Kennedy Gihana & Others v Republic of Rwanda

Parties (including notable third parties)

Kayumba Nyamwasa, Kennedy Alfred Nurudiin Gihana, Bamporiki Abdallah Seif, Frank Ntwali, Safari Stanley, Dr Ettienne Mutabazi, and Epimaque Ntamushobora (Applicants); The Republic of Rwanda (Respondent)

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Summary of Facts

The seven Applicants were Rwandan nationals residing in South Africa at the time of filing the application. They discovered that their passports had been unilaterally and without notice invalidated by the Government of Rwanda.

The invalidation came to light when one of the Applicants applied for a visa to the United States and was informed that their name appeared on a government-issued list indicating passport invalidity. The Applicants claimed that none of the affected individuals were notified of the decision or given an opportunity to appeal, raising concerns about the arbitrariness of the action.

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Legal Arguments

Legal arguments by the Applicants

The Applicants allege that the invalidation of their passports by the Respondent State (i) amounted to the arbitrary deprivation of their nationality, (ii) had rendered them stateless and (iii) violated their rights to: freedom of movement, political participation, citizenship, liberty, family life and work.

In respect of the requirement to exhaust domestic remedies, the Applicants that the judiciary of Rwanda was not independent and could not be expected to discharge justice as required by law, and that local remedies were not effective and practical in this matter, particularly because the annulment of their passports directly prevented them from accessing such remedies.

The Applicants requested the Court to issue interim measures against the Respondent State ordering the immediate reinstatement of their passports, to order the Respondent to compensate them, and to grant any other relief the Court deemed appropriate.

Arguments by the Respondent

The Respondent raised several preliminary objections. It contended that two of the Applicants who had convictions on genocide and terrorism-related charges should not be given locus standi (standing) before the Court.

The Respondent further argued that the application for interim measures could not stand alone without a principal application, and that it was defective in substance, as granting the relief would leave no case to be argued on the merits.

The Respondent also argued that the allegations made by the Applicants were incompatible with the Constitutive Act of the African Union, given the Act’s principles of respect for the sanctity of human life, and its condemnation of impunity, political assassination, acts of terrorism, and subversive activities.

The Respondent maintained that the Applicants’ allegations were vague, did not constitute a prima facie case, and used disparaging and insulting language against Rwandan courts and judges contrary to Rule 40(3) of the Rules of the Court.

Finally, it submitted that the Applicants had failed to exhaust local remedies as required by Article 56(5) of the African Charter and Rule 40(5) of the Court Rules.

Outcome

On Whether the Revocation of the Passports was Arbitrary

In assessing whether the revocation of the passports was arbitrary, the Court considered that a revocation must be based on a clear legal basis, serve a legitimate purpose in conformity with international law, be proportionate, and respect procedural guarantees allowing the concerned individuals to challenge the decision before an independent body. While Article 34 of the 2011 Rwandan Immigration and Emigration Law allowed passports to be withdrawn if used ‘in an inappropriate manner’, the Respondent State failed to demonstrate that this criterion was met or that the revocation complied with international standards, including Article 12(2) of the African Charter on Human and Peoples’ Rights (‘the African Charter’) and Articles 12(2) and (3) of the International Covenant on Civil and Political Rights (‘ICCPR’), which protect the right to freedom of movement subject only to lawful and necessary restrictions. Considering that the State alone had access to relevant records, the burden of proof shifted to the Respondent to demonstrate that the above requirements were met. The Court noted that the Respondent did not respond to the Applicants’ allegations or provide any explanation for the invalidation of their passports, making the revocation of the passports arbitrary.

On Whether the Revocation of the Passports Amounted to a Revocation of Nationality

The Court observed that a passport is issued because one is a national and serves as both a travel and identification document, noting the presumption that ‘when one carries a passport of a specific state, he or she is a national of that state and it is incumbent upon the entity claiming otherwise to rebut this presumption’ (paragraph 95). The Court further noted that for persons living abroad, a passport is ‘their main identification document’, and that not having a valid passport exposes them to difficulties in employment, residence permits, education, health services, and restrictions on travel (paragraph 97).

However, the Court concluded that the revocation of the Applicants’ passports did not amount to deprivation of nationality, as they remained registered Rwandan nationals, but it impeded the full and effective enjoyment of their civic and citizenship rights, causing ‘emotional anguish and despair, occasioning them moral prejudice’ (paragraph 134). The Court therefore awarded each Applicant compensation for moral prejudice and ordered the reinstatement of their passports within three months as restitution.

On Whether the Applicants were Rendered Stateless

The Applicants alleged that they were rendered stateless following the revocation of their passports. On this question, the Court determined that the Applicants had not been deprived of their nationality and were still Rwandan nationals. As such, this claim was dismissed.

On Allegations relating to Violations of Other Human Rights

On the right to freedom of movement, the Court found that by arbitrarily revoking the Applicants’ passports, the Respondent State prevented them from returning to their country and travelling to other countries and thus exercising their right to freedom of movement as provided under Article 12(2) of the African Charter.

With respect to political participation, the Court noted that Article 13(1) rights are primarily exercised within the territory of the State, and the arbitrary revocation of passports ‘prevented them from returning to the Respondent State, severely restricting their right to freely participate in the government of their country’ (paragraph 114).

The Applicants’ claims regarding the right to liberty under Article 6 were dismissed because they were general and unsupported by evidence. Allegations of violations of the right to family life under Article 18(1) and the right to work under Article 15 were also dismissed, as the Applicants did not demonstrate how the Respondent’s actions had adversely affected their families or employment opportunities.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant for Civil and Political Rights	Article 12(2) and (3)
Regional	African Charter on Human and Peoples’ Rights (1981)	Articles 6, 12, 13, 18, and 56
Regional	Protocol to the African Charter on Human and Peoples' Rights	Article 3, 34(6), 5(3), 6(2)
Regional	Constitutive Act of the African Union	Article 4
Domestic	Law on Immigration and Emigration in Rwanda	Article 34

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Tshegofatso Mothapo, 'Kennedy Gihana & Others v Republic of Rwanda, Application No 017/2015' (2020) 2(2) The Statelessness & Citizenship Review 331

• The author comments that this case reinforces and consolidates principles established in the Court's earlier decisions in Anudo Ochieng Anudo v United Republic of Tanzania and Robert John Penessis v United Republic of Tanzania, particularly regarding the burden of proof resting with the state in nationality-related matters due to its superior access to records and resources, and affirms that the key issue is entitlement to citizenship rather than possession of supporting documents.
• This case note observes that while the Court found the revocation of passports did not amount to deprivation of nationality or render the applicants stateless because they remained registered as Rwandan nationals, the author emphasises the significance of registration in such cases. As the author states in the conclusion: "this case confirms the importance of civil registration in proving one’s nationality. Had the applicants not been registered, the ruling might very well have had a different outcome.’ (page 337).