Movement and residence

Anudo v United Republic of Tanzania (Application No. 012/2015) [2018] AfCHPR 5; (22 March 2018)

The Court considered an application arising from the denial of nationality to and expulsion from the Respondent State of the Applicant, a person who claims citizenship of the Respondent State. Objections to jurisdiction and admissibility were dismissed. The Court held that the Applicant had exhausted all remedies referred to in the relevant immigration legislation and judicial review was not functionally available once he had been expelled.

The Court held that the Applicant had been arbitrarily deprived of his nationality in violation of Art 15(2) of the Universal Declaration of Human Rights. In light of the documentary evidence of nationality and residence provided by the Applicant, and the Respondent State’s failure to carry out a DNA test, the Court found that the Respondent State did not discharge its burden of proof of its claim that the Applicant is not a citizen. The Court held that the Applicant was expelled arbitrarily in violation of Art 12(2) of the African Charter on Human and Peoples' Rights which includes the right to ‘to return to his country’. A State may not, by deporting a person to a third country, prevent that person from returning to his own country. Even if the Applicant had been an illegal alien, when expelling him into Kenya it failed to take the necessary measures to prevent the Applicant from being in a situation of statelessness as required by Art 13 of the ICCPR.  The Court held that the Applicant was deprived of his right to be heard in violation of Art 7 of the Charter and Art 14 of the ICCPR. The relevant Immigration Act purports any decision of the Minister to be final; and in any event judicial review was not functionally available once he had been expelled. The Court ordered the Respondent State to amend its immigration legislation, and to take all necessary steps to restore the Applicant’s rights including return to national territory.

African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent.

Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples' Rights was to be created. The protocol came into effect on 25 January 2005.

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