Anudo Ochieng Anudo v United Republic of Tanzania

Parties (including notable third parties)

Anudo Ochieng Anudo (The Applicant); The United Republic of Tanzania (The Respondent)

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Summary of Facts

This application relates to the withdrawal of nationality and expulsion from the United Republic of Tanzania.

The Applicant, Anudo Ochieng Anudo, was forced to live in ‘no-man’s land’ on the border between Tanzania and Kenya, as neither country recognized him as a citizen. Previously, he lived his entire life as a citizen of Tanzania, where he was born and held a birth-certificate and a passport. When he applied for a marriage license, the authorities accused Anudo of misrepresenting his identity, confiscated his personal documentation including his passport, and expelled him from Tanzania to Kenya, where he was promptly arrested and convicted of being in the country illegally. He could not bring a challenge to the courts in Tanzania, even though it is unconstitutional to strip nationality from citizens from birth. Kenya did not recognize him as a citizen. Mr. Anudo challenged Tanzania’s actions under the African Charter on Human and Peoples’ Rights and international law, which prohibit arbitrary deprivation of nationality.

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Legal Arguments

Legal Arguments by the Applicant

The Applicant alleged that the confiscation of his passport, the illegal immigrant status and the expulsion from the United Republic of Tanzania deprived him of his right to Tanzanian nationality, guaranteed and protected under Articles 15(1) and 17 of the Tanzanian Constitution and Article 15(2) of the Universal Declaration of Human Rights.

The Applicant also alleged that by depriving him of his Tanzanian nationality and expelling him to Kenya, the Respondent violated a number of his fundamental rights, including the right to freedom of movement and residence in his own country, the right to liberty and security of the person, and the right to enjoy the best attainable state of physical and mental health.

The Applicant argued that he was a Tanzanian by birth, and held a valid Tanzanian birth certificate and voter’s card.

The Applicant alleged that the decision declaring him a ‘prohibited immigrant’ was ill-motivated because his arrest and detention was unfounded, and he was deported to Kenya without any possibility for his to challenge the ‘prohibited immigrant’ notice.

The Applicant also contended that his father requested a DNA test to ascertain his parental connection, but the United Republic of Tanzania refused.

The Applicant also noted that by depriving him of his nationality and deporting him, the Respondent violated several of his rights, including the right to access the competent national courts. It was argued that the Respondent consequently condemned the Applicant without giving him the opportunity to be heard and defend himself.

He further argued he was not arraigned before a court in accordance with Section 30 of the Immigration Act. It was argued that the Applicant was deprived of the opportunity to defend himself and the Respondent had thus failed in its protection duty.

The Applicant also alleged a series of further violations of his rights, and that these violations resulted from the unlawful deprivation of his nationality and his expulsion from Tanzanian territory, particularly from the fact that he found himself in a position of ‘statelessness’.

The Applicant sought the following relief:

(i) an order that the immigration authorities’ decision to expel him from Tanzania be declared null and void;

(ii) the ‘prohibited immigrant notice’ issued against him be cancelled and his nationality reinstated declaring him a citizen of the United Republic of Tanzania;

(iii) he be allowed to enter and stay in the United Republic of Tanzania;

(iv) he be protected by the United Republic of Tanzania from victimisation on account of this case; and

(v) immigration law be reformed to guarantee the right to a fair trial before taking any decision that may deprive a person of their fundamental right.

Legal Arguments by the Respondent

The Respondent contended that the Applicant’s passport and birth certificate were obtained on the basis of false documents. The Respondent also submitted that in light of the discrepancies between the questionnaire completed by the Applicant at the Immigration Office and the statements obtained during the Immigration Department’s own investigations, the authorities concluded that the Applicant was not a citizen of the United Republic of Tanzania.

The Respondent also contended that the Minister of Home Affairs is the competent authority, and the Applicant could have brought the matter to his attention to lift the ban and authorise the return to the country. The Respondent also argued that the Applicant had the possibility of challenging the Minister’s decision before the High Court, but chose not to do so.

