IHRDA (on behalf of Esmaila Connateh & 13 others) v Angola

Parties (including notable third parties)

Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) (Complainant); Republic of Angola (Respondent)

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Summary of Facts

This case concerned 14 Gambians deported from Angola in 2004, where they had been legally residing and working, and involved alleged capricious arrest and deportation in violation of their human and peoples’ rights. The Complainants alleged they were arbitrarily arrested, detained and deported without any legal protection as part of a government-led campaign to expel foreigners from Angola. They further alleged they were maltreated due to their nationalities and origin, and that Angolan authorities confiscated their official documents (including passports, visa and residence permits) and work authorisations.

They also alleged that money was demanded from some of them, who were seriously beaten when unable to pay. Their detention was alleged to be under conditions not fit for human habitation. This was after they were alleged to have been arrested without arrest warrants, without being given reasons for their arrests and without access to the courts to challenge the reasons for their arrests. It was also alleged that their property was seized and they were not allowed to take it with them on being deported. Overall, it was alleged that the government’s policy was that foreigners were not to engage in mining activities in Angola even where they had work permits and relevant documents to allow them to do so.

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Legal Arguments

Legal Arguments by the Complainant

The Complainantalleged there were a number of violations of the African Charter on Human and Peoples’ Rights (‘African Charter’) by the Respondent.

• Article 3(2) – equal protection of the law: It was argued that the deportees’ right to equal protection of the law was violated by their arrest, detention and deportation.

• Article 5 – respect of dignity, recognition of legal status and prohibition of exploitation and degradation: It was argued that the deportees’ conditions of detention were inhumane and the absence of information about the reasons for, and duration of, their detention constituted mental trauma.

• Article 6 – right to liberty and security of the person, prohibition of arbitrary arrest or detention: It was alleged that the arrest of the deportees was arbitrary, with none of them shown a warrant or any other document relevant to their arrest.

• Article 7(1)(a) – right to have cause heard, including right to appeal against acts violating fundamental rights: It was alleged that the circumstances made it impossible for the deportees to access the courts or other authorities of Angola to question their arrest, detention and deportation.

• Article 12(4) – expulsion of legally admitted non-nationals may only be by decision taken in accordance with the law:It was alleged that the deportees were denied due process before their expulsion. They had been legally in Angola, but their legal documents were confiscated or destroyed by the authorities, and they were not taken before the courts to answer any charges concerning their time in Angola.

• Article 12(5) – prohibition on mass expulsion of non-nationals aimed at national, racial, ethnic or religious groups: It was alleged that in addition to 217 Gambians, tens of thousands of other non-nationals were expelled from Angola in 2004.

• Article 14 – guarantee of right to property: It was alleged that in their arrests, the property of the deportees was confiscated. Further, the abruptness of the arrests forced them to leave behind their property.

• Article 15 – right to work under equitable and satisfactory conditions: It was alleged that while the deportees held the requisite documents allowing them to stay and work in Angola, they were arrested on the ground that they were not permitted to engage in mining activities in Angola.

• Article 2 – enjoyment of rights and freedoms without discrimination of any kind such as race, ethnic group or national origin: It was alleged that the treatment of the deportees was due to them being foreigners, amounting to discrimination.

• Article 1 – recognition and implementation of the other Articles of the African Charter: It was alleged that the Respondent State, in breaching several requirements of the African Charter, breached Article 1.

Outcome

While the Complainant made written submissions on the merits, the Respondent made no submissions despite being given opportunities to do so. In those circumstances, the Commission decided to consider the Complainant’s case. The Commission also considered the ‘exhaustion of local remedies rule’ but noted there were no domestic remedies available to the deportees as the circumstances of their arrest, detention and deportation did not allow them to seek legal advice or approach the authorities to challenge their treatment.

• Article 3(2) – equal protection of the law: The Commission’s view was that the Complainant had not demonstrated that the deportees’ treatment differed from others under the same conditions, so there was no violation.

• Article 5 – respect of dignity, recognition of legal status and prohibition of exploitation and degradation: The Commission considered Article 5 had been violated, noting the Respondent had provided nothing to counter the Complainant’s allegation.

• Article 6 – right to liberty and security of the person, prohibition of arbitrary arrest or detention: The Commission found a violation of Article 6, with nothing submitted by the Respondent and noting that the prohibition extends to arrests and detentions based on grounds of ethnic origin alone.

• Article 7(1)(a) – right to have cause heard, including right to appeal against acts violating fundamental rights: The Commission found that on the facts before it, the Respondent had violated Article 7(1)(a).

