turn its citizen into a foreigner, after depriving him of his nationality for the sole purpose of expelling him.
16. Even if the Respondent State regarded the Applicant as an alien, it was clear that the conditions of his expulsion did not comply with the rule prescribed in article 13 of the ICCPR.
17. The objective of the afore-cited ICCPR article was to protect a foreigner from any form of arbitrary expulsion by providing him with legal guaranties. He should have been able to present his cause before a competent authority and could not in any case have been expelled arbitrarily.
18. The Applicant was deported to Kenya, which, in turn, declared him as being in an irregular situation. That proved that, prior to his expulsion, the Respondent State failed to take the necessary measures to prevent the Applicant from being in a situation of statelessness. As a matter of fact, prior to his expulsion to Kenya, the Respondent State could have satisfied itself that, if the Applicant was not Tanzanian, he was Kenyan.
19. The Applicant’s present situation whereby he was rejected by both Tanzania and Kenya as a national, made him a stateless person as defined by article 1 of the Convention relating to the Status of Stateless Persons.
20. The Applicant had been considered by the Respondent State as a national prior to the withdrawal of his nationality, and therefore he could not be arbitrarily expelled. If it were to be assumed that he was an alien, the Respondent State could still not expel him in the arbitrary manner it did, as that constituted a violation of article 13 of the lCCPR.
21. The African Commission on Human and People’s Rights had held that in matters of deprivation of nationality, the State had the obligation to offer the individual the opportunity to challenge the decision and was of the opinion that the state could conduct a judicial enquiry in the proper form in accordance with national legislation. In matters of immigration, the Tanzanian lmmigration Law of 1995 defining illegal immigrant provided that the decision of the Minister of Home Affairs declaring a person an illegal immigrant had to be final. It followed that, in that case, the Applicant was unable to appeal against the Minister’s administrative decision before a national Court. Even if, in the silence of the aforementioned immigration law, the Applicant had, under a general principle of law, the right to seize a national Court. The fact that he had been arrested and then expelled immediately to Kenya, did not afford him the possibility of exercising such a remedy. Besides, when he later found refuge in the no-man’s land, it was very difficult for him to exercise that remedy.
22. By declaring the Applicant an illegal immigrant thereby denying him Tanzanian nationality, which he had, until then enjoyed, without the possibility of an appeal before a national Court, the Respondent State violated his right to have his cause heard by a judge within the meaning of article 2 (1) (a), (b) and (c) of the lCCPR. The Tanzanian Citizenship Act contained gaps in as much as it did not allow citizens by birth to exercise judicial remedy where their nationality was challenged as required by international law. The Respondent State had the obligation to fill the said gaps.
23. Some of the alleged violations related to the Applicant’s living conditions in the said no man’s land while others concerned the rights which the Applicant would have enjoyed had he not lost his nationality and had he not been expelled from the United Republic of Tanzania. The violation of the aforesaid related rights was a consequence of the major violations. The Court, having established the violation of the right not to be arbitrarily deprived of his nationality, the right not to be arbitrarily expelled from a State and violation of the right to judicial remedy, deferred consideration of the related violations to the stage of consideration of the request for reparation.
24. The Court did not have the power to rule on the requests made by the Applicant in paragraph 122 to annul the decision of the Respondent State to expel him. Parties did not make submissions on other forms of reparation. It would therefore determine the issue at a later stage of the proceedings.
25. Neither of the parties made submissions concerning costs. The Court would decide on the issue of costs when making a ruling on other forms of reparations.
i.The Court dismissed the objection on lack of jurisdiction and held that it had jurisdiction.
ii.The Court dismissed the objection on admissibility and declared the Application to be admissible
iii.The Court declared that the Respondent State arbitrarily deprived the Applicant of his Tanzanian nationality in violation of Article 15(2) of the Universal Declaration of Human Rights. iv.The Court declared that the Respondent State had violated the Applicant’s right not to be expelled arbitrarily;
v.The Court declared that the Respondent State had violated articles 7 of the Charter and 14 of the ICCPR relating to the Applicant’s right to be heard.
vi.The Court ordered the Respondent State to amend its legislation to provide individuals with judicial remedies in the event of dispute over their citizenship.
vii.The Court ordered the Respondent State to take all the necessary steps to restore the Applicant’s rights, by allowing him to return to the national territory, ensure his protection and submit a report to the Court within forty-five (45) days.
viii.The Court Reserved its Ruling on the prayers for other forms of reparation and on costs.
ix.The Court Allowed the Applicant to file his written submissions on other forms of reparation within thirty (30) days from the date of notification of the Judgment, and the Respondent State to file its submissions within thirty (30) days from the date of receipt of the Applicant’s submissions