The Respondent sought:

(i) a declaration that there is no jurisdiction to adjudicate the application;

(ii) a declaration that the Application is inadmissible on the grounds that it had not met the Rules of the Court;

(iii) a declaration that the Respondent had not violated the Applicant’s rights to personal freedom and the right to life;

(iv) a declaration that the allegations of corruption are false;

(v) that the Application be dismissed for lack of merit; and

(vi) the Respondent be granted leave to file additional evidence.

Outcome

The Court noted that the application invoked the violation of three fundamental rights (in addition to other incidental rights):

(i) the rights under Article 15 of the Universal Declaration of Human Rights to nationality and not to be arbitrarily deprived of nationality;

(ii) the right under Article 13 of the International Covenant on Civil and Political Rights (‘ICCPR’) not to be arbitrarily expelled; and

(iii) the right under Article 7 of the African Charter and Article 14 of the ICCPR to have his case heard by a court.

The Court noted several relevant factors, including that: the Applicant had always held Tanzanian nationality up to the time of his arrest; there were some inconsistencies in the documents as to his father's name; both of the Applicant's parents testified as to his parentage and his father requested a DNA test; other village residents affirmed in writing that the Applicant was Tanzanian; the Applicant's uncle asserted that the Applicant's mother was a citizen of Kenya; the Applicant's citizenship was being challenged 33 years after his birth; and the Respondent did not contest the Applicant's parents' Tanzanian nationality and was not prosecuting the forgery of the citizenship documents.

The Court further noted that the Applicant alleged violation of Article 12 of the African Charter on Human and Peoples’ Right (‘African Charter’), which provided for freedom of movement and residence, and the right to leave and return to one's country. The Court considered that the UN Human Rights Committee had found that 'there are few circumstances in which a ban on entry into one's own country may be reasonable' (paragraph 98).

The Court noted that the Applicant’s expulsion resulted from the arbitrary withdrawal of his nationality, and that international law stipulated that a State could not turn its citizen into a foreigner. Even if the Respondent did regard the Applicant as an alien, the conditions of his expulsion did not comply with Article 13 of the ICCPR, which was intended to protect a foreigner from arbitrary expulsion by providing legal guarantees.

The Court noted that the Applicant’s 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. The Court further noted that Article 7 of the African Charter and Article 14 of the ICCPR provided for the right to have one's cause heard and equality before courts, and that the African Commission on Human and Peoples' Rights had held that States had the obligation to offer individuals the opportunity to challenge deprivation of nationality.

The Court considered that, under the Tanzanian Immigration Law of 1995, the decision of the Minister of Home Affairs declaring a person an ‘illegal immigrant’ was final, and accordingly the Applicant was unable to appeal before a national court. The Court therefore had to determine whether the withdrawal of the Applicant's nationality was arbitrary or conformed with international human rights standards.

At the outset, the Court determined that since the Respondent was contesting the Applicant’s nationality held since birth on the basis of legal documents established by the Respondent itself, the burden rested with the Respondent to prove the contrary. If a person has ever held officially issued identity documents recognising him or her as a citizen of that country, the burden of proof shifts to the state to show that the person is not a citizen.

The Court noted that while neither the African Charter nor the ICCPR contained an article specifically dealing with the right to nationality, the Universal Declaration of Human Rights provided under Article 15 that 'Everyone has the right to a nationality' and 'No one shall be arbitrarily deprived of their nationality.'

The Court considered both that:

(i) the granting of nationality fell within the ambit of the sovereignty of States; and

(ii) the power to deprive a person of his or her nationality had to be exercised in accordance with international standards.

The Court considered that by refusing to carry out the requested DNA test, the Respondent missed the opportunity to obtain proof of its claims. The Court further found that the evidence provided by the Respondent concerning the justification for the withdrawal was not convincing and concluded that the deprivation of the Applicant's nationality was arbitrary and contrary to Article 15(2) of the Universal Declaration of Human Rights.