• Article 12(4) – expulsion of legally admitted non-nationals may only be by decision taken in accordance with the law: The Commission found a violation of Article 12(4) by the Respondent, in denying the deportees access to remedies under domestic law to at least challenge, if not reverse, their expulsion.

• Article 12(5) – prohibition on mass expulsion of non-nationals aimed at national, racial, ethnic or religious groups: The Commission found the Respondent in violation of Article 12(5), having not advanced any argument to justify its actions, namely that a mass expulsion must comply with the human rights obligations of the African Charter.
• Article 14 – guarantee of right to property: The Commission found the circumstances to have denied the deportees an opportunity to deal with their property. Therefore, the Respondent State had violated Article 14.

• Article 15 – right to work under equitable and satisfactory conditions: In the absence of any submission from the Respondent, the Commission found the abrupt expulsion with no opportunity to challenge it severely compromised the deportees’ right to continue to work in Angola under equitable and satisfactory conditions, in violation of Article 15.

• Article 2 – enjoyment of rights and freedoms without discrimination of any kind such as race, ethnic group or national origin: The Commission found that the deportees were targets of action aimed at deporting non-nationals. A state’s right to regulate the entry, stay and exit of non-nationals is not absolute, with one constraint being a bar on discrimination based on national origin. The Respondent was therefore in violation of Article 2.

• Article 1 – recognition and implementation of the other Articles of the African Charter: The Commission was of the view that the Respondent, in pursuing a course of action which failed to take into account various safeguards of the African Charter, also violated Article 1. The Commission noted that while the African Charter does not require a state to guarantee non-nationals an absolute right to enter and reside, that does not mean a free hand to unnecessarily and without due process deny non-nationals the basic guarantees of the African Charter.

The Commission recommended that the Respondent take the necessary measures to redress the violations of the African Charter and, having regard for previous similar violations: ensure immigration policies, measures and legislation are not discriminatory; ensure detainees are properly cared for; ensure regular supervision of places of detention; put in place mechanisms for complaints by detainees including access to competent authorities for review of their detention; establish an enquiry to investigate the circumstances of the deportations including adequate compensation; institute safeguards against deportation to countries where a deportee could face torture or their life could be at risk; allow access to places of detention for the African Commission and other relevant or concerned bodies; institute human rights training for law enforcement agencies and relevant civil servants on matters involving non-nationals and due process, non-discrimination and detainee rights; report back to the African Commission on implementation of these recommendations.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	African Charter on Human and Peoples’ Rights 1981	Articles 1, 2, 3, 5, 6, 7(1)(a), 12(4), 12(5), 14, 15, 56(5), 60
International	International Covenant on Civil and Political Rights
Regional	European Convention on Human Rights	Fourth Protocol, Seventh Protocol

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Gina Bekker, ‘Mass Expulsion of Foreign Nationals: A ‘Special Violation of Human Rights’ – Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’ (2009)9 African Human Rights Law Journal 262

• On Article 12(5), the prohibition against mass expulsion of non-nationals, the author notes that the Commission had been satisfied of a violation despite the fact the victims had not been singled out and discriminated against specifically on the basis of their nationality as Gambians or their racial, ethnic or religious affiliation, but rather because they formed part of a broader group of non-nationals from West and Central African countries. The author opines that this potentially paved the way for the possibility of categories not specifically mentioned in Article 12(5) being protected under its terms.
• Further, the fact that the expulsions took place over several months but that did not negate the ‘mass’ expulsion aspect in the Commission’s view, is noted as important by the author to prevent a country escaping culpability under Article 12(5) by staggering the expulsions.
• With reference to safeguards on a country’s right to regulate the entry, exit and stay of foreign nationals, the author then noted that the Commission’s views amounted to its first express acknowledgement that Article 12(5) extends to prohibit expulsions in cases where there is a risk of torture.
• The author concludes by expressing concern that the Commission simply required the Respondent to report back to it at a later stage, meaning the progressive recommendations made by the Commission would likely amount to naught.

Matthew C Kane & Susan F Kane, ‘The African Commission on Human and Peoples’ Rights: A Last Resort for Wrongfully Detained or Deported Immigrants and Asylum Seekers in Africa’ (2013) 44 Forced Migration Review 36

• The authors note that while states occasionally implement the Commission’s decisions, they are often simply ignored. This case is the perfect example.

• However, they further note that the Commission’s recommendations provide non-governmental organizations and other states with substantial opportunity to pressure the offending state to comply with human rights norms. They also provide some level of precedential value for future Commission decisions, while contributing to the ever-growing body of international human rights law.

• The authors concluded that while seemingly only lofty ideals today, the human rights norms espoused by the Commission, through its case law and various guidelines, may well become the enforceable principles of tomorrow.