Having found that the deprivation of the Applicant’s nationality was arbitrary, the Court held that the Applicant could not be arbitrarily expelled from his own country. Even if the Applicant were regarded as an alien, the Respondent could not have expelled him in the arbitrary manner it did. The Court therefore concluded that the manner of the Applicant's expulsion was in violation of Article 13 of the ICCPR.

The Court also held that, notwithstanding the Tanzanian Immigration Law, the Applicant had the right to access to a national court, but his arrest and expulsion did not afford him the possibility of exercising such a remedy. The Court ultimately found that, by declaring the Applicant an ‘illegal immigrant’ and denying him Tanzanian nationality, the Respondent violated his right to have his case heard under Article 7(1)(a), (b) and (c) of the African Charter.

The Court ultimately made the following orders as to the merits of the Application:

(i) 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;

(ii) declared that the Respondent State had violated the Applicant's right not to be expelled arbitrarily;

(iii) 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;

(iv) ordered the Respondent State to amend its legislation to provide individuals with judicial remedies in the event of dispute over their citizenship;

(v) 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.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Tanzanian Constitution	Article 15(1), 15(2)(a), (17)
International	Universal Declaration of Human Rights	Article 15(2)
Regional	African Charter on Human and Peoples Rights	Article 6, 7(a)-(b), 12, 13(1)-(2), 15, 16, 17(2), 18, 50, 56
International	International Covenant on Civil and Political Rights	Article 7, 13, 14, 15, 25(1)-(2), 23
International	International Covenant on Economic, Social and Cultural Rights	Article 6, 9(1), 11, 15 , 25(2)
Domestic	Immigration Act (Tanzania, 1995)	Section 10(f)
International	Convention relating to the Status of Stateless Persons	Article 1

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Bronwen Manby, ‘Anudo Ochieng Anudo v Tanzania (Judgment) (African Court on Human and Peoples’ Rights, APP NO 012/2015, 22 March 2018)’, (2019) 1(1) Statelessness and Citizenship Review 170

• The author notes this was the first case decided by the African Court on Human and Peoples’ Rights that considered the right to a nationality.
• The author observes that the most important part of the judgment may have been the conclusion by the Court that, in circumstances where a person has previously been issued documents recognising nationality, the burden of proof falls on the State to prove that the Applicant was not a national.
• The question as to whether or not the Applicant was made stateless was not foundational to the African Court’s reasons for finding Tanzania in breach of its obligations, which were rather based on respect for due process more generally.
• The author suggests the number of cases brought to the African Commission reflects the fact that contested rights to belong to the national community have been the basis of many political and military conflicts in the continent.
• The author points out that the African Court did not endorse ‘the now established position of the African Commission that “a claim to citizenship or nationality as a legal status is protected under Article 5 of the Charter”’ (page 175), adding that the Court thus ‘missed an important opportunity to read the right to a nationality into the ACHPR itself’ (page 175).

Amanda Brown, ‘Globalising Anudo v Tanzania: Applying the African Court’s Arbitrariness Test to the UK’s Denationalisation of Shamima Begum’ (2020) 18(1) UCLA Journal of Islamic and Near Eastern Law 129

• The author observes that the Court applied an arbitrariness test based on an interpretation of the UDHR to determine whether or not Tanzania had arbitrarily deprived the petitioner of his nationality.
• The author suggests Anudo case can be used as an analytical framework under which other deprivation cases can be scrutinized.
• The author argues that applying the Anudo arbitrariness test reveals the illegality of other instances of denationalisation under international legal standards, and is likely to yield the same results when applied to other denationalisation cases that are conducted for the purported aim of national security, adding ‘It follows that it will be extremely difficult for a state to satisfy all four of the required elements of the Anudo test for nonarbitrary deprivation’ (page 